IN THE SUPREME COURT OF BANDLADESH

  HIGH COURT DIVISION

  (CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

  And

Mr. Justice Sashanka Shekhar Sarkar

First Appeal No. 11 of 2017

                Md. Zulhas Chowdhury alias Pagla Miah and others ………… Defendant-Appellants.

-Versus-

Md. Zahedul Hossain and others

……..Plaintiff- Respondents

Mr. A. J. Mohammad Ali, Senior Advocate with Mr. Golam Mohammad Bhuiyan, Advocate

… For the Appellants

Mr. Mohammad Kamal Hossain with

Mr. Md. Fazlul Karim Chowdhury, Advocates

… For respondents

Heard on: 18.01.2024, 25.01.2024, 30.01.2024

31.01.2024 and 01.02.2024

 Judgment on: 07.02.2024.

Sashanka Shekhar Sarkar, J:

This appeal, at the instance of the defendant Nos. 1-6

is directed against the judgment and decree dated 14.11.2016 (decreed signed on 17.11.2016) passed by the learned Joint District Judge, 1st Court, Narayangonj in Title Suit No. 181 of 2011 decreeing the suit.

The facts, relevant for disposal of this appeal in short is that, 89 decimals of land where into, 30 decimals of C.S. Plot No. 214, 26 decimals of C.S. Plot No. 215 and 30 decimals of C.S. Plot No. 216 appertaining to C.S. Khatian No. 59 was belonged to Kabil Sukum, Madari Sukum and Kadir Sukum. On the death of above owners, their successive heirs obtained the said properties. During S.A. operation S.A. Plot No. 303 was prepared consisting 73 decimals of land taking out from 89 decimals land of the said C.S. Plot Nos. 214, 215 and 216. A successive heir Amena Begum by a family amicable settlement got the said 73 decimals of land. On the death of Amena Begum her heirs namely Hayder Ali, Moksed Ali and Waz Ali inherited the properties and during Revisional Survey (R.S.) the said 73 decimals of land of S.A. Plot No. 303 was recorded in their names in R.S. Khatian No. 212 and R.S. Plot No. 296.

The Defendant No. 8-51, the heirs of Amena Begum transferred 45 decimals of land to the defendant No. 7 and also transferred 28 decimals of land to the plaintiffs vide a

 kabala dated 17.12.2009. Accordingly the entire 73 decimals land of S.A. Plot No. 303 and S.A. Khatian No. 43 was exhausted by way of transfer to the plaintiffs and defendant No. 7. The plaintiffs having purchased the said land mutated their names in the Revenue Office. Though in the schedule of the deed dated 17.12.2009, the land purchased by the plaintiffs was mentioned as the land of Northern side but upon an amicable settlement with defendant No. 7, they got possession from the Southern side of the plot because the defendant No. 7 got possession earlier in the Northern side of Plot No. 303. The plaintiffs having purchased the suit land, erected two storied pucca building and during owning and possessing the defendant No. 1-6 made a plan to dispossess them from the suit land then the plaintiffs initiated a proceedings under section 145 of the Code of Criminal Procedure before the Executive Magistrate. On which surveyor inquired and made a report that the defendant No. 7 is in possession of the Northern Side and the plaintiff are in possession of the southern side of S.A. Plot No. 303. However, as an undue proposal of the surveyor to the plaintiffs for pecuniary benefit was denied, he submitted a report that there was no tin shed building on the suit land. The defendant by taking the advantage of said report dispossessed the plaintiffs from the suit land using local muscles against which the plaintiffs made a complaint to the local elites who took primary steps to resolve the problems but failed and then, the plaintiffs filed the suit for declaration of title and recovery of khas possession.

The defendant No. 1-6, contested the suit by filing a joint written statements denying all the material averments of the plaint and contending inter alia that the disputed land along with other lands belonged to Kabil Sukum, Madari Sukum and Kadir Sukum. On their death, their successive heirs got their respective shares and on a family amicable settlement Amena Begum got 89 decimals of land

from C.S. Plot No. 214, 215 and 216 appertaining to C.S. Khatian No. 59. Jatu Zamadder was owner of 348 decimals the land of C.S. Plot No. 211, 212 and 213 appertaining to C.S. Khatian No. 56 which is on the Southern side of C.S. Plot No. 214, 215 and 216 and C.S. khatian No. 59. Jatu Zamadder died before C.S. survey, leaving behind a son Modhu Zamadder. Modhu died leaving behind four sons who each inherited four annas share along with the land adjacent to the C.S.  plot No. 206. During S.A. survey, taking out 24 decimals of land from 89 decimals of C.S. Plot No. 214, 215 and 216 and taking out 26 decimals of land from 181 decimals of C.S. Plot No. 213 prepared S.A. Plot No. 302 containing 50 decimals of land and prepared S.A. Plot No. 303 and S.A. Khatian No. 43 containing 73 decimals of land in the names of the heirs of Kabil Sukum, Madari Sukum and Amena Begum. During R.S. survey, 24 decimals of land from the Northern side of C.S. Plot No. 213, 73 decimals of land from S.A. Plot No. 303 and 50

decimals of land from S.A. Plot No. 302 prepared R.S. Plot No. 296 and 294 and R.S. Khatian No. 212 in the name of the heirs of Kabil Sukum, Madari Sukum and Amena Begum without recording the names of Wahed Zomadder, the heirs of Jatu Zomadder. Wahad Ali Zomadder being the owner of 24 decimals of land of S.A. Plot No. 303 corresponding to R.S. Plot No. 296 and S.A. Plot No. 302 corresponding to R.S. Plot No. 294, died leaving behind three brothers namely Ohad Ali Zamadder, Meher Ali Zamadder and Shahor Ali Zamadder who each got 127.33 decimals of land. The heirs of Ohad Ali, Meher Ali and Shahor Ali transferred 10 decimals of land vide deeds No. 2375 dated 19.07.2001, 17 decimals of land vide deed No. 2944 dated 20.07.2003, 26.25 decimals of land vide deed No. 3421 dated 30.08.2003, 21 decimals of land vide deed No. 1721 dated 17.05.2004, 21 decimals of land vide deed No. 4376 dated 20.01.2003, 6 decimals of land vide deed No. 2687 dated 30.06.2004, 4.17 decimals of land vide

deed No. 146 dated 12.01.2005, 6 decimals of land vide deed No. 3315 dated 14.06.2007, 6.50 decimals of land, vide deed No. 6968 dated 30.12.2007 and 6.50 decimals of land vide deed No. 3897 dated 10.06.2008 to the defendants No. 1-6.

The defendant No. 1-6, having purchased the land in question as above, made semi pacca constructions on the suit land and are in enjoyment and possession. Neither Amena Begum nor her heirs have got possession to the suit land by way of family amicable settlement. The defendant No. 7 is in possession in respect of 70/75 decimals of land and heirs of Mohiuddin Sukum are in possession in respect 18/19 decimals of land. The plaintiffs have purchased the land in question from titleless persons and as such the suit is liable to be dismissed with costs.

 At trial, the plaintiffs examined 4 witnesses as PWs 1- 4 and adduced document Exhibits No. 1-1/12, 2, 3 series and Exhibit 4 for substantiating their claim which are as follows;

Exhibit-1, is C.S. khatian No. 59, Exhibit-1/1, is S.A. khatian No. 43, Exhibit ½, is R.S. khatian No.212, Exhibit 1/3 and 1/4, are mutation khatians, Exhibit-1/5 and 1/6, are DCR, Exhibit-1/7, 1/8, 1/9 and 1/10 are rent receipts, Exhibit-1/11, is S.A. khatian No. -1, Exhibit-1/12, is R.S. khatian, Exhibit-2, is deed No. 9841, Exhibit 3 series are surveyor reports and Exhibit-4 is inquiry report.

On the other hand the defendant No. 1-6 examined 3 witnesses as DWs 1-3 and adduced document namely C.S. khatian No. 56 Exhibit-ka, power of attorney Exhibit-kha, S.A. khatian No. 43 Exhibit-Ga, R.S. khatian No. 212 Exhibit-Gha, their title deeds No. 2375 of 2000 Exhibit- Eua, deed No. 2944 of 2003 Exhibit-Cha, deed No. 3421 of 2003 Exhibit-Chha, deed No. 1721 of 2004 Exhibit-Ja, deed No. 4376 of 2003 Exhibit- Jha, deed No. 2687 of 2004 Exhibit-Una, deed No. 3315 of 2005 Exhibit-Ta, deed No. 6968 of 2007 Exhibit-Tha, deed No. 3897 of 2008 Exhibit- Da, deed No. 146 of 2005 Exhibit-Dha.

Upon the contending pleadings of parties, the trial court framed as many as six specific issues  for adjudication of the suit which are as follows;

1. Whether the suit is maintainable in its present form?
2. Whether the suit is barred by limitation?
3. Whether the plaintiffs have right, title and interest in the suit land.
4. Whether the plaintiffs had possession in the suit land before dispossession on 25.04.2011.
5. Whether the principal defendants are illegally possessing the suit land and lastly;
6. Whether the plaintiffs are entitled to have any other reliefs as prayed for?

The learned Judge of the trial court after hearing of both the parties, perusing the evidences and materials on records was pleased to decree the suit discussing all the above issues.

 Being aggrieved by and dissatisfied with the judgment and decree dated 14.11.2016 passed in Title Suit No. 181 of 2011 the defendants No. 1-6 as appellants preferred the instant appeal.

During hearing of the appeal, Mr. A. J. Mohammad Ali, the learned Senior Counsel appearing for the appellants has taken us to the impugned judgment and decree, pleadings of the parties and all the evidences and materials on records.

Mr. Ali submits that the plaintiffs have to prove their own case by adducing cogent oral and documentary evidences. The weakness of the defendants will not be the grounds for granting decree in favour of the plaintiffs. Mr. Ali taking us through the records tried to substantiate that the claim of the plaintiffs to the suit land to have purchased from the heirs of Amena Begum has not been

proved. The heirs of Amena Begum i.e. the defendant No. 8- 51 are 44 in numbers, so the claim of purchase from all the 44 persons by a single deed is an absurd story. 

Mr. Ali also submits that it is hard to believe that 44 persons were joint owners of the disputed small quantity of land and jointly had transferred to the plaintiffs. The plaintiffs though has adduced a deed of sale Exhibit-2 but practically they did not get possession to the suit land and the said transfer was not acted upon. The defendant No. 7 claimed to have purchased 45 decimals of land out of 73 decimals from the Southern side of C.S. Plot No. 114,115 and 116 and the plaintiffs claim to they have purchased 28 decimals of land from Northern side of the said plots but admittedly the plaintiffs are not in possession in the Northern side of the above plots so the sale deed was not acted upon, it was mere a paper transaction and By the said transfer, the plaintiffs obtained no right, title and interest in the suit land. 

Mr. Ali lastly submits that the defendants No. 1-6 having purchased the land in question from the successive heirs of the original owner Jatu Matubbor, have been in possession within the knowledge of all. Though their names were not recorded in the said S.A. and R.S. khatian, they were not disturbed in owning and possessing the suit land in any point of time. They were and are in possession peacefully. So the issue of dispossession the plaintiffs from the suit land having not been proved by any cogent and credible evidences, the impugned judgment and decree suffers from legal infirmities and liable to be set aside and the appeal is liable to be allowed.

Mr. Kamal Hossen, the learned Counsel appearing for the plaintiffs-respondents submits that the successive heirs of Kadir Sukum i.e. the heirs of Amena Begum transferred the land in question to the plaintiffs vide a sale deed No. 9841 dated 27.12.2009 from C.S. Plots No. 214, 215 and 216 and Khatian No. 59 corresponding to S.A. Plot No. 303 and Khatian No. 43 and R.S. Plot No. 296 and R.S. Khatian No. 212.

On the other hand the defendant Nos. 1-6 appellants admittedly purchased their lands from C.S. Plots No. 211, 212 and 213 of C.S. Khatian No. 56 corresponding to S.A. Plot No. 301 and S.A. Khatian No. 49 and R.S. Plot No. 293 and 295 and Khatian No. 482. The plaintiffs purchased the land in question from the successive heirs of Kadir Sukum. On the other hand the defendants admittedly purchased the land from the successive heirs of Jatu Matubbor. Both the suit lands and the owner of the same are quite distinct and separate.

Mr. Kamal Hossain further submits that the plaintiffs purchased the land in question through a transfer deed where the descriptions of land scheduled and mentioned from the Northern side of the plot but as earlier the defendant No. 7 purchased 45 decimals of land from the same plots and khatian and took possession from the Northern side, the plaintiffs amicably took possession from the Southern side and practically the defendant No. 7 and the plaintiffs have been in possession on the suit land having amicable settlement. Mr. Kamal Hossain further submits that the defendant No. 7 never raised any objection in respect of possession to the Southern side mentioned in his sale deed. The plaintiffs and defendants No. 7 being co sharers by way of purchase, have been mutually possessing the land that does not mean that the plaintiffs were not given possession and the kabala executed in their favour was not acted upon. Mr. Kamal Hossen further submits that the plaintiffs being frightened to be dispossessed by the defendants took recourse to the court of law and initiated a proceedings under section 145 of the Code of Criminal where a survey report was made admitting that the plaintiffs are in possession in respect of 30 decimals of land without mentioning about the two storied building constructed and standing thereon. Mr.

Kamal  further  submits  that  the  advocate  commissioner being appointed by  the court also made a survey report regarding the suit land who, as PW-4 deposed that, “

In cross examination he stated that; “  

• ”

He further in cross examination stated that, “  

So from the report of the Advocate Commissioner it is clear that the land so purchased by the plaintiffs exactly attacked C.S. plots No. 214, 215 and 216 corresponding to S.A. Plot No. 303 and R.S. Plot No. 296.

Mr. Hossain took us to the evidences of C.W. 1 who in                  his cross examination stated that, “  

Mr. Kamal Hossain also submits that the trial court on  considering  above  all  the  oral  and  documentary evidences  has rightly  and correctly  come  to the  decision that the plaintiffs have been able to prove their right, title and interest in the suit land by purchase from the heirs of Amena Begum and during execution of sale were given possession.

Mr. Kamal Hossain very strongly submits that during peaceful owning and possessing, the defendants forcibly dispossessed the plaintiffs from the suit land. The PW-2 testified that the plaintiffs purchased the suit land by a sale deed on 27.02.2009 and on the very day of execution of the deed delivered possession in his presence but the defendants forcibly dispossessed them on 25.11.2011. PW- 3 also testified that he was present on the day of execution of the sale deed and the defendants dispossessed the plaintiffs from the suit land forcibly on 25.04.2011. So the PW 2 and 3 by their consistent and credible corroborative evidences have proved that the plaintiffs on the day of execution of the deed got possession of the suit land from the successive heirs of Amena Begum and they were forcibly dispossessed by the defendants. So, since the plaintiffs have been able to prove their best right, title and

interest in respect of the suit land by the sale deed dated 27.12.2009 Exhibit-2 and as also have been able to prove that they were given possession on the very day of execution of sale deed and were dispossessed by the defendants forcibly, the learned Trial Judge on considering the entire evidences and materials on records and fact of the case arrived at a correct decision in decreeing the suit as prayed for, in which, nothings remains to be interfered by this court and as such the appeal is liable to be dismissed.

We have heard the learned Advocates of both the parties at length, perused the plaint, written statement, the evidences of PWs 1-4 and DWs 1-3, perused the documentary evidences submitted as Exhibits by both the parties in support of their respective cases.

The plaintiffs claim that they purchased the suit land from the heirs of the C.S. recorded tenant and they were duly given possession. It appears that the plaintiffs

purchased 28 decimals of land out of 73 decimals recorded in S.A. khatian No. 43 of S.A. plot No. 303 corresponding to R.S. khatian No. 212 of R.S. Plot No. 296 corresponding to C.S. Khatian No. 59 of C.S. Plot Nos. 214, 215 and 216. It also  appears  that  the  defendants  claimed  that  they purchased the land by several deeds from the successive heirs of the C.S. recorded tenant Jatu Matubbor from S.A. khatian  No.  49  of  Plot  No.  301  corresponding  to  R.S. khatian  No.  482  of  R.S.  Plot  No.  293  and  295 corresponding to C.S. khatian No. 56 of C.S. Plots No. 213, 211 and 212. It appears that the claim of the parties to be the owner of the land in question from different persons and  different  khatian  and  plots.  The  defendants  in  the written statement asserted that, “

Having  regarded  to  the  specific  statements  of defendant Nos. 1-6 in their written statement, it transpires that they claimed some lands including the suit land left out from their portion which was recorded in the name of the heirs of Amena Begum, Kabil and Madari Sukum, but we do not find any scrap of paper to show that they had taken any legal course in any point of time against the said illegal record of right.

Mr. Ali in course of hearing submits that mere oral and  strenuous  evidence  to  contradict  the  terms  of  the contents of a document is inadmissible under section 92 of the evidence Act. He elaborated that since the document itself  proves  that  the  plaintiffs  never  got  possession  in respect of the suit land, the terms made in the document itself will prevail over the oral evidences with regard to possession.

Mr. Ali in support of his submissions cited the cases of Firoja Majid and another vs. Jibon Bima Corporation reported in 39 DLR (AD) 78, and Abdul Hai and others vs. Madhob and others reported 16 DLR 212.

On the other hand the learned Counsel for the respondents Mr. Kamal Hossain cited the case of Fazle Hossen vs. Nur Khan reported in PLD 1957 43 and tried to substantiate that the plaintiffs are co sharers of the holding appertaining to C.S. khatian No. 59 of C.S. Plots No. 214, 215, 216 which subsequently recorded S.A. khatian No. 43 of S. A. Plot No. 303 corresponding to R.S. khatian No. 212 of R.S. Plot No. 296 and being the co sharers of the said plots have entitlement to enjoy each and every inch of the lands under the said plots and since the defendants No. 7 and the plaintiffs have purchased the entire land of the said khatian and plots and they amicably are in possession and the defendant No. 7 never raised any question regarding the peaceful possession of the plaintiffs, save and except the defendant No. 07 no other has any right to raise any question regarding their possession.

We on meticulous perusal of the pleadings, evidences and materials on record and considering the submissions of both the parties and meticulous perusal of the decisions cited by both the sides have come to the conclusion that the plaintiffs could able to prove that they have purchased the land in question from the successive heirs of Amena Begum who amicably got her share from her predecessor and the defendant No. 7 who did not contest the suit but being pertinent in this particular case appears that he also purchased 45 decimals of land from the same khatian and plots and entire 73 decimals of land have been exhausted by way of transfer to the plaintiffs and the defendant No. 7 wherein, the defendant Nos. 1-6 could not acquire title and

possession and they did not produce any scrap of documents to prove their right, title and interest in single inch of the said land. Moreover, the defendants admittedly purchased their lands from the successive heirs of C.S. recorded tenant Jatu Zommader by several sale deeds and there is no connectivity with the sale of the predecessor of the plaintiffs and it appears that the land covered by the purchase deeds of the defendant do not attract the suit land. The right, title and possession of the parties are quite distinct and separate as they had purchased from separate persons. So the defendant have no right to claim the suit property and to interfere with the title has been accrued by deed No. 9841 dated 27.12.2009 in favour of the plaintiffs. 

Now the questions arises to be adjudicated that the plaintiffs being the owner of the land and during in enjoyment and possession whether were dispossessed by the defendant Nos. 1-6 and whether the defendants have any right to possess the land by any means. We have perused  the  testimony  of  the  PW-2  where  the  he  stated that,  “

”

He also stated that, “  

• ”

PW-3 testified that “  

”

Having considered the evidences of the PW-2 and 3 regarding dispossession of the plaintiffs from the suit land, we have come to the conclusion that the plaintiffs could prove that they became the owner of the land in question by way of transfer deed and on the very day of execution of the  deed  they  got  possession  of  the  suit  property  but subsequently  the  defendants  taking  the  advantage  of  a report given by the surveyor took possession the suit land

forcibly. The plaintiffs by adducing sufficient oral and documentary evidences have been able to prove that they obtained best right, title and interest in the suit land from the heirs of Amena Begum by deed of transfer dated 27.12.2009 and got possession in the same but were dispossessed by the defendant Nos. 1-6 on 25.07.2011. We find that the defendants purchased not a single inch of land from the C.S. khatian No. 59 of C.S. Plot No. 214, 215, 216 corresponding to S.A. khatian No. 43 of Plots No. 303 and R.S. Khatian No. 212 of R.S. Plot No. 296 and they totally failed to prove their right to possess the land in question whatsoever.

Our apex court, in a case of Dalil Uddin Sheikh and other vs. Alek Sheikh reported in 14 BLC 32 held that though the burden exclusively lies on the plaintiffs to prove their case by adducing sufficient oral and documentary evidences but the defendants are not to be exempted from discharging their duties as to their claim of right, title and interest. As the defendants claim that they are in possession but failed to produce any legal documents as to their claim of possession, the same to be construed as illegal and as such they are not entitled to retain the illegal and forceful possession. The learned trial court on consideration of the evidences and materials on records has come to a concrete and correct decision in decreeing the suit which calls for no interference by this court.

Accordingly, we find no merit in the appeal. 

In the result, the appeal is dismissed without any order as to costs.

The judgment and decree dated 14.11.2016 passed by the learned Joint District Judge, 1st Court, Narayanganj in Title Suit No. 181 of 2011 is maintained.

The Civil Rule No. 32 (F) of 2017 is discharged and the  ad-interim order of stay granted in the rule is vacated. 

Communicate a copy of the judgment and order at once and send down the lower court’s records immediately.

                                           ( Justice Sashanka Shekhar Sarkar)

I agree.

                                                  (Justice Md. Badruzzaman)