Md. Shamezuddin and others Vs. Md. Nowsher Ali Fakir and others, 2016(1) LNJ (AD) 16

Case No: Civil Appeal No. 23 of 2006

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Md. Awlad Ali,Mr. Subrata Saha,,

Citation: 2016(1) LNJ (AD) 16

Case Year: 2016

Appellant: Md. Shamezuddin and others

Respondent: Md. Nowsher Ali Fakir and others

Subject: Revisional Jurisdiction,

Delivery Date: 2015-02-12

APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, CJ,
Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J
Hasan Foez Siddique, J
 
Judgment on
12.02.2015
 
Md. Shamezuddin and others
... Appellants
Versus
Md. Nowsher Ali Fakir and others
...Respondents
 
 
Code of Civil Procedure (V of 1908)
Section 115
When the High Court Division, in exercising its revisional jurisdiction, concurs with the findings and decision made by the appellate court below it (High Court Division) may not make elaborate discussion of the evidence on record, but even then also it must give reasonings of its concurring with the findings and decision of the appellate court below. In the present case the High Court Division set aside the judgment and decree of the appellate court below without making any discussion of the evidence on record and without giving any reasoning at all of doing so. We, with high dissatisfaction, deprecate writing of this sort of judgments by the High Court Division.…(13)
 
For the Appellants: Mr. Subrata Saha, Advocate instructed by Mr. Md. Abu Siddique, Advocate-on-Record.

For Respondent Nos. 1-3 : Mr. Awlad Ali, Senior Advocate instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record.
 
CIVIL APPEAL No. 23 of 2006
 
JUDGMENT
Nazmun Ara Sultana, J:
 
This Civil Appeal, by leave, is directed against the judgment and decree dated 10.03.2004 passed by the High Court Division in Civil Revision No.2622 of 1995 making the rule absolute.
 
The present appellants, as plaintiffs, instituted Other Class Suit No.123 of 1985 in the Court of the learned Subordinate Judge, Jamalpur for declaration of their title in the suit land. Their case, in short, is that the suit land comprising 1.80 acres out of total 2.87 acres of R.O.R. Khatian Nos.23, 25 and 26 and C.S. Khatian No.20 of Sheikh Shadi mouza, P.S.-Melandha, District-Jamalpur along with other land belonged to Bebuillah Sheikh-the predecessor of the plaintiffs and Nabu Sheikh, Vadu Sheikh and Gendi and C.S. khatian was accordingly published. That Babuillah Sheikh died leaving 2 sons Nabu Sheikh and Vadu Sheikh and daughter Gendi as his heirs. Thereafter, Gendi died leaving brothers Nabu Sheikh and Vadu Sheikh. Nabu Sheikh and Vedu Sheikh were in possession of entire 2.87 acres of land. Nabu Sheikh died leaving behind daughter plaintiff No.1, son Ayub Ali-predecessor of plaintiff Nos.2 to 8 and another son named Najimuddin-predecessor of the plaintiff Nos.9 to 14. Vadu Sheikh died leaving behind 3 daughters and 3 sons, the plaintiff Nos.15 to 19 and Salimuddin who died leaving behind plaintiff Nos.20 to 26 as his heirs. Thus the plaintiffs inherited the suit property and enjoyed the suit property continuously for more than 12 years. In suit plot Nos.384 and 386 the plaintiffs have their homestead and have been residing therein with their families. The plaintiffs have been possessing other lands in ejmali through cultivation. That during R.O.R. operation the suit property was wrongly recorded and only 1.07 acres of land out of total 2.87 acres of land was recorded in Khatian No.24 in the name of the predecessor of the plaintiffs and the suit land comprising 1.80 acres of land was erroneously recorded in the name of the defendants and thereby a cloud being created the plaintiffs instituted the suit for declaration of their title.
 
The defendant Nos.1, 2 and 8 contested the suit by filing written statement. The material case of these defendants is that the entire 2.87 acres of land of the suit plots was made khas by the owners as the previous tenants defaulted in payment of rent and thereafter the said land was settled afresh in the name of different persons and the predecessor of the plaintiffs got settlement of 1.07 acres of land out of the suit plots and creating a new holding they paid rents for the same. That out of remaining 1.80 acres of land Bhajan Ali took settlement of .60 acre and possessed the same peacefully and after the death of Bhajan Ali his 3 sons, named, Azam, Miar and Nizam Ali owned that property. That Azam Ali sold his share to Hossain Ali. Miaruddin died leaving heirs. The R.S. Khatian was duly prepared in their names. That Yakub Ali took settlement of .60 acre of land and the record of right was duly prepared in his name. Yakub Ali died leaving Abdul Gafur and others as his heirs. Abdul Gafur subsequently died leaving defendant No.1 Nowsher Ali and others as his. Nowsher Ali purchased .7½ acre of land by registered kabala dated 01.03.1973 from Kaser. Nazer Ali sold his share to defendant No.1 Nowsher Ali and others by registered kabala dated 25.03.1975. Hafizuddin and others also sold their share to defendant No.1 Nowsher Ali and others. Haji Fakir sold .08 acre of land to Suruj Ali-the defendant No.2. That Hossain Ali Fakir took settlement of the remaining .60 acre of land and possessed the same. After the death of Hossain Ali Fakir his heirs Newaz and others possessed that land. That Ayuzuddin-son of Hossain Ali sold some land to Jamaluddin. Ahej Ali and others sold some land to Sahar Fakir-the defendant No.8. Thus these defendants have acquired the suit land and have been possessing the same. That the plaintiffs have filed this suit on false claim and as such it is liable to be dismissed.
 
The trial court, on consideration of the evidence adduced by both the parties, dismissed the suit by the judgment and decree dated 31.07.1993 making observation to the effect that though the plaintiffs have proved their title in the suit land, but they could not prove their possession in the suit land and that the suit is also barred by limitation. Against this judgment and decree of the trial court the plaintiffs preferred Other Appeal No.53 of 1993 before the learned District Judge, Jamalpur who, by the judgment and order dated 29.03.1995, allowed that appeal and set aside the judgment and decree of the trial court and decreed the suit declaring plaintiffs’ title in the suit land. The appellate court found that the plaintiffs had both title and possession in the suit land and the suit was not barred by limitation. Against this judgment and decree of the appellate court below the contesting  defendants preferred the above mentioned Civil Revision No.2622 of 1995 before the High Court Division and obtained rule. A Division Bench of the High Court Division, after hearing both the parties, made that rule absolute by setting aside the judgment and decree of the appellate court below and restoring those of the trial court by the impugned judgment and order. The High Court Division made observations to the effect that the plaintiffs could not prove their possession in the entire suit land and that the suit was barred by limitation.
 
Being aggrieved by this judgment and order of the High Court Division the plaintiffs preferred Civil Petition for Leave to Appeal No.508 of 2004 before this Division. This Division granted leave to consider the submissions of the learned Advocate-on-Record for the plaintiff-leave-petitioners to the effect that in this suit the evidence adduced by the plaintiffs proved sufficiently that the plaintiffs came to know about the wrong recording of the suit land in the record of right on 17.10.1985 only when they went to pay rent and there being no evidence to the contrary, the High Court Division erred in law without discussing and considering the evidence of the P.Ws. in holding that by the evidence it has not been substantiated on what date the plaintiffs went to pay rent; that the High Court Division without discussing and considering the evidence on record has wrongly and illegally found that the plaintiffs could not prove their possession in the suit property while the appellate court below has elaborately and exhaustively discussed and considered the evidence on record and found that the plaintiffs are in possession of the suit land.
 
Mr. Subrata Saha, the learned Advocate for the appellants has made submissions before us to the effect that in this suit both the trial court and the appellate court below, considering the facts, circumstances and the evidence on record, found that the plaintiffs have title in the suit land; that the trial court though found that the plaintiffs could not prove their possession in the suit land, but the appellate court below, on proper appreciation of the evidence adduced by both the parties, rightly found that the plaintiffs have been able to prove their possession in the suit land; but the High Court Division most arbitrarily and abruptly, without making any discussion of any evidence at all and without controverting the findings and decision of the appellate court below and also the trial court made observations to the effect that the plaintiffs could not prove their title and also possession in the suit land. The learned Advocate for the appellants has argued that the High Court Division committed wrong and also great injustice in making the above observation without making any discussion at all and without reversing the clear findings and decision of the appellate court below as to title and possession of the plaintiffs in the suit land and the clear decision of the trial court also as to title of the plaintiffs in the suit land. The learned Advocate has argued also that in this suit it is rather an admitted fact that the plaintiffs’ predecessors were the original owners of the suit land and the suit land was duly recorded in the C.S. khatian in the name of the plaintiffs’ predecessors; that the contesting defendants though have alleged that the predecessors of the plaintiffs defaulted in payment of rent and as such the original landlords took back the suit land from them and subsequently they settled the same with different persons including the predecessors-in-interest of the plaintiffs and the predecessors-in-interest of the defendants, but this defence case has not been substantiated at all by any sort of evidence; that both the trial court and the appellate court below, therefore, rightly found plaintiffs’ title in the suit land, but the High Court Division, ignoring this fact that the defendants could not adduce any evidence whatsoever before court to prove their defence case, most unreasonably and unjustly opined that the plaintiffs could not prove their title also in the suit land. The learned Advocate for the plaintiff-appellants have made submissions to the effect also that this suit is not barred by limitation also as the plaintiffs have proved by sufficient evidence that they knew about the wrong recording of the suit land on 17.10.1985 only and thereafter they filed this suit within a short time; that the appellate court below, on thorough examination and consideration of the evidence adduced by both the parties rightly found that the plaintiffs filed the suit for declaration of their title within the statutory period of limitation and as such the suit is not barred by limitation.
 
Mr. Awlad Ali, the learned Senior Advocate for the defendant-respondents has made submissions supporting the impugned judgment and order of the High Court Division. The learned Senior Advocate has argued that the High Court Division though did not make elaborate discussion in the impugned judgment, but it examined and considered the evidence on record thoroughly and found rightly that the plaintiffs failed to prove their title and possession in the suit land and the suit is also barred by limitation. The learned Senior Advocate has contended that the findings and decision of the High Court Division being correct this appeal is liable to be dismissed.
 
We have considered the submissions of the learned Counsel of both the sides and gone through the impugned judgment and order of the High Court Division, those of the appellate court below and the trial court and also the evidence on record.
 
In this suit it is not disputed, rather admitted that the suit land originally belonged to the predecessors of the plaintiffs. In the C.S. khatian also the suit land was recorded in the name of the predecessors of the plaintiffs. The plaintiffs have claimed that they have acquired the suit land by way of inheritance from their predecessors-the recorded owners of the land and have been possessing the same peacefully for more than 12 years. The contesting defendants though have pleaded a case to the effect that since the original tenants of the suit land defaulted in payment of rent the landlords took the entire 2.87 acres of land of the suit plots under their khas possession and subsequently the landlords settled those lands afresh with different persons including the predecessors of the plaintiffs and also the predecessors of the defendants, but this case of the defendants has not been substantiated at all by any evidence. Both the trial court and the appellate court below, on consideration of the facts and circumstances and the evidence on record disbelieved this case of the contesting defendants and found  plaintiffs’ tile in the suit land. The trial court in his judgment made specific observation to the effect that the contesting defendants could not prove their alleged title in the suit land rather the plaintiffs have got title in the suit land. Against this clear observations and findings of the trial court the contesting defendants did not prefer any appeal or cross appeal. However, considering the evidence on record and the facts and circumstances we also, in agreement with the trial court and also the appellate court below, find that in this suit it has been well proved that the plaintiffs have title in the suit land.
 
As regards possession the trial court though found that the plaintiffs could not prove their possession in the suit land, but the appellate court below, on thorough examination and consideration of the evidence adduced by both the parties, found that the plaintiffs proved their possession also in the suit land. The High Court Division without discussing any evidence of any of the parties at all and without adverting to the findings and decision of the appellate court below and reversing those, and without giving any reasoning even of its own most arbitrarily made observation to the effect that the plaintiffs could not prove their possession in the entire suit property. However, we have examined the evidence adduced by both the parties.
 
It appears that in this suit the plaintiffs have examined 4 witnesses while the defendants have examined 3 witnesses. The P.W.1 is the plaintiff No.2 himself. This witness has deposed fully corroborating the plaintiffs’ case and has asserted also that the plaintiffs are in possession of the entire suit land. The P.W.2 has deposed supporting the plaintiffs’ possession in the suit land. The P.W.3 also has deposed supporting the plaintiffs’ possession in the suit land and has denied the defendants’ possession in the suit land. The P.W.4 also has deposed stating that the plaintiffs have been possessing the suit land and that the defendants do not possess the suit land. On the otherhand the witnesses of the defendants’ side, namely, the D.Ws. 2 and 3 though in their examination-in-chief has stated that the defendants are in possession of the suit land, but in course of cross-examination the D.W.2 has stated that at present the defendants do not possess the suit land and the D.W.3 has stated that at present none of the parties possessed the suit land. The above evidence of both the contesting parties coupled with the facts that the plaintiffs are the heirs of the admitted original owners of the suit land and there is no evidence to prove that plaintiffs’ predecessors’ title in the suit land was extinguished-prove sufficiently that the plaintiffs are in possession of the suit land. The appellate court below on thorough analysis and consideration of the evidence adduced by both the parties and the facts and circumstances rightly found that the plaintiffs have been possessing the suit land.
 
The trial court though found that this suit, being not filed within 6 years from the date of the plaintiffs’ knowledge about recording of the suit land in the name of the defendants, is barred by limitation, but the appellate court below, on careful examination of evidence on record, found that the plaintiffs have proved sufficiently that they could know about the wrong recording of the suit land in the names of the defendants on 17.10.1985 only and as such this suit filed within 6 years from 17.10.1985 is not barred by limitation. The appellate court below made observations to the effect also that there is no evidence at all on record to prove that the plaintiffs had knowledge about the wrong recording of the suit land in the name of the defendants before 17.10.1985 and in the circumstances there was no reason not to believe the plaintiffs assertion that they could know about wrong recording of the suit land only on 17.10.1985. We have also examined the evidence on record and found no reason to disagree with these findings and decision of the appellate court below the plaintiffs have title in the suit land and they have also proved their possession in the suit land. The plaintiffs have adduced evidence to prove that they could know about the wrong recording of the suit land on 17.10.1985 only. There is no evidence on record to prove that the plaintiffs had knowledge about the wrong recording of the suit land before 17.10.1985. In the circumstances the appellate court below rightly found this suit for declaration of title not barred by limitation.
 
Before drawing the end we like to make some comments about the impugned judgment of the High Court Division. It has already been pointed out above that the High Court Division, without making any discussion of any evidence at all and without adverting to the findings and decision and the reasoning thereof made by the appellate court below, set aside the judgment and decree of the appellate court below-the last court of fact. The High Court Division did not bother even to make any reasoning as to why it set aside the judgment of the appellate court below. When the High Court Division, in exercising its revisional jurisdiction, concurs with the findings and decision made by the appellate court below it (High Court Division) may not make elaborate discussion of the evidence on record, but even then also it must give reasonings of its concurring with the findings and decision of the appellate court below. In the present case the High Court Division set aside the judgment and decree of the appellate court below without making any discussion of the evidence on record and without giving any reasoning at all of doing so. We, with high dissatisfaction, deprecate writing of this sort of judgments by the High Court Division.
 
However, from the above discussion it is evident that this appeal deserves to be allowed.
 
Hence it is Ordered

            That the appeal be allowed with cost. The impugned judgment of the High Court Division be set aside and the judgment and decree of the appellate court below be upheld.
 
Ed.