Bench:

    Mr. Justice Bhishmadev Chakrabortty     And

    Mr. Justice Md. Akhtaruzzaman

First Appeal No. 643 of 2000

Ainali Kha and others           …..appellants

-Versus-

Government of Bangladesh and others

     ..... respondents

Mr. Abdul Hye Fakir with

Mr. Md. Towhidul Islam, Advocates                   

            …..for appellants

Ms. Rahima Khatun, Deputy Attorney General with Ms. Farida Pervin Flora and Mr. Md. Ruhul Amin, Assistant Attorney Generals

                                ..... for respondent No.4

Heard on 02.11.2023, 21.11.2023, 27.11.2023 and 09.01.2024

Judgment on 16.01.2024.

Md. Akhtaruzzaman, J.

The plaintiffs have preferred this appeal under section 96 of the Code of Civil Procedure (in short, the Code) challenging the judgment and decree dated 31.08.1999 passed by the learned Subordinate Judge, Court No. 2, Barishal in Title Suit No. 23 of 1996 dismissing the suit on contest.

 Facts relevant for disposal of the present appeal, in brief, are that the present appellants being plaintiffs filed Title Suit No. 23 of 1996 before the Subordinate Judge, Court No. 2, Barishal praying for declaration of title over the suit land duly described in the schedule of the plaint contending, inter alia, that Titu Kha was the owner of 8 annas share in C.S. Khatian Nos. 113/114/116/117 and 119 of Mouza Mahisha Paguria under Mehendigonj police station whereas Ayub Ali

and Shamsuddin had their 4 annas shares each. Khatian No. 315 was entirely prepared in the name of Titu Kha. In C.S. Khatian No. 115 he was a sharer of 8 annas. Titu Kha died leaving behind his son Kali Kha. Kali Kha died leaving behind 2 (two) sons, named, Ainali Kha and Chandu Kha (plaintiff Nos. 1/2) and wife Fatema Bibi. Fatema Bibi died leaving behind her 2 (two) sons mentioned above. Ayub Ali died leaving behind 1 (one) son Kurman Kha who subsequently died leaving behind Ingul Kha and Azahar Kha. Thereafter, Ingul Kha died leaving behind 1 (one) son Sattar Kha (plaintiff No. 3). Azahar Kha died leaving behind 3 (three) sons, named, Mrit Ali, Shahjahan Kha (plaintiff No. 4), Abdul Malek Kha (plaintiff No. 5) and daughter Renu Bibi (plaintiff No. 6). Ali Kha died leaving behind 1 (one) son Abdul Jabbar who subsequently died leaving behind 1 (one) son Ratan Kha (plaintiff No. 7) and 1 (one) daughter Rizia Khatun (plaintiff No. 8). After the demise of Shamsuddin his son Hasu Kha inherited him. Hasu Kha died leaving behind 3 (three) sons, named, Fotu Kha (plaintiff No. 9), Rajek Kha (plaintiff No. 10), Khalek Kha (plaintiff No. 11) and a daughter Saleha Begum. Abdul Karim Kha of C.S. Khatian No. 115 died leaving behind his son Hamed Ali Kha who subsequently died leaving behind his daughter Zarina (plaintiff No. 13). In this way the plaintiffs became the owner of the suit land and have been possessing the entire 23.30 acres of land upon cultivating crops therein. But the S.A. khatian of the suit land was erroneously prepared in the name of Kedareswar and others against which they

filed Title Suit No. 302 of 1983 before the Munsif, 1st Court, Barishal which was decreed ex parte on 12.07.1986. The plaintiffs had tried to correct the wrong record of right on the basis of the ex parte decree but defendant Nos. 117-119 denied to do the same. Defendant Nos. 117-119 intentionally claimed that the disputed land is the sekosti (diluvion) land of the government. The defendants have no title and possession in the suit land. On 30.06.1996 corresponding to 16th Ashar 1403 B.S. the plaintiffs for the first time came to know about the diara settlement prepared in the name of the defendant Nos. 117- 119 which date the Tahsildar denied to accept the tax of the land which gave rise to institute the instant suit.

Defendant No. 119 contested the suit by filling a written statement denying all material allegations made in the plaint and contended that the suit is barred by limitation; bad for defect of parties; barred by res judicata and also barred under section 42 of the Specific Relief Act. The further case of the contesting defendant is that 10.32 acres of land out of 23.30 acres is the diluvion property and the respective diara khatian was correctly prepared in the name of the government. Upon practicing fraud, the plaintiffs obtained an ex parte decree in Title Suit No. 302 of 1983. The government was not made a party to that suit. The suit land became alluvion land in between 1335 B.S. to 1340 B.S. After diluvion it was recorded as khas property of the government through Misc. Case No. 8M/80-82. The plaintiffs have no right, title and possession over the suit land. They did not pay rents of the land. The plaintiffs filed the suit only to grab the disputed property.

Mr. Md. Towhidul Islam for Mr. Abdul Hye Fakir, learned Advocate appearing for the plaintiff-appellants taking us through the plaint, written statement, evidence of witnesses and the documents exhibited along with materials on record submits that the plaintiffs have right, title and possession over the suit land and observing all these the learned Munsif, Barishal declared the title of the plaintiffs in Title Suit No. 302 of 1983 but the learned Subordinate Judge illegally dismissed the instant suit taking fake grounds of limitation and res judicata. He further submits that during preparation and publication of the S.A. Khatians, the suit property was never sekosti land but the defendant Nos. 117-119 on the pretext of said sekosti note in the S.A. Khatians secretly made the suit land as the government khas land and in doing so, no notice whatsoever, was served upon the plaintiffs. The learned Advocate further submits that during pendency of the instant suit the government illegally leased out the suit property in favour of defendant Nos. 1-116. Mr. Islam finally submits that without taking into consideration of the materials as well as evidence on record, the trial Court dismissed the suit which is liable to be set aside.

On the flip side, Ms. Rahima Khatun, learned Deputy Attorney General with Ms. Farida Pervin Flora, learned Assistant Attorney General appearing on behalf of the respondent - government submits  that the suit land is the diluvion land and for that the diara as well as

S.A. Khatians of the land were correctly prepared in the name of the government and, as such, the suit is not maintainable under section 5 of the President’s Order No. 135 of 1972. She next submits that since after diluvion, the suit property was recorded as khas land of the government vide Miscellaneous Case No. 8M/80-82. The learned Deputy Attorney General further submits that the suit is barred by limitation since the cause of action of the suit arose while the plaintiffs filed Title Suit No. 302 of 1983. The parties of the earlier suit as well as some of the C.S. recorded tenants are not made party to the instant suit as such the suit is bad for defect of parties – the learned Deputy Attorney General contends. Ms. Khatun goes to submit that the plaintiffs did not file any rent receipts as well as the respective khatians to prove their chain of title and possession in the suit land. Moreover, the suit land is not specified and, as such, according to her, the suit is not at all maintainable. She finally submits that during his testimony D.W.1 has filed the relevant documents but inadvertently those were not marked as exhibits by the trial Court which needs to be considered by this Court as additional evidence to support the defence case as stated in the written statement. In support of her submission, Ms. Khatun refers to the case of Bangladesh v. Joynal Abedin Dewan reported in 1 BLC (AD) 26.

We have heard the submissions put  forward  by  the learned Advocate of the plaintiff-appellants as well as by the learned Deputy Attorney General, perused the impugned judgment and decree along with other connected materials available in the record and also considered the facts and circumstances of the case minutely.

In order to appreciate the aforesaid rival submissions advanced by both the parties and with a view to arrive at a correct decision, we are now required to scrutinize and weigh the relevant witnesses together with the surrounding facts and circumstances of the case.

In his testimony P.W.1 Ainali Kha gives out that Titu Kha, Ayub Ali, Shamsuddin and Karim Kha were the original owners of the suit land and C.S. Khatian Nos. 113-119 and 315 were correctly prepared in their names. After the death of Titu Kha, they became his heirs. Ayub Ali died leaving behind a son Khorshed Kha and Khorshed Kha died leaving behind two sons-Ingul Kha and Azahar. Ingul Kha died leaving behind one son Abdul Satter. Azahar Kha died leaving behind one son Mrit Ali Kha and plaintiff Nos. 4-6 as his children. Mrit Ali Kha died leaving behind his son Jabbar Kha who subsequently died leaving behind a son and a daughter. Shamsuddin died leaving behind a son Hasu Kha. After the death of Hasu Kha, his three sons and one daughter (plaintiff Nos. 9-12) became his heirs. Abdul Karim died leaving behind a son Hamed Kha and Hamed Kha died leaving behind plaintiff No. 13 as his heir. They have been cultivating the disputed property for a long time. They have their homestead on 2.30 acres of land whereas the rest 21.00 acres are nul (cultivable) land. Their predecessors-in-interest were inexperienced persons and, as such, the relevant record of right was erroneously prepared. They filed Title Suit No. 302 of 1983 for correction of records and it was decreed on 12.07.1986. On the basis of the said decree, they wanted to correct the record but failed. They are the heirs of the C.S. tenants. The suit land was intentionally recorded as diluvion land. The land in dispute is not diluvion at all. They came to know about the erroneous record of right on 30.06.1996. They have been possessing the land but the defendants have no possession therein. In support of his claim P.W.1 filed C.S. Khatian No. 113-117 and 119 which have been marked as Exhibit No. 1 series.

In cross-examination he states that he filed the suit on the basis of C.S. plot numbers. In addition to the instant suit, earlier they filed Title Suit No. 302 of 1983. There were as many as 41 (forty one) defendants. They have been possessing the land by way of inheritance. The record of right in the name of Kedareshwar was wrongly prepared. On 12.07.1996 they obtained the decree and thereafter went to pay taxes, but it was refused by the concerned authority. He could not say the recent khatian numbers of the suit land. He had no rent receipts regarding the suit land. Before obtaining the decree they did not go to pay the taxes. Diara settlement was prepared on the basis of actual position of the land.

In his evidence P.W. 2 Md. Nurul Islam states that the suit land is being possessed by the plaintiffs. There are ponds, madrasha, mosjid and graveyard on it. Except the plaintiffs the suit land is not possessed by any other persons. The suit land was never went into the river. It is not government property and was not leased out. Disputed property is being possessed by the plaintiffs.

In cross-examination he says that he did not see the C.S. tenants. He saw the C.S., R.S. and S.A. Khatians of the lands after filing Title Suit No. 302 of 1983. He could not say on which plot and when the mosjid was constructed. He could not say who made waqf for construction of the mosjid. Accordingly, he could not say on which plot the graveyard is located.

In his examination-in-chief P.W.3 Md. Hasan Sekander unfurls that there are homestead, graveyard, mosjid, madrasha and pond on the suit land. It is possessed by the plaintiffs and not by the defendants. The suit land is not a diluvion land.

In cross-examination this witness states that he could not say the plot numbers as well as khatian numbers of the suit property. Nobody executed deed of Waqf for construction of mosjid and madrasha.

D.W.1 Abdul Wahab, the Surveyor of Thana Land Office, Mehendigonj, Barishal, deposed on behalf of defendant No. 119. According to him, suit land is the government property. The diara settlement of the property has been partially prepared in the name of the government. During preparation of S.A. record it was an alluvion land and, thereafter, became diluvion and it was correctly prepared in the name of the government. 10.32 acres out of 23.30 acres of land was recorded in the name of the government as diluvion. The government was not a party in Title Suit No. 302 of 1983. The disputed land was made khas land through Miscellaneous Case No. 8M/1980-82. Suit land is the property of the government and, as such, no tax was collected from any one. Suit land is not possessed by the plaintiffs. Most of the plaintiffs are false. He filed the lease documents and the relevant khatians before the Court.

In cross-examination he states that the lease was made during the pendency of the instant suit, but permission was not accorded from the Court. He had no personal knowledge regarding the instant suit. He did not visit the disputed land.

These are all about the evidence that have been adduced by the parties in a bid to prove their respective cases.

It is on record that the plaintiffs claimed title of the suit property by way of inheritance from the C.S. tenants, but in support of their claim they did not file any documents except the C.S. khatians. The plaintiffs claimed that they have been peacefully possessing the property for more than 12 (twelve) years, but failed to submit any rent receipts which is admitted in evidence by the P.W. 1.

In the plaint the plaintiffs further claim that the diara, S.A. and R.S. records were not prepared in their names or in the names of their predecessors-in-interest. S.A. khatians of the land were erroneously prepared in the name of the Kedareshwar and others and for the wrong record of right they filed Title Suit No. 302 of 1983 before the Munsif, 1st Court, Barishal and obtained an ex parte decree. On the basis of that ex parte decree they went to the office of the defendant Nos. 117-119 to pay land development taxes, but they refused to receive taxes on the pretext of preparation of S.A. record which ultimately proves that the plaintiffs are not paying the rents of the land though they claimed that it is their ancestral property. It is the further claim of the plaintiffs that the suit land is not diluvion land and the diara as well as S.A. records of the same were erroneously prepared in the name of the government.

P.W.1 in his evidence also unfurls that the suit land never went into the river and it is not the diluvion land of the government. In respect of the nature of the land the learned Subordinate Judge in the

impugned judgment states as under:

“Afl ¢c­L h¡c£ f­rl p¡r£NZ pL­mC a¡q¡­cl p¡­rÉ E­õM

L¢lu¡­Re e¡¢mn£ S¢j ®b­L ec£ c¤C/Bs¡C j¡Cm c§­l z hajÑ¡­e e¡¢mn£

S¢j­a h¡c£­cl üaÄ, ü¡bÑ J cMm B­R HC Lb¡ c¡¢Mm£ p¡­hL ®lLXÑ Hhw fcËš p¡r £­cl p¡r É qC­a f¡Ju¡ k¡u h­V z ¢L¿ºEf­ll B­m¡Qe¡u Bl,Hp

J Hp,H fQÑ¡ cª­ØV e¡¢mn£ pÇf¢š ec£ ¢pL¢Ù¹ qJu¡l Lb¡ E­õM b¡L¡u e¡¢mn£ pÇf¢šl haÑj¡e AhØq¡ pÇf­LÑ Øq¡e£u ac­¿¹l j¡dÉ­j h¡c£­cl fËj¡Z Ll¡

E¢Qv ¢Rm z ¢L¿¹¤ a¡q¡ e¡ Ll¡u e¡¢mn£ pÇf¢š ec£ ¢pL¢Ù¹ e¡ h¡ LM­e¡ ec£ N­iÑ k¡u e¡C HC Lb¡ p­¾cq¡a£ai¡­h fËj¡Z qu e¡” z

From the above it appears that admittedly the plaintiffs did not

make any attempts to ascertain the nature of the land by appointing Advocate commissioner. It is already found from the record that the plaintiffs did not file the diara as well as S.A. khatians of the land which according to the claim of the contesting defendants were correctly prepared in the name of the government and since then the suit land became diluvion and, as such, no taxes had been determined for the suit land. Regarding preparation of diara settlement, P.W.1 in cross-examination said, “¢cu¡l¡ S¢lf p­lS¢j­e qCu¡­R z”

On the other hand, in his evidence D.W.1 submitted the certified copy of diara khatian Nos. 1, 4, 15, 88, 92, 168 and S.A. khatian Nos. 204, 206, 251 and 256 from which it appears that the suit land is the diluvion land of the government and, accordingly, government did not receive any taxes from any persons including the plaintiffs. The contesting defendants have filed the photostat copy of Miscellaneous Case No.8M/1980-81 and perusal of the given documents it appears that the proceeding in respect of suit land was started under the President’s Order No. 135 of 1972.

In the midst of hearing of the appeal, learned Deputy Attorney General on 05.12.2023 filed an application for marking the submitted documents as exhibits and on 15.01.2024 filed another application under Order XLI Rule 27 of the Code for acceptance of additional evidence. We kept the aforesaid applications with the record to be considered at the time of disposal of the Rule on merit, if required.

The learned Deputy Attorney General submits that since the diara as well as S.A. records were prepared in the name of the government the instant suit is not maintainable under section 5 of the President’s Order No. 135 of 1972. Section 5 of the President’s Order No. 135 of 1972 is reproduced below:

“All suits, applications, appeals or other proceedings in respect of any claim to the re-possession of any land lost by diluvion which

has re-appeared or is alleged to have re-appeared pending before any

Court or authority on the date of commencement of the said Order

shall, not be further proceeded with and shall abate and no Court shall entertain any suit, application or other legal proceedings in respect of

any such claim.”

The learned Deputy Attorney General submitted S.A. Khatian Nos. 365, 371, 395, 396, 399 and 406 on 15.01.2024 in addition to the Khatians submitted by the D.W.1 during trial of the suit and contends that during hearing of the instant appeal it came to her notice that the above mentioned khatians are necessary for arriving at a correct decision of the suit but the contending defendants inadvertently failed

to produce those Khatians in proving their right, title and possession over the disputed property.

We have considered the submission of the learned Deputy Attorney General and perused the submitted Khatians. It appears that

in the remarks columns of those khatians, the concerned authority has made the following remarks:

“pÇf§ZÑ S¢j ¢pL¢Ù¹ ®qa¥ M¡Se¡ d¡kÑÉ qu e¡C / pÇf§ZÑ S¢j ¢pL¢Ù¹ ®qa¥ M¡Se¡ Bc¡­ul A­k¡NÉ  / ¢pL¢Ù¹ S¢jl SeÉ M¡Se¡ d¡kÑÉ qu e¡C z”

It has been observed earlier that the plaintiffs did not file any copies of C.S. or S.A. Khatian to prove that their predecessors were the owners of the suit land and thus they obtained the same by way of inheritance. It is an established principle of law that plaintiff is to prove his own case.

Therefore, taking into consideration of the materials on record

as well as the provision of section 5 of the President’s Order No. 135

of 1972, we are of the view that the suit land is the diluvion land of the government and under the above provisions of law the instant suit is not maintainable.

 We have scrutinized the plaint specially the schedule thereof. It appears that the plaintiffs claimed their title over 23.30 acres of land which are not well demarcated and specified. Since the suit land is not specified, as such, the submission made by the learned Deputy Attorney General on this point appears sustainable in law.

We have perused the plaint of Title Suit No. 302 of 1983. It appears that the present plaintiffs as plaintiffs filed the above noted title suit where they claimed declaration of title in the suit property mentioned in schedule ‘ka’ of the plaint. It is evident that the schedule ‘ka’ of the instant suit is similar to that of the earlier suit. The present suit is also filed by the plaintiffs for a declaration of title in the suit land which they sought in the earlier suit.

As regards the cause of action, the plaintiffs in the plaint of their earlier suit had stated:

“8z(L) af¢Rm ¢h­l¡d£u i¥¢jl i¥m ®lLXÑ pÇf­LÑ Aœ fr H k¡haL¡¢me ¢LR¤C S¡¢e­a h¡ h¤¢T­a f¡­le e¡C z ®Lhm j¡œ 1389 p­el ®Q~œ j¡­pl jdÉi¡­N aqn£m A¢g­p M¡Se¡ ¢c­a ®N­m aqn£mc¡l ¢hh¡c£ N­el e¡­j i¥m ®lLXÑ b¡L¡u M¡Se¡ ¢e­a Aü£L¡l L¢l­m areC Aœ fr i¥m ®lLXÑ pÇf­LÑ S¡¢e­a f¡­le z Aaxfl

Aœfr ¢hh¡c£ Ne­L ®fË¡J² i¥m ®lLXÑ pw­n¡de L¢lu¡ ¢c­a h¢m­m a¡q¡l¡ ®cC ¢c¢µR L¢lu¡ O¤l¡C­a b¡¢Lu¡ 1390 p­el Bo¡t j¡­pl 1j

i¡­N pl¡p¢l Aü£L¡l L¢lu¡ Bc¡ma ®k¡­N Ll¡Cu¡ ¢e­a h¢m­m Aœ

fr h¡dÉ qCu¡ Aœ ®j¡LŸj¡ Be¡ue L¢l­me z”

So, from the above it appears that the plaintiffs of the earlier suit as well as the present suit came to know about the wrong record of right in respect of the suit property in the middle of the month of Chaitra, 1389 B.S. and then filed Title Suit No. 302 of 1983 and obtained an ex parte decree.

But on the selfsame matter they have filed the instant suit and in paragraph 10 of the plaint, the plaintiffs have stated:

“10z e¡¢m­nl L¡lZ Aœ¡c¡m­al Hm¡L¡d£e ®øne ®j­q¾c£N” ®j¡a¡mL ®S,Hm, 118 ew N¡N¢lu¡ ®j±S¡l ¢h­l¡d£u i¨¢jl Ah¢Øqa Øqm aqn£mc¡l La«ÑL ¢cu¡l¡ S¢l­fl i¥m ®lLXÑ pÇf­LÑ S¡e¡l a¡¢lM 1403 p¡­ml 16C Bo¡t Aa£­a Eáh qCu¡­R z”

From the above it is evident that in the instant suit the plaintiffs wanted to establish that the cause of action of filing the present suit arose on 16th Ashar, 1403 B.S. in which date they came to know about the wrong record of right. Regarding cause of action, P.W.1 in his evidence said, “e¡x S¢j ®L¡e ¢ce ec£­a k¡u e¡C z e¡x S¢j ec£ ¢pL¢p¹ ||||

e¡ z 30/06/1996 a¡¢l­M S¡¢e­a f¡¢l z”

In respect of knowledge of filing the instant suit, learned Subordinate Judge in the impugned judgment has observed:

“¢hh¡c£ fr c¡h£ L­le plL¡­ll e¡­j ec£ ¢pL¢Ù¹ ¢qp¡­h A­eL B­NC ®lLXÑ qCu¡­R z ¢L¿º h¡c£ fr c£O Ñ¢ce f­l j¡jm¡ Ll¡u a¡j¡¢c­a h¡¢la z Afl ¢c­L h¡c£ f­rl ¢h‘ BCeS£h£ p¡­qh k¤¢J² fËcnÑe L­le ®k, ®lLXÑ i¥m qC­mC a¡q¡ S¡e¡l pju qC­a j¡jm¡ L¢l­a qC­h BC­e Hje ¢LR¤C e¡C hlw kMe h¡c£ r¢aNËÙ¹ qCu¡­R f¢su¡ j­e L¢l­h h¡ h¡c£l üaÄ Aü£L¡l Ll¡ q­m AbÑ¡v e¡¢m­nl L¡le ®cM¡ ¢c­h aMe qC­aC a¡j¡¢cl ®ju¡c NZe¡ Ll¡ qC­h z Aœ j¡jm¡u

h¡c£ 30-6-96 a¡¢lM aqn£m A¢g­pl ­lLXÑ pÇf­LÑ S¡¢e­a f¡­le

Hhw h¡c£l ¢eLV qC­a M¡Se¡ ¢e­a Aü£L¡l L­le z EJ² pju qC­a e¡¢m­nl L¡le ®cM¡l L¡le E­õ®M Aœ j¡jm¡ c¡­ul L­le z

Ef­l 4ew ¢hQ¡kÑÉ ¢hou B­m¡Qe¡u ®cM¡ k¡u j¡jm¡¢V ®lp- S¤¢XL¡V¡ ®c¡­o h¡¢la AbÑ¡v Cq¡l L¡lZ qCm ®k, B­N J HL¢V j¡jm¡ qCu¡¢Rm z j¡jm¡¢V 12-7-96 Cw a¡¢lM HLalg¡ ¢X¢H² qu h­V z HC j¡jm¡u e¡¢m­nl L¡le ¢Rm 1390 p¡­ml Bo¡t j¡­pl fËbj i¡­N HC j¡jm¡u B­l¡  E­õM  Ll¡ qCu¡¢Rm  ®k  h¡c£ Ne  1389  p¡­ml  ®~Qœ j¡­pl jdÉ i¡­N aqn£m A¢g­p M¡Se¡ ¢c­a ®N­m ¢hh¡c£­cl e¡­j i¥m ®lLXÑ b¡L¡u M¡Se¡ ¢e­a Aü£L¡l Ll¡u i¥m ®lLXÑ pÇf­LÑ S¡¢e­a f¡­le z HC ¢hou¢V e¢b­a l¢ra h¡c£­cl c¡¢Mm£ 302/83 ew j¡jm¡l

Bl¢S eLm qC­a f¡Ju¡ k¡u z Cq¡­a fËj¡¢ea qu ®k i¥m ®lL­XÑl ¢hou h¡c£ fr B­NC ‘¡a ¢R­me z g­m EJ² pju qC­a d¢l­m Abh¡ 302/83 ew j¡jm¡l ¢X¢H² Hhw 12-7-86 a¡¢lM qC­a NZe¡ L¢l­m J

6 hR­ll ®hn£ pju f­l HC j¡jm¡¢V c¡­ul qCu¡­R z g­m haÑj¡e

j¡jm¡ a¡j¡¢c­a h¡¢la z L¡­SC I pj­u h¡c£­cl üaÄ Aü£L¡l Ll¡ qCu¡¢Rm z g­m I pju ®b­L 6 hR­ll j­dÉ j¡jm¡ e¡ Ll¡u j¡jm¡ a¡j¡¢c­a h¡¢la z a¡C HC Cp¤É¢V h¡c£­cl ¢hf­r ¢eÖf¢š J fËj¡¢ea qCm z”

The learned Subordinate Judge opined that the suit is barred by limitation as well as it is barred by the principles of res judicata. On going through the materials on record, we are also of the view that the cause of action of filing the suit was admittedly arose in the middle of the Month of Chaitra, 1389 B.S. when the plaintiffs filed Title Suit No. 302 of 1983 for declaration of their title in the suit land and obtained an ex parte decree on 12.07.1996. On the basis of that decree they failed to get correct of the respective khatian and subsequently stating a new cause of action filed the instant suit which, in our view, is barred by limitation.

 We have perused the plaint of the earlier suit as well as the instant suit and of the view that the land as well as the parties of both the suits are same. The plaintiffs of the earlier suit and the present suit are same. In both the suits the plaintiffs have claimed their title in the disputed land. The defendants of both the suits are almost same. It is seen that in the earlier suit the government was not made defendant though they sought relief against the government for wrong record of right since the diara and S.A. records were prepared in the name of the government.

In deciding the matter the trial Court has observed as under:

“HMe ®cM¡ k¡C­a f¡­l j¡jm¡¢V ®lp-S¤¢XL¡V¡ ®c¡­o h¡¢la ¢Le¡ ? ¢hh¡c£ fr

k¤¢J² fËcnÑe L­le ®k HC h¡c£ fr e¡¢mn£ S¢j ¢eu¡ C¢af§­h Ñh¢ln¡m 1j j¤­¾pg£ Bc¡m­a

302/83 ew ®cw j¡jm¡ L­le z EJ² j¡jm¡l f­l HLC S¢j ¢eu¡ HLC c¡h£­a f¤el¡u

hajÑ¡e j¡jm¡ c¡­ul L­le z j¡jm¡¢V ®lp-S¢¤XL¡V¡ ®c¡­o h¡¢la z Afl ¢c­L h¡c£ f­r l

c¡h£ ®k h¡c£Ne Hhw a¡q¡­cl f§hÑha£ÑNe ¢hou L¡­kÑÉ Ae¢i‘ b¡L¡u Bl,Hp, ­lLXÑ pw­n¡de L¢l­a f¡­le e¡C z g­m Hp,H, ®lL­XÑl pju fËcš üaÄ cM­ml ¢hfkÑ­u

h¡c£­cl e¡­j ®lLX Ñe¡ qCu¡ AeÉ¡u J A®~hdi ¡­h ®Lc¡­lnÄl Nw e¡­j ®lLXÑ qu z g­m

a¡q¡­cl ¢hl¦­Ü ®cw 302/83 ew j¡jm¡ c¡­ul qu z Hhw EJ² j¡jm¡u HL alg¡ ¢X¢œ²

qCu¡ l¡u ¢X¢œ² hq¡m J hmhv B­R z X~J² ®cw 302/83 ew j¡jm¡l B­m¡­L e¢b fk¡Ñ­m¡Qe¡u faË£uj¡e qu ®k, j¡jm¡¢V c¡­ul qCu¡¢Rm ®Lc¡­lnÄl Nw ®cl ¢hl¦­Ü z ¢L¿º

plL¡l fr I j¡jm¡u fr ¢R­me e¡ z haÑj¡­e h¡c£ fr k¢cJ c¡h£ L­le ®k e¡¢mn£

pÇf¢š ec£ ¢pL¢Ù¹ e¡ z ¢L¿º¢hh¡c£ f­r l c¡¢Mm£ ®Lp ®lLX Ñ¢hcÉj¡e Hp,H, fQÑ¡u

fËa£uj¡e qu ®k, e¡¢mn£ pÇf¢š Hp, H, ®lL­X Ñ®Lc¡­lnÄl Nw ®cl e¡­j qCu¡¢Rm z EJ²

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B­Nl j¡jm¡u k¡q¡­cl fr Ll¡ qCu¡¢Rm a¡q¡­cl haÑj¡e j¡jm¡u fr Ll¡ qu e¡C z HC

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302/83 ew ®j¡LŸj¡u haÑj¡e e¡¢m­nl L¡lZ E­õ­M plL¡l­L ¢hh¡c£ L¢lu¡ a¡q¡­cl

c¡h£ EfØq¡fe L¢l­a f¡¢l­ae z HM¡­e HL¢V Lb¡ E­õMÉ ®k, Bl,Hp Hhw Hp,H ®lL­XÑ e¡¢mn£ pÇf¢š ec£ ¢pL¢Ù¹ ¢Rm e¡ HC Lb¡ fËj¡e Ll¡l SeÉ h¡c£ fr ®L¡e Bl,Hp

Hhw Hp,H fQÑ¡ fËcnÑe£ ¢Q¢q²a ¢qp¡­h c¡¢Mm L¢lu¡ fËj¡e L­le e¡C z ¢L¿º e¢b­a Bl,Hp fQÑ¡ ¢hcÉj¡e B­R z h¡c£ fr ®Lhmj¡œ p¡­hL fQÑ¡ fËcnÑe£-1 ¢Q¢q²a ¢qp¡­h c¡¢Mm L¢lu¡­Re z ¢L¿ºBl,Hp J Hp,H fQÑ¡ c¡¢Mm L­le e¡C z Cq¡­a faË£uj¡e qC­a­R ®k,

fËL«a OVe¡ fËj¡¢ea qC­h h¢mu¡ h¡c£ fr Bl,Hp Hhw Hp,H M¢au¡e c¡¢Mm L­le e¡C z

EJ² AhØq¡u HC Cp¤É¢V h¡c£ f­rl ¢hf­r ¢eØf¢š Ll¡ qCm z”

Therefore, taking into consideration the observations made by the trial Court as well as the materials on record, we are of the view that the instant suit is barred by the principles of res judicata.

 The learned Subordinate Judge in delivering the impugned judgment and decree though observed that the suit is not bad for defect of parties, but on perusal of the exhibited documents (Exhibit 1 series) as well as the documents submitted by the contesting defendants, it appears that actually the heirs of C.S. recorded tenants, namely, Sarifuddin and Abdul Kalam are not made party in the present suit. In the aforesaid premises, we are of the view that there is defect of parties in the instant suit and the observations made by the trial Court on this count is wrong.

From the above discussions and on perusal of the materials on record, our considered view is that the plaintiff-appellants have failed to prove their chain of title in the suit land. They have failed to submit any rent receipts as well as other relevant documents to prove their title and possession, since burden of proof always lies upon the plaintiffs.

The learned Advocate appearing for the plaintiff-appellants did not make any reply to the objections raised by the learned Deputy Attorney General.

 In the result, the appeal is dismissed without any order as to costs.

The impugned judgment and decree dated 31.08.1999 passed by the learned Subordinate Judge (now Joint District Judge), Court No. 2, Barishal in Title Suit No. 23 of 1996 is affirmed.

Send down the lower Courts record along with a copy of this judgment.

Bhishmadev Chakrabortty, J.

I agree.

Jahangir/Bench Officer.