IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.2298 OF 2021

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Mst. Latifa Khatun and another

.... Petitioners

-Versus-

Md. Saiful Islam (Felu) and others

.... Opposite parties

Mr. Md. Aktar-Ul- Alam with

Mr. S. M. Rezaul Karim, Advocates

.... For the petitioners.

None appears

…. For the opposite parties.

Heard on 26.11.2024. Judgment on 27.11.2024.

This Rule was issued calling upon the opposite party Nos.1-3 to show  cause  as  to  why  the  impugned  judgment  and  decree  dated 03.02.2021  passed  by  the  learned  Joint  District  Judge,  2nd  Court, Rangpur, in Other Class Suit No.23 of 2015 should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that the petitioner as plaintiff instituted above suit under Section 9 of the Specific Relief Act, 1877 for recovery of possession  of  disputed  2.16  acres  land  alleging  that  above  land belonged to Abdur Rafiq who married plaintiff No.1 by a registered kabinnama on 01.11.1965. Above Abdur Rafiq orally gifted disputed

1.92  acres  land  and  recorded  above  gift  at  term  No.16  of  above registered kabinama dated 01.11.1965. Above Abdur Rafiq delivered possession  of  above  land  to  plaintiff  and  above  land  was  rightly recorded  in  Draft  B.S.  Khatian  No.367  in  the  name  of  the  plaintiff. Above plaintiff transferred 1.95 acre land to her daughter plaintiff No.2 by two registered deeds of gift dated 06.09.1999 and 04.11.1999. The defendants have forcefully dispossessed the plaintiffs from above land on 20.12.2014.

Defendant  Nos.1-3  contested  the  suit  by  filing  a  joint  written statement alleging that after demise of Abdur Rafiq disputed property has  been  inherited  by  the  defendants.  Above  Abdur  Rafiq  married plaintiff No.1 by a registered kabinanama on 01.11.1965 fixing dower of Taka  1001/-.  On  the  ill  advice  of  some  persons  plaintiff  No.1 incorporated some property in column No.16 of above kabinana but plaintiff did not possess above land. The plaintiff has mutated her name for above land by Miscellaneous Case No.1647 of 1415 without service of any notice upon the defendants. The defendants did not dispossess the plaintiff from above land.

At  trial  plaintiffs  examined  4  witnesses.  Document  of  the plaintiffs were marked as Exhibit Nos.1-6 series. On the other hand defendants examined 3 witnesses and their documents were marked as Exhibit Nos.Ka and Kha series.

On consideration of the facts and circumstances of the case and evidence on record the learned Joint District Judge dismissed the suit. 

Being aggrieved by and dissatisfied with above judgment and decree of the trial Court above plaintiffs as petitioners moved to this Court and obtained this Rule.

Mr.  Md.  Aktar-Ul-Alam,  learned  Advocate  for  the  petitioners submits that admittedly Abdur Rafiq was the owner and possessor of disputed 2.16 acre land and plaintiff No.1 was his third wife and he married her by a registered kabinama on 01.01.1965 and at column No.16 of above kabinama above Abdur Rafiq transferred disputed 2.16 acre land to the plaintiff No.1 who in her turn transferred 1.95 acre land to plaintiff No.2, by two registered deeds of gift. Plaintiff No.1 was possessing total 2.16 acre land through the husband of plaintiff No.2 and defendants have forcibly dispossessed the plaintiffs on 20.12.2014 and  above  claims  have  been  proved  in  the  Enquiry  Report  of  the Assistant Commissioner Land submitted in Criminal Case No.633 of 2014.  Besides  four  competent  witnesses  have  given  consistent  oral evidence stating that the plaintiffs were in peaceful possession in the disputed land and they were forcibly dispossessed by the defendants on 20.12.2014. Defendants extensively cross examined above PWs but their  evidence  remained  free  from  any  material  contradiction  and credence inspiring. The learned Joint District Judge did not analyze the evidence of the plaintiff as to possession and subsequent dispossession from the disputed land but dismissed the suit solely on the ground that the  date  of  marriage  of  the  plaintiff  varies  between  the  original kabinama  and  its  certified  copy  which  was  out  of  pleadings  and without any significance. As such the impugned judgment and decree passed by the learned Joint District Judge has been vitiated by illegality and liable to be set aside.

No one appears on behalf of the opposite parties at the time of hearing of the Rule although this matter appeared in the list for hearing on several dates.

I have considered the submissions of the learned Advocate for the petitioners and carefully examined pleadings, judgment and decree of the trial Court, evidence and other materials on record.

It is admitted that disputed 2.6 acre land belonged to Abdur Rafiq who married plaintiff No.1 by a registered kabinnama on 01.11.1965 and in Column No.16 of above kabinnama above 2.6 acre land was transferred to plaintiff No.1 in lieu of her dower.

It is well settled that in a civil suit admission may be made either in the pleadings or in the evidence at trial and an admitted fact does not require further prove by evidence. Defendant Nos.1-3 are steps sons and daughters of plaintiff No.1. The husband of the plaintiff No.1 and father of plaintiff No.2 and defendant Nos.1-3 has died about 6-7 years back.

It  has  been  admitted  in  the  written  statements  of  the  above defendants  that  Abdur  Rafiq  married  plaintiff  No.1  by  a  registered kabinnama on 01.11.1965 and in column No.16 of above kabinnama some land were show transferred.

There  is  no  allegation  in  above  written  statement  that  above kabinnama of plaintiff No.1 (Exhibit No.4) was a forged document or column  No.16  of  above  kabinnama  which  mentions  of  transfer  of disputed  2.16  acres  land  in  lieu  of  dower  was  fraudulently  or erroneously written. It has been merely stated at Paragraph No.7 of above written statement  that  due  to  ill advice by some  bad  people plaintiff caused inclusion of above property in column No.16 of above kabinnama.  While  giving  evidence  as  DW1  defendant  No.2  has reiterated above admissions made in their written statement and stated that in column No.16 of the kabinama some property and plot numbers were incorporated. He admitted that his father married plaintiff No.1 by above registered kabinnama. He further admitted that during land survey above land has been recorded in the name of plaintiff No.1 and plaintiff No.1 has transferred 1.2 acre land to plaintiff No.2 by two registered deed of gift dated 06.09.199 and 04.11.1999.

While giving evidence as PW1 the husband of plaintiff No.2 has produced and proved above original kabinnama dated 11.01.1965 and a certified copy of the same since the original kabinana was very old and not easily readable and above two documents were marked as Exhibit Nos.4 and 4Ka. It turns out from column No.16 of above kabinama that by mentioning C.S. Khatian Numbe and plot number 2.16 acre land was transferred by Abdur Rafiq to plaintif No.1 lieu of her downer.

In a suit under Section 9 of the Specific Relief Act, 1877 there is no scope for consideration and determination of complicated question of title. The plaintiff of such a suit is required to prove that his alleged possession in the disputed land was referable to a rightful title. As such the  question whether  the  ownership  of  immovable  property  can  be transferred by a kabinama in lieu of dower or whether the alleged claim of  gift  by  Abdur  Rafiq  to  the  plaintiff  No.1  was  proved  by  legal evidence were not required to be determined in this suit.

Above registered kabinnama (Exhibit No.4) and recording of the name of plaintiff No.1 in the draft BRS khatian and mutation of her name for above land have been admitted by the defendants both in their written statement and evidence at trial which prima facie prove plaintiffs rightful claim of title. Plaintiffs have examined 4 witnesses who have stated in their respective evidence that plaintiffs were in possession  in  above  land  and  they  have  been  forcibly  dispossessed from the same by the defendants on 20.12.2014. Above four PWs were subjected to extensive cross examination by the defendants but their above  evidence  remained  unshaken  and  free  from  any  material contradiction.

It  has  been  claimed  by  the  plaintiffs  that  the  Assistant Commissioner (Land) conducted an enquiry as to the possession of the disputed land pursuant to an order passed in a criminal case filed by the plaintiffs. The plaintiffs have produced and proved Enquiry Report at  trial  which  was  marked  as  Exhibit  No.6.  Above  Enquiry  Report report shows that the plaintiffs were in possession in the disputed land and  they  were  dispossessed  by  the  defendants  during  pendency  of above criminal case under Sections 144 and 145 of the Code of Criminal procedure.

DW1 Shamsul has reiterated their case as set out in the written statement that the plaintiffs were living in the joint family with the defendants during the life time of their father and plaintiffs did not possess the disputed land individually. Both the plaintiffs are women and plaintiff No.1 did not have any son.  As such it is natural that plaintiff No.1 would possess the disputed land through her husband. It has been claimed by the plaintiffs that after demise of Abdur Rafiq they were in possession of above land through the husband of plaintiff No.2. On consideration of above facts and circumstances of the case and evidence on record I hold that the plaintiffs have succeeded to prove by legal evidence that they were in possession in the disputed land on the basis of registered kabainnama dated 11.01.1965 (Exhibit No.4) and they have  been  dispossessed  from  the  above  land  by  the  defendants  on 20.12.2014 and the plaintiffs have filed this suit on 16.04.2005 but the

learned Judge of the trial Court has failed to appreciate above legal evidence on record properly and erroneously dismissed the suit which is not tenable in law.

In above view of the materials on record I find substance in this civil  revisional  application  and  the  Rule  issued  in  this  connection deserves to be made absolute.

In the result, the Rule is hereby made absolute.

The impugned judgment and decree dated 03.02.2021 passed by the learned Joint District Judge, 2nd Court, Rangpur, in Other Class Suit No.23 of 2015 is set aside and above suit is decreed on contest without any  cost. Defendant  Nos.1-3  are  directed  to  voluntarily  handover possession of disputed 2.16 acres of land to the plaintiffs within 60 (sixty) days from the date of receipt of this order in default the plaintiffs shall get the same through Court.

However, there is o order as to costs.

Send down the lower courts record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER