Case No: Civil Revision No. 1475 of 2009
Judge: Sharif Uddin Chaklader,
Court: High Court Division,,
Advocate: Abdul Wadud Bhuiyan,Mr. Tapan Kumar Chakrabarty,,
Citation: 2 LNJ (2013) 138
Case Year: 2013
Appellant: Mohammad Mostafa Kazi and others
Respondent: Delowar Hossain and others
Delivery Date: 2011-03-22
(CIVIL REVISIONAL JURISDICTION)
|Sharif Uddin Chaklader, J.
Mohammad Mostafa Kazi and others
Delowar Hossain and others
Code of Civil Procedure (V of 1908)
State Acquisition Rules, 1951
Rules 24, 29 & 32
The moot point in the instant case is that whether before cancellation of Khatian notice was served upon the plaintiffs or not.
In these rules the word shall has been used frequently giving the intention of the legislation as mandatory and non–compliance of which make the act done under the statute absolutely void. The government did not say issuance of any notice. From the record of the government, it appears that no such notice was issued upon the plaintiffs. Learned Assistant judge has found that before the cancellation of Khatians no notice was served upon the plaintiffs which was not reversed by the appellate Court and hence the cancellation of the Khatians was done by the Revenue Officer illegally. Moreso, the defendant Nos. 7 to 34, who are settler of the government filed appeal, they have no locus standi to challenge the decision of the trail court as government did not prefer the appeal, rather, government accepted the verdict of the trail court....(24 to 27)
53 DLR (AD)110, 24 BLD (AD)125, 54 DLR (AD)721; Hazee Abdul Hossain and other -Vs.-Md. Amjad Hossain and other, 15 MLR-485; Indian Bank -Vs- Datla Venkata Chinna Krishnam Raju, AIR-1991(SC) 908; U.P. Junior Doctors Action Committee –Vs.- Dr. B. Sheetal Nandwani and others, AIR 1991 (SC) 909; Ishaque (Md.) -Vs- Ekramul Haque Chowdhury and others, 54 DLR (AD)-26; Erfan Ali -Vs. Joynal Abedin Miah, 1983 BLD (AD)-342; Md. Nurul Islam Vs. Md. Ali Hossain Miah being dead his heirs Md. Amir Hossasin and others, 5 BLT -297& Mohammad Idris Khan –Vs- Hazi Erfanuddin 9 DLR 16, ref.
Civil Revision No. 1475 of 2009
This rule by the plaintiff directed against judgment and decree dated 23.3.2009 passed by the learned Additional District Judge, Bhola, allowing Title Appeal No. 19 of 2008 thereby remanding the suit back to the trial court after setting aside the judgment and decree dated 22.3.2008 passed by the learned Subordinate Judge, Sadar, Bhola in Title Suit No. 192 of 2001.
‘Petitioner as plaintiff instituted the aforesaid Title Suit No. 192 of 2001 against Government and it is different officers praying for a decree to the effect that "‘ক’ তপসিল বিরোধী ভূমি সম্পর্কে ‘খ’ তপসিল বর্ণিত বিরোধীয় ৩ নং বিবাদী সহকারী কমিশনার (ভূমি) ভোলা রাজস্ব অফিসের মিস কেস নং-২৯ (ভো) /২০০০-২০০১ ইং মোকদ্দমার যাবতীয় কার্যক্রম এবং অস্পষ্ট বিগত ২৮.০৮.২০০১ইং তারিখের খতিয়ান বাতিলের আদেশ বে-আইনী বেদাড়া এবং রহিদ যোগ্য এবং বাদী প্রতি বাধ্যকর নহে মর্মে ঘোষনা মূলক ডিক্রীর মোকদ্দমা”
Schedule ‘Ka’ to the property are as follows:
Short facts relating for disposal of the rule are that plaintiff No. 1 and 2 took settlement of 5 acres of land from Government and khatian No. 109 and 121 opened in their names. Pred-ecessor of plaintiff No. 1-4 took settlement of 5 acres of land and khatian No. 110 opened in his name, similarly predecessor of plaintiff No. 5 took settlement of 5 acres of land and khatian No. 117 was opened in his name. Plaintiffs by settlement and inheritance became owner of suit land and possessing the same. On 15.10.2001 defendant No. 6 obstructed petiti-oners in cutting standing paddy where from plaintiffs came to know about the orders of Miscellaneous Case No. 29 of 2000-2001 dated 28.8.2001 cancelling the khatians opened in favour of plaintiffs, hence the suit.
Defendant No. 7-34 added in the suit by filing application, contested the suit and it is their case that Bolkha got settlement of 5 acres of land in case No. 124/51 -52, transferred the lands by two registered patta deeds dated 10.11.1952 and 11.11.1952 and who took patta subsequently transferred the suit land to these defendants vide registered deeds dated 7.4.1956, 29.2.1956 and 19.2.1956, 12.4.1957. At the time of revenue survey, Chandra Prashed mouza was splited in to Chandra Prashed , Bangia Chandra Prashad Char, Chandra Prashad Kumbo Poti and Domchor mouza. Dag No. 1472/1 was splited in present dag 224, 292 and 443 and khatian No. 184 and additional khatian No. 109 were opened. The seller paid rent to the Government and by two registered patta deed No. 5145 and 5892 dated 10.11.52 and 11.11. 52 transferred the case land to A. Kader, Yeakub Ali Bouli, Montaz uddin Bouli, Mohor Ali Forazi, Karim Box Forazi, Izzat ali Howlader, Subol Chandra Bagmar, Mohon Basi, chitta Ranjon Bagar and later on, A. Kader by registered patta dated 4.7.56 transferred his portion of land. Thereafter, said Miscellaneous Case was disposed of on compromise. In Settlement Case No.124/L/51-52 plaintiff No. 4 of the instant suit with the conivance of employees of revenue office created false, fabricated khatain in respect of present dag No. 1472/1. Tahshilder on 27.5.2001 submitted report before the relevant authority and also started Miscellaneous Case being No. 27(Vo)/2000-01. It appears from the report that with the surveyor and Kanoongo, khatian No. 109, 121, 110, 117 were opened in favour of the plaintiffs and the said khatians in favour of plaintiff was later on cancelled, hence, plaintiff’s suit is liable to be dismissed.
The case of the Government defendant Nos. 1-6 is that plaintiff case is totally false and that plaintiffs case of purchase and by inheritance got 5 acres of land are false, fabricated and forged and plaintiffs have no right, title over the suit land.
Learned Assistant Judge framed 5 issues. Plaintiff examined 3 witnesses and exhibited documents marked as exhibit 1-2(Ka). Defendant No.7 examined 2 witnesses and exhibited papers marked as exhibit-Ka –Ka(Ta) and (cha). Government defendant Nos. 1-6 examined one witness as D.W.3.
Learned Assistant Judge decided issue No. 2 as suit is not bad for defect of parties. Learned Assistant Judge also decided issue No. 3 as the suit is not barred by limitation, Learned Assistant Judge on consideration of exhibit decided issue Nos. 4 and 5 as per claim of the plaintiff. Learned Judge as to whether there is existence of Settlement case No. 9/L/51-52, for which plaintiffs called for the record from office of Additional Deputy Commissioner (Rev.), learned Assistant Judge on consideration of the same found that along with the case record of the aforesaid case record of Misc. Case No. 39/02-03, signature of Assistant Commissioner of (Land) dated 8.6.95 was found; learned Judge thereafter observed as:-
Learned Judge, thereafter, considered the case of the Government and on consideration of only witness for the Government, D.W.3, observed as:- আদেশ পর্যালোচনায় দেকা যায় যে, মূলতঃ সার্ভেয়ার ও কানুনগোর রিপোর্টের ভিত্তিতে খতিয়ানসমূহ বাতিল করা হয়।
Learned Judge also found that defendant No. 1-6 did not produce register in court. Learned Judge thereafter considered paper of the Government and also order passed on 10.7.2001, and held that notice was not served upon the plaintiff which D.W.3 in his deposition and cross-examination admitted. Learned Judge also found that as per law, notice must required to be served upon the person concerned. Learned Judge on consider-ation of the case record of Case 29/(Vo)/2000-01 found that since notice was not served as per law cancellation of the khatian of the plaintiff was done illegally. Learned Judge also considered the report of the surveyor in respect of Case No. 9/L/51-52 and found that surveyor did not particularly utter a single word as to where the said case record is lying.
Thereafter, the learned Judge considered the case of defendant No.7- 34 added in the suit by filing application under Order I Rule 10 of the Code of Civil Procedure and held that:-
Thereafter, upon such findings learned Judge decreed the suit declaring that
Against this decree Government did not prefer any appeal but added defendant No. 7-34 filed Title Appeal No. 19 of 2008, which, on transfer, was heard by the learned Additional District Judge, who by impugned judgment and decree set aside the judgment of trial court and sent the suit back on remand.
In remanding the suit, learned Judge found that both plaintiffs and defendant No.7-34 claim suit land as settlement from Government; suit was filed by the plaintiffs for declaring the notice issued by the Assistant Commissioner (Land) as illegal, and not binding upon the plaintiffs. Learned Additional District Judge thereafter observed that ‘learned Assistant Judge did not consider the case as to who possess the suit land.’ Learned Additional District Judge further found that Government admitted settlement in favour of defendants. Learned Jude also observed that the papers submitted by defendant No. 7 -34 are sufficient to prove their possession and further observed that ‘learned Assistant Judge held that papers submitted by defendants are not sufficient to hold who are possessing the suit land is not a good observation.’ Learned Judge also considered that ‘trial court did not properly assessed the deposition of witnesses and’ learned Assistant Judge on reference to the deposition of plaintiff’s witnesses wrongly found that the settlement in favour of plaintiff has been proved. Learned Judge also observed that ‘learned Assistant Judge was not legal to hold Assistant Commissioner (Land)’s order was not binding upon the plaintiffs.’ Thereafter learned Additional District Judge observed as:-
Mr. Abdul Wadud Bhuiyan, learned Advocate, appearing for the petitioner submits that, learned Assistant Judge having found from the surveyor’s report that provisions of rule have not been complied with and cancellation of khatains of the plaintiffs was passed by the Assistant Commissioner (Land) is not supported by law and this lawful finding was not set aside by the learned Additional District Judge while remanding the suit as such the same is liable to be set aside. Learned Advocate further submits that it is the case of plaintiffs and proved by exhibits containing Government papers, that after getting the land in settlement Case 9/L/51-52, plaintiffs are possessing the suit land by paying rents to the Government, exhibit C series, as such, learned Additional District Judge committed gross illegality in absence of any paper filed by the Government that defendant No. 7-34 was settled with the suit land without considering that defendant’s case that original mouza Chandra Prashad has been splited into three mouzas and it is duty cust upon the defendants to prove this fact, in sending back the suit on remand learned Additional District Judge give premium to the defendant to fill up the lacuna which is not permissible under law. Learned Advocate further submits that court of appeal below did not consider the case of the plaintiff in proper perspective and instant of sending the suit back on remand for further bout between the parties, learned Additional District Judge ought to have disposed of the suit finally. Learned Advocate further submits that from the findings of Learned Additional District Judge it appears that Learned Additional District Judge give opportunity to defendant No.7-34 and also Government i.e. defendant No. 1-6 to produced the paper which they did not find for long time and further directed the trial court to call for the records which is duty of the defendants to prove the case make out in their written statements.
Learned Advocate in support of his submissions relied on the cases reported in 53 DLR (AD)110, 24BLD(AD)125, 54 DLR (AD) 721. These decisions, relating to when remand order can be passed by the Appellate Court.
Learned Advocate for the defendant No. 7-34 opposite parties submits that C. S. khatian in the instant case was cancelled legally as whether notice was served or not, on relying on section 27 of General Clauses Act, submits that if the notice issued at the proper address it is deemed to be served and further submits that from the objection it revealed that plaintiffs are not in possession as such the suit is not maintainable.
Learned Advocate relied on the case of Hazee Abdul Hossain and other -Vs.-Md. Amjad Hossain and other, 15 MLR-485, on the question of maintainability of the suit under section 42 of Special Relief Act and submits that the suit is not maintainable as plaintiff failed prove his case; the case of Indian Bank-Vs-Datla Venkata Chinna Krishnam Raju, AIR-1991(SC) 908, the case of U.P. Junior Doctors Action Committee –Vs.-Dr. B. Sheetal Nandwani and others, AIR 1991 (SC) 909 where it is held that if any one got admission on bhogus result, the beneficiary would not justify attraction of the application of rules of natural justice being provided an opportunity to be heard. Learned Advocate next relied on the case of Ishaque (Md.) Vs- Ekramul Haque Chowdhury and others, 54 DLR (AD)-26, where it is held that in a case of forfeiture for denial of title, written notice of lessor’s intention to determine the lease is not compulsory as the cause of action is the denial of the landlord’s title resulting in determination of the tenancy. Learned Advocate next relied on the case of Erfan Ali -Vs. Joynal Abedin Miah, 1983 BLD (AD)-342 where it is held that rent receipt and their evidentiary value, though not documents of title, they are important items of evidence of possession and may be used as collateral evidence of title since possession generally follows title. Learned Advocate next relied on the case of Md. Nurul Islam Vs. Md. Ali Hossain Miah being dead his heirs Md. Amir Hossasin and others, 5 BLT -297 where it is held that notice sent by post at the address of the suit premises having been returned unserved with the remark of the postal authority ‘left’ was presumed to be good service. Then learned Advocate next relied on the case of Mohammad Idris Khan –Vs- Hazi Erfanuddin 9 DLR 16 where it is held that fraud vitiates all proceeding that said contravention of law no ground for allowing an order obtained by fraud to stand.
Now let me proceed with my own way to decide this case.
Only question calls for determination as to whether before cancellation of khatian notice was served upon the plaintiffs or not.
Plaintiffs knocked door of justice with claim that they have got settlement in Settlement Case NO. 9/L/51-52, khatians were opened in their favour but by Misc. Case No. 29/2001-2002 the said khatians were cancelled without giving them any notice. Government denied that facts that there is no such case in the registered of 1951-52. It is the finding of learned Assistant Judge that D.W.3 examined by the Government, did not utter a single word as to service of notice, D.W. 3 only stated that in Settlement Case plaintiff acquired the land and D.W. 3 did not say a single word that settlement in favour of plaintiffs are false or not. It appears that D.W. 3 is not a proper witness adduced by the Government or defendant No. 7-34 in their favour. If it is found notice was issued, it is sufficient compliance of Rule 24 and 32 of the State Acquisition Rules 1951 and is sufficient for dismissal of the suit but if it is found otherwise, then suit must be decreed as the Rules are mandatory in nature. Relevant portion of rule 24 and 32 of the State Acquisition Rules 1951, these rule are in chapter IV under heading preparation or revision of record of rights, are as follows:-
Rule 24 under caption Preliminary record, writing:- for preparation of draft record it shall consist of statements of rights which is khatians; separate khatians are prepared for each person interested or each group of person faintly interest in the land according to particulars but no entry shall be made as to the revenue, rent or cess, the class to which the tenant belongs or the special conditions and incidents of the tenancy and a field index or khasra or draft arrange shall be prepared according to the serial numbers of the fields in the village which shall not form part of the draft record. Dispute regarding ownership of the land or ownership of any interest or land, shall be decided by a Revenue Officer or a kannongo in a summary manner and on the basis of actual possession.
Rule 25 relate to Legal Explanation, Rule 26 relates to attestation and allotment of land under Section 20(3), Rule 27 relates to choice and allotment of land under Section 20(3) when a record of rights is revised by omitting the stage of attestation , Rule 29 relates to determination of normal annual yield of land under Section 24(4), rule 29(A) relates to preparation of preliminary rent role, Rule 30 relate to preparation of settlement rent role and Rule 31 relates to publication of the draft record of rights under Section 19(1) are not required to be considered for disposal of this rule. But Rule 32 is required.
Rule 32 relates for disposal of objections under Section 29(1) of the Act wherein it is stipulated that after draft khatian converted to final on its publication, objector can raised objection by filing objection in prescribed form and copy or copies of such objection are required to be supplied for service of notices upon the person or persons in whose name khatians have been prepared, which is mandatory and relevant portion of the Rule is that the Revenue Officer shall issue notices informing the objector and all other persons. Rule thereafter make it mandatory, obligatory, not directory on the part of Revenue Officer to do some act necessary for publication of the khatian. Law is “The Revenue Officer shall issue notices informing the objector and all other persons so interested of the date and place fixed for the hearing of the objection, and with each notice to a person, other than the objector, he shall forward a copy of the objection. Objections regarding the ownership of land or the ownership of any interest in land shall be decided by the Revenue Officer in a summary manner on the basis of actual possession. The record shall contain a brief summary of the evidence taken and an abstract of the reasons for the decision. When a Revenue Officer directs that a change shall be made in the rent recorded as payable by any tenant, he shall direct that a corresponding change shall be made in the cess, if any, recorded as payable by such tenant. Objections shall not be disposed of in the absence of any of the parties materially interested or their representatives, unless the Revenue Officer be satisfied, for reasons to be recorded in writing, that the notice was duly served on the person concerned.”(Underlines are of mine).
In these rules word ‘shall’ has been frequently used giving the intents of the legislature as mandatory non compliance of which make the act done under the statute absolutely void. Notice shall be sent means it mandatory sense. Shall in common parlance always construed as compulsory unless accompanied with qualified word giving a different meaning. Whenever a statute declares that a thing shall be done, the natural and proper meaning is that a preemptory mandate is enjoined. In different laws ‘shall’ as used has a district meaning and used differently with the intents of the legislature but unless there be a qualified word for using it directory ‘shall’ always used as mandatory and obligatorily means it must be done. In the case of Pratab Singh Kairon –vs- Gurniy Singh, AIR 1958 Pun 409 it is settled that where the word shall is used in a statue the Presumption is that its use is imperative and not merely directory, particularly when it is address to a court or a public servant and when a right or benefit depends on its imperative use.
In the instant case Government did not say issuance of any notice. It is the case of defendant No. 7-34, settler from the Government that as per section 27 of General Clauses Act if notice issued giving proper address of the receiver it deemed to be served. From the record of the Government I do not find any such notice was issued upon the plaintiffs. Learned Assistant Judge held that before cancellation of khatinas no notice was served upon the plaintiffs. Appellate court did not reverse the findings of the trial court on this score. As such, cancellation of the khatians was done by the Revenue Officer illegally.
Defendant No. 7-34 who are setler of the Government filed appeal. In law they have no locus standi to challenge the decision of the trial court as Government did not prefer any appeal. The case is that Government cancelled the khatian of the plaintiffs, not defendant No. 7-34 and since Government accept the verdict of the trial Court, defendant No. 7-34, who are setler of the Government can not challenge the decree of the learned Assistant Judge.
Rule has merit.
In the result, the rule is made absolute without any order as to cost.
The judgment and decree passed by the learned Additional District Judge, Bhola, allowing Title Appeal No. 19 of 2008 is set aside and those of the learned Subordinate Judge, Sadar, Bhola passed in Title Suit No. 192 of 2001 is restored.
Send down the lower court record.
Communicate this order at once.