Nazir Ahmed and others Vs. Md. Fajal Ahmed and others, 1 LNJ (2012) 413

Case No: First Appeal No. 153 of 2001

Judge: Nozrul Islam Chowdhury,

Court: High Court Division,,

Advocate: Mr. Md. Abdus Salam Mondal,Mr. Fazlul Hoq,,

Citation: 1 LNJ (2012) 413

Case Year: 2012

Appellant: Nazir Ahmed and others

Respondent: Md. Fajal Ahmed and others

Subject: Limitation, Law of Evidence,

Delivery Date: 2011-11-21

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
 
Nozrul Islam Chowdhury, J.
And
K.M. Kamrul Kader, J.

Judgment
21.11.2011 & 23.11.2011
 
Nazir Ahmed and others
...Appellants.
Vs.
Md. Fajal Ahmed and others
...Respondents.
 
Public Demands Recovery Act (III of 1913)
Sections 3(3), 22 and 23
Evidence Act (I of 1872)
Section 80
An application filed by Sachindra Chandra Mohantha and two others for setting aside of certificate sale took place in a certificate case under section 23(2) of the Public Demands Recovery Act. The certified copies were issued as back as on 9.4.1974 long before the institution of the instant suit in the year 1997 which clearly shows that it was owing to non service of notice upon Sachin Chandra Mohantha the auction sale was set aside by the Certificate Officer. Such copies are genuine documents evidencing the official act cancelling the auction sale held in Certificate Case No. 188/64-65. Since a presumption of genuineness of such cancellation is available under section 80 of the Evidence Act and such presumtion having not been rebutted by the plaintiffs, it can safely be arrived at a finding that the auction sale in favour of Taheruddin was set aside in a regular proceeding and after setting aside the auction sale, the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid and hence the plaintiffs are not entitled to get a declaration of their title.
 
We feel inclined to take notice of two Exts. marked as Exts. Ka and Kha certified copies of the order sheet of Miscellaneous Case dated 13.02.74 passed in Miscellaneous Case No. 2/73-74 and the application for setting aside sale wherefrom it is evident that Sachin Chandra Mohantha and others were the applicants while Taheruddin was the opposite party. These certified copies were issued as back as on 09.04.74 long before the institution of the instant suit in the year 1997 which clearly shows that it was owing to non service of notice upon Sachinn Chandra Mohantha the only admitted heir of the admitted owners, the auction sale was set aside by the Certificate Officer in Miscellenous Case No.2/73-74......(49)
 
On a perusal of  Ext. (Kha) we find that the said application was filed jointly by three persons namely (1) Sachindra Chandra  only heir of admitted owner (2) Rosomoy Chandra Nath and (3) Abdul Hashem against Taheruddin  the auction purchaser, claimed by plaintiff side and that application was filed for setting aside  of certificate sale took place in  Certificate Case No. 188(S)/64-65 under section 23(2) of the Public Demand Recovery Act,1913. Certified copy of that document was obtained as back as in the year 1974  while the instant suit was filed in the year 1997, therefore, long before the institution of the instant suit those two Exts. namely (Ka) and (Kha)  were collected  from the side of the defendants and on perusal of the Ext. Kha we find a clear averment  made therein  testifying  the assertions made in the written statement filed  by the defendants and the deposition of their witnesses  made in the suit. Having given a look to those two documents with bear eyes those cannot but be accepted as genuine ones and the question of fabrication of those documents for the purpose of the suit cannot be raised at all. These are genuine documents evidencing the official act canceling the auction sale held in Certificate Case No. 188/64-65 was done in due process. Since a presumption of genuineness of the said cancellation of auction sale is available under Section 80 of the Evidence Act and the said presumption has not at all be rebutted by the plaintiff’s, therefore, we can safely accept the position that the sale though held in the year 1964 in favour of Taheruddin in Certificate Case No. 188/64-65 yet the same was subsequently set aside  in a regular proceeding  in Miscellaneous Case No. 2/73-74 brought by the three persons including one who is the sole heir of admitted owner, therefore,  we have no hesitation to arrive at a finding that the auction sale in favour of Taheruddin in connection with Certificate Case No. 188/64-65 was set aside in a regular proceeding because of non service of notice upon  Sachindra  the certificate debtor and after setting aside the sale in the proceeding as aforesaid the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid, therefore, the question of declaration of title in their favour  on the basis of their registered transfer deeds does not arise at all. ...(50)
 
Limitation Act (IX of 1908)
Section 28
No pleading no proof, the plaintiffs are not entitled to get a decree on the basis of adverse possession.
 
We have however noticed that the learned Joint District Judge decreed the suit in part on a gratuitous finding to the effect that the plaintiffs have acquired title over the suit land on the basis of adverse possession. Adverse possession was neither pleaded nor any evidence was lend by the plaintiffs. The plaintiffs have made a prayer  to have a declaration of their title in the suit land by virtue of purchase deeds but adverse possession was neither pleaded nor proved , therefore, findings arrived at by the trial court is no doubt a gratuitous one which is not at all sustainable in law. In this connection Mr. Abdus Salam Mondal has rightly referred to a decision in a case where such a  principle of law was laid down  by our apex court in the case of Mohaprabhu Ram  Vs Gopal Ram Ram  reported in 42 DLR (AD) 154. ...(52)
 
Mahaprablu Ram Vs. Gopal Ram Ram, 42 DLR (AD) 154 ref.
 
Mr. Md. Abdus Salam Mondal with
Mr. Surojit Bhattacharjee, Advocates
 ...For the Appellants. 
Mr. Fazlul Hoq with
Mr. M. C. Chowdhury, Advocates
 ...For the Respondents
 
First Appeal No. 153 of 2001
 
Judgment
Nozrul Islam Chowdhury, J.
 
         This appeal at the instance of defendant Nos.4-6, is directed against the judgment and decree dated 28.03.2000 passed by the Sub-ordinate Judge, now Joint District Judge, and Artha Rin Adalat, Sylhet in Title Suit No.43 of 1999, decreeing the suit.
 
2.     The respondents as plaintiffs instituted Title Suit No.43 of 1999(re-numbered) before the Joint District Judge, Artha Rin Adalat, Sylhet impleading the appellants along with others as defendants seeking a decree for declaration of title and for a further declaration that three kabalas one dated 18.11.1974 executed by Abdul Hashem in favour of Chand Miah the defendant No.1, registered kabla dated 02.12.1974 executed by Abdul Hashem in favour of defendant No.2 Raja Miah and registered kabala dated 30.03.1973 executed by Rosomoy Chandra Nath in favour of Abdul Hashem are forged ,fabricated, void and not binding upon the plaintiffs.
 
3.     The plaintiffs brought the suit stating inter alia  that some 1.13 acres of land covered by two S.S plots namely, 2088 and 2007 appertaining  to Khatian No.1220 of mouza Kumargoan J.L No.18 originally belonged to Jogendra Mohantha and Mahananda Mahantha Sons of Paramananda Mahantha who having been in khas possession of the suit land sold the same in favour of Rosomoy Chandra by a registered kabala dated 16.06.1960 ; while Rosomoy Chandra  was in possession and enjoyment  of the suit land the same was put to auction owing to non-payment of rent and eventually Certificate Case No.188/64-65 was initiated and upon conclusion thereof  the suit land was sold in auction in due process; Taheruddin  purchased the suit land in the said auction held on 29-10-64 and the said sale was made absolute and certificate was issued  in favour of Taheruddin  on 20.01.1965; Thereafter , Taheruddin sold the suit land in favour of Eshad Ali by a registered kabala dated 07.04.1975 who also sold the suit land to Raisa Bibi who got possession ; thereafter Raisa Bibi being in possession of the suit land sold the same in favour of Tullai Bibi in the year 1979 ; thereafter Tullai having been in possession of the suit land  got her name mutated in the record of rights and eventually she gifted away  the suit land to her son Moklis Miah by a deed of gift dated 20.11.1986  and upon taking over possession of the suit land Moklis Miah also got his name mutated in the record of rights in respect of the suit land; thereafter on 27.06.1992 Moklish Miah sold the suit land in favour of plaintiff Fazal Ahmed and one Akbor Ali and had handed over possession ; Said Akbor ali subsequently sold his part  of the suit land in favour of the plaintiff Fazal Ahmed , therefore, the plaintiff got his exclusive title in the suit  land in the manner aforesaid and also got possession thereof.
 
4.     Thereafter, the plaintiff made an attempt to get his name mutated in respect  of suit land but it was found that the names of defendant Nos.1 and 2 had already been recorded  in respect of the suit land although they had no right, title, interest  or possession therein  and upon query  the defendant No.3 disclosed  for the first time  that the defendant Nos.1 and 2 had purchased the suit land from Abul Hashem  by a registered kabala dated 18.11.74 in the name of Chand Miah the defendant No.1 and by another kabala dated 02.12.1974 in favour of defendant No.2 Raja Miah; and defendant No.3 made an attempt for sale of the suit land ; thereafter the plaintiff got information about the three kabalas as disclosed above which are dated 30.03.1973, 18.11.1974 and 02.12.1974 ; thus the cause of auction arose  and the suit was filed seeking redress.
 
5.     The defendant Nos.4-6 who are the appellants before us, got themselves added in the suit and upon filing written statement denied the material allegations made in the plaint contending inter alia that it is indeed Mohendra and Mahnanda Mohantha were the original owners of the suit land who infact sold the suit land in favour of Rosomoy Nath by a registered kabala dated 16.06.60 ; thereafter Rosomoy Chandra Nath sold the suit land in favour of Abdul Hashem on 30.03.1973 , meanwhile the original owners namely, Mahendra Chandra Mohantha and Mohananda  Mohantha  died leaving behind their sole heir Sachin Chandra Mohantha who was childless. It was asserted in the written statement that one Taheruddin who flashed his greedy eyes over the suit land and consequently at his instance a Certificate Case being No.188 of 1964-65 was initiated for realization of arrear rent in respect of suit land and in the said proceeding no notice was served upon Abdul Hashem as contemplated under section 7 of the Public Demand Recovery Act and eventually Taheruddin purchased the suit land on 23.10.1964 in the auction held in respect of the aforesaid  certificate case. Thereafter Sachindra Mohontha, Rosomoy along with Abdul Hashem filed a joint application giving rise to Miscellaneous Case No.2 of 1973-74 with a prayer for setting aside  the aforesaid sale and in the said Miscellaneous proceeding 2 of 1973-74 the Certificate Officer having heard both sides, allowed the same by his order dated 30.02.1974 setting aside the sale in auction held on 29.10.1964 in Certificate Case No.188 of 1964-65 as a result the kabalas in favour of Rosomoy Chandra Mahantha and subsequent  kabala in favour of Abdul Hashem executed by Rosomoy remained valid and effective  consequently Abdul Hashem having been in possession and enjoyment of the suit land sold .15 acres of land by a registered kabala dated 18.11.74  appertaining to S.S plot No.2007 as also .48 acres of land appertaining to S.S plot No.2088 totaling .63 acres of land out of the suit land in favour of defendant No.1 Chand Miah .Said Abul Hashem also sold .15 acres of land  out of S.s plot No.2007 and 48 acres out of 2088  total .63 acres of land in favour of Defendant No.2 Raja Miah by a Registered kabala dated 02.12.1974.
 
6.     In the process aforesaid the defendant Nos.1 and 2 entered into possession of the entire suit land in exercise of their right and title they also got their names mutated in respect of the record of right. It is also asserted in the written statement that in view of setting aside of the sale in auction in the Certificate Case as aforesaid the registered sale deed in favour of Taheruddin in the Certifi-cate Case was rendered  invalid, therefore, subseq-uent purchases as claimed in the plaint from  Taheruddin were also rendered invalid consequ-ently they did not acquire any right, title posses-sion and interest in respect of their alleged purchased land. The defendant Nos.1 and 2 are residents of London, therefore, they appointed one Manik Miah as their attorney empowering him to sell the suit land. The answering defendant Nos.4-6 purchased the suit land from appointed attorney of defendant Nos.1 and 2 by a registered kabala dated 22.05.98 at a consideration of Tk. 50,000/00 and after such purchase they have been in posses-sion of the suit land in exercise of their right title and interest.
 
7.     It was also asserted in the written statement that the plaintiff though admitted that Rosmomoy Chandra Nath was the owner of the land yet he was not impleaded as a party in the certificate case, therefore, no notice   was served  upon  him in the said certificate proceeding and that the plaintiff brought the suit with false allegation as such the same is liable to be dismissed with costs.
 
8.     Having taken up the suit  for hearing the learned Joint District Judge  framed as many as  6(six) issues  including one to the effect as to whether  the kabalas dated 18.11.74 and 02.12.74 are forged ,fabricated and sham paper transaction or not.
 
9.     In the suit the plaintiff examined 10(ten) witnesses while the defendants adduced 8(eight) witnesses in support of their case and upon conclusion of the trial the learned Joint District Judge decreed the suit  in part declaring right title of the plaintiff in the suit land by virtue of adverse possession. It may be mentioned that no decree was granted for setting aside the kabala as prayed for, by the learned Joint District Judge in his judgment and decree dated  28.03.2000 passed in Title Suit No.43 of 1999.
 
10.   Having felt aggrieved by the aforesaid judgment and decree in part passed by the learned Joint District Judge the added defendant Nos.4-6 as appellants preferred this appeal.
 
11.   Mr. Abdus Salam Mondal, the learned Advo-cate appearing for the appellants along with Mr. Surojit Bhattacharjee submits at the out set that the learned Joint District Judge having found that the plaintiff failed to prove their case in respect of allegation of forgery or fabrication of the docum-ent, did not pass any decree in favour of the plaintiff to that effect but the suit was decreed on a ground which is expressly extreneous to the proceeding.
 
12.   Elaborating his submissions Mr. Mondal has pointed out  that nowhere in the four corners  of the plaint the plaintiff  pleaded acquisition of title by adverse possession in the suit land, therefore, no evidence was lead to that effect but the learned  District Judge decreed the suit declaring title of the plaintiff by adverse possession. As a matter of fact the question of adverse possession was neither pleaded nor proved by the plaintiff; therefore, part decree granted by the impugned judgment is nothing but a gratuitous decree which is not permissible.
 
13.   In support of his submission the learned Advocate for the appellant placed reliance in the case of Mahaprabhu  Ram  Vs. Gopal Ram Ram and others reported din 42 DLR (AD)154.
 
14.   Mr. Mondal submits further  that in view of  setting aside of the sale in auction, purchase of the suit land by Taheruddin in the certificate proceeding having been rendered invalid the subsequent purchase deeds on the basis thereof don’t create any right title interest or possession in the suit land by virtue of their successive kabalas originating from Taheruddin , therefore, the plaintiff had acquired no right, title, interest or possession in the suit land  consequently the decree in his favour  as granted by the learned Sub-ordinate Judge is liable to be set aside .
 
15.   Referring to the evidence on record Mr. Mondal submits that the plaintiff utterly failed in substantiating his claim that the kabala dated 18.11.1974 and 2.12.74 are either forged or fabricated or sham paper transaction. Therefore, question of decree in favour of the plaintiff as claimed does not arise at all. On the  contrary, the evidence adduced by the defendants  in support of their case emply prove that they have indeed acquired right, title, interest and possession in the suit land, therefore, the suit ought to have been dismissed as a whole.
 
16.   Mr. Fazlul Hoq the learned Advocate appearing with Mr.M.C Chowdhury, submits that the evidence adduced  by the plaintiff and the documents produced before the court if considered  in their proper perspective  warrant a decree in the suit not in part but as a whole.
 
17.   Elaborating his submission the learned Advocat e has pointed out that the  act of setting aside the sale in auction having been  done by the Circle Officer of the concerned Upazilla in the year 1974 it was without jurisdiction . Referring to the provision of Section 3(3) of Public Demand Recovery Act the learned Advocate for the respondents submits that at the relevant time it was the Sub-divisional Officer who were engaged as Certificate Officer and any order setting aside such sale ought to have been made by the Sub-divisional Officer alone and not by the Circle Officer as in the instant case. Referring to Section 22 and 23 of the Public Demand Recovery Act the learned Advocate for the respondents  submits that at the time of initiation of the proceeding for cancellation of sale the applicant  ought to have paid entire arrear rent  in respect of the suit land otherwise the said application ought not to have been entertained even but in the instant  case the defendant did not submit a scrap of paper to  substantiate the position that in fact they had ever paid  arrear of rent as contemplated under section 23 of the Public Demand Recovery Act, therefore, cancellation of  sale in auction in favour of Abdul Bari was a nullity , therefore,  the defendant did not  acquire any right title interest in the suit land rather it is the plaintiff  who had indeed acquired the same in respect of the suit land , therefore, the learned Joint District Judge ought to have decreed the suit as a whole.
 
18.   The learned Advocate for the respondents referring to section 23 of the Public Demand Recovery Act submits that any proceeding for setting aside a sale ought to have been initiated within 60(sixth) days from the date of sale but in the instant case  it is about 10(ten) years after the proceeding had been initiated and in consequence thereof  the sale was set aside by the Circle Officer in utter dis-regard to the provision of law , therefore, the same is not sustainable. The trial court ought to have noticed this aspect of the case in refusing  the decree in part.
 
19.   With a view to appreciate the submissions made by the learned Advocate from both sides we have to consider the evidence to evaluate the extent to which each of the parties has proved his respective case and in doing so we find plaintiff  P.W.1 Fazal Ahmed deposed that the suit land originally belonged to Mohendra Chandra Mahanta  and Mohananda Mohantha who owned and posse-ssed the same by inheritances and subsequently for arrear of rent Certificate Case No.188 of 1964-65 was initiated and after  conclusion of the said case the suit land was put to auction whereupon Taheruddin purchased the same land in auction held on 29.10.64 and subsequently certificate was issued in favour of Taheruddin  on 21.01.65 . Accordingly, possession was handed over in his favour   and thereafter by successive devolutions   on transfer by registered deeds one Ershad Ali purchased the  suit land by a registered kabala dated 01.06.1966 and thereafter the suit land was also transferred from time to time from one man to another and ultimately to one Moklesh Miah who transferred  the same in favour of the plaintiff and one Akbor Ali in equal share  by a  registered kabala in the year 1992. Thereafter Akbor Ali sold his part of the suit land in favour of the plaintiff by two registered kabalas in the year 1996 one in the month of May and other one in December. This P.W 1 produced all relevant documents of transfer which have been marked as Ext.1(Ka), Ext. 1(Kha), Ext.1(Ga) , Ext 1(gha), Ext.1(Uma), Ext.2, Ext.3, Ext.4 Ext.5, Ext.6, Ext.7, Ext.8, Ext.9, Ext.9(ka), Ext.9(Kha) and Ext.5(ka).The aforesaid Exts. also include the mutation khatian, the application for mutation, order passed in the Mutation Case, rent receipt, information slip showing that the auction was not set aside etc.
 
20.   During cross-examination this witness admitted that the khatian in respect of which mutation was made by the plaintiff was in the name of Chand Miah and Raza Miah . This witness also admitted that he did not obtain any paper of the auction proceeding. This witness also denied that Sachin Chandra Mondal, Rosomoy and Abul Hashem jointly prayed for setting aside the auction sale. This witness also denied the suggestion that on 13.02.74 the auction sale was set aside. This witness also denied the suggestion that Taheruddin did not get possession by virtue of his auction purchase. This witness admitted that in the objection filed by the defendant Nos.4-6 in the temporary injunction matter it was claimed that defendant Nos.4-6 purchased the suit land from Manik Miah.
 
21.   P.W.2 Akbor Ali deposed as a plaintiff in the suit. He also admits that Mohendra and Mohan-anda were the original owners of the suit land. This witness also deposed in the same way as that of P.W.1. about the successive devolutions on transfer as well as on gift. This witness also claimed possession in the suit land by the plaintiff and he denies possession by the defendant’s sides.
 
22.   During cross-examination this witness admitted that he has not seen the papers relating to auction sale. This witness also denied the suggestion that the deed of transfer from Taheruddin on wards are sham paper transaction. This witness also asserted that the defendant Nos.1 and 2 got their names mutated on the basis of a forged deed.
 
23.   P.W.3 Masuk Miah deposed that he knows Rosomoy Chandra Nath and his brother Lakhon  who transferred  some land to his maternal uncle and the said land was gifted in his favour by his maternal uncle by a registered deed bearing registration  No.8693 of the 1989. The said registered deed has been produced. The photo copy of the said document has been produced and marked as Exts.Cha (with objection).
 
24.   During cross-examination he admitted that Rosomoy had left for India.
 
25.   P.W.4 Sree Lakhon Debnath son of late Ramananda Nath who deposed that his younger brother Rosomoy purchased the suit land from Mohendra  and Mahananda Mohantha and after  1- 2 years  of such purchase Rosomoy left   for India .Thereafter he had been in possession of the suit and during war of liberation he also left for India and on returning back he found Ershad Ali was in possesison of the suit land who claims to have  purchased  the same in auction and his brother Rosomoy did not return back in this country. This witness also claims that Rosomoy left the document of his purchase to this witness Lakhon Deb Nath and on request this witness handed over the original document to Abdul Hashem for the purpose of setting aside the auction sale and the said document was not returned back to him thereafter. This witness also testifies possession of the plaintiff in the suit land. This witness also admits that he did not go for any salish when Abul Hashem did not return back the documents. He does not know whether Rosomoy sold the suit land to Abul Hashem and there was no known person present when the document was handed over to Hashem. This witness denied the suggestion that he testifies falsely on payment. This witness expressed his ignorance about the setting aside of the auction sale. This witness denied the suggestion that Abdul Hashem, Rosomoy and Sachin Chandra jointly filed an application for setting side the auction sale. This witness denied the suggestion that he was deposing in the court being unduly influenced by Fazal Ahmed (plaintiff).
 
26.   P.W.5 Sachin Chandra Mohontha deposed to the effect that the suit land originally belonged to his father Mohendra and his uncle Mohananda. He also testifies that Rosomoy Nath was the younger brother of Lokhon Chandra and one Taheruddin purchased the suit land in auction and that the plaintiff  is the owner of the suit land who possess  the same through Akbor Ali. He also admitted that he has no claim in the suit land.
 
27.   During cross-examination this witness disclosed that he read upto primary level. This witness denied the suggestion that he along with Rosomoy and Abdul Hashem filed a joint application for setting aside the sale. This witness also denied the suggestion that in 1974 auction sale was set aside. This witness also admitted in his cross-examination that he got himself acquainted with Fazal Ahmed( plaintiff) in course of admission of his daughter in the school. This witness also denied the suggestion that he is deposing falsely in the case upon being unduly influenced by Fazal Ahmed (plaintiff)
 
28.   P.w.6 is one Md. Osman Miah. This witness deposed  that Moklis Miah being in possession, transferred  the suit land in favour of Akbor Ali and Fazal Miah and the plaintiff Fazal Miah has been in possession of the suit land now he is the owner and Akbor Ali became a borgader. This witness also disclosed that he does not know whether Abdul Hashem ever purchased the suit land and he does not know defendant Nos.4-6 have been possessing the suit land. He also denied that he is a tutored witness.
 
29.   P.W.7 is one Abdur Rahman who testifies that he knows the suit land from 25 years before and at that time  Masuk Miah was the owner of the suit land. Thereafter, Masuk Miah transferred to Akbor Ali and Fazal Miah and he did never  see Abdul Hashem ever possess the suit land. This witness during corss-examination admitted that he lives in a place ¼ mile away from the suit land and he learnt from Moklish  Mia and Akbor Ali that Muklish Miah was in possession of the suit land  . This witness also admitted that Akbor Ali is his uncle  but he denies the suggestion that he is a tutored witness and that Abdul Hashem is in possession of the suit land.
 
30.   P.W.8 Mozahid Ali deposed that he purchased the suit land from Ershad Ali in the name of his wife Raisa bibi on 07.04.75  and he used  to possess the suit land through Akbor Ali. Thereafter Raisa Bibi sold the suit land to Tulai Bibi mother of Muklish Miah.
 
31.   During cross-examination this witness admitted that he possessed the suit land from Ershad Ali in 1975. This witness expressed his ignorance as to whether auction sale was set aside after his purchase. He also denied the suggestion that Ershad Ali was not in possession after his purchase. He also denied the suggestion that he did not ever get possession of the suit land.  This witness also denied the suggestion that he is in the habit of purchasing disputed lands.
 
32.   P.W.9 Taher Ali deposed to the effect that Akbor Ali has been in possession of the suit land for 20/22 years and he possess one part and bagidar on the other part and none else except Akbor Ali in possession of the suit land.
 
33.   During cross-examination this witness deposed that he lives in a place ¼th mile away from the suit land. This witness also admits in his cross-examination that Fazal Miah asked him to depose in the case. He also denied the suggestion that he is a tutored witness. He expressed his ignorance as to whether Taheruddin  purchased the suit land in auction.
 
34.   P.W.10 Denesh Chandra Debnath also deposed that Akbor Ali is in possession of the suit land and Fazal Miah posted pillar in the suit land and none else except Akbor Ali, Fazal Miah was found by him to be in possession. This witness during cross-examination admits  that he lives in a place one kilometer away from the suit land and he does not know the plot number of his own land and he knows no plot number either . In cross-examination this witness admits that he does not know which land is covered by pillar posted by Fazal Mia and he does not know from whom Akbor Ali purchased the suit land. He also does not know who are the others in possession of the suit land, from his boyhood. This witness also denied the suggestion that he had no land contagious to the suit land and he does not know the suit land. 
 
35.   Defendant  No.4 figured as witness No.1 for the defendants who deposed that defendant s 5-6 are his co -sharers who filed written  statement jointly upon being added as defendants and he is deposing  on behalf of defendants 5-6 as well. He also testifies that Mohendra  and Mohananda were the original owners of the suit land who having been in possession thereof sold the same in favour of Rosomoy by registered kabala dated 116.06.1960, thereafter Rosomoy Nath sold the suit land to Abdul Hashem by registered kabala . He also deposed that Sachindra son of Mohendra  became  the Sole heir of two  Mohanthas. This witness also testifies  that after purchase by Abdul Hashem it was detected that Taheruddin once purchased the suit land in auction though no notice either upon Rosomoy or Abdul Hashem was ever served , record of right was in favour of Mohendra  and Mohantha and on the basis of such record of right certificate case was proceeded and the auction took place. It was also deposed that Abdul Hashem , Rosomoy and Sachindra jointly initiated Miscellaneous Case No.2/73-74 for setting aside the auction sale on the basis whereof, on 13.02.74 the auction sale was set aside. This witness also produced the certified copy of the order dated 13.02.74 passed in the said Miscellaneous Case No.2/73-74 and marked as Ext. Ka. This witness produced the certified copy of the application for setting aside the sale which has been marked as Ext.Kha. This witness testifies further that after setting aside the auction sale the subsequent title on purchase were rendered invalid, therefore, title of purchasers have extinguished and upon setting aside the auction sale Abdul Hashem entered into possession of the suit land .Thereafter, Abdul Hashem sold the same in favour of defendant No.1 and 2 by a registered kabla in the year 1974. The defendant Nos. 1 and 2 has been residing in London. Defendant No.3 is the father of defendant Nos.1 and 2 who is also a resident of London. Defendant Nos.1 and 2 executed a power of attorney for transfer of the suit land in favour of  Manik Miah. the plaintiff wanted to purchase the suit land but he was not agreeable to pay the market price so he failed, therefore, Manik Miah sold the said land in favour of  defendant Nos.4-6 by a registered  kabala dated 22.05.1988 . The said document has been produced in the court and marked as Ext. Ga( with objection) . This witness also testifies that he had purchased the suit land at a consideration of Tk.5(five) lacs. The original deed of transfer was in custody of the seller so he handed over to the defendant Nos.4-6 which has been produced before the court and marked as Ext.Ga-1. The registered sale deed dated 30.03.1973 executed by Rosomoy in favour of Abul Hashem has also been produced before the court and marked as Ext.Ga-2 . Thereafter Abul Hashem sold a part of the suit land in favour of defendant No.1 by a registered kabala dated 18.11.74  which has been produced and marked as Ext.Ga-3. The said Abdul Hashem also sold other part of the suit land in favour of defendant No.2 by a registered kabala dated 01.12.74 which has been produced and marked as Ext.Ga-4 after purchase the defendant Nos.1 and 2 Chand Miah and Raja Miah got their names mutated in respect of the suit land being suit plot Nos. 2007 and 2088. This witness also produced the rent receipt evidencing payment of rent. This witness also testifies that the document in favour of the plaintiffs are collusive paper transaction which were never acted upon.
 
36.   During cross-examination this witness admitted that he reside in a place eight miles away from the suit land while defendant No.5 Imran Ahmed is a resident of a place 15-16 miles away. The defendant No.6 Ashis Kapali reside at 3 miles away from the suit land and he had seen the suit land for the first time one or two months before  the date of their purchase. and they had no knowledge about the same earlier This witness also  disclosed that he had no knowledge abut the case  prior to his purchase .This witness also  admitted that Akbor Ali is a resident of a place situated near to the suit land. This witness also disclosed that Abdul Hashem is no more. This witness also claims that the information slip filed by the plaintiff is a collusive paper. This witness also admitted in his cross-examination that record of Miscellaneous Case No.2-73-74 has not been called for. This witness denied the suggestion that there was no case initiated for cancellation of the auction sale .This witness also denied the suggestion that their document of purchase is forged one. This witness expressed his ignorance as to whether any heirs of Abdul Hashem is alive. This witness testifies that the document by which the suit land was purchased from Mohendra and Mohantha, was handed over to Manik Miah who handed over the same to this witness. This witness denied the suggestion that Abdul Hashem obtained  the custody of the said document by practicing fraud .
 
37.   D.W.2 Manik Miah deposed to the effect that he knows the plaintiff and the defendants as well as the suit land. This witness testifies that he purchased the suit land on behalf of Raja Miah and Chand Miah  defendant Nos.1 and 2 and defendant Nos.1 and 2 are his cousins by maternal uncle. This witness also produced the power of attorney executed in his favour by Chand Miah and Raja Miah defendant Nos.1 and 2. The said power of attorney was produced before the court as Ext. Gha. This witness also deposed that the plaintiff also wanted to purchase   the ssuit land at a lesser price, therefore, land was sold to defendant Nos.4-6 at a consideration of Tk.5(five) lacs. This witness is the executant of the deed of transfer in fvour of defendant Nos.4-6 and also handed over possession. It is also deposed by this witness that defendant Nos.4-6 has been in possession of the suit land after their purchase.
 
38.   During cross-examination this witness admitted that he reside at a place three miles away to the east of the suit land. This witness however could not disclose   the boundary of the suit land. This witness denied the suggestion that there was no transfer or handing over possession of the suit land by him as alleged and that no consideration was passed.
 
39.   D.W 3 Khalendra Chandra Nath is a witness residing at a distance of 500 yards from the suit land who testifies possession of the suit land by Abdul Hashem. He also testifies possession by Rosomoy prior to the transfer of the suit land in favour of Abdul Hashem. This witness also testifies that Manik purchased the suit land on behalf of Chand Miah and Raja Miah.
 
40.   During cross-examination this witness reiterated possession of the suit land by Rosomoy and Manik Miah. This witness denied the sugge-stion that he was deposing upon being unduly influenced. 
 
41.   D.W 4 Kutubuddin is a deed writer of the deed in favour  of Nazir Ahmed and others by Chand Miah and others who testifies  that  the attorney of Chand Miah is also executant of the deed and consideration was 5(five) lacs. He also testifies that it is a genuine deed. He knows Nazir Ahmed, Azad and others. This witness also testifies during cross-examination that he witnessed passing of the consideration between the vendor and vendees and that the money was paid on behalf of Nazir Ahmed and others. This witness also testifies that the executant used the pen belonging to this witness D.W.4.
 
42.   D.W 5 Md.Sultan Miah is also another deed writer of the registered deed dated 30.03.1973 executed by Rosmomoy Nath in favour of Abdul Hashem. He also disclosed that Rosomoy came to his   office for the purpose of writing the said deeds. Thereafter, Rosomoy put his signature in his presence upon receipt of the consideration money. This witness also put his signature as a deed writer. This witness also disclosed during  cross-examination that he used to know both Rosomoy and Abdul Hashem and that the consideration of Tk.5(five) lacs was received by the executant from the purchaser in his presence.
 
43.   D.W 6 is Suruj Ali who is the resident of a place situated at a distance of 700 cubits from the suit land, who deposed in the same line as that of defendant No.1 in respect of the transfer from the original owners namely Mohonthas. He is a resident of the same locality where Rosomoy ,Abdul Hashem, Mohanandha used to live. He also testifies possession of the suit land by Abdul Hashen as also by Rosomoy and Chand Miah through Manik Miah. He also testifies that he did not see possession of the suit land by Taheruddin  , Ershad Ali, Fazal Ahmed and Akbor Ali. This witness specifically disclosed the boundaries of the suit land. This witness denied the suggestion that he was deposing falsely.
 
44.   D.W 7 is one Shamim Ahmed who testifies that he is a attesting witness of Ext.Ga the registered deed dated 22.06.98 in favour of Ashis Kapali and two other executed by Manik Miah. He knows the suit land situated at a distance of ¼ th miles from his house. He also testifies that the purchasers are in possession of the suit land but also disclosed in his cross-examination that the purchasers were not known to him from before but it is Manik Miah who got himself acquainted with them. He also specifically mentioned the boundary men of the suit land. He denied the suggestion that he was deposing being unduly influenced.
 
45.   D.W 8 is Taheruddin the auction purchaser of the suit land from whom the plaintiff claims to have purchased the suit land by away of successive devolution on transfer, deposed to the effect that he knows the plaintiff Fazal Ahmed , Nazir Ahmed, the defendants and the suit land. He also testifies that he had purchased the suit land in auction held in the auction Certificate Case No.188/64-65 and his purchase took place on 29.10.64, he received possession through papers and as a matter of fact he did not get possession of the suit land physically. He also deposed that he sold the suit land in favour of Ershad Ali. Thereafter he received the notice for correction of record of rights in the year 1973 but he did not turn up on receipt of the said notice, this witness also testifies  that he was informed about the  setting aside of the auction sale in the year 1974. Thereafter he did not take care of the suit land.
 
46.   During cross-examination this witness  disclosed that he used to know Earshad Ali from before but he did not go  to the suit land  physically and eight years after  his purchase  Earshad Ali informed this witness about the setting aside  of the auction sale. This witness denied the suggestion that he was deposing being unduly influenced.
 
47.   These are all about  the deposition of the witnesses  in a nutshell  wherefrom  it transpires that the plaintiff in this suit claims  their title  and possession over the suit land from  Taheruddin D.W.8 the auction purchaser thereof held in  Certificate Case No.188 /64-65 on 20.10.1964.
 
48.   On the other hand, the defendants are claiming their title and possession in the suit land from Rosomoy Chandra Nath who also got the auction sale set aside in Miscellaneous Case No.2/73-74 and thereafter by successive transfer the answering  defendant Nos.4-6 are claiming their title and possession in the suit land  who are as a matter of fact the appellants  in this appeal.
 
49.   From the materials placed before us and on consideration of evidence on record including the Exts. we find  that the plaintiffs made desperate  attempts to show that the auction sale in favour of Taheruddin  in connection with Certificate Case No.188/64-65 was never set aside, therefore, they produced  three information slip  which have been marked as Exts. 9, Ext.9(Ka) and 9(Kha). On a perusal of these Exts. we find that the Assistant Commissioner of Land ( A.C Land)  Sadar Sylhet in his information slip issued on 01.07.1998 disclosed that Miscellaneous Cases, in the year  1973-74 used to  have been filed before the R.D.C Sylhet , therefore, no further information  could  be detected by this information slip which is Ext.9. The other information slip issued  by A.D.C (Rev) Sylhet shows that a question put to them as to whether the records of Miscellaneous Case  No.2/73-74 were available in the said office or not. The answer was given by the office as “bv ”. This information slip obtained by the plaintiff and marked as Ext.9 (Ka) is dated 09.08.98. It may be mentioned that we have already noticed from Ext.9 the information slip dated 01.07.98. That the record of the said Miscellaneous Case was available with the office of the R.D.C not with the A.D.C (Rev). The other information slip which is marked as Ext.9 (Kha) is dated 24.10.1988  obtained from the Officer-in-charge , Collect-orate ,Sylhet  signed by the A.C (Land)  disclosing to the effect that in his office the record of Miscellaneous case No. 2/73-74 is not available. Banking upon these  Exts. the plaintiffs made an attempt to show  that the very proceeding in Miscellaneous case No. 2/73-74 is non existent, therefore, the question of cancellation of sale  in favour of Taheruddin does not arise but in appreciation of the aforesaid position disclosed by the plaintiffs we feel inclined to take notice  of two Exts. marked as Exts. Ka and Kha certified copies of the order sheet of Miscellaneous Case dated 13.02.74 passed in Miscellaneous Case No. 2/73-74 and the application for setting aside sale wherefrom it is evident that Sachin Chandra Mohantha and others were the applicants while Taheruddin was the opposite party. These certified copies were issued as back as on 09.04.74 long before the institution of the instant suit in the year 1997 which clearly shows that it was owing to non service of notice upon Sachinn Chandra Mohantha the only admitted heir of the admitted owners, the auction sale was set aside by the Certificate Officer in Miscellenous Case No.2/73-74.
 
50.   On a perusal of  Ext. (Kha) we find that the said application was filed jointly by three persons namely (1) Sachindra Chandra  only heir of admitted owner (2) Rosomoy Chandra Nath and (3) Abdul Hashem against Taheruddin  the auction purchaser, claimed by plaintiff side and that application was filed for setting aside  of certificate sale took place in  Certificate Case No. 188(S)/64-65 under section 23(2) of the Public Demand Recovery Act, 1913. Certified copy of that document was obtained as back as in the year 1974  while the instant suit was filed in the year 1997, therefore, long before the institution of the instant suit those two Exts. namely (Ka) and (Kha)  were collected  from the side of the defendants and on perusal of the Ext.Kha we find a clear averment  made therein  testifying  the assertions made in the written statement filed  by the defendants and the deposition of their witnesses made in the suit. Having given a look to those two documents with bear eyes those can not but be accepted as genuine ones and the question of fabrication of those documents for the purpose of the suit can not be raised at all. These are genuine documents evidencing the official act canceling the auction sale held in Certificate Case No.188/64-65 was done in due process. Since a presumption of genuineness of the said cancellation of auction sale is available under Section 80 of the Evidence Act and the said presumption has not at all be rebutted by the plaintiff’s, therefore, we can safely accept the position that the sale though held in the year 1964 in favour of Taheruddin  in Certificate Case No.188/64-65 yet the same was subsequently set aside  in a regular proceeding  in Miscellaneous Case No.2/73-74 brought by the three persons including  one who is the sole heir of admitted owner, therefore,  we have no hesitation to arrive at a finding that the auction sale in favour of Taheruddin in connection with Certificate Case No. 188/64-65 was set aside in a regular procee-ding because of non service of notice upon  Sachindra  the certificate debtor and after setting aside the sale in the proceeding as aforesaid the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid, therefore, the question of declaration of title in their favour on the basis of their registered transfer deeds does not arise at all.
 
51.   On a careful scrutiny of the Judgment of the trial Court we find that the trial court was of the opinion that the plaintiffs could not prove their case with respect to their claim of title by virtue of the two documents as pleaded by them in the plaint. We have also scrutinized the evidence and find no reason to differ with the learned Joint District Judge in respect of the finding arrived at to that effect.
 
52.   We have however noticed that the learned Joint District Judge decreed the suit in part on a gratuitous finding to the effect that the plaintiffs have acquired title over the suit land on the basis of adverse possession. Adverse possession was neither pleaded nor any evedence was lend by the plaintiffs. The plaintiffs have made a prayer  to have a declaration of their title in the suit land by virtue of purchase deeds but adverse possession was neither pleaded nor proved, therefore, findings arrived at by the trial court is no doubt a gratuitous one which is not at all sustainable in law . In this connection Mr. Abdus Salam Mondal has rightly referred to a decision in a case where such a  principle of law was laid down  by our apex court in the case of Mohaprabhu Ram Vs Gopal Ram Ram  reported in 42 DLR (AD) 154.
 
53.   Another glaring aspect of the case which has not been considered  by the learned Joint District Judge in decreeing the suit, may be pointed out in this connection and i.e Taheriddin has deposed in the case as D.W 8 and said  Taheruddin is none  but who claimed to have purchased  the suit land in auction  held in connection with Certificate Case No.188 of 64-65, this witness also, appearing before the court stated on oath that he in fact did not get physical possession of the suit land although he obtained possession through papers. This witness also admits that subsequently said auction sale was set aside. Therefore, we cannot but hold that the case of the defendants have been established  by credible evidence although as a matter of fact in a civil suit  the onus does not in any way lies the defendant to prove his case rather plaintiff is to prove his case and he cannot succeed on the weakness of the defendants. In this connec-tion we have reasons to differ with the Joint District Judge, holding that the plaintiffs have failed to prove their case on any count. As we have already mentioned that the learned Joint District Judge decreed the suit on an extraneous consideration which is not warranted under law.
 
54.   For the purpose of disposal of this appeal we do not feel it necessary to go beyond which is necessary and vital, more particularly when we have noticed   that the learned Joint District Judge also did not find anything in favour of the plaintiffs except an err onions finding of adverse possession which we have elaborately dealt with in the foregoing paragraphs and on consideration of the evidence and materials we find no reason to differ with the other finding of the trial court in respect  failure on the part of plaintiffs to prove this case .
 
55.   In view of what has been discussed above, we find substance in the appeal. Accordingly, this appeal is allowed and the impugned judgment and decree dated 28-03-2000 passed by the learned Sub-ordinate Judge, Arthan Rin Adalat, Sylhet in Title Suit No. 43 of 1999 is hereby set aside.
 
56.   Parties will bear their respective coasts.
 
Send down the lower court records with a copy of this judgment to the trial court forth with.
 
        Ed.