Mizanur Rahman Vs. Syed Akter Hossain and others, 3 LNJ (2014) 200

Case No: F. A. No. 50 of 2008 with Civil Rule No. 697(F) of 2007

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. A. J. Mohammad Ali,Mr. A. K. M. Salauddin Kabir,,

Citation: 3 LNJ (2014) 200

Appellant: Mizanur Rahman

Respondent: Syed Akter Hossain and others

Subject: Land Law,

Delivery Date: 2011-10-25


HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Sharif Uddin Chaklader, J.
And
A. K. M. Zahirul Hoque, J.


Judgment on
25.10.2011
  Mizanur Rahman
... Appellant.
Vs.
Syed Akter Hossain and others
. . .Respondents.
 
State Acquisition and Tenancy Act (XXVIII of 1950)
Section 144A
Evidence Act (I of 1872)
Section 13
It appears that Omar Ali got 51 decimals of land of suit plot alone through amicable partition amongst his brothers before 1970 i.e. before R. S. operation and accordingly R. S. Record was prepared and since R. S. Record was acted upon the deed dated 26.10.1978 by Omar Ali and subsequent deeds in favour of plaintiffs were well acted upon for the suit land. . . . (22)

Mr. A. J. Mohammad Ali, Senior Adv.
….For the appellant

Mr. A. K. M. Salauddin Kabir, Adv.
 ….For the respondents

F. A. No. 50 of 2008 with Civil Rule No. 697(F) of 2007

JUDGMENT
A. K. M. Zahirul Hoque, J.
 
This First Appeal is directed at the instance of the defendant against the judgment and decree dated 27.09.2007 passed by the learned Joint District Judge, 2nd Court, Dhaka decreeing the Title Suit No. 2 of 2007 against the defendant No. 13.

The respondent Nos. 1-9 as the plaintiffs instituted the Title Suit No. 2 of 2007 before the learned Joint District Judge, 2nd Court, Dhaka for declaration of title in respect of .55 decimals of land as well as also declaration that no title was passed in pursuance of Deed No. 8686 dated 22.10.1990 in favour of the defendant.

The plaintiffs case, in short, is that the land as described in Ka schedule along with other land originally belonged to Kobbat Ali, Sadat Ali, Emdad Ali and Mohammad Ali and their names have been recorded the C. S. Khatian No. 1504 by mentioning 320 decimals of land in 3 C. S. Plot Nos. 4732, 5275 and 5281 and subsequently one of the brother namely Mohammad Ali died as unmarried and leaving behind his 03 brothers as his legal heirs and remaining three brothers disposed of this 320 decimals of land along with other land to Omar Ali, Tableb Ali, Muslim Miah and Ibrahim Miah through a registered Kabala deed dated 09.04.1941 and the names of the purchasers Omar Ali and 03 others have been recorded in S. A. Khatian and subsequently also recorded in R. S. Khatian. It was further case of the plaintiff that an amicable partition took place amongst the brothers of Omar Ali and in pursuance of that partition Omar Ali got the 51 decimals land of R. S. Plot No. 7813 and the other brothers of Omar Ali got the other remaining land of other plots and as per their amicable partition and entered into possession and accordingly their names have been correctly recorded in the R. S. Khatian by mentioning the name of Omar Ali for the land of Suit plot and also mentioning the names of his brothers for the land of other plots and Omar Ali while owing and possessing the ‘Ka’ schedule land he sold out the land of R. S. Plot No. 7813 in favour of one Meherun Nessa through a registered deed dated 26.10.1978 and there also executed and registered a rectifying deed on 24.02.1982 due to mistake of  the C. S. Plot Number  in his earlier deed in favour of Meherun Nessa who mutated her name and used to pay rent for the suit land in favour of the Government. While Meherun Nessa owning and possessing the suit land she sold out the said land in favour of one Mrs. Fuljan Bibi through a registered deed dated 02.08.1983. Then Fuljan Bibi got the possession and mutated her name and used to pay rent in favour of the Government. Thereafter the said Fuljan Bibi sold out the said land to Mrs. Nurjahan Begum on 06.11.1984 and Nurjahan Begum sold out the said land to the plaintiffs on 17.07.1985 through 08 (eight) registered kabala deeds and since then the plaintiffs have been in possession of the suit land by demarcating their boundaries, developing it by erecting houses in where inhabiting plaintiffs tenants thereon. Thereafter the defendants have claimed the suit land on the strength of the exchange deed No. 8686 dated 22.10.1990 and the defendant No. 1 made threat to dispossess the plaintiffs from their possession and also disclosed about the ownership of the defendant No. 1 and others over the suit land. Thereafter the plaintiff obtained disputed deed dated 22.10.1990 as mentioned in the ‘Kha’ schedule of the plaint and filed the suit for declaration of their title as well as declaration that the ‘Kha’ schedule deed dated 22.10.1990 being deed No. 8686  covering  38.25 decimals of land in favour of the defendant does not create any title upon the defendant and hence the suit.

Defendant No. 13 that the present appellant contested the suit by filing written statement denying all the materials allegation of the plaint and stating inter-alia that the suit is not maintainable in its present form. And he further stated that the ownership of the Suit land by four brothers namely Omar Ali Miah, Taleb Miah, Muslim Miah and Ibrahim Miah and contending inter-alia that each of the four brothers got 12.75 decimals of land in C. S. Plot No. 5275, S. A. record was also prepared in the same way reflecting 1/4 share in each plots against each bothers.

The further case of the defendant No. 13 was that after death of Taleb Ali leaving behind his 03 sons namely Motaleb Miah, Shahabuddin Miah and Riazuddin Miah who got 12.75 decimals of land and after death of Muslim Miah leaving behind five sons namely Md. Mishir Ali Miah, Md. Fazlul Hoque Miah, Abdul Hoque Miah, Mokbul Hossen Miah and Ejajul Islam Miah and they also got 12.75 decimals of land as the heirs. Md. Ibrahim Miah, Taleb Ali Miah and Muslim Miah transferred 38.25 decimals of land from Plot No. 5275 vide exchange deed No. 8686 dated 22.11.1990 with the land of Mrs. Lailla Parveem Akhter and said Laila Parveen Akhter transferred 30 decimals of land out of 38.25 decimals of land in favour of Md. Moazzem Hossen Miah on 07.04.1991 and Laila Parveen Akhter also transferred remaining 08.25 decimals of land to Md. Moazzem Hossen on 19.09.1991 thereafter mutating his name in respect of 38.25 decimals of land and used to possess the said land thereafter Moazzem Hossen Miah on 08.11.2001 transferred 38.25 decimals of land in favour of the defendant No. 13 through a exchange deed on 22.10.1990 i. e. Suit deed and handed over the possession to the defendant No. 13 who mutated his name and obtained rent receipt of the suit land.
The further case of the defendant No. 13 that Omar Ali did not owing and possessing the suit land alone and he only got 12.75 out of 51 decimals of land and he also denied the possession of the plaintiffs over the suit land as a whole.

The learned trial Court after considering the pleadings of the parties framed the following issues :-
  1. Whether the suit is maintainable in its present form and manner?
  2. Whether the suit is barred by Article-120 of the
  3. Limitation Act, 1908?
  4. Whether the plaintiffs have possession in the suit land?
  5. Whether the plaintiffs have title in the suit land?
  6. Whether the plaintiffs are entitled to get relief as prayed for?
After discussion of the evidence and materials-on-record the trial Court found that the plaintiffs have able to prove their title and possession over the suit land and decreed the suit by the impugned judgment and decree and against which the defendant No. 13 as appellant preferred the present appeal.

Mr. A. J. Muhammad Ali, the learned Senior Advocate appearing on behalf of the appellant submits that since the deed in favour of Omar Ali and his three brothers executed and registered on 09.04.1941 in where all are got equal share and in such circumstances Omar Ali got only ¼ land from the suit plot and there was no amicable partition amongst the brothers of Omar Ali therefore the transfer of .51 decimals of land by Omar Ali in favour of Meherunnessa had no right and as such no title in respect of 51 decimals of land has been passed through the said deed dated 26.10.1978 in favour of Maherunnessa as well as subsequent deed by Maherunnessa thus the plaintiffs did not get .51 decimals of land by subsequent deed from Nurjahan Begum on 17.07.1985 but the trial Court failed to consider these material as well as the legal aspect and passed by the impugned judgment. He further submits that the possession over the 51 decimals of land was not proved by the plaintiffs and therefore the impugned judgment for declaration is bad in law as well as against the principle of legal aspect. He further submits that the trial Court also failed to consider the oral as well as documentary evidence that under what circumstances the plaintiffs were able to prove their title and possession over the suit land which was not specifically mentioned by the trial Court therefore the impugned judgment was not a proper judgment.

Mr. A. K. M. Salauddin, the learned Advocate appearing on behalf of the respondent Nos. 1-9 submits that admittedly the land was owing and possessing by Omar Ali and his three brothers in pursuance of deed dated 09.04.1941, and subsequently an amicable partition was took place amongst the brothers of Omar  Ali after S.A. and before R.S. operation in where Omar Ali also got the land of suit plot alone and his others 3 brothers got their share in the land of other plots of suit Khatian and in pursuance of said amicable partition R.S. Record has been prepared by mentioning the name of Omar Ali against the suit plot and the names of the other brothers have been recorded for the land of other plots of the said R.S. Khatian thereafter said Omar Ali as per R.S. Record sold 51 decimals of land to one Meherun Nessa on 26.10.1978 who sold the same one Fuljan Bibi on 06.11.1964 who sold it to one Nurjahan Begum on 08.04.1985 who thereafter sold out the same in favour of the plaintiffs by eight registered deeds on 17.07.1985 and handed over the possession over the said suit land accordingly plaintiffs are possessing by erecting hut and making boundary in where they are running their business by possessing the suit land since Omar Ali successively and therefore the judgment and decree passed by the trial Court is a proper one. He further submits that the R. S. record of right has a presumptive value as per section 144 A of the State Acquisition and Tenancy Act and neither Omar Ali nor his brothers and legal heirs denied the said record of right till now therefore the said record of right is prevailing  and still it is in force. He further submits that since the deed dated 26.10.1978 was acted upon and subsequent deeds in favour of the plaintiffs are also acted upon. He lastly submits that the plaintiff along with P. Ws who categorically stated that Omar Ali alone used to possess the suit land and then the possession has been vested upon the subsequent purchasers the plaintiffs and these materials fact also supported  and corroborated by the material document i. e. mutation and rent receipt recital  of title deeds well proved the plaintiffs title and possession over the suit land therefore the judgment passed by the trial Court is very much legal and proper one.

Heard the learned Advocate for both the sides, perused the plaint as well as the written statement and other materials exhibits including the deposition of the witnesses and the impugned judgment itself.

It appears that admittedly the owner of the land of C. S. Khatian No. 604 who sold the suit land along with other lands infavour of Omar Ali and his three brothers through a registered deed dated 09.04.1941 the that is Exhibit 13 in respect of 3.20 decimals of land including the suit land and in where C. S. plot 5275 covered 51 decimals of land and subsequently the name of possessor Taleb, Muslim, Ibrahim and Omar was record in S. A. Khatian in equal share and S.A. Record prepared accordingly in their names. It was further case thereafter an amicable partition took place and Omar Ali got the land of Suit plot amicably.

It further appears from the plaint as well as deposition of P. W. 1 that an amicable partition took place before 1970 amongst the brothers of Omar Ali and for which Omar Ali got exclusively the land of C.S. and S.A plot No. 5275 and in pursuance of amicable partition R. S. record was prepared. Now the vital point of the case wheather the land of suit plot owned by Omar Ali through an amicable partition amongst his brothers or not?

It appears form the averment of the plaint as well as the deposition of P.W. 1 that an amicable partition took place before 1970 amongst the brothers of Omar Ali for the land of suit Khatian measuring 3.20 acres land covered in C.S. and S.A. Khatian and as per the plaint Omar Ali got 51 decimals of land of C.S. and S.A. plot No. 5275.

It further appears from R. S. Khatian which prepared after 1970 i.e. exhibit 19 in where the name of Omar Ali and his three brothers have been recorded against the land of 08 (eight) plots by mentioning the names of the record tenants as possessors against each of the plots and in where plot No 7813 has been mentioned by covering 51 decimals of land against the name of Omar Ali as tenant and possessor of the said land and which is found the land of suit plot and similarly the name of other brothers of Omar Ali have been mentioned as tenants and possessors for the land of other plots.

We have also gone through the deed dated 26.10.1978 i.e. exhibit 13 in where Omar Ali was the executant for the suit land in favour of one Meherunnessa and  the contention of the said deed to some extent is as under;

 “নিম্ন তপসিল বর্ণিত সম্পত্তিতে আমি অত্র দলিলদাতা আমার অপর শরিকানগণ সহ খরিদ করতঃ খরিদমূলে মালিক স্বত্ববান দখল বিদ্যমানকারীররগন থাকা অবস্থায় এজমালীতে ও ভোগ দখল করিতে থাকা অবস্থায়ভোগ দখলের সুবিধার জন্য  ঘরোয়া আপোষ বিভাগ বন্টন খাতে নিম্ন তফসিল বর্ণিত সম্পত্তি সহ অন্যান্য সম্পত্তিতে বা নির্দিষ্ট চিহ্নিত পৃথক ছাহাম প্রাপ্তে নিঃস্বত্ব খাস দখল যুক্তে মালিক স্বত্ববান দখলকার বিদ্যমান আছি|”

The recital of the said deed shows that Omar Ali got the land of suit plot alone by amicable partition among the four brothers and accordingly R. S. record was prepared in the name of Omar Ali and his 03 brothers by mentioning the name of Omar Ali as owner and possessor for the land of suit plot alone and also mentioning the names of his other brothers for land of other plots of the R.S. Khatian for the convention of possession of Omar Ali and his 03 brothers. The said R.S. record of right along with the said deed dated 26.10.1978 were not challenged or denied in any point of time neither by the brothers of Omar Ali nor even any heirs of his brothers and the possession of Omar Ali over the land of suit plot was admitted in the said deed by Omar Ali. Thereafter the said Meherunnessa sold out the said land to Fuljan Bibi who sold it to Nurjahan Begum and thereafter the plaintiffs got the said land through 08 deeds from Nurjahan Begumon 17.7.85 which well proved by the plaintiffs by proving their deeds as exhibit 5 series.  Plaintiffs categorically stated in his plaint that there took place an amicable partition amongst the brothers of Omar Ali and in pursuance of amicable partition Omar Ali got the land of suit plot along with other land. P.W. 1 was examined on behalf of the plaintiffs in where he categorically stated in support of the plaint that amicable partitions took place among Omar Ali and his brothers and Omar Ali got the land of suit plot alone who used to possess the same. Then transferred the same in favour of Meherunnessa and subsequently to the plaintiffs by the subsequent executants on 17.07.1985 through 08 registered deed exhibits 05 series and  P. W. 2 one of tenants under the plaintiffs admitted the possession of the predecessor as well as the plaintiffs and they proved the mutation Khatian as well as rent receipts for payment of rent for the suit land.

It further appears that the defendant No. 13 claimed the 38 decimals of land out of suit land by a registered exchange deed dated 08.11.2001 exhibit ‘Ja’ and he was examined as D. W. 1 who stated that he got 38¼ decimals of land from suit plot through a registered deed of exchange on 08.11.2001 but how he obtained his possession did not mention. Even he did not denied the R.S. Record of right in the name of Omar Ali.

On perusal of the said exhibit ‘Ja’ it appears that the C.S. recorded tenants namely Kobbat Ali and others who executed and registered deed in favour of Omar Ali and his 03 brothers dated 09.04.1941 and S. A. including R. S. records of rights are admitted but claimed that the heirs of Taleb Ali and Muslim Mia along with Ibrahim Mia transferred 38½ decimals of land to one Laila Parveen through an exchange deed dated 22.11.1990  but did not say how the said executants had  obtained right to exchange the said 38 decimals of land while admitted the R.S. Records of right in the name of Omar Ali. Then said Laila Pervin transferred to the same to Md. Mozzam Hossain on 07.04.1991 and 21.09.1992 thereafter Mouzzam Hossain transferred 38½ decimals of land to Md. Mouzzam Hossain through an exchange deed on 08.11.2001.

D.W.1 Stated he used to possess 38  decimals of land from the suit plot without mentioning the manner of possession.

D. W. 2 Md. Inam Hossain son of late Ibrahim i. e. brothers son of Omar Ali was examined and stated that he know the C. S. plot N o. 5275 and also stated that his father and uncles exchanged 38¼ decimals of land with Laila Parveen form the C.S. plot subsequently alleged to transfer to one Mizanur Rahman and in his cross-examination he stated that Mojibur has four shops and Mizanur Rahman has none  and admitted about a  one or two storied building on the suit land and also admitting the possession of the plaintiffs over 13 decimals of land and he further stated that he used to live at Bhuighar which is another district and who did not know the R.S. plot i.e. P.W. 2 did not know the suit land even he did not deny the fact of amicable partition amongst the brothers of Omar Ali and he did not deny the R. S. record of right as in correct  Exhibit ‘Ta’ dated 26.10.1978 by Omar Ali mentioned that he got the suit land by amicable partition these material fact of possession by Omar Ali also reflect in R. S. Khatian and accordingly  the same fact of partition also disclosed in the recital of Kabala deed dated 26.10.1978 by Omar Ali R. S. Khatian is also admitted as correct by the executant of the deed of exchange dated 08.11.2001 and also by defendant appellants.

In view of the fact and discussion above we find that Omar Ali got 51 decimals of land of suit plot alone through amicable partition amongst his brothers before 1970 i.e. before R.S. operation and accordingly R.S. Record was prepared and since R.S. Record was acted upon the deed dated 26.10.1978 by Omar Ali and subsequent deeds in favour of plaintiffs well acted upon for the suit land. 

In support of contention and submission of the learned Advocate for the respondent has cited the following decision. We have gone through the decision in the case of Dayal Chandra Mondal and others Vs. Assistant Custodian of Vested and Non-Resident Properties (L&B) and Additional Deputy Commissioner (Revenue), Dhaka and others, reported in 50 DLR 186 and also referred to another decision by the respondent in the case of Fatema Khatun Vs. Fazil Mia, reported in 6 BLC 241 in where the principle has been laid down by this Court as under, “Section 144A A finally published record of rights revised under section 114A of the SAT Act has a presumption of correctness and that presumption continues till it is otherwise rebutted by reliable evidence.”

We also find that since Omar Ali got 51 decimals of land which correctly recorded in plot which already sold out and the brothers of Omar Ali got their share from other plots of R.S. Khatian and which was not denied that is admitted by the brothers of Omar Ali in such circumstances neither the brothers of Omar Ali nor any heirs of his brothers had any right title and possession over any land of suit plot. Therefore the exchange deed dated 22.11.1990 by the brothers and heirs of brothers of Omar Ali  has passed no title over any of the land of suit plot in favour of Laila Begum so question of title by subsequent deed dated 8.11.2011 in favour of appellants does not arise.

In such view of the facts materials on records discussion made above and law we find that the plaintiffs well proved their right, title and possession over the land of 51 decimals of suit plot amicable and further proved that the exchange deed 8.11.2001 in favour of the defendant appellant  was not acted upon.

Since title and possession over the suit land was lying upon Omar Ali and subsequ-ently vest upon Meherunnessa and thereafter the title and possession has been vested upon the plaintiffs and in pursuance of their deeds dated 17.07.1985 accordingly the plaintiffs are entitled to get the relief as prayed for. Since no title and possession for the suit land has been passed in pursuance of the deed dated 08.11.2001as mentioned in ‘Kha’ schedule of the plaint infavour of the defendant appellants therefore the plaintiffs are also entitled to get the relief for declaration in respect of the said deed as prayed for. We have gone through the judgment and decree of the learned trial court who after considering all these material as well as legal aspect passed the impugned judgment which is very much legal and proper and there is nothing to interfere by this Court.

In the result, the appeal is dismissed and the judgment and decree dated 27.09.2007 (decree signed on 02.10.07) passed by the learned Joint District Judge, 2nd Court, Dhaka is hereby affirmed. And the rule issued in of Civil Rule No. 697(F) of 2007 is hereby discharged.

The order of stay and the order of status-quo passed in Civil Rule No. 697(F) of 2007 at the time of issuance of the rule on 12.11.2007 is hereby vacated.

Send down the lower Court record alongwtih a copy of the judgment to the Court below at once.

Ed.