Present:

                            Mr. Justice A.K.M. Asaduzzaman

                  Civil Revision No. 189 of 2022

With

Civil Revision No. 2926 of 2021

Md. Nurul Huda Khokhon

   .... Petitioner in C.R. No. 189 of 2022. Md. Al-Mahmud (Mohon)

                                            …Petitioner in C.R. No. 2926 of 2021

          -Versus-

Md. Khorshed Alam and others

                ………….Opposite parties. Mr. Mohammad Eunus, Advocate with Mr. Ruhul Amin, Advocate

…….For the petitioner in C.R. No. 189 of 2022.

Mr. Md. Ismail Hossain Bhuiyan, Adv.

…. For the petitioner in C.R. No. 2926 of 2021

Mr. Manzur-al-Matin, Advocate with Ms. Sonia Parvin, Advocate with

Mr. Snehadri Chakraborty,Advocate and Mr. Nabil Ahmed Khan, Advocate

    ….. For the opposite parties.

       Heard and judgment on 13th December, 2023.

A.K.M.Asaduzzaman,J.

These rules were issued calling upon the opposite parties to

show cause as to why the judgment and decree dated 28.09.2021 passed by the Senior Assistant Judge, 3rd Court, Dhaka in Title Suit No. 54 of 2021 decreeing the suit should not be set aside.

Since these two rules are arising out of the same judgment and decree are heard together and disposed of by this single judgment.

Fact relevant for disposal of these rules are that opposite parties of both the rules as plaintiff instituted Title Suit No. 160 of 2013 before the Court of Joint District Judge, 5th Court, Dhaka against the petitioner along with opposite party Nos. 4-5 for recovery of khas possession under section 9 of the Specific Relief Act. The said suit thereafter renumbered as Title Suit No. 54 of 2021 after being transferred to the Court of Senior Assistant Judge, 3rd Court, Dhaka.

Plaint case in short, inter alia, is that the suit property was belonged to Ibrahim Bepari, Abdul Motaleb Bepari, Soleman Bepari and Osman, all sons of Rajjab Ali and Jobeda Bewa. Jobeda Bewa thereafter died while owning and possessing 70.20 decimals of land, leaving behind two daughters Lal Banu and Mariam Bibi. S.A. khatian No. 6 and 7 in plot No. 13 was correctly recorded into their names. Lal Banu while owning and possessing 3510 ojutangsha property, transferred .20 decimals of land to Fazlu Mia and thereafter died leaving behind 5 sons and 3 daughters on rest 1510 ojutangsha of land. R.S. khatian No. 81 was correctly recorded on 3510 ojutangsha land in the name of Moriom Bibi, the daughter of said Jobeda Bewa. Moriom Bibi thereafter died leaving behind one Siddik Mia and two daughters Asia Khatun and Ator Banu, who thereafter transferred .20 decimals of land to one Md. Muslim Mia through registered sale deed dated 04.04.1985. Muslim Mia thereafter transferred .12 decimals of land through 2 registered sale deeds to one Md. Hafiz Ullah on 20.06.1986 and .8 decimals of land to Shahnaj Akter. Said .20 decimals of land while owning and possessing by said Hafiz Ullah and Shahnaj Akter transferred to Abul Hashem through registered sale deed dated 05.10.1998, who mutated his name and thereafter transferred 1340 ojutangsha land to plaintiff

Thereafter although petitioner as defendant appeared in court by filing written statement denying the plaint case and cross examined the witness of the plaintiffs but finally did not contest the suit and it was decreed on 26.09.2021.

Challenging the said judgment and decree, defendant petitioner obtained the instant rule.

Mr. Mohammad Eunus, the learned advocate appearing for the petitioner submits that this is a suit for recovery of khas possession under section 9 of the Specific Relief Act and the petitioner although filed a written statement and on 01.12.2022 filed an application for adjournment and it was allowed with cost but subsequently on 11.02.2021 the case record was transmitted to the Court of Senior Assistant Judge, 3rd Court, Dhaka due to the Civil Courts (Amendment Act) has been amended in respect of pecuniary jurisdiction and the case was renumbered as Title Suit No. 54 of 2021. Trial court after receiving the file fixed up the next date on 24.03.2021 for further hearing and depositing the cost. But thereafter it was finally disposed of by the impugned judgment on 26.09.2021. Although the defendant was not aware of the date fixed on the transfer court and due to corona pandemic, defendant could not get opportunity to contest the suit finally and it was allowed to go on for delivery of judgment in the absence of the petitioner. Since the petitioner could not get an opportunity to contest the suit, it may be sent back on remand for providing them an opportunity to contest the suit. The learned Advocate further submits that although plaintiff could not prove by adducing proper evidence that he was in possession into the suit land before the alleged date of dispossession and as well as he was at all been dispossessed from the suit premises on the date as alleged rather P.W.2 in his cross-examination when admits that defendants are in possession, from the date of their purchase of the suit land, the suit for recovery of khas possession under section 9 of the Specific Relief Act is not maintainable. The trial court totally failed to appreciate the evidence and decreed the suit most illegally.

Mr. Manzur-al-Matin, the learned advocate, on the other hand, appearing for the opposite party submits that this is a suit for recovery of khas possession under section 9 of the Specific Relief Act, wherein a plea of title is no difference in the suit and a decision that may be made in the suit will be subject to a title suit, which may be eventually filed and the person who has title or even a better right shall be competent to ask for recovery of the

property on establishment of such right. Under section 9 of the Specific Relief Act clearly laid down that if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.  Trial court thus committed no error of law in decreeing the suit when it is apparent that plaintiffs were illegally been dispossessed by the defendants as alleged. He finally prays that since the rule contains no merits it may be discharged.

 Heard the learned Advocate and perused the Lower Court Record and the impugned judgment.

This is a suit for recovery of khas possession under section 9 of the Specific Relief Act.

Section 9 of the Specific Relief Act provides that:

“If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.”

In a suit under section 9 of the Specific Relief Act, the court will only consider that if the plaintiff was found to be in possession in the suit and the defendant had dispossessed therefrom and that suit was brought within six months from the date of dispossession, accordingly he decreed the suit on contest directing for recovery of possession of the suit land by evicting the defendants therefrom.

In the plaint of the suit, it has been alleged in paragraph 9

that:

" 9z e¡¢m¢n ag¢Rm h¢ZÑa pÇf¢š−a 1ew h¡c£ ¢h‘ Bc¡ma La«ÑL Hhw 2-3ew h¡c£ 1ew h¡c£ La«ÑL cMm fË¡ç qCu¡ plL¡l£ O−l ¢eS e¡jS¡l£ L¢lu¡ ab¡u j¡¢V il¡V L¢lu¡ pL−ml ‘¡ap¡−l ®i¡NcMm L¢l−a b¡h¡hØq¡u ¢hNa 14/02/2013Cw a¡¢l−M 1-3ew ¢hh¡c£NZ ®S¡l f§hÑL h¡c£ZN−Zl cMm£u e¡¢mn£ .12 na¡wn pÇf¢š cMm L¢lu¡ ab¡u B−l¡ j¡¢V il¡V L¢lu¡ Ol−c¡l E−š¡me L¢l−a öl¦ L¢l−m h¡c£NZ a¡q¡−cl h¡dy¡ fËc¡e L−lez ¢L¿º ¢hh¡c£NZ h¡c£N−Zl h¡d¡u LZÑf¡a e¡ L¢lu¡ a¡q¡−cl ja ®S¡lf§hÑL A®~hd J AeÉ¡ui¡−h h¡c£N−el e¡¢mn£ i¨¢j cMm L¢lu¡ Ol−c¡l E−š¡me L¢l−a b¡−Lz" 

Now let us see from the evidence how this contention has been proved.

Plaintiff adduced 3 witnesses.

P.W.1. Khorshed Alom, stated in his deposition that:

"hœ²£u 660 AS¤a¡w−n 14/02/2013Cw a¡¢l−M 1ew ¢hh¡c£l¡ ®S¡l f§hÑL ®hcMm L−l Bj¡−Lz 14/02/13Cw a¡¢l−M B j b¡e¡u ¢S¢X L¢lz b¡e¡ ®L¡e fc−rf e¡ ®eJu¡u B¢j ®L¡−VÑ j¡jm¡ L¢lz ®pM¡−e

J ®L¡e pq¡ua¡ e¡ ®f−u B¢j HC j¡jm¡ L¢lz fË¡bÑj−a ¢X¢œ² Q¡Cz"

In his deposition he did not mention when on 14.02.2013, how defendant Nos.1-3 dispossessed the plaintiffs.

P.W.2 Md. Alom stated in his deposition that:

"e¡x pÇf¢š −hs£h¡−dl f¢ÕQj f¡−nÄÑz ®hs£h¡−dl f¢ÕQjf¡−nÄÑl 8naL J f§hÑf¡−nÄÑ 12 naLz f§hÑ f¡−nÄÑl 12 na−L ¢hh¡c£l¡ Bj¡−cl ®hcMm L−lz 2013 p¡−ml Be¤j¡¢eL 16 a¡¢lMz ¢hh¡c£l¡

®j¡qe, ®M¡Le Bl h¡h¤z ®hcMm Ll¡l pju Hl¡ A−eL ®m¡L ¢e−u Bp¢Rmz 60/70 Se ®m¡L ¢e−u Bp¢Rmz Bjl¡ h¡d¡ ¢c−u¢Rm¡j,

a¡l¡ b¡−j¢ez LuV¡l pju ®hcMm L−l p¡r£ ¢el¦šlz(underline is

given) "

In his cross-examination he further asserted that:

"−hcMm Ll¡l pju B¢j OVe¡Øq−m Ef¢Çqa ¢Rm¡jz " He further said:

"pL¡m 9V¡/p¡−s 9V¡l ¢c−L ¢hh¡c£l¡ H−p ®hcMm L−lz ¢f¢Vne j¡jm¡ ew-16/13®a l¡a 12V¡l pju ®hcMm Ll¡l Lb¡ hm¡ q−u−R,

paÉz"

P.W.3 Md. Asad Mia, stated in his deposition that:

"e¡¢mn£ pÇf¢š 20 naLz f§hÑ p¡C−S 8naL, f¢ÕQj p¡C−X 12 naLz 12 naL HMe ®j¡qeNw cMm L−lz A−eL TNs¡T¡¢V L−l j¡l¢fV L−l ¢hh¡c£l¡ cMm L−l ¢e−u ®N−Rz 2013 p¡−m cMm L−lz

¢e¢cÑø a¡¢lM j−e e¡Cz ®hcM−ml pju B¢j ®pM¡−e Ef¢Øqa ¢Rm¡jz I S¡uN¡V¡u hy¡−nl Ol ¢Rm ®p…−m¡ ®i−‰ ¢c−u ¢hh¡c£l¡ cMm L−lz"

These are the evidences adduced by the plaintiff to prove the cause of action of this case.

Upon perusal of the above stated statements, nowhere it can be found that when and how and what time plaintiff was dispossessed by the defendants. Moreover different statement has come out from the month of P.W.2 about the time and manner of dispossession, which is also not been corroborated by P.W.1 or P.W3. Moreover upon perusal of the statements of the P.Ws. it is difficult to hold the view that before the alleged date of dispossession, plaintiff was at all been there in the suit premises. In this context the deposition of P.W.1 may be noted. In his cross- examination he has admitted by saying that:

"3ew ¢hh¡c£ L¡l L¡R ®b−L i¥¢j œ²u L−l−Re, S¡e¡ ®eCz n¡qS¡j¡−ml e¡−j ¢p¢V S¢lf q−u−R p¢WLz ¢p¢V S¢lf öl² qu 1996-97 p¡−ml ¢c−Lz ¢p¢V S¢lf Qm¡L¡m£e n¡qS¡j¡m−L ¢p¢V 310 c¡−N cMmL¡l ¢q−p−h ®f−u a¡l e¡−j ¢p¢V ®lLXÑ qu ¢Le¡ S¡e¡

®eCz 3ew ¢hh¡c£ n¡qS¡j¡−ml ¢eLV q−a M¢lc L−l cMmfË¡ç qe paÉz 3ew ¢hh¡c£ ¢eS e¡−j e¡jS¡l£ L−l−R ¢Le¡ S¡e¡ ®eCz "

When plaintiff Khurshid Alom while deposing in court as P.W.1 himself admits that defendants predecessor Shahjamal was in possession in the suit premises during city jorip and thereafter defendants are in possession in the suit land after purchasing the same from Shahjamal, the suit for khas possession under section 9 of the Specific Relief Act is apparently not maintainable since it was not filed well within time, after he was at all been dispossessed.

Trial court while decreeing the suit totally failed to appreciate this aspect of the case and decreed the suit most illegally. Accordingly the impugned judgment is not sustainable in law, which is liable to be set aside.

I thus find merit in these rules.

In the result, these Rules are made absolute and the impugned judgment and decree passed by the court below are hereby set aside.

The order of  stay  granted  earlier is hereby  recalled and

vacated.

Send down the L.C.R along with the judgment to the courts below at once.