Most. Safali Hossain Vs. Additional DC (Revenue) & others [4 LNJ (2015) 74]

Case No: Civil Revision No. 5230 of 2000

Judge: Md. Nazrul Islam Talukder,

Court: High Court Division,,

Advocate: Mr. Monjur Kader,Mr. Md. Khurshid Alam Khan,Mr. Kazi Md. Arifur Rahman,,

Citation: 4 LNJ (2015) 74

Case Year: 2015

Appellant: Mosammat Safali Hossain

Respondent: Additional Deputy Commissioner, (Revenue), Narail and others

Subject: Parties to a suit, Burden of Proof, Vested Property,

Delivery Date: 2011-08-11

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Nazrul Islam Talukder, J.

Judgment on
11.08.2011
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Mosammat Safali Hossain
. . . Petitioner
-Versus-
Additional Deputy Commissioner, (Revenue), Narail and others
...Opposite parties
 

Evidence Act (I of 1872)
Section 101
It is a settled principle of law that the initial onus lies on the plaintiff to prove his title and in order to prove the plaintiff’s case, the plaintiff has to prove his case to obtain decree and weakness of the defendant’s case is no ground for passing a decree in favour of the plaintiff. . . . 21

Code of Civil Procedure (V of 1908)
Order I, Rule 10
In the absence of necessary party, the decree passed in above-mentioned suit against the Government is a nullity and the same is not binding upon the Government.   . . . 25

Evidence Act (I of 1872)
Section 101
Without establishing and proving the plaintiff’s case, the plaintiffs can not enter into the Government’s case and claim that the Government cannot enlist the property as vested property without forming an opinion upon conducting proper enquiry into the matter. If the alleged settlement is not proved, the subsequent purchase of land by the plaintiff-petitioner from plaintiff-opposite party No. 4 is noting but a paper transaction which does not confer any title on the suit land claimed by the plaintiff-petitioner. It appears to me that the admission of D.W.1 as to possession of the petitioner over the suit land is a made up and make-believe story of D.W.1 being persuaded by the plaintiff-petitioner.  . . .  (28 and 32)
 
Doyal Chandra Mondal and others Vs. the Assistant Custodian of Vested and Non-resident Properties and others, 18 BLD (1998)(HC) 21; Md. Naimuddin Sarder Vs. Md. Abdul Kalam Biswas and another, 39 DLR(AD) 237; Barada Sundari Paul and others Vs. The Assistant Custodian, Enemy Property (Land and Buildings) Comilla and others, 15 BLD (AD) (1995) 95; Most. Jahan Ara Begum Vs. A. L Md. Shamsul Hoque, 27 DLR (1975) (AD) 29; Noor Mohammad Khan and other Vs. Bangladesh and other, 42 DLR (1990)(HC) 434 and Doyal Chandra Mondal and others Vs. Custodian, Vested and Non-Residence Property, 18 BLD 1998 (HD) 21 ref.

Mr. Md. Khurshid Alam Khan, Advocate with
Mr. Kazi Md. Arifur Rahman, Advcoate
. . . For the petitioner
Mr. Monjur Kader, Assistant Attorney-General
. . . For the Opposite party Nos. 1-3.

Civil Revision No. 5230 of 2000
 
J U D G M E N T
Md. Nazrul Islam Taluder, J.

This Rule, at the instance of plaintiff-petitioner, was issued on an application under section 115(1) of the Code of Civil Procedure calling upon opposite party Nos. 1-3 to show cause as to why the impugned Judgment and decree dated 14.06.2000 (decree signed on 21.6.2000) passed by the learned Subordinate Judge, 1st Court, Narail in Title Appeal No. 22 of 1996 dismissing the appeal and affirming the judgment and decree dated 13.6.1995 (decree signed on 20.6.1995) by the learned Senior Assistant Judge, Lohagara, Narail in Title Suit No. 145 of 1990 dismissing the suit should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper. 
 
The case of the plaintiffs, in short, is that, the suit land measuring .21 acres of land of Plot No.435 appertaining to C.S. Khatian No. 1040 of mouja-Lakshmipasha, Lohagara, Narial belonged to Monmohon Bandapaddya and Pachu Saha having 8 ana share each and their names were recorded in above-mentioned C.S Khatian.  After recording of their names in C.S. khatian, the C.S. tenants enjoyed peaceful possession over the suit land by cultivating the same. The heirs of C.S. tenants, while in possession, wanted to give settlement of the land and as a result, plaintiff-opposite-party No.4 wanted to take settlement from them. Plaintiff-opposite-party No.4 took settlement in the year 1354 B.S. from the heirs of the C.S. tenants. However, after taking settlement, plaintiff-opposite-party No.4 recorded his name in rent roll verification. Subsequently, the heirs of C.S. tenants denied the title of the suit land claimed by plaintiff-opposite-party No.4 who, thereafter, filed Title Suit No. 17 of 1972 before the Munsif, 2nd Court, Narail, who decreed the suit ex-parte. After getting ex-parte decree, plaintiff-opposite-party No.4 sold out .18 acre of land out of .21 acre of land to the petitioner on 18.12.1982. Plaintiff-opposite-party No.4 is still in possession over .03 acre of land by constructing homestead therein. The plaintiffs came to know about the entry of their property as vested property in 1995 and as such, they filed the suit for declaration that the inclusion of the suit property as a vested property is illegal and not binding upon the plaintiffs.
 
Opposite party No.1 contested the suit by filing a written statement and denied all the material allegations made in the plaint and contended, inter-alia, that the present suit filed by the plaintiffs is barred by limitation and the same is bad for defect of parties and the plaintiffs have no title and possession over the suit land. The further case of opposite party No.1, in short, is that plaintiff-opposite-party No.4 never took settlement of the suit land from the heirs of C.S. tenants and as such the name of plaintiff-opposite-party No.4 was not recorded in S.A. khatian. However, plaintiff-opposite-party No.4 filed Title Suit No. 17 of 1972 without impleading the Government as party and as such the ex-parte decree obtained by plaintiff-opposite-party No.4 in that suit is not binding upon the Government. The names of the heirs of C.S. tenants were rightly recorded in S.A. khatian. The owner of the suit land left India before 1965 and they are living in India permanently. Accordingly, the suit land was rightly enlisted as vested property by V.P Case No. 203-Narail/1968. When the C.S. tenants went to India leaving Bangladesh (the then Pakistan), a gazette notification was published by the then Government on 3.12.1965. Since the property belongs to Government, the plaintiffs have no locus standi to file the present suit and as such the suit is liable to be dismissed.
 
The plaintiffs examined as many as 3 (three) witnesses to prove their case and on the other hand, the defendants examined 1 (one) witness to prove their respective case. The learned Senior Assistant Judge, Lohagara, Narail after recording of evidence and on perusal of the same did not find any prima-facie case in support of the plaintiffs. Accordingly, the learned Senior Assistant Judge, Lohagara, Narail dismissed the suit on 13.6.1995.
 
Being aggrieved by the impugned judgment and decree dated 13.6.1995, the plaintiff-petitioner and plaintiff--opposite-party No.4 preferred Title Appeal No. 22 of 1996 before the learned District Judge, Narial, who subsequently, sent the case record to the Court of learned Subordinate Judge, 1st Court, Narail for hearing of the appeal. The learned Judge of the Appellate Court, on hearing the parties and on perusal of the papers and documents, did not find merit in the appeal and dismissed the appeal accordingly by his judgment dated 14.6.2000. The plaintiff-petitioner thereafter approached this Court under section 115(1) of the Code of Civil Procedure against the judgment and decree passed by the learned Judges of the Courts below and obtained this Rule. Since plaintiff No.1 has not filed any revisional application before this Court, he has been added as plaintiff-opposite-party No.4 in the instant Civil Revision.
 
At the very outset, Mr. Khurshid Alam Khan, learned Advocate along with Mr. Kazi Md. Arifur Rahman, learned Advocate appearing for the plaintiff-petitioner, submits that plaintiff-opposite-party No.4 took settlement of the land from the heirs of C.S. tenants in 1354 B.S by paying appropriate salami to the heirs of C.S. tenants, that Subsequently, the heirs of C.S. tenants denied the  title of plaintiff-opposite party No.4 who, thereafter, filed Title Suit No. 17 of 1972 before the Munsif, 2nd Court, Narail for declaration of title over the suit land,  which was decreed ex-parte against the heirs of C.S. tenants, that plaintiff-opposite-party No.4, subsequently, sold out .18 acre of land out of .21 acre of land to the petitioner on 18.12.1982 on the strength of settlement and ex-parte decree, but the learned Judges of the Courts below have committed an error of law resulting in an error in the decision occasioning failure of justice in dismissing the suit.
 
He next submits that mere claim of the Government that the suit property is a vested property is not enough unless the Government forms an opinion conducting an enquiry into the matter and coming to a decision that the C.S. recorded tenants or the heirs of C.S. tenants left Bangladesh (the then Pakistan) before 1965 and as such the judgment and decree passed by the learned Judges of the Courts below is liable to be set aside.
 
He further submits that since the assertion of fact made in the plaint has not been specifically denied by the defendants, it is tantamount to admission by the defendants under Order 8 Rule 5 of the Code of Civil Procedure. He then submits that the learned Judge of Appellate Court assessed the evidence of the P.Ws in a slip-shod manner and did not come to an independent decision with regard to the plaintiff’s claim by assigning proper reasons under order 41 rule 31 of the code of civil procedure. He lastly, submits that the learned Judge of appellate Court as a Judge of last Court of facts should have assessed the evidence of the witnesses in proper perspective, but he has failed to assess the same and as such, the impugned judgment and decree passed by the learned Judges of the Court’s below is liable to be set aside.
 
The learned Advocate for the plaintiff-petitioner, in support of his submissions, relied upon a decision in the case of Doyal Chandra Mondal and others Vs. the Assistant Custodian of Vested and Non-resident Properties and others reported in 18 BLD (1998) (HC) 21.
 
On the other hand, Mr. Monjur Kader, learned Assistant Attorney-General appearing on behalf of the opposite-party Nos. 1-3, submits that since the C.S. tenants and their heirs migrated to India leaving the then Pakistan before 1965, the property was rightly enlisted as vested property by V.P. Case No. 203-Narail/1968 and that for their absence in the country, a gazette notification No.1199 dated 3.12.1965 was published to that effect.
 
He next submits that the C.S. tenants or their heirs did not raise any objection against the gazette notification and that they conspicuously remained silent about the gazette notification for many years.
 
He further submits that though plaintiff-opposite party No.4 claims that he got the suit land by way of settlement in 1354 B.S, the fact remains that his name was not recorded in S.A. khatian or in subsequent khatian and that he did not take any step for making any correction of the same.
 
He emphatically submits that plaintiff-opposite party No.4 instituted Title Suit No. 79 of 1972 before the Munsif, 2nd Court, Narail and got ex-parte judgment and decree in that suit without impleading the Government as defendant, and as such the ex-parte judgment and decree passed in above Title Suit without impleading the Government as party is a nullity and the same is not binding upon the Government and as such the impugned judgment and decree passed by the learned Judges of the Courts below should be affirmed and Rule should be discharged.
 
I have gone through the revisional application and the materials annexed thereto. I have also considered the submissions made by the learned Advocates for both the sides.
 
On a close perusal of the revisional application, it appears from the record that the petitioner and plaintiffs- opposite party No. 4 as plaintiffs instituted Title Suit No. 145 of 1990 before the Court of Senior Assistant Judge, Lohagara, Narail for declaration that the inclusion of the suit-property as vested property is illegal and the same is not binding upon the plaintiffs.
 
Before coming to a decision in the instant case, let me consider how the petitioner and plaintiffs-opposite party No. 4 have been able to prove their case by adducing reliable and satisfactory evidence before the Court. It is from the record of the case that the plaintiff examined as many as 3 witnesses and the defendants examined one witness to prove their respective case.
 
P.W.1, namely, Md. Ishaque Mia stated in his evidence that he took settlement from the heirs of C.S. tenants in 1354 B.S. and that, subsequently, he sold out .18 acres of land to the plaintiff-petitioner on 18.12.1982. He further stated that the heirs of C.S. tenant left Bangladesh after independence and that Haripada, one of heirs of C.S. tenants died in Rampur Mouza.
 
P.W.2, Kamruzzaman stated about the plot number of the suit land and claimed that he saw Md. Ishaque Mia, plaintiff-opposite party No.4 to enjoy possession of the suit land, but he denied the suggestion that C.S. tenants and their heirs left the then Pakistan and the property was then enlisted as vested property.
 
P.W.3, Md. Alamgir Hossain Molla could not state the plot numbers and khatian numbers of the suit land.
 
Thus, it is clear from the evidence on record that plaintiff-opposite party No.4 could not bring any reliable witness before the Court to prove the basic document of settlement which he claimed to have been acquired in 1354 B.S. It is to be noted here that neither the executing witnesses nor the heirs of C.S. tenants nor any reliable witness in support of the settlement were produced before the Court to prove it genuineness before the Court and as such, plaintiff-opposite party No.4 and plaintiff-petitioner could not prove their basic title over the suit land allegedly acquired by way of settlement by adducing reliable and satisfactory evidence before the Court.
 
It is a settled principle of law that the initial onus lies on the plaintiff to prove his title and in order to prove the plaintiff’s case, the plaintiff has to prove his case to obtain decree and weakness of the defendant’s case is no ground for passing a decree infavour of the plaintiff. The aforesaid view finds support in the case of Md. Naimuddin Sarder Vs. Md. Abdul Kalam Biswas and another reported in 39 DLR(AD) 237 wherein  it  has been held that:

“plaintiff in order to succeed must establish his own case to obtain a decree and weakness of defendant’s case is no ground for passing a decree in favour of the plaintiff ”.
 
From the above discussion and propo-sition of law, I am of the view that plaintiffs- opposite party No. 4 and the plaintiff-petitioner could not prove their title over the suit land by adducing reliable and satisfactory evidence before the Court.
 
Now, I want to discuss another aspect of the case regarding ex-parte judgment and decree passed in title suit No.17 of 1972 wherein the Government was not made party. It is the case of the plaintiffs that plaintiff-opposite party No.4 got the suit land by way of settlement in 1354 B.S, that is, in 1946-1947, but the fact remains that the name of plaintiff-opposite party No.4 was not recorded in S.A. Khatain which was published in 1963 and he, in spite of aforesaid fact, did not take any step for correction of the same.
 
The record of the case reveals that plaintiff-opposite party No.4 filed Title Suit No.17 of 1972 for declaration of title against the S.A. tenants without impleading the Government as party. It is a definite case of the defendant that the C.S. tenants and their heirs left Pakistan before 1965 and accordingly, a gazette notification was published on 03.12.1965 and the suit property assumed the character of vested property by V.P. Case No.203-Narail/1968. Accordingly, the suit property was enlisted as enemy property and the Government became the custodian of the said property. Though the plaintiff-opposite party No.4 filed Title Suit No. 17 of 1972 long after enlisting the property as vested property, the Government should have been impleaded as party in that suit,  because the property was enlisted as enemy property in 1968 and the Government was supposed to be necessary party in that suit. In this connection, I may refer to another decision in the case of Barada Sundari Paul and others Vs. The Assistant Custodian, Enemy Property (Land and Buildings) Comilla and others, 15 BLD (AD) (1995) 95 wherein it has been decided that:

“A necessary party is one whose presence on the record is enjoined by law or in whose absence no effective decision can at all be given and in the absence of that person the suit cannot be said to be properly constituted. In such a case the suit is liable to be dismissed.”
 
Accordingly, in the absence of necessary party, the decree passed in above-mentioned suit against the Government is a nullity and the same is not binding upon the Government. In this connection, reliance may be given on the decision in the case of Most. Jahan Ara Begum Vs. A.L Md. Shamsul Hoque, 27 DLR(1975) (AD) 29  wherein it has been held that:
 
“In the absence of a necessary party, a decree cannot be made in favour of the plaintiff. The question as to what parties are necessary is often not easy to determine one test which has been recognised as of great importance is that when in absence of a party, the court cannot give an effective remedy, that party is a necessary party.”
 
Under the aforesaid discussions and proposition of law, the Government was supposed to be a necessary party in Title Suit No. 17 of 1972. Since, the Government was not made party in that suit, the judgment and decree passed in Title Suit No. 17 of 1972 is not binding upon the Government.
 
Now I want to discuss and consider as to whether the plaintiffs are entitled to enter into the case of Government without establishing their case by adducing reliable and satisfactory evidence before the court. In the instant case, I have observed earlier that the plaintiffs have failed to prove their title and possession over the suit land by producing and adducing legal evidence. In this connection I may refer to a decision in the case of Noor Mohammad Khan and other Vs. Bangladesh and other, reported in 42 DLR (1990)(HC) 434, wherein it has been spelt out that :

“The plaintiffs having failed to prove their title and possession in the suit land, there is no necessity of deciding whether the suit land vested in the Government.”
 
In view of existing legal position as noted above, I am of the view that without establishing and proving the plaintiff’s case, the plaintiffs can not enter into the Government’s case and claim that the Government cannot enlist the property as vested property without forming an opinion upon conducting proper enquiry into the matter.
 
It is to be mentioned here that if the plaintiff-opposite party No.4 could have proved his title over the suit land by adducing proper and legal evidence before the Court, then question would certainly come how the Government enlisted the property as enemy property or vested property without forming an opinion upon conducting an enquiry into that effect. The aforesaid fact tends to show that though plaintiff-opposite Party No.4 sold out .18 acre of land to the petitioner, the petitioner has not got right, title and interest over the suit land by way purchase on basis of settlement and ex-parte judgment and decree passed in Title Suit No. 17 of 1972 wherein the Government was not impleaded as necessary party in order to enable the court effectively and completely to adjudicate upon and settle the question involved in the suit.
 
Defendant No.1 stated in his written statements that the suit land had been enlisted as vested property by V.P. Case No. 203-Narail/1968 and after enlisting the property as vested property, a gazette notification No. 1199 dated 3.12.1965 was published but that assertion of the defendants has not been controverted or denied by the plaintiffs.
 
Now question arises to decide as to whether the plaintiffs are in possession over the suit land. First of all, the name of plaintiff-opposite party No.4 has not been recorded in S.A. khatian. Secondly, he did not file any suit for correction of S.A. khatian, Thirdly, he did not pay any rent to the Government.
 
It is a settled principle of law that record-of-right is the evidence of present possession and rent receipts are evidence of possession and may be used as collateral evidence of title. Thus, it is clear from the aforesaid fact that plaintiff-opposite party No.4 is not in possession over the suit land. Though D.W.1 admitted that the petitioner is in possession over the suit land, I do not find any petitioner’s lawful title which was attained by her by way of purchase from plaintiff-opposite party No.4 on the basis of alleged settlement and ex-parte decree. If the alleged settlement is not proved, the subsequent purchase of land by the plaintiff-petitioner from plaintiff-opposite party No. 4 is noting but a paper transaction which does not confer any title on the suit land claimed by the plaintiff-petitioner. It appears to me that the admission of D.W.1 as to possession of the petitioner over the suit land is a made up and make-believe story of D.W.1 being persuaded by the plaintiff-petitioner.
 
However, Mr. Khan, in support of his submission relied upon a decision in the case of Doyal Chandra Mondal and others Vs. Custodian, Vested and Non-Residence Property reported in 18 BLD 1998 (HD) 21 where in it has been decided that :

“Laws relating to enemy property, now vested property, are fairly well settled by now by the consistent pronouncements by the highest court of the country. Properties which assumed enemy character and became enemy properties by operation of law during relevant time viz, from 6.9.1965 to 16.2.1969. When emergency was formally lifted, became vested properties and the Government may treat such properties as vested property and take over possession thereof in accordance with law subject to the legitimate rights of the co-owner, co-sharer and transferees in possession therein. But before a property is treated as a vested property, particularly on the basis of a V.P. Case started long after the lifting of emergency on 16th February, 1969, a heavy duty is cast upon the Government to satisfy itself that the recorded tenant migrated to India before 1965 and settled there following which the property by conducting necessary enquiry into individual cases.”
 
I have gone through the decision and I find that the present case appears to be distinguishable from that case. In the aforesaid reported case, it appears that the petitioner had lawful title over the suit land and accordingly, his name was recorded in C.S, S.A and R.S khatian and the case property was enlisted in the vested property list in 1974 long after lifting of emergency. Furthermore, the UNO, Narail who was defendant No.2 in that suit, after proper inquiry, found that the petitioner was the only heir to succeed the original owner but in the instant case, I find that though plaintiff-opposite party No.4 claimed his title by way of settlement allegedly acquired in 1954 B.S., his name was not recorded in Khatian and he did not file any suit challenging the S.A. Khatian soon after publication of the same. However, he filed Title Suit No. 17 of 1972 long after S.A. Khatian when the property absolutely came under control and possession of the Government as enemy property.
 
Though a gazette notification was published on 3.12.1965, and S.A. Khatian was published 1963 mentioning the names of heirs of C.S. Tenants, the plaintiff-opposite party No.4 conspicuously remained silent over the matter for years together and was in deep slumber for about 9 years. 
 
However, after rising from sleep, the plaintiff-opposite No.4 filed Title Suit No. 17 of 1972 without impleading the Government as party, though the Government was a necessary party to that suit and as such the decree passed in that suit is a nullity and not binding upon the Government and as such the decision referred to by the learned Advocate for the plaintiff-petitioner has no manner of application in the instant suit and the submissions made by the learned Advocate fall through.
 
Having considered all aspect of the case, I do not find any illegality in the impugned Judgment and decree passed by the learned Judges of the Courts below and as such, the same does not call for any interference by this court.
 
Considering the facts and circumstances of the case and the proposition of law, I do not find any merit in the Rule.
 
In the result, the Rule is discharged without any order as to costs.  
 
Let the lower Court’s record along with a copy of this judgment be sent down to the concerned Courts below at once.
 
Ed.

Reference: 4 LNJ (2015) 74