Bench:

Mr. Justice Bhishmadev Chakrabortty Civil Revision No.1093 of 2018

Suraiya Begum and others     .....petitioners

-Versus-

Sk. Md. Sahin and others

                                      ......opposite parties

Mr.Md. Ekramul Islam, Advocate

                                    ...... for the petitioner

Mr. Tapon Kumar Bepary with

Mr. Bulbul Das, Advocates

                                                              ...... for the opposite parties

Judgment on 16.07.2024

This  rule  at  the  instance  of  the  defendants  was  issued calling upon the opposite parties to show cause as to why the judgment and decree of the District Judge, Pirojpur passed on 15.03.2018 in Title Appeal No. 37 of 2017 dismissing the appeal affirming  the  judgment  and  decree  of  the  Assistant  Judge, Nesarabad, Pirojpur passed on 13.06.2017 in Title Suit No. 16 of 2015 decreeing the suit for permanent injunction should not be set aside and/or such other or further order or orders passed to this court may seem fit and proper.

Facts relevant for disposal of the rule, in brief, are that opposite parties herein as plaintiffs instituted the aforesaid suit alleging, inter alia, that SA khatian 1/33 in respect of 14.73 acres of land was prepared in the name of Saleha Khatun and others. During possession and enjoyment of her share measuring .83 acres she died leaving behind 2 sons Mostafa Kamal alias Kamal Pasha,

Ismot  Pasha  and  daughter  Parul  Begum.  The  above  heirs  got possession of .25 acres from SA plot 664, .27 acres from SA plot 669, .04 acres from SA plot 690, .03 acres from SA plot 691 and .24 acres from SA plot 692. Accordingly BS khatian 987 plots 2074, 2066, 2060, 2059 and 2061 in respect of .83 acres has been prepared in their names. Kamal Pasha and Ismot Pasha sold out .20 acres from SA plot 664 to Jahangir Kabir through a registered kabala dated 02.02.1998. They further sold land to others and remained in possession of .27 acres of plot 2066. Kamal Pasha sold out his share of .108 acres to defendants 1 and 2 through kabala dated 21.03.2011 and handedover possession thereof. The land of plot 669 of SA khatian 1/33 is homestead. The other land of  that  khatian  are  nal,  bhiti  and  garden.  The  deed  writer erroneously included plot 666 of SA khatian 1/33 and described it as  homestead.  Modasser  Ali  the  recorded  owner  died  leaving behind his 2 sons Abdul Hossain and Siddiqur Rahman and 3 daughters  Hazera  Begum,  Shahina  Begum  and  Rabia  Khatun. Abdul Hossain died leaving his son Md. Shahin and defendant 1 as heirs. Plaintiff 2 Manirul Islam is the son of Siddiqur Rahman. The plaintiffs filed miscellaneous case got an order therein on 25.12.2014  and  opened  new  khatian  1706.  He  remained  in possession  over  the  land  by  paying  rent  to  the  government. Defendants 1-5 are the heirs of Abdul Hakim, the recorded owner of the land described in schedule ‘Ka’ to the plaint. Their land was recorded in DP No. 14 and they with their predecessor transferred their share to others as per the mutual possession they hold over the land. The defendants out of greed tried to enter into the land of the plaintiffs on 13.02.2015 and threatened them for dispossession and hence the suit for permanent injunction.

Defendants  1-5  contested  the  suit  by  filing  written statement.  In  the  written  statement  they  denied  the  statements made in the plaint. They admitted preparation of SA khatian 1/33 in the name of Saleha Khatun and others and the remaining land of SA plots 691 and 669 of SA khatian 1/33. They further claimed that total 17.03 acres of land was recorded in the aforesaid two SA khatians.  But  the  quantum  was  reduced  to  15.62  acres.  The aforesaid land  would  be divided  equally among the 5 persons named in the khatian. The name of Abdul Hakim was correctly recorded in SA khatian 1/33. He died leaving behind his only son Akbar Ali in whose name in BS khatian 14 has been prepared. He died  leaving  behind  defendants  1-5  as  heirs  and  they  are  in possession over 1.82 acres through cultivation. In Miscellaneous Petition No. 313 of 2013 the possession of the defendants in the suit land has been proved. Parul, Kamal and Ismat Pasha, the heirs of  recorded  tenants  sold  out  their  share  to  one  Salek  on 19.01.2006 and 12.11.2006 respectively. In view of the aforesaid position, the plaintiffs did not acquire any title and possession in the  suit  land  through  the  deed.  The  suit,  therefore,  would  be dismissed.

On pleadings the trial Court framed 3 issues. Among them the vital issue was whether the plaintiff have prima facie title and exclusive possession over the suit land. In the trial the plaintiffs examined 3 witnesses and their documents were exhibits-1-17. On the other hand the defendants examined 2 and their documents were exhibits-‘Ka’-‘Uma’. However the Assistant Judge decreed the  suit  finding  plaintiffs’  prima  facie  title  and  exclusive possession  over  the  suit  land.  The  defendants  then  preferred appeal  before  the  District  Judge,  Pirojpur  who  upon  hearing dismissed the appeal and affirmed the judgment passed by the trial Court which prompted the defendants to approach this Court with this revision and the rule was issued.

Mr.  Md.  Ekramul  Islam,  learned  Advocate  for  the petitioners taking me through the judgments passed by the Courts below and other materials on record submits that to get a decree of permanent injunction the suit land is to be specified and well demarcated. Admittedly plot 2066 contains .27 acres of land but in the khatian there is more land. The total land of the plots of that khatian is 3.75 acres out of which the defendants purchased .43 acres and as such without any speciation and demarcation of land the suit for permanent injunction cannot be decreed. The plaintiff although claimed .1080 acres of land from the aforesaid plot but it was not specified by metes and bounds, therefore, they are not entitled  to  get  a  decree  as  prayed  for.  The  plaintiffs  did  not examine the vendor of their deed to prove the deed and possession over the suit land. The parties to the suit are admittedly co-sharers in the suit land and as such the suit for permanent injunction without partition is not maintainable. He then submits that the Courts below did not discuss oral evidence adduced by the parties and, therefore, the judgments passed by the Courts below cannot be sustained in law. The plaintiff purchased .1080 acres the suit land through exhibit-4 which consists of 5 plots but nothing has been  stated  specially  about  his  purchased  share.  Since  the plaintiffs  have  failed  to  prove  prima  facie  title  and  exclusive possession over the suit land, the judgments passed by the Courts below would be set aside and the rule be made absolute. 

Mr.  Tapan  Kumar  Bepary,  learned  Advocate  for  the opposite parties on the other hand opposes the rule and submits that  the  plaintiffs  purchased  the  suit  land  from  the  recorded tenants  Kamal  Pasha  and  others  through  exhibit-4.  Since  they have purchased the suit land by a registered deed it proves that they have prima facie title over the suit land. After purchase the the plaintiffs mutated their names through mutation case exhibit-2 and  have  been  possessing  the  same  by  paying  rent  to  the concerned  authority.  The  witnesses  of  the  plaintiffs  led corroborative evidence and proved possession in the suit land. Both  the  Courts  below  found  plaintiffs’  prima  facie  title  and exclusive possession over the suit land and decreed the suit for permanent injunction. In the judgments, there is no misreading and non consideration of the evidence on record, and as such the rule would be discharged.

I have considered the submissions of the learned Advocates for both the sides, gone through  the judgments passed by  the Courts below and other materials on record.

This is a suit for permanent injunction for restraining the defendants from interfering with the peaceful possession of the plaintiffs over the suit land measuring .1080 acres described in the schedule to the plaint. In a suit for permanent injunction the prime consideration is the possession over the suit land. The question of title can be seen there incidentally. The plaintiffs produced a series of documents in support of their title over the suit land. They produced and exhibited certified copy of SA khatian 133 exhibit- 1, certified copy of BS khatians 1703 and 987 exhibit-2 series, certified  copy  of  the  registered  sale  deed  dated  02.02.1998; exhibit-3  original  registered  sale  deed  dated  21.03.2011  (the disputed  deed)  exhibit-4;  certified  copy  of  the  registered  sale

deeds  dated  09.01.2011,  19.08.1997,  17.10.2011,  17.06.2002, 12.11.2003, 29.06.2003, 22.12.2010, 12.04.2019, 10.01.1999 and 05.07.2010  exhibits-5-14  respectively;  they  also  proved  and exhibited certified copy of a criminal case and plot index.

On perusal of the exhibited khatians filed by the plaintiffs and  their  registered  sale  deeds  through  which  the  plaintiffs claimed title over the suit land, I find that the plaintiffs have been able to prove their title in the suit land. The plaintiffs’ witnesses PWs 1-3 led corroborative evidence in support of their possession over the suit land. Although they were cross-examined by  the defendants at length but nothing came out adverse. Moreover, the mutation  in  the  name  of  the  plaintiffs  exhibit-2  proves  their possession in the suit land. In the plaint the plaintiffs described the land as SA plot 669 corresponding to BS plot 2066 of newly created BS khatian 1703 measuring an area of .1080 acres. The land  is  well  bounded  in  the  schedule  naming  those  persons surrounding it. Furthermore, in exhibit-4, the original purchase deed of the plaintiffs, there is a sketch map showing plaintiffs’ land. The submission of the learned Advocate for the petitioners that the plaintiffs purchased a part of the suit land out of .3575 acres of plot 2066 and his land is not specified bears no substance considering the plaint, oral evidence of the parties and purchase deed exhibit-4. Although by the deed the plaintiffs purchased a part of the land of the plot but it has been specified and well demarcated as found above. Since the plaintiffs filed the suit for permanent injunction because of the threat of the defendants and the land has been specified and possession is proved in evidence, the instant suit for permanent injunction is well maintainable. The submission of the learned Advocate for the petitioners that the suit in the present form is not maintainable without partition also bears no substance. Although the oral evidence of the parties were not discussed by the Courts below but the petitioners failed to point out the evidence of witnesses for which the decision passed by the Courts below could have been otherwise. No such ground has been taken in the revisional application. I find no such misreading or non reading of evidence and any point for which the judgments may be interfered with by me.

In view of the discussion made hereinabove, I find no merit in this rule. Accordingly, the rule is discharged. No order as to costs. The judgment and decree passed by the Courts below is hereby affirmed.

Communicate the judgment and send down the lower Court

records.

Rajib