Bench:

                                        Mr. Justice Bhishmadev Chakrabortty

    Civil Revision No. 1667 of 2016

Samroz Khan and another       .....petitioners                    

-Versus-

    Md. Tara Miah and others

                                            ..... opposite parties

Mr. A B M Rafiqul Haque Talukder,  

Advocate                      .....for the petitioners                   

                                        Mr. Abdullah Al Mamun, Advocate

                                                             .....for opposite parties 1(a)-1(f)

Judgment on 28.07.2024

The trial Court decreed the suit for permanent injunction and it was  affirmed  by  the  appellate  Court  against  which  the  defendant approached this Court and obtained this rule.

Opposite party1 as plaintiff instituted Other Class Suit No. 49 of 2004 in the Court of Senior Assistant Judge, Netrokona against the petitioners  and  others  stating  that Gurudayal  Namo  Das  was  the recorded owner of land appertaining to CS khatian 14. His nephew Kailash  Chandra  Namo  Das  during  his  possession  and  enjoyment transferred the total land of plot 20 measuring an area of 1.29 acres to Shree  Lakshmi  Narayan  Goswami  by  a  registered  kabala  dated 16.02.1945. Accordingly  SA  khatian  was  prepared  in  her  name correctly.  She  died  leaving  behind  her  only  son  Udbhab  Prasad Goswami. During his possession and enjoyment Udbhab sold it to Khudbanu Nessa through a kabala dated 02.08.1978 and handed over

possession thereof. After purchase, Khudbanu mutated her name and paid rent to the concerned and subsequently sold out .90 acres to the plaintiff through a kabala dated 23.6.1993. After purchase the plaintiff mutated his name and paid rent to the government. It was further stated that, in the meantime if the defendants manage to obtain any decree for the suit land by practicing fraud upon the court without impleading  the  plaintiff,  it  would  not  be  binding  upon  him.  The defendants threatened the plaintiff on 04.04.2004 of dispossession but he somehow resisted them. Although they left the place at that time but threatened him that they would come again and dispossess him from the suit land. Hence the suit for permanent injunction in respect of suit land.

Defendants  1-5  and  14  contested  the  suit  by  filing  written statement. In the written statements they denied the statements made in  the  plaint  and  further  contented  that  Udbhab,  son  of  Lakhsmi Narayan Goswami during his possession and enjoyment gave pattan of the land to Samir Uddin Khan, Jamir Uddin Khan and Atar Ali Khan,  the  pre-decessors  of  the  defendants  on  taking  salami.  The defendants’  pre-decessors  paid  rent  to  the  superior  landlord and during their possession and enjoyment SA khatian was prepared in their names. After the death of above three, they took settlement from Udbhab. Their heirs instituted Partition Suit No. 21 of 1999 which was still then pending. Udbhab Goswami never sold out the suit land to Khudbanu and the deed in her name was not acted upon. The plaintiff  created  those  documents  only  to  grab  the  suit  land.  The defendants have possession in the suit land. Moreover .43 acres of land along others was being possessed by defendants 1 and 15 and for creating disturbance in possessing the suit land they instituted Other Class Suit No. 90 of 1994 and obtained a decree. Moreover, one Priti Rani Saha instituted a suit in which she lost. She went up to the High Court division in a civil revision challenging the judgment and decree passed in the aforesaid suit. The plaintiff is aware of the aforesaid fact but instituted the suit on false statement. Actually he has no title and possession over the suit land and as such the suit would be dismissed.

On pleadings the trial Court framed four issues. Among them the vital issue was whether the plaintiff has prima facie title and exclusive  possession  over  the  suit  land.  In  the  trial  the  plaintiff examined 8(eight) witnesses and their documents were exhibits 1-7. On  the  other  hand  the  defendants  examined  6(six)  witnesses  and produced the certified copies of SA khatian 20 only. However, the Assistant Judge decreed the suit finding plaintiff's prima facie title and exclusive  possession  over  the  suit  land  against  which  the contesting defendants  preferred  appeal  before  the  District  Judge, Netrokona bearing Other Class Appeal No. 50 of 2010 which was dismissed.  Being  aggrieved  two  defendants  approached  this  Court with a revision upon which this rule has been issued with an interim order of status quo in respect of position and possession in the suit land.

Mr. A B M Rafiqul Haque Talukder, learned Advocate for the petitioners taking  me  through  the  judgments  passed by  the Courts below submits that both the courts misdirected and misconstrued in their approach of the matter and thereby committed error of law in decreeing  the  suit  which  has  resulted  an  erroneous  decision occasioning failure of justice. He refers to the evidence of DWs 2-5 and  submits  that  the  witnesses  unequivocally  supported  the defendants’ possession in the suit land. This is a suit for permanent injunction and the prime consideration is the possession of the party over the suit land. Since the possession is in favour of the defendants both the Courts bellow committed error of law in decreeing the suit which is required to be interferred with by this Court in revision. The rule, therefore, would be made absolute.

Mr. Abdullah Al Mamun, learned Advocate for opposite parties 1(a)-1(f)  on the other hand  supports  the judgments passed by the Courts below and submits that this is a suit for permanent injunction and the Courts below found prima facie title and exclusive possession of  the  plaintiff  over  the  suit  land  and  consequently  decreed  the suit. The concurrent finding of facts arrived at by the Courts below should not be interfered with by this Court in revision unless the petitioners  can  show  that  there  is  gross  misreading  and  non-

consideration  of  the  evidence  and  others  materials  on  records  for which  the  decision  passed  by  the  Courts  below  could  have  been otherwise. The petitioners failed to show any misreading and non- consideration of evidence by the Courts below. The oral evidence of the plaintiff is corroborative as to his possession in the suit land. Apart from it, the plaintiff produced a series of documents and proved his title and possession in the suit land. The Courts below left no stone unturned in deciding the issues in favour of the plaintiff. The rule, therefore, having no merit would be discharged.

I have considered the submissions of both the sides and gone through the materials on record. The suit is for permanent injunction. In such a suit the prime consideration is the possession in the suit land. The question of title can be seen there incidentally. The trial Court correctly framed the issue whether the plaintiff’s has prima facie title and exclusive possession over the suit land which is the deciding point in this suit. 

The  plaintiff  claimed  that  Gurudayal  was  the CS recorded tenant of the suit land. CS khatian 14 was prepared in his name. After his death his nephew Kailash Chandra Namo Das having been his heir transferred  1.29  acres  to  Lakshmi  Narayan  Goswami  through registered kabala dated 16.02.1945. Her son namely Udbhab Prasad Goswami in whose name SA khatian was prepared, transferred land to Khudbanu through a kabala dated 02.08.1978. Khudbanu mutated her name and paid rent to the government and remained in possession of the suit land. She subsequently sold out .90 acres out of 1.23 acres to plaintiff  by  a  registered  kabala  on  23.06.1993  and  handed  over possession  thereof. After purchase  plaintiff  mutated  his  name  and remained  in  possession  over  the  same  on  payment  of  rent  to  the concerned.  The  plaintiff  alleges  that  on  04.04.2004  the  defendant threatened him of dispossession and then he instituted the suit for permanent injunction. 

The  plaintiff  produced  related  khatians  and  the  original documents which were marked as exhibits. He produced the mutation khatian in the name of Khudbanu and DCR’s in her name exhibit-5 series;  he  produced the  original  deed  in  his  name  exhibit-3  dated 23.06.1993. He further proved mutation khatian and DCRs exhibit-6 series in his name. The aforesaid documents, i.e., the original CS khatian  and  the  kabala  deeds  of  subsequent  purchasers  prove plaintiff’s title over the suit land. Plaintiff's witnesses PWs 1-8 proved his possession in the suit land. The witnesses of the plaintiff are found neutral and reliable to find possession in his favour. Apart from the oral evidence, the DCR’s and rent receipts in the name of plaintiff and his predecessors are documentary evidence of possession. The suit land is found specified, well demarcated and suitable for granting permanent injunction to the plaintiff. Defendants did not produce a single scrap of paper in support of their title and possession in the suit

land. The oral evidence of the defendants’ is found not corroborative to find their possession in the suit land. I find no error of law in the judgments  passed  by  the  Courts  below  for  which  those  can  be interfered  with  by  me  in  revision.  I  find  no  misreading and  non- consideration of the evidence and no such ground has been taken in the revisional application.

Therefore, I find no merit in this rule. Accordingly, the rule is discharged. No order as to costs. The judgment and decree of the Courts below is affirmed. The order of status quo stands vacated.

Communicate the judgment and send down the lower Courts’                   

record.