Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 2830 of 1998

Md. Osman Ali and another

                                                  ......petitioners                               -Versus-

Sree Dula Urao and another

......opposite parties 

                                   Mr. Md. Abdus Salam Mondal, Advocate

                                                                         ...... for the petitioners

Mr.  Snehadri  Chakrovorty  with  Mr.  Tapas Bandhu Das, Mr. Sumon Ali and Mr. Nabil Ahmed Khan, Advocates

                                                                  ...... for the opposite parties Judgment on 30.10.2024

At the instance of defendants this Rule was issued calling upon  the  plaintiff-opposite  parties  to  show  cause  as  to  why  the judgment  and  decree  of  the  then  Subordinate  Judge,  Court  1, Naogaon  passed  on  03.10.1996  in  Title  Appeal  No.112  of  1989 allowing  the  appeal  reversing  the  judgment  and  decree  of  the Assistant Judge, Sapahar, Naogaon passed on 30.03.1989 in Other Class Suit No.14 of 1986 dismissing the suit should not be set aside and and/or such other or further order or orders passed to this court may seem fit and proper.  

Facts relevant for disposal of the Rule, in brief, are that the plaintiffs instituted the suit on the averments that they took pattan .33 acres of land of SA Khatian 6/5 which is a part of RS Khatian 82 plot  898  corresponding to  CS plot  873 from  the then  zaminders through a hukumnama dated 25th Chaitra, 1350 BS. They have been possessing  the  land  on  payment  of  rent  to  the  zaminders  and

accordingly SA khatian was prepared in their names. But RS khatian was wrongly prepared in the name of the Government while they filed application to the concerned authority under section 30 of the State Acquisition and Tenancy Act for its correction and accordingly an order was passed to that effect. Inspite of that RS record was finally  prepared  in  the  name  of  the  defendants  who  threatened plaintiffs of dispossession which clouded their title in the suit land, hence the suit for declaration of title simplicitar.

The defendants contested the suit by filing a set of written statement  stating  that  their  predecessor  Samir  Uddin  and  Abdul Majid by a hukumnama dated 3rd Baishakh 1349 BS took pattan .65 acres of land out of 2.80 acres of CS Plot 873 under khatian 6. Since then  they  have  been  possessing  the  aforesaid  pattani  land  on payment  of  rent  to  the  zaminders  and  subsequently  to  the Government.  They  further  contended  that  RS  khatian  has  been accordingly prepared for .65 acres of land in their names and they are  in  its  peaceful  possession.  The  suit  has  been  filed  on  false statement and as such it would be dismissed.

In the trial, both the parties examined 3 witnesses each and produced  documents  in  support  of  their  respective  claims.  The Assistant  Judge  dismissed  the  suit  while  the  plaintiffs  preferred appeal before the District Judge, Naogaon. The then Subordinate Judge, Naogaon heard the appeal on transfer and allowed the same decreeing the suit by setting aside the judgment and decree passed by the trial Court. Being aggrieved by the defendants approached this Court and obtained this Rule.

Mr.  Md.  Abdus  Salam  Mondal,  learned  Advocate  for  the petitioners taking me through the judgments passed by the Courts below submits that the plaintiffs claimed the land through a pattan in the year of 1350 BS but the record shows that plaintiff 1 was a just a baby at the time of taking pattan which is not believable. The land is not specified and as such the plaintiffs are not entitled to get decree in the suit. The recent record of right has been prepared in the name of the defendants and they are in possession of the suit land by paying rents to the concerned authority. Mr. Mondal pointing the documents of the plaintiffs submits that those are fake documents. The appellate Court most erroneously shifted the burden of proof upon the defendants and decreed the suit which cannot be sustained in law. In support of the submission Mr. Mondal refers to the cases of Noor Mohammad Khan & others vs. Government of the People’s Republic of Bangladesh & others, 42, DLR 434 and Hedayetullah and others vs. Foyjun Nessa Begum and others, 18 BLC (AD) 139 and relied on the ratio laid in those cases.

Mr. Snehadri Chakrovorty, learned Advocate for the opposite parties on the other hand submits that the defendants in the written statement did not state that the land is unspecified. Moreover, SA khatian exhibit-2 proves that land measuring .33 acres was recorded in the name of the plaintiffs. Since as per SA record the land in the plot is .33 acres, so it cannot be said that it is unspecified. The trial Court did not assess the evidence of the parties but dismissed the suit. In this case the balance of preponderance of evidence is to be considered which definitely goes in favour  of the plaintiffs. The appellate court being the last Court of fact correctly assessed the evidence  and  decreed  the  suit.  Nothing  is  found  perverse  in  the judgment of the Court of appeal below and as such the Rule would be discharged. In support of the submission he refers to the case of Naresh Chandra Das and others vs. Nirmal Chandra Das and others, AIR 1989 Ori 248 and relied on the ratio laid therein.

I  have considered the submissions of both  the sides,  gone through the materials on record and ratio of the cases cited by the parties. It transpires that the plaintiffs brought the suit praying for declaration of title in the suit land measuring .33 acres of SA khatian 6/5 which is a part of RS khatian 82 plot 898 and CS plot 873. On going through the plaint, written statement and evidence of both the parties, it transpires that both are in possession of lands as per RS record. The plaintiffs claimed title and possession in respect of .33 acres as per SA khatian exhibit-2, on the other hand, defendants claimed possession over .65 acres out of 2.80 acres of RS khatian exhibit-Ga. In cross-examination DW 2 Rahamat Ali stated, “

”. If the evidence of three witnesses  of  the  plaintiffs  is  assessed  with  documents  exhibited

along with the evidence of DW2, the possession of land measuring .33 acres as per SA khatian exhibit-2 certainly goes in favour of the plaintiffs. It is found that the plaintiffs paid rent to the zaminders through dakhilas exhibits-1(Ka) and 1(Kha) in respect of .33 acres of land. The authenticity of those documents including hukumnama was not challenged by the defendants. The defendants claimed taking pattan of the suit land from the then zaminders in the year 1349 BS on payment of rent through exhibits-A1-A3 for .65 acres. If their documents of pattan  were found genuine the SA Khatian would have  been  prepared  in  their  names  in  respect  of  the  aforesaid quantum. But it has been prepared in the name of the plaintiffs in respect of .33 acres. If total land of SA khatian is .33 acres how the defendants took pattan .65 acres and paid rent for it. The findings of the Appellate Court that the documents of the defendants are not genuine appear to me correct upon scrutinizing those. Although the land as claimed by the plaintiffs measuring .33 acres is not specified in the plaint but they claimed whole of .33 acres of SA khatian exhibit-2. In that context the land is found to me specified. The witnesses  of  the  defendants  admitted  in  their  evidence  that  the plaintiffs possess land which is a part of land of RS khatian. It is well settled position of law that possession follows title which is in favour of the plaintiffs. It is further found that the while the land was recorded in RS khatian in the name of the Government, the plaintiffs filed  an  application  to  the  concerned  Revenue  Authority  for correction  of  the  erroneous  record  which  was  allowed  through exhibit-3 and order was accordingly passed. But inspite of that RS Khatian in respect of .65 acres out of 2.80 acres has been prepared in the  names  of  the  defendants  which  is  found  erroneous  and  it definitely clouded plaintiffs’ title in the suit land. The evidence on record do not support the submission of Mr. Mondal that plaintiff 1 was a boy at the time of taking the land pattan.

I have also gone through the ratio of the cases cited by the learned Advocate for the opposite parties. The ratio laid in those cases do not match this case considering the facts and circumstances upon which the ratio has been laid. Although the judgment passed by the Court of appeal below is found a precise one but its ultimate decision is found correct. I find no misreading and con-consideration of the materials on record for  which  the decision passed by the appellate Court could have been otherwise.

In  the  aforesaid  premises,  I  find  no  merit  in  this  Rule. Accordingly,  the  Rule  is  discharged.  No  order  as  to  costs.  The judgment  and  decree  passed  by  the  appellate  Court  is  hereby affirmed. 

Communicate this judgment and send down the lower Courts’

record.