IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 3025 OF 1996

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure.

-And-

IN THE MATTER OF:

Sreemoti Chapala Bala Das and others

--- Defendant-Respondent-Petitioners. -Versus-

Mrinal Kanti Shaha {(O.P. No. 2 died leaving behind her legal heirs: 2(a), 2(b) & 2(c)}and others

--- Plaintiff-Appellant-Opposite Parties. No one appears

--- For the Petitioners. Mr. Subrata Saha, Advocate

--- For the Opposite Party No. 2(a) Mr. Sabyasachi Mondal, Advocate

---For the opposite party Nos. 2(b) & 2(c).                   Mr. Md. Humayun Kabir, AAG

--- For the Opposite Party No. 3 (Government).

Heard  on:  29.05.2023,  01.06.2023, 04.06.2023, 23.07.2023 and 19.10.2023. Judgment on: 06.11.2023.

At  the  instance  of  the  present  defendant-respondent- petitioners, Sreemoti Chapala Bala Das and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1 and 2 to show cause as to why the judgment and decree dated

28.07.1996  passed  by  the  learned  Additional  District  Judge, Khulna in the Title Appeal No. 230 of 1991 allowing the appeal and reversing the judgment and decree dated 28.05.1991 passed by the then learned Subordinate Judge, Court No. 1, Khulna in the Title Suit No. 388 of 1980 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party Nos. 1 and 2, namely, Mrinal Kanti Shaha and another as the plaintiffs filed the Title Suit No. 388 of 1980 in the court of the then learned Subordinate Judge, Court No. 1, Khulna praying for declaration of title, recovery of khas possession after evicting the present petitioners and also for realization of mense property from the suit property. The plaint contains that the suit property consists of a Cinema Hall named “Ullashini” along with other properties and  buildings thereon originally belonged to one Promoth Nath Das who executed a “will” appointing the plaintiffs as Executor and Executrix of the suit Estate. The predecessor of the defendant Nos. 1-6, namely, Pankaj Kumar Das as a Supervisor of the “Ullashini” Cinema Hall who was provided with the official accommodation in the suit property by the owner of the property, namely, Promoth Nath Das as an employee under him to the said Pankaj Kumar Das. The said Pankaj Kumar Das died on 16.12.19978. His wife and sons had been living in the suit property as a trespasser. The notices were served to the defendants on 18.05.1979 for evicting the  defendant-petitioners  from  the  suit  premises  within  15 (fifteen) days time but refused by the defendants to vacate the premises, therefore, the present plaintiff-opposite parties filed an application  under  section  24  of  the  Employment  of  Labour (Standing)  Ordinance,  1965  before  the  Sub-Divisional Magistrate, Khulna who after hearing the parties rejected the said application who directed to file a civil suit.

The present petitioners as the defendants contested the suit by  filing  a  written  statement  contending,  inter  alia,  that  one Ganga Dhar Kuri had 2 sons, namely, Sagar Chandra Kuri and Keshob  Chandra  Kuri.  Son  of  Sagar  Chandra  Kuri,  namely, Satish Chandra Das and son of Keshob Chandra Das, namely, Promoth Nath Das had left Nadia and came to Khulna for fortune and they acquired the property by joint labour. Promoth Nath Das succeded from Keshob Chandra Das who left the property and who succeeded the suit properties at Khulna. The said Satish Chandra Das died leaving behind his wife and his son Pankaj Kumar Das who was treated as the son of the said Promoth Nath Das as the family members and they were living in the suit premises and Pankaj claimed 8 (eight) annas share of the suit property.

The then learned Subordinate Judge, Court No. 1, Khulna after hearing the parties and obtaining both oral and documentary evidence dismissed the suit of the plaintiffs by his judgment and decree  dated  28.05.1991.  Being  aggrieved  the  plaintiff- petitioners preferred the Title Appeal No. 230 of 1991 in the court  of  the  learned  District  Judge,  Khulna  which  was subsequently transferred for hearing to the learned Additional District  Judge,  Khulna.  After  hearing  the  parties  the  learned Additional  District  Judge,  Khulna  allowed  the  appeal  by  his judgment  and  decree  dated  28.07.1996  thereby  reversing  the judgment of the learned trial court. Being aggrieved the present petitioners filed this revisional application under section 115(1) of  the  Code  of  Civil  Procedure  and  the  Rule  was  issued thereupon.

This matter has been appearing in the daily cause list for a long period of time but no one appears to support the Rule. However, the petitioners have taken a ground in the revisional application contending, inter alia, that having regard to the fact that Pankaj was born in the suit house in the year 1908 and brought up under his uncle Promoth Nath Das who is the master of the joint family and he lost his hands in an accident in the same premises at the age of 15/16 years and Promoth as a master performed the marriage of Pankaj in the same house in the year 1925. So, the claim of the plaintiff-appellants that Pankaj was given the premises as an official accommodation which was a baseless and concocted story, as such, the appeal should be liable to be discharged.

The present Rule has been opposed by the present opposite party Nos. 1-6.

Mr. Subrata Saha, the learned Advocate, appearing along with  the  learned  Advocate,  Mr.  Sabyasachi  Mondal  for  the present opposite parties, submits that admittedly the property in question was owned and possessed by Promoth Nath Das and he transferred the entire estate to his second wife Molina Rani Das and his grandson Proshanto Kumar Das by way of a “will” dated 09.10.1945 and after the death of Promoth Nath Das the LA Case No. 04 of 1955 was preferred by Molina Rani das and another executor  and  the  same  was  probated  on  30.03.1959. Subsequently,  the  Government  declared  the  property  as  an enemy  property  against  which  Molina  Rani  Das  and  her appointed Executor jointly filed Writ Petition No. 205 and 206 of 1966 before the High Court and the property was declared as not the enemy property. So, the Government was made a party to the case but did not contest it. So, no way the joint property is proved, that is why, the defendants are liable to be evicted from the disputed rooms for vacating the same.

He further submits that the learned appellate court below reversed the findings of the learned trial court and observed that the property in question, as well as the property of Promoth Nath Das Estate, were transferred to Proshanto Kumar Das and Molina Rani Das by way of “will” dated 09.10.1945 and the same was probated by LA Case No. 04 of 1955 on 30.03.1959 and also observed  that  as  a  manager  Pankaj  withdrew  his  salary amounting of Tk. 220/- (Two Hundred and Twenty) per month which was exhibited as Exhibit No. 9, thereafter, the elder son of Pankaj Kumar Das was substituted as an employee of that estate and he withdrew amounting to Tk. 344.67/- as gratuity due to his father which is exhibited as Exhibit No. 7 which proved that Pankaj Kumar Das was the manager of the Cinema Hall and

nowhere and in no way did the defendants prove that the estate was earned by joint income of both the families.

Mr. Md. Humayun Kabir, the learned Assistant Attorney General, opposes the Rule by stating that the suit property is an enemy property and left that property the landlord went to India, as such, the property is Promoth Nath Das Estate.

I  have  carefully  examined  the  relevant  documents provided  by  the  respective  parties  before  the  learned  courts below in order to release the property by a legal procedure, as such, the suit properties belonged to Promoth Nath Das after releasing from the enemy property.

Considering the above submissions made by the learned Advocates  appearing  for  the  opposite  parties  and  also considering the revisional application filed under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and order passed by the learned appellate court below and also perusing the very old documents adduced and produced by the respective parties by way of depositions as PWs and DWs in the learned courts below which have been included in the lower courts records, it appears to this court that the present plaintiff-opposite parties filed the

instant  suit  praying  for  declaration  of  title,  recovery  of possession after evicting the present defendant-petitioners from the suit premises and also claiming mense profit from the suit property consisting of a Cinema Hall, namely, “Ullashini” and other properties and building originally belonged to one Promoth Nath  Das  who  executed  a  will  appointing  the  plaintiffs  as executors and executrix of the properties of the predecessor of the  defendant  Nos.  1-6.  Pankaj  Kumar  Das  was  appointed  a Supervisor/Manager of the “Ullashini” Cinema Hall who was allowed to reside within the suit premises as an employee under Promoth  Nath  Das.  The  said  Pankaj  Kumar  Das  died  on 16.12.1978 leaving behind his wife and son who were living in the property and looking after the Cinema Hall. This suit was also filed for evicting the successors of Pankaj after serving a notice  for  eviction.  When  the  present  petitioners  refused  to vacate the property this suit was filed by the successors of the original owners of the suit premises, namely, Promoth Nath Das. The  Government  of  Bangladesh  represented  by  the  Deputy Commissioner,  Khulna  has  been  made  a  proforma-defendant- opposite parties as some portion of the suit property was enlisted as an enemy property. However, by taking an appropriate step

the suit property was removed from the enemy property pursuant to  the  legal  step  taken  by  the  plaintiff-opposite  parties.  The present  defendant-petitioners  claimed  that Pankaj  himself  and after  his  death,  his  successors  have  been  living  in  the  suit property as the employees under the original owner Promoth Nath Das. However, the defendant-petitioners claimed that the suit  property  was  owned  by  Promoth  Nath  Das  and  Satish Chandra  Das  as  a  joint  family  property,  thus,  Pankaj  was  a successor of Satish Chandra Das who claimed ownership of the

suit property upon the 8 (Eight) annas of the  1 portion of the

2

property and they have been residing there for a long period of time.

In view of the above factual and legal aspects, this court has to take a decision whether the plaintiff-opposite parties could prove their case in the trial court as to the successors of the Promoth  Nath  Das  upon  the  entire  suit  premises  including Cinema Hall and also including other areas of land and whether Pankaj himself and his successors could get any entitlement upon the suit property. In order to answer the above material facts I have examined the Exhibits filed before the learned trial court as well as before the learned appellate court below in support of their respective cases. In this regard, the learned trial court heard the matter of entitlement upon the suit premises. Admittedly, the suit property was owned by Promoth Nath Das who employed Pankaj  Kumar  Das  to  look  after  the  property  as  a Supervisor/Caretaker and employees of the suit premises. The said Pankaj claimed 8 (Eight) annas share of the suit property as it was purchased by the family arrangement by and between the father  of  Pankaj  Kumar  Das  who  has  been  occupying  the property.

In view of the above, I consider that an employee as a Supervisor/Caretaker  of  the  suit  premises  cannot  get  any entitlement upon the suit land as Promoth Nath Das executed a “will”  in  favour  of  the  present  plaintiff-opposite  parties.  The settled principle of law is that a person cannot get entitlement upon a suit property as an employee/ lessee/ licensee on the basis of occupying the property. The said Pankaj has been living in the property  as  an  employee  as  a  Supervisor,  therefore,  neither Pankaj himself nor his successors who are the present defendant- petitioners cannot get entitlement upon the suit premises.

In view of the above, the present plaintiff-opposite parties succeed in entitlement upon the suit premises as successors of the original owner Promoth Nath Das. In fact, Promoth Nath Das executed a “will” to the opposite party No. 2, namely, Sreemoti Malina  Rani  Das  (now  deceased)  and  her  heirs  have  been substituted and who have contested the Rule as an employee of the Estate. Pankaj cannot get entitlement upon any share of the suit land because there was a “will” which have been executed by Promoth Nath Das in favour of the said Sreemoti Malina Rani Das and on her death her successors.

I have carefully examined the judgment of the learned trial court and also the learned appellate court below who have passed the  conflicting  judgment  upon  conflicting  findings  and  legal aspects. The learned trial court dismissed the suit filed by the present plaintiff-opposite parties on the basis of the following findings:

…“p¤al¡w ¢h‘ ®Sm¡ SS LaѪL Eš² ¢jp Bf£m ®j¡LŸj¡u

fËcš 29.07.1971 Cw a¡¢l­Ml B­cn ®j¡a¡­hL ®cM¡ k¡u ®k, ¢f.

He. c¡p  H­ØV®Vl  k¡ha£u  pÇf¢š  a¡q¡­cl  n¢lLN Zl j dÉ  L«a ¢Q¢q²a j a ¢hi¡N-h¾Ve qu e¡Cz p¤al¡w, ®cM¡ k¡u ®k, e¡¢mn£ h¡¢s ¢hi¡N-h¾Ve j a h¡c£N Zl Aw n L«a ¢Q¢q²a j a ¢hi¡N e¡ qJu¡ fkÑ¿¹ h¡c£NZ LaѪL c¡¢Mm£ Aœ ®j¡LŸj¡¢V haÑj¡e BL¡­l Q¢m­a f¡­l e¡, h¡c£fr LaѪL c¡¢Mm£ B¢SÑl afn£m qC a ®cM¡ k¡u ®k, Eq¡ a ®L¡e c¡N-M¢au¡e E õM Ll¡ qu e¡Cz Hhw e¡¢mn£ S¢j J h¡¢s

p¤¢e¢cÑøi¡ h ®Q±q¢Ÿpq X~­õM Ll¡ qu e¡Cz h¡c£fr fwLS L¥j¡l c¡p

e¡¢mn£ Eõ¡¢pe£ ¢p ej¡ q ml p¤f¡li¡CS¡l ab¡ LjÑQ¡l£ ¢qp¡ h ¢e­u¡¢Sa ¢Rm j­jÑ öd¤j¡œ Eš² q­ml ®ha el ®l¢SØVÊ¡l c¡¢Mm L¢lu¡­Rez ¢L¿º Eš² ®hae a¡¢mL¡u (fËx ew- 9) fËcš fwLS L¥j¡l

c¡ pl L¢ba ü¡r ll p¢qa fwLS L¥j¡l c¡ pl c¡¢Mm£ 399223 ew f¡¢LÙ¹¡e f¡p­f¡VÑ J fËcš ü¡r­ll j­dÉ ®L¡e ¢jm h¡ p¡cªnÉ e¡Cz Hja¡hÙÛ¡u, h¡c£fr fwLS L¥j¡l c¡p e¡¢mn£ ¢p ej¡ qmpq ¢f. He.

c¡p H ØV Vl LjÑQ¡l£ ¢Rm- HC Lb¡ fËj¡Z L¢l a hÉbÑ qCu¡ Rez a¡q¡l¡ fwLS L¥j¡l c¡p 2 ew h¡c£e£l ®k±b f¢lh¡ ll pcpÉ ¢Rm e¡- Cq¡J fËj¡Z L¢l a hÉbÑ qCu¡ Rz”

However, the learned appellate court below reversed the judgment of the learned trial court on the basis of the following findings which reads as follows:

…“In  view  of  the  evidence  on  record,  I  am inclined  to  opine  that  Promath  Nath  Das  Estate including  the  suit  properties  was  self-acquired  by Promath Nath Das in which Satish Kumar Das or his son Pankaj Kumar Das had no right, title and interest. As such, the defdt- respondents could not claim right, title and interest to the suit land and they are liable to be  evicted  therefrom.  The  plff-appellants  after  the death of Promath Nath Das have got right, title and interest over the suit property and they are entitled to get the decree as prayed for.”…

On  the  basis  of  the  above  conflicting  findings  by  the learned  courts  below,  I  consider  that  the  learned  trial  court committed an error of law in that the plaintiffs could not prove its own case as to the title as successors of Promoth Nath Das.

Both the sisters admitted that Promoth Nath Das was the original owner and Pankaj Kumar Das was an employee as the Supervisor  of  father  Promoth  Nath  Das  Estate  and  admitted position is that Pankaj Kumar Das was an employee who cannot own any part of the property being a Supervisor or Caretaker as an employee.

In  view  of  the  above  discussions,  I  consider  that  the learned trial court committed an error of law by dismissing the suit by his judgment. However, the learned appellate court below came to a lawful conclusion to allow the appeal on the basis of the succession or a “will” executed by the original owner. I also found that the present plaintiff-opposite parties are entitled to get their inherited property and the employee Pankaj Kumar Das is liable to be evicted from the suit property which the learned appellate  court  below  categorically  stated  in  the  impugned judgment and decree.

In such a situation I am not inclined to interfere upon the impugned judgment and decree passed by the learned appellate court below by reversing the judgment and decree of the learned trial court. Therefore, I consider that this is not a proper case for interference from  this  court  and  the present  plaintiff-opposite parties are entitled to get property from the said Pankaj Kumar Das.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  impugned  judgment  and  decree  dated  28.07.1996 passed by the learned Additional District Judge, Khulna in the Title Appeal No. 230 of 1991 allowing the appeal and reversing the judgment of the learned trial court is hereby upheld.

The judgment and decree dated 28.05.1991 passed by the then learned Subordinate Judge, Court No. 1, Khulna in the Title Suit No. 388 of 1980 is hereby set aside.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  this  Rule  staying  the  operation  of  the  impugned judgment and decree passed by the learned Additional District Judge,  Khulna  in  the  Title  Appeal  No.  230  of  1991  and  all further proceedings of the Title Execution Case No. 05 of 1996 now pending in the Court of the then learned Subordinate Judge, Court No. 1, Khulna and the same was extended time to time and lastly  it  was  extended  till  disposal  of  this  Rule  are  hereby recalled and vacated. 

The concerned section of this court is hereby directed to send down the lower court records along with a copy of this judgment and order to the learned courts below immediately.