Present:

Mr. Justice Sheikh Abdul Awal Civil Revision No. 3364 of 2017 Sheikh Abu Sayed and another.

.…. Defendant-petitioners. Versus

Mostahidul Islam and others.

                         …….. Plaintiff-opposite Parties. Mr. Md. Taufiqul Islam, Advocate.

                        .…For the Defendant-petitioners. Mr. Md. Humayun Kabir Bulbul, Advocate

    ....For the Plaintiff-opposite-party Nos.1-7 Heard on 01.09.2024, 03.09.2024 and

Judgment on 04.09.2024

This Rule was issued calling upon the opposite party Nos. 1-7 to show  cause  as  to  why  the  impugned  judgment  and  decree  dated 28.08.2017 (decree signed on 31.08.2017) passed by the learned Joint District Judge, 1st Court, Bagerhat in Civil Appeal No. 134 of 2011 affirming  those dated  11.07.2011  (decree  signed  on  19.07.2011) passed by the learned Assistant Judge, Kachua, Bagerhat in Civil Suit No. 7 of 2004 dismissing the suit should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Material facts of the case, briefly, are that the opposite parties as plaintiffs instituted Civil Suit No. 7 of 2004 in the Court of the learned Assistant  Judge,  Kachua,  Bagerhat  impleading  the  petitioners  as defendants for permanent injunction praying the following reliefs:

The plaintiffs’ case, in short, is that the suit land belonged in Khatian No.1, Plot No. 3319, quantity of land .28 acres, Plot No. 3318/3582, quantity of land .05 acre, Plot No. 3384/3584, quantity of land  .15  acre,  Plot  No.  3320  quantity  of  land  .04  acre  and  plot No.3485/3484  quantity  of  land  .07  acre  total  .59  acre  are Government’s khas land. As the predecessors of the plaintiffs namely Sheikh Belayet Hossain being landless, he applied to the defendant No.4 for settlement of land and accordingly,  the defendant No.4 settled .59 acres of land in favour of the predecessor of the plaintiff's namely,  Sheikh Belayet Hossain in Khatian No.1, Plot No. 3319, quantity of land .28 acre, Plot No. 3318/3582, quantity of land .05 acre, Plot No. 3384/3584, quantity of land .15 acre, Plot No. 3320 quantity of land .04 acre and plot No.3485/3484 quantity of land .07 acre through settlement case No. 416B/86-87 and a registered deed of settlement  being  No.  1671/89  dated  09.10.1989  was  executed  in favour of predecessor of the plaintiffs in respect of the aforesaid land. As per settlement, the plaintiff parties have been paying Salami of the land regularly. The plaintiffs took loan from Krishi Bank, Kuchua Branch, against that land and the plaintiffs have been possessing over the suit land more that twelve years. There is no Govt. path at plot No. 3320. On 25.01.2004, the defendant Nos.1-2 brought Cement, Sand and  Bricks  for  construction  on  the  suit  land  and  hence,  the predecessors  of  the  plaintiffs  instituted  the  suit  for  permanent injunction.

The opposite parties as defendants contested the suit by filing written statements denying all the material averments made in the plaint contending, inter-alia, that the plaintiffs have no cause of action to file the suit and the suit is not maintainable in its present form. The suit of the plaintiff is barred by law of limitation and hit by principle of estoppel, waiver and acquicence. The suit land of Plot No. 3319, 3320 and 3322 are govt. Khas land, the defendant- petitioners erected a shop at local hut which is on plot No.3322 and they have been running their business since 1992 A.D without any hindrance. The cause of action of the suit is false and as such, the suit is liable to be dismissed.

The  defendant  No.  4  (Additional  Deputy  Commissioner (Revenue),  Bagerhat  contested  the  suit  by  submitting  a  written statement denying the material allegation of the plaint stating , inter alia, that the plaintiffs have no cause of action to file the suit and the suit  is  not  maintainable  in  its  present  form.  The  suit  and  is Government khas land and the plot No. 3322, quantity of land 3 decimal is khas land. The land was given lease Bangla 1411 to the Soaib Sheikh. There is no possession of the plaintiffs on the land of plot No. 3322, the suit is liable to be dismissed.

At  the  trial  the  plaintiff  side  examined  2  witnesses  and  the defendant  side  also  examined  3  witnesses  and  both  the  parties exhibited some documents to prove their respective cases.

The learned Assistant Judge, Kachua, Bagerhat after hearing the parties and on considering the evidence and materials on record by his judgment and decree dated 11.07.2011 decreed the suit in favour of the plaintiffs.

The defendants, thereafter, preferred Civil Appeal No. 134 of 2011  before  the  learned  District  Judge,  Bagerhat  which  was

subsequently transferred to the Court of the learned  Joint  District Judge,  1st  Court,  Bagerhat  for  disposal,  who  by  the  impugned

judgment and decree dated 28.08.2017 (decree signed on 31.08.2017) dismissed the appeal and affirmed the judgment and decree of the trial Court dated 11.07.2011.

Aggrieved defendants then preferred this revision application and obtained the present rule.

Mr. Md. Taufiqul Islam, the learned Advocate appearing on behalf of the defendant-petitioners at the very outset takes me through the pleadings of the parties and the evidence of PWs & DWs and then submits that both the Courts below without considering the case of the defendants  that  there  is  existence  of  the  shop  of  the  defendant- petitioners on the disputed land most illegally decreed the suit  in favour of the plaintiffs on the finding that the plaintiffs have right, title and possession over the suit land,  which occasioned a failure of justice.  He  next  submits  that  the  plaintiffs  filed  the  suit  on  false averments inasmuch as the defendants never tried to dispossess the plaintiffs from their land.

Mr. Humayun Kabir Bulbul, the learned Advocate appearing for the plaintiff-opposite party Nos.1-7, on the other hand, supports the judgments  of 2  Courts below,  which  were  according  to  him  just, correct and proper.

Having heard the learned Advocates for both the sides, perused the  revision  application,  judgments  of  2  (two)  Courts  below, deposition  of  witnesses  and  other  materials  on  record,  the  only question calls for consideration in this Rule whether the Courts below committed any error in decreeing the suit in favour of the plaintiffs.

On scrutiny of the record, it appears that the plaintiff-side to prove the case  examined 2 witnesses out of whom PW-1, Feroza Begum, (wife of original plaintiff) stated in her deposition that- “

”  This witness in her cross examination denied the suggestion

in the following language- “

”. PW-2, Ansar Sheikh stated in his deposition that- “

”

DW-1,  Md.  Shoab  Sheikh  stated  in  his  deposition  that  he possessed the suit daag No. 3332. In cross examination he stated that - “

” DW-2, Hemayet Sheikh stated in his deposition that there is existence of shop in the suit land being daag No. 3322. DW- 3, Afzal Sheikh stated in his deposition that there is existence of shop in the suit land.

From the above quoted evidence, it appears to me that PW-1 and PW-2 both of them in their respective evidence clearly stated that the plaintiffs got the land by way of Settlement Case No. 416 B 86-87 and thereafter, they got deed on 09.10.1989 and have possessed the suit land. DWs in their respective evidence could not show any scrap of paper that the plaintiffs are not in possession in the suit land, they inconsistently deposed before the trial Court that they possessed the suit land.

On an analysis of the evidence of the parties, it appears that the evidence of PWs indicates true position of the suit land. Weighing the evidence of both the parties, I find that the evidence in plaintiff side is credible and tenable in Law

The trial Court below as first Court of fact on due consideration of the entire evidence and materials on record justly came  to  the conclusion that- “

”   

This finding being purely a finding of fact based on proper appreciation of the evidence and materials on record.

On going through the judgment of the trial court together with the evidence and materials on record,  it appears to me that the trial Court  below  committed  no  illegality  in  decreeing  the  suit.  The impugned judgment is a judgment of affirmance. On a reading of the impugned judgment, it appears that the appellate court below in its turn after a detailed discussion of the entire evidence and materials on record concurred with the findings of the trial Court. In affirming the judgment of the trial Court, the learned Joint District Judge, 1st Court, Bagerhat did not commit any illegality whatsoever.

  By the way it may be observed that defendants having a shop near about the suit land. On a query from the Court Mr. Humayun Kabir, the learned Advocate for the plaintiff-opposite parties informs

that the plaintiffs have/had no connection or interest over the shop of the defendant-side inasmuch as admittedly the shop of the defendant- side is not situated on the suit property.

In view of my discussions made in the foregoing paragraphs it is by now clear that the instant Rule must fail.

In the result, the Rule is discharged without any order as to costs. The order of stay granted earlier by this Court stands vacated.

Let a copy of this judgment along with lower Courts’ record be sent down at once.