IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1810 of 2017. In the matter of:

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

And

Chand Mia and another                                ...Petitioners

-Versus-

Md. Ali Ahammad and others

           ...opposite parties

Mr. Md. Amjad Hossain Murad, Advocate

        ...For the petitioners

Mr. Md. Mubarak Hossain, Advocate with

Mr. Ramzan Ali Sikder, Advocate with

Mr. Motahar Hossain, Advocate

...For the opposite party No.1.    

Heard on: 18.11.2024 Judgment on: 19.11.2024.  

This  Rule  was  issued  calling  upon  the opposite party No.1 to show cause as to why the impugned judgment and decree dated 18.04.2017 (decree  signed  on  24.04.2017)  passed  by  the learned Joint District Judge, 2nd Court, Cumilla dismissing  the  Title  Appeal  No.67  of  2016 affirming  the  judgment  and  decree  dated 17.02.2016 and 23.02.2016 respectively passed by the learned Assistant Judge, Nangolkot, Cumilla decreeing the Title Suit No.67 of 2010 should not be set aside and/or pass such other or further

order or orders as to this Court may seem fit and proper. 

Facts in short are that the opposite party as plaintiff instituted above suit for a decree for perpetual  injunction  for    decimal  land  as

described fully in the schedule to the plaint.  It was alleged that Najumuddin was the owner of land of C.S. khatian No.97 including disputed land who died leaving one son Sonaban and two daughters Arfaner Nessa and Sonaban as heirs. Above Sonaban died leaving four sons Salamat Ali, Elahi  Baksha,  Dar  Baksha  and  Rahamat  Ali. Plaintiffs and defendants are grandsons of above mentioned Arfaner Nessa and they inherited land in the disputed khatian as successive heirs of Arfaner Nessa. Plaintiff purchased disputed  

decimal land from Ana Miah a son of Dar Baksha by registered kobla deed dated 09.09.1986. In the name of Ana Miah S.A.Khatian No.104 was correctly recorded and in the name of the plaintiff B.S Khatian No.195 has been correctly prepared for the  above  land.  Defendants  threatened  the plaintiffs with forceful dispossession from the above land.

Defendant Nos.1-3 and 5-7 contested the suit by filling a joint written statement claiming to be successive heirs of Sonaban and they have also claimed that Dar Baksha the son of Sonaban died leaving two sons Elahi box and Abdur Rahman. Dar Baksha died leaving one wife Sufia Khatun and one son Ana Miah and one daughter Shamla Khatun. Above sufia khatun transferred 6 decimals land to Defendant  Nos.1-4  by  registered  kobla  deed No.4148 dated 31.08.1950 and defendants are in possession in above land.

Defendant Nos.1-3 and 5-7 are in peaceful possession in the disputed land. The plaintiff does not have any exclusive possession in the disputed land.

At trial plaintiffs examined three witnesses and  documents  of  the  plaintiffs  were  marked Exhibit Nos.1-3. On the other hand defendant examined 4 witnesses and their documents were marked as Exhibit Nos.ka-Ga.

On consideration of facts and circumstances of the case and evidence on record the learned Assistant Judge decreed the suit.

Being aggrieved by above judgment and decree of the trial court defendant preferred Civil Appeal No.67 of 2016 to the district judge, Cumilla which was heard by the learned joint district judge 2nd court who dismissed the appeal and affirmed the judgment and decree of the trial court. 

Being aggrieved by above judgment and decree of the court of appeal below above appellants as plaintiffs moved to this court and obtained this rule.

Mr. Md. Amjad Hossain Murad learned Advocate for  the  petitioners  submits  that  admittedly plaintiffs and defendants are co-shares and they are successive heirs of C.S. recorded tenant Nazimuddin through his daughter Sonaban and the disputed property has not being partitioned by meets and bounds. As such the plaintiffs should have preferred a suit for partition this the suit for perpetual injunction is not tenable in law against the co-shares defendants. The learned Advocate  further  submits  that  the  defendants purchased disputed land from Dar box father of Ana Miah from whom plaintiffs have claimed to have purchased disputed land. By the evidence of four competent witlessness the defendants have succeeded  to  prove  their  possession  in  the disputed land and the plaintiffs could not prove their exclusive possession in the above land.

In view of above facts and materials on record the learned judges of the court of appeal below committed serious illegality in dismissing the appeal and affirmed the flawed judgment and decree of the trial court which is not tenable in law.

On the other hand Mr. Md. Mubarak Hossain the learned Advocate for the opposite party submits that the plaintiffs purchased disputed land from Ana  Mia  by  registered  kobla  deed  09.09.1986 marked by (Exhibit No.3) and in the name of above Ana  Miah  S.A.  khatian  No.104  was  rightly prepared.  On  the  basis  of  above  purchase plaintiffs got possession in above land and in their name BRS Khatian No.195 was admittedly recorded. Defendant No.3 gave evidence in this suit as D.W.1 and in his cross examination he has admitted that plaintiffs are in possession in the disputed land and in their name B.R.S. Khatian No.104 has been prepared. Since the plaintiffs are in exclusive possession in the disputed land. The  learned  judges  of  the  court  below  on consideration of above evidence on record rightly decreed  the  suit  and  dismissed  the  appeal respectively which calls for no interference.

 I have considered the submissions of the learned  advocate  for  respective  parties  and carefully examined all materials on record.

 It  is  admitted  that  Darbox  was  the successive  heir  of  C.S.  recorded  tenant Nazimuddin and he died leaving one son Ana Miah and one wife Sufia khatun and one daughter and S.A. khatian No.104 of disputed land was prepared in the name of Ana Miah and others.

Plaintiff claims to have purchased disputed decimal lands from above Ana Miah by registered

kobla deed on 09.09.1986 (Exhibit No.3). On the other hand defendants claimed 6.50 decimal land on the basis of purchase from Sufia Khatun wife of  Dar  box.  While  giving  evidence  as  P.W.1 plaintiff himself has produced above original kobla deed executed by Ana Miah and the certified copy of S.A. khatian No.104. Above two documents Prima facie prove lawful title of the plaintiff in disputed decimal land. S.A. Khatian No.104

shows that Ana Mia predecessor of the plaintiffs was a tenant and Exhibit No.3 shows that above Ana Mia transferred disputed decimals land to

the plaintiffs. As such above two documents gives evidence in support of Prima facie title of the plaintiffs in the disputed decimals lands.

As far as possession of the plaintiffs in the above  land  is  concerned  Defendant  No.3  gave evidence as D.W.1 and in his cross examination he has admitted that plaintiffs are in possession in the disputed land and B.R.S. khatian of above land  has  been  prepared  in  the  name  of  the plaintiffs.

It is well settled that in a civil suit admission may be made either in the pleadings or in the evidence and an admission is the best evidence against its maker and an admitted fact does not require further prove by legal evidence.

Above  defendant  witness  No.1  has  clearly admitted  plaintiff’s  exclusive  possession  and preparation of the latest khatian in his name.

On consideration of above materials on record I  hold  that  the  concurrent  findings  of  the learned judges of the courts below that the plaintiff has succeeded to prove his Prima facie title and exclusive possession in the disputed land is based on legal evidence on record and in the  absence  of  any  allegation  of  non consideration or misreading of any evidence on record  this  court  cannot  in  its  revisional jurisdiction  interfere  with  above  concurrent findings of fact.

It is true that the plaintiffs and defendants are co-shares of the disputed joma and the land of the disputed joma has not been partitioned by meets and bounds. But since the plaintiffs have succeeded to prove his exclusive possession in the disputed land he is entitle to protect above possession by a decree of permanent injunction against the co-shares until a partition by meets and bounds is affected. Since the defendant are dissatisfied with above judgment and decree of the court of appeal below they should move to appropriate  civil  court  with  a  suit  for partition.

In above view of the materials on record I am unable  to  find  any  substance  in  this  civil revision under section 115(1) of the Code of Civil Procedure and the rule issued in this connection is liable to be discharged.

In the result, the Rule is discharged without any order as to costs.     

Let the lower Court’s record along with a copy of this judgment be transmitted down to the Court concerned at once.

Md.Kamrul Islam

Assistant Bench Officer