Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 349 of 2003

In the Matter of:

Alhaj Mohammed Ali Hossain

                               .....Plaintiff-appellant.

        -Versus-

Syed Md. Ishaq and others

                ...Defendant-respondents.

Mr. Md. Zakir Hossain Ripon, Advocate

  ……. For the appellant. Mr. Sk. Zulfiqur Bulbul Chowdhury, Advocate.

.......For the respondents.

Heard on 28.10.2024, 04.11.2024, 11.11.2024, 12.11.2024 and Judgment on 14.11.2024.

Sheikh Abdul Awal, J: 

This  appeal  at  the  instance  of  the  plaintiff-appellant  is directed  against  the  judgment  and  decree  dated  07.04.2003 (decree  signed  on  13.04.2003)  passed  by  the  learned  Joint District Judge, 1st Court, Chattogram in Other Class Suit No. 60 of 2000 dismissing the suit.

The short fact relevant for disposal of this appeal is that the appellant as plaintiff instituted Other Class Suit No. 60 of 2000 in the Court of the learned Joint District Judge, 1st Court, Chattogram praying a decree declaring the plaintiff is the owner of the Schedule-1 (kha) property and the property as described in Schedule-1 (kha) recorded in the sole name of the predecessor of the  principle  defendants  Syed  Abdul  Halim  is  incorrect  and

erroneous and the plaintiff-appellant as sole authority is entitled to get compensation. The plaint case in brief is that the suit Schedule-1  land  was  originally  belonged  to  Ebadullah  and accordingly R.S. Plot No. 608, 3632, 3633, 3634 of R.S. Khatian No.  151 of  Mouza  Bakalia,  Chattogram  was  recorded  in his name; that the said Ebadullah sold out 80 decimals suit land to Abul Khair by registered Deed No. 3615 dated 01.09.1939; that the said Abul Khair sold out the said 80 decimals land to the Plaintiff by deed Nos. 4273, 4299, 4347, 4382, 4425 and 4480 dated 18.06.73, 20.06.73, 22.06.73 and 23.06.73 respectively; that the suit Schedule-1(ka) property acquisitioned in LA Case 5/98-99 and the Plaintiff received the compensation of the suit Schedule-1(ka) property; that the plaintiff has been in possession of  the  suit  Schedule-1(kha)  property;  that  on  15.11.99  the Plaintiff  came  to  know  that  the  property  as   described  in Schedule-1(kha)  was  wrongly  recorded  in  the  name  of  Syed Abdul  Halim,  the  predecessor  of  principal  Defendant- Respondents in S.A and R.S Khatian. Later on the plaintiff came to know that the suit Schedule-1(kha) property acquisitioned in LA Case No. 5/98-99 and the principal defendants applied for receiving compensation of said acquisitioned property on false statements based on wrongly recorded B.S. Khatian in the name of their predecessor. Hence, the suit.

Defendant No.2 entered appearance in the suit by filing written statement denying all the material allegations made in the plaint contending, inter-alia, that the total land of suit plot is 3.21 acres as per R.S. Khatian No. 151 of which 2.49 decimals of  plot  No.  608  and  0.17  decimals  of  plot  No.  3632,  0.19

decimals of plot No. 3634 and 0.36 decimals of plot No. 3633 was belonged to Ebadullah and R.S. Khatian was recorded in his name accordingly; that out of those land the said Ebadullah sold 1.605 acres land by deed No. 1727 dated 13.03.1941 to Md. Amir Ali Chowdhury; that the said Md. Amir Ali Chowdhury sold out the said 1.605 acres land to Abdul Halim Sawdagor (Syed  Abdul  Halim)  by  registered  deed  No.  2786  dated 09.08.1946; that the said purchaser Syed Abdul Halim being acquired title in the said land and having possessed by paying land rent to the National Exchequer and corresponding P.S. and B.S  Khatian  correctly  recorded  in  his  name;  that  said  Syed Abdul  Halim  died  on  01.01.1988  leaving   behind  his  wife Hazera  Khatun,  09  sons  Syed  Abu  Mohammad  Shafi,  Syed Nurul Huda, Syed Abu Mohammad Hossain, Syed Md. Ismail, Syed Md. Idris, Syed Md. Yusuf, Syed Md. Yunus, Syed Md. Ishaque, Syed Md. Yakub and 02 daughters Syeda Rawshan Ara Begum  and  Respondent  No.  2  Syeda  Meherunnessa  Begum (Meherunnessa  Khanam);  that  the  heirs  of  late  Syed  Abdul Halim i.e. the defendants amicably got partitioned their inherited properties on 14.01.90 and executed a Naksha (Partition sheet) prepared by an appointed Surveyor and each of the heirs got their  own  portion  of  inherited  property  accordingly;  that accordingly the Defendant No.2 got total 34.71 decimals of land under R.S plot No. 608 who being in exclusive possession in her share according to amicable partition sold out 08 decimal land to Mrs. Hasne Hena in 1990 and also sold out 05 decimal land to Mozammel Haque by deed No. 1696 dated 11.08.95 and she is owning  and possessing  the  rest  of the  land  measuring 21.71

decimals within the knowledge of all other shares; that a portion of the disputed land acquisitioned in LA Case No. 5/98-99 and notice under section-3 was served on 24.11.98 in the name of Syed Abdul Halim, the predecessor of the Defendant No.2; that thereafter  the  Defendant  No.2  submitted  appeal  before  the Additional Land Acquisition Officer Unit No. 5 on 08.12.98 for excluding  her  land  from  the  acquisition  proceeding  and thereafter a notice was issued for hearing on 17.12.98 and the matter was heard on 28.12.98; that an application for amendment of notice under section 6 approved on 18.07.99 by the Land Acquisition Officer and thereafter, on 05.08.99 a notice under section 7(3) was issued for compensation; that the Defendant No. 2 after transferring her 13.00 decimals land being owner of the rest of the 21.71 decimals land got recorded in B.S Khatian as 646/31 in her name on 06.03.2000, vide Mutation Case No. 2206/99-2000 and the defendant is in peaceful possession over the said land and has been paying all rents and taxes to the Government  and  therefore  she  is  entitled  to  get  the compensation;  that  the  Plaintiff  has  got  no  right,  title  and possession over the suit Schedule-1(kha) land and all the deeds of the plaintiff are false and fabricated by which the Plaintiff or his predecessors did not get any right, title and possession; that no Khatian has been recorded in his name and he did not pay any rent or taxes to the Government at any point of time; that on the other hand the predecessor of the defendants has been peacefully continuously possessing the suit land without any objection from anybody  by  paying  all  taxes  and  rents  of  the  land;  that  the Plaintiff filed the  suit on false, forged and fabricated facts with ill motive for undue gain and as such, the suit is liable to be dismissed.

The learned Joint District Judge, 1st Court, Chattogram on the  pleadings  of  the  parties  framed  the  following  issues  for determination:-

1. Whether the suit is maintainable in its present form and manner?
2. Whether  the  plaintiff  is  entitled  to  get  the compensation against acquisitioned land of schedule- 1(Kha) as acquired by the defendant No.11 by LA Case No. 5/98-99?
3. Whether  the  plaintiff  is  entitled  to  get  any  other relief?

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

The learned trial Judge upon hearing the parties and on considering  the  evidence  and  materials  on  record  by  his judgment and decree dated 07.04.2003 dismissed the suit.

Being aggrieved by the aforesaid impugned judgment and decree  dated  07.04.2003  passed  by  the  learned  Joint  District Judge, 1st Court, Chattogram the plaintiff-appellant preferred this First Appeal.

Mr.  Md.  Zakir  Hossain  Ripon,  the  learned  Advocate appearing  for  the  plaintiff-appellant  submits  that  the  learned Joint  District  Judge  misconceived  the  facts  of  the  case  and wrongly dismissed the suit. He further submits the trial court below having failed to examine the plaint, written statement, evidence and other materials on record and thereby came to a wrong finding that it is not possible on his part to ascertain whether  the  plaintiff  is  entitled  to  get  compensation  of  the scheduled 1(Kha) property without applying its judicial mind into the facts of the case that the plaintiff successfully proved his title in the suit property and as such, the impugned judgment and decree is liable to be set-aside. Mr. Md. Zakir Hossain Ripon further  submits,  it  is  on  record  that  the  plaintiff  has  been succeeded to prove his right, title and possession in the specified portion of the disputed R.S. khatian but the learned trial judge without  giving  any  observation as to  the possession  abruptly dismissed the suit which caused a serious miscarriage of justice. Finally,  the  learned  Advocate  submits  that  the  learned  Joint District  Judge  had  passed  the  impugned  judgment  by  not applying his judicial mind to the materials on record, the same is liable to be set-aside.

Mr. Sk. Zulfiqur Bulbul Chowdhury, the learned Advocate appearing  for  the  plaintiff-respondent,  on  the  other  hand, supports  the  impugned  judgment  and  decree,  which  was according to him just, correct and proper. The learned Advocate further  submits  that  plaintiff-appellant  could  not  prove  his possession and share in the suit land and there is no khotian in their name and admittedly compensation assessment notice was not issued in the name of plaintiff and therefore, the trial court below justly dismissed the suit.

Having heard the learned Advocates for both the sides and having gone  through  the  materials  on  record  including  the impugned judgment of the trial Court, the only question that calls  for  our  consideration  in  this  appeal  is  whether the trial Court below was justified in dismissing the suit by the impugned judgment and decree.

On a scrutiny of the record, it appears that the appellant Alhaj Mohammed Ali Hossain as plaintiff filed the Other Suit No. 60 of 2000 in the Court of the learned Joint District Judge, 1st Court, Chattogram praying the following reliefs:

Defendant No.2 entered appearance in the suit by filing written statement denying all the material allegations made in the plaint contending, inter-alia, that the plaintiff filed the suit on false averments and as such, the suit is liable to be dismissed. It further appears that during trial the plaintiff examined in all 2 witnesses and exhibited some documents to prove his case out of which son of the plaintiff, Md. Salauddin on getting power of attorney examined as PW-1, who proves the power of attorney as “Ext.-1’’. This witness stated in his deposition that the suit scheduled property originally recorded in the name of Ebadullah and accordingly R.S. 137 khatian was prepared. This witness proved the R.S. khatian as “Ext-2”. This witness also stated in his deposition that Ebadullah transferred 80 decimals land by registered  deed  No.  3615  dated  31.09.39  to  Abul  Khair  and handed over possession to him. This witness proved the said deed as “Ext-3”. This witness also stated that thereafter Abul Khair by 6 kabalas transferred his total 80 decimals land to the plaintiff and handed over possession of the said land to plaintiff. This  witness  proves  those  kabalas  as  “Ext.-4  series”.  This witness also stated that plaintiff paid rent to the Government. This witness also stated that- “

” PW-2, Md. Abdul Shukur stated in his deposition that he knew the parties and the suit land. This witness stated that- “

” From the above quoted evidence, it appears that both the witnesses testified in one voice that the plaintiff possessed the suit land before acquisition of the suit land by the Government.

It  further  appears  that  the  PWs  could  not  produce  any compensation  assessment  notice  issued  in  the  name  of  the plaintiff. Moreover, PW-2 stated in his cross-examination that-

“                                                                                                                                                       ” It further appears that PW-1 in his cross-examination stated that-

“                                                                                                                                                       ’’ This evidence of the plaintiff side is clear admission that the defendant Nos. 1-10 are

successors of Syed Abdul Halim Sawdagor and it is on record that  all  the  records  prepared  in  the  name  of  Abdul  Halim Sawdagor.

 It  is  found  that  DW-1  and  DW-2  in  their  respective evidence categorically denied the right, title and possession of the plaintiff. The plaintiff side cross-examined DW-1 and DW-2  but failed to find out any contradiction in the evidence of DWs.

As per the pleadings and evidences, the land under R.S Khatian 151 corresponding P.S Khatian 1533/5627 and B.S 646 Khatian was recorded in the name of defendants’ predecessor Syed Abdul Halim and total land under R.S Khatian was 3.21 acres and as per P.S Khatian 1533/5627 Exhibit-kha-(1) the total land is 3.25 acres but as per B.S Khatian Exhibit-6 the total land is 10.58 acres and the plaintiff in his Plaint did not give any explanation regarding land recorded in B.S Khatian 646. It is  found from the evidence adduced by the parties that the total land was 3.21 acres of which plaintiff demanded 80 decimal land and predecessor of defendants demanded 1.605 acres and the rest 80.5 decimal land remained with the original R.S recorded owner Ebadullah. The Plaintiff did not mention in his plaint that the  ejmali  land  of  Ebadullah  distributed  to  the  Plaintiff  and Defendant No. 2 rather the land subsequently recorded under P.S. and B.S. in favour of the defendants.

It  is  also  found  that  the  trial  Court  below  on  due consideration of the evidence and materials on record came to its conclusion that the plaintiff could not prove any clear case of compensation and on this finding dismisses the suit.

On  a  close  analysis  of  the  evidence  and  materials  on record, it appears that the plaintiff stated nothing in his evidence that he made any application for compensation. It also appears that PW-1 in his cross examination admitted that- “

” and as per BS record

Government acquired the land which admittedly recorded in the name  of  the  predecessors  of  the  defendant-respondents. Furthermore, admittedly no compensation assessment notice was issued in the name of plaintiff appellant. Therefore, we find no substance in either of the contentions as raised by the learned Advocate for the appellant.

We find no flaw in the reasonings of the trial Court  or any

ground to assail the impugned judgment. The learned Judge of the trial Court appears to have considered all the material aspects of the case and justly dismissed the suit. We find no reason to interfere therewith. 

In the result, the appeal is dismissed without any order as

to costs.

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

Md. Mansur Alam, J:

I agree.