Present:

                            Mr. Justice Sheikh Abdul Awal

                                                   and

                            Mr. Justice Md. Mansur Alam                                                             First Appeal No. 46 of 2022

                            In the  Matter of:

                           Memorandum of appeal from the original decree.

-and-

                           In the Matter of:

                          Government of the People’s Republic of

                          Bangladesh on behalf of land Reforms Board,

                          Ministry of Land, Bhawal Raj Estate represented                           by its Manager.

                             .....Defendant-appellant.

        -Versus-

                          Jamina Khatun and others

...Plaintiff-respondents.

                          Md. Tassadder Raihan Khan, Advocate

……. For the appellant.

Mr. Md. Khalilur Rahman, Advocate with Mr. Md. Rashidul Karim, Advocate

                              ......For the respondent No. 1.       Mr. Md. Yousuf Ali, D.A.G. with

               Ms. Kamrunnahar Lipi, A.A.G with

               Mr. Golam Akter Zakir, A.A.G with

               Ms. Israt Zahan, A.A.G.

                           …………For the Proforma Respondents

                    Heard on 12.11.2024 and Judgment on 17.12.2024. Sheikh Abdul Awal, J:

This  First  Appeal  is  directed  against  the  judgment  and decree dated 10.07.2019 (decree signed on 18.07.2019) passed by the learned Joint District Judge, 4th Court, Dhaka in Title Suit No. 392 of 2016 decrecing the suit.

Material facts relevant for disposal of the appeal, briefly, are that the respondent No. 1, Jamina Khatun as plaintiff filed Title Suit No. 392 of 2016 in the court of the learned Joint District Judge, 4th Court, Dhaka impleading the defendant-appellants for declaration of title to the effect that the Plaintiff is owner in the 'ka' schedule 0.30 acre suit property and also for further declaration that  kha'  schedule  Dhaka  City  Jarip  khatian  prepared  and published  in  the  names  of  Defendant  Nos.  1-4  is  wrong  and baseless and as such, the same is not binding upon the Plaintiff. The plaintiff’s case in short is that one Kalim Uddin was the C.S recorded tenant in respect of 0.75 acre agricultural land including the  'ka'  schedule  0.30  acre  land  under  the  Zamindar  Kumar Rabindra Narayan Roy Chowdhury and his name was recorded in C.S khatian No. 192 (Ext. 1), who died leaving behind his only son Md. Tarikullah, who became owner of the said 0.75 acre land by  way  of  successor;  that  at  the  time  of  preparation  and publication of the next S.A record of right his name was duly recorded as owner in possession of that 0.75 acre land in S.A khatian No. 120 citing 0.59 acre land in S.A plot No. 54 and 0.16 acre land in S.A plot No. 122 (Ext. 2); that said S.A recorded owner  Md.  Tarikullah  firstly  transferred  0.10  acre  land  on 30.01.1970 by registered sale deed No.1719 (Ext. 5) and thereafter also sold 0.20 acre land to late Noor Akter khatun on 02.04.1974 by sale  deed  No.  9675  (Ext.  6)  and  also  gave  delivery  of possession  of  those  transferred  land  to  said  late  Noor  Akter Khatun, the mother of the Plaintiff, Jamina Khatun and in this way Noor Akter Khatun the mother of the Plaintiff became owner in possession of (0.10+ 0.20) 0.30 acre land by purchase from S.A recorded  owner Md. Tarikullah  and she had been owning  and possessing her said purchased (0.10+ 0.20) = 0.30 acre land by erecting tinshed houses therein; that at the time of preparation and publication of R.S record of right 0.10 acre land out of 0.30 acre suit land was duly recorded in R.S khatian No. 288 in her name (Ext.3-kha) and the balance 0.20 acre land was recorded in the name of her Vendor, Md. Tarikullah (Ext.3-ka); that while late Noor Akter Khatun was owning and possessing her purchased (0.10 + 0.20) = 0.30 acre property, she died leaving behind her only  daughter  Jamina  Khatun,  the  present  Plaintiff-Respondent No.1  as  her  only  legal  heir;  that  the  present  Plaintiff  Jamina Khatun  as  only  legal  heir  of  her  mother  Noor  Akter  Khatun became owner in possession of her mother’s purchased 0.30 acre 'ka'  schedule  suit  property  by  inheritance  but  at  the  time  of preparation and publication of the Dhaka City Jarip her name was not recorded as owner in possession of 0.30 acre suit property, it was wrongly recorded in the name of ownerless and possession less Defendant No.1 in the suit 'kha' schedule, Dhaka City Jarip khatian No. 349 (Ext.4) baselessly in the column of owner of that khatian and the names of Defendant Nos. 2 to 4 were cited in the column of possession of that khatian No. 349 (Ext.4); that the said wrong record (Dhaka City Jarip khatian No. 349, Ext.4) created a cloud in the valid, right title and possession of the Plaintiff in her 'ka' schedule 0.30 acre suit property and hence the suit. 

Defendant No.1 entered appearance in the suit and filed written statement denying all the material averments made in the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner as the suit is barred by estoppels, waiver and acquiescence, barred by section 42 of the Specific Relief Act. The case of the Defendant

No.1, Court of Wards, Bhawal Raj Estate is that the Government of the province of East Pakistan enacted State Acquisition and Tenancy  Act,  1950  for  the  purpose  of  abolishing  Zamindary System in the tenanted land and at the time of preparation and publication of the S.A khatians as per the said State Acquisition and Tenancy Act, 1950, many of the properties of Court of Wards were  not  recorded  in  the  name  of  Court  of  Wards  and  were wrongly recorded in the name of many individual persons; that S.A  and  R.S  khatian  of  the  'ka'  schedule  suit  property  were wrongly recorded in the name of Noor Akter Khatun, the mother of the Plaintiff; that by those wrong S.A and R.S record neither the Plaintiff's predecessor Noor Akter Khatun nor the Plaintiff has acquired any valid right, title and possession in the 'ka' schedule suit property; that C.S khatian and Dhaka City Jarip khatian (Ext, kha and 4) were correctly recorded in the name of Court of Wards, the Defendant No.1 and the Court of Wards is in possession of the suit 'ka' schedule property.     The plaintiff filed the suit on false averments and as such, the suit is liable to be dismissed.

The  learned  Joint  District  Judge  on  the pleadings of  the parties framed the following issues for determination:-

1.      Is  the  suit  is  maintainable  in  the  present

form?

2.   Whether the suit is bad for defect of parties?
3.   Whether  the  Plaintiff  has  right,  title  and

possession in the suit land?

4.        Whether  City  Survey  Khatian  No.  349

corresponding  Plot  No.  2562,  3508  was  wrongly recorded or not?

5.   Whether the Plaintiff is entitled to get reliefs,

as prayed for?

At  the  trial  the  plaintiff  side  examined  4  witnesses  and defendants examined 1 witness and adduced some documentary evidence to prove their respective cases.

The  learned  Joint  District  Judge,  4th  Court,  Dhaka  on consideration of the facts and circumstances of the case and the evidence on record decreed the suit by the impugned judgment and decree dated 10.07.2019.

Being aggrieved by the aforesaid judgment and decree dated 10.07.2019 the defendants preferred this first appeal before this court.

Mr.  Md.  Tassadder  Raihan  Khan,  the  learned  Advocate appearing on behalf of the defendant-appellant submits that the Learned Court below did not apply its judicial mind into the facts and  circumstances  of  the  case  and  without  considering  the evidence of DWs oral and documentary most illegally held that the defendant  appellant  has  failed  to  prove  their  right,  title  and  interest in the suit land which occasioned a failure of justice. He further submits, it is apparent from the Survey report submitted by the surveyor of the Court of Wards Bawal Raj Estate that the disputed property in question 2820 decimal of land in dag No.2562 and 0240 decimals of land in plot No.3508 total 3060 decimals of land is rightly and properly recorded in the name of Court of Wards in originally C.S. Khatian No.02, C.S Plot No. 139, S.A. Khatian No. 120, Plot No. 54, R.S. Khatian No. 267 and 288 and later Dhaka City Jarip Khatian No.349 corresponding to Plot No. 2562 and 3508 although the learned Joint District Judge, 4th Court, Dhaka failed to re-evaluate the evidence on record from a correct angle thereby coming to a wrong decision and as such the

impugned  judgment  and  decree  is  liable  to  be  set  aside.  The learned Advocate further submits that according to P.O. Ordinance No. 12 of 1973 the management of the Estate has been vested upon the Government of the People's Republic of Bangladesh in 1989,  according   to  section  5  of  Land  Reforms  Law,  the Management  of the  Estate  has  been  vested  upon  the  Land Reforms Board, City Survey Khatian No.349 corresponding to Plot No.2562 and 3508 absolutely possessed and control by the Court Of Wards in accordance with law and the Court Of Wards has not been transferred this property to anybody in any manner at all, the plaintiff filed the suit on false averments and as such, the suit ought to have been dismissed.

Mr. Md. Khalilur Rahman, the learned Advocate appearing on  behalf  of  the  plaintiff-respondent  No.1,  on  the  other  hand, supports the impugned judgment and decree, which was according to him just, correct and proper.

Having heard the learned Advocates for both the sides and having  gone  through  memo  of  appeal,  evidences  of  both  the parties both oral and documentary and other materials on record including the impugned judgment and decree, the only question that calls for our consideration in this appeal is whether the trial Court below committed any wrong in decreeing the suit in favour of the plaintiff-respondent.

On a scrutiny of the record, it appears that the respondent as plaintiff  filed  Title  Suit  No.  392  of  2016  in  the  Court  of  the learned  Joint  District  Judge,  4th  Court,  Dhaka  against  the defendants praying the following reliefs:

Void- ad-

initio

It  appears  that  at  the  trial the  Plaintiff  cited  4  (four) witnesses  and  produced  and  proved  as  many  as  7(Seven) documents as Ext. 1 to 7 namely, C.S khatian No.192 as Ext.1, S.A khatian No.120 as Ext. 2, R.S khatian Nos.267 and 288 as Ext. 3(ka) and 3(kha), printed porcha of City Survey khatian No. 349 prepared in the name of Plaintiff (Ext. 4), registered deed No. 1719 dated  30.01.1970  (Ext.  5),  registered  deed  No.  9675  dated 02.04.1974  (Ext.6)  and  Pantagraph  of  C.S,  S.A,  R.S  and  City Survey  khatian  (Ext.  7  series)   and  on  the  other  hand,  the Defendant No.1 Court of Wards cited only its Office Assistant, named Obilash Chandra Chakroborti as D.W-1 and produced and exhibited two documents namely authorization letter as Ext. 'ka' and C.S khatian No.2 as Ext. 'kha'.

The Trial Court at first discussed over the issue Nos. 1 and 2, that is, maintainability of the suit and defect of parties and came to the findings that the suit is maintainable and does not suffer by defect of parties. Thereafter, the Trial Court took up the issue No.3 regarding right title, interest and possession of the Plaintiff in the suit property and after discussing the evidences of the Plaintiff and Defendant  No.1  came  to  the  conclusion  that  the  Plaintiff  has successfully proved her title and possession in the ka schedule suit property. The learned Joint District Judge, 4th Court, Dhaka also came to the finding that Defendant No. 1. Court of Wards could not able to prove its case regarding their title and possession in the 'ka' schedule property as stated in its written statements. In respect of  Dhaka  City  Jarip  khatian  No.  349  (Ext.4)  prepared  and published in the name of Defendant No. 1, the Trial Court after discussing evidences on record came to the conclusion that the suit land recorded therein as of 0.2820 acre in Dhaka City Plot No. 2562 and as of 0.0240 acre in Dhaka City Jarip Plot No. 3508 does not  indicate  the  true  picture  of  possession  rather  the  plaintiff has/had actual  control  and  possession  over  the  suit  property measuring 0.30 acre land and on these findings the Trial Court decided issue No. 4, Dhaka City Jarip record is baseless and incorrect which wrongly recorded in the name of Defendant No.1 and as such, the same is not binding upon the Plaintiff.

Drawing our attention to facts of the case and relevant laws Mr. Khalilur Rahman,  the  learned  Advocate for the Plaintiff- Respondent No.1 submitted that the C.S khatian No.2 and C.S Plot No. 139 was really the actual C.S khatian but S.A Buzarat or Shabek khatian No. 192 mistakenly cited as C.S khatian of the suit property due to bonafide mistake. The Learned Advocate further submitted that even for such bonafide mistake, the Defendant No.1 will not have acquired any right title and possession in the 'ka' schedule 0.30 acre suit property because of the fact that the said actual C.S khatian No.2 of Raza Bazar Mouza, has been cited as projabili property of the projabili property Gazette, 1952 published

by the Government under section 3(i) of the State Acquisition and Tenancy Act, 1950 for abolishing Zamindary system and thereby the Government has acquired its rent receiving interest in the land including the suit land of the Plaintiff covered by the said C.S khatian No.2 and ownership of all the properties cited in the said C.S khatian No.2 was declared as vested to the respective proja as owners  in  respect  of  their  respective  tenanted  land,  including tenanted land of the Plaintiff's original predecessor, Tarikullah. So, the then Government of East Pakistan has rightly prepared and published  the respective separate S.A khatian  in  the  names  of respective projas as owners including in the name of Plaintiff's predecessor, Tarikullah in S.A khatian No.120 citing section 24(i) of the State Acquisition and Tenancy Act, 1950, that is, owner by raiyoti right as basis of such record after dividing all the lands covered by C.S khatian No.2 into different S.A khatians for the sake of realizing land development taxes by the Government after declaring ownership of the each previous projas as owner to their respective  tenanted  lands.  The  aforesaid  acquisition  of  rent receiving interest by the Government in respect of the property covered by C.S khatian No.2 of Raza Bazar Mouza and vesting of ownership thereof to different projas has not only been declared by the State Acquisition and Tenancy Act, 1950, by P.O. 90 of 1972 and by amended section 8A of the Court of Wards Act, 1879, but also has been settled by the Ruling of this Hon'ble High Court Division in the case of Romisa Khatun and others-Vs- Bhawal Court of Wards reported in 61 DLR 18 and also by the Appellate Division in its upholding Judgment reported in 14 MLR, 401. It may be mentioned in this connection that the High Court Division in 61 DLR’s case declared that Circular dated 10.11.2002 of the Ministry of Land as of illegal and of without jurisdiction upon

what  basis  the  Defendant  No.1  claimed  his  Dhaka  City  Jarip khatian No.349 was duly prepared and published in its name. In view of the decision reported in 19 MLR (AD) 01 our Apex Court gave  a  direction  upon  the  Court  of  Wards  and  also  upon  the Ministry of Land that the projabili property is the property  of general  projas  and  Court  of  Wards  can  only  manage  and administer  its  choiced  retainable  khas  land  of  the  previous Zamindars of Bhawal Raj Estate as its manager/custodian as per amended section 8A of the Court of Wards Act, 1879 and under no circumstances it can claim the projabili property as of its own property and if it so claims, then its officers will be punished for Contempt of Court apart from abating such claim under P.O. 90 of 1972. As such, filing the present Appeal by the Court of Wards violating the positive direction of the Hon'ble High Court Division claiming the Plaintiff's projabili property contained in C.S khatian No.2 of Raza Bazar Mouza which cited in the projabili property Gazette, 1952 is not only illegal but also contemptuous and in that view of the matter the Defendant-Appellant cannot claim the 'ka' schedule 0.30 acre property as of its own property.

Mr. Md. Yousuf Ali, the learned Deputy Attorney General and  Mr.  Md.  Tassadder  Raihan  Khan,  the  learned  Advocate appearing for the appellant at the end of the day by referring relevant law and decision could not refute the above contentions raised by Mr. Md. Khalilur Rahman. 

Furthermore,  on  going  through  the  evidence  of  both  the sides, it appears that Plaintiff, Jamina Khatun deposed as PW-1 that one Kalim Uddin was the C.S recorded tenant in respect of 0.75 acre land. C.S. record was correctly prepared in the name of Kalim Uddin, who died leaving behind his only son Tarik Ullah and thereafter S. A. Khatian No. 120 and Dag No. 54 was finally published in the name of Tarik Ullah regarding 0.59 acre and accordingly Tarik Ullah mutated his name and paid rent to the Government and thereafter while he was in possession in “Ka” schedule land on 30.01.1970 transferred 10 decimal land to Nur Akter Khatun, mother of the plaintiff and handed over possession of the transferred land and thereafter R.S. Khatian No. 288 Dag No. 1096 was prepared in the name of new land owner, Nur Akter Khatun regarding 10 decimal land. Later on the said Tarik Ullah also transfers another 20 decimal land to her mother and handed over possession of the transferred land and in this way her mother became owner of total 30 decimal land of “ka” schedule land and thereafter Nur Akter Khatun died leaving behind the plaintiff as her sole heir, who became owner of “ka” schedule land and she mutated her name and paid rent to the Government. Dhaka City Jarip khatian waswrongly prepared in the name of the defendant appellant instead of the plaintiff. Defendant No. 1 never possessed the suit land. Pw-1 (plaintiff) proved as many as 6(Six) documents as Ext. 1 to 6 namely, C.S khatian No.192 as Ext.1, S.A khatian No.120 as Ext. 2, R.S khatian Nos.267 and 288 as Ext. 3(ka) and 3(kha), printed porcha of City Survey khatian No. 349 prepared in the name of Plaintiff (Ext. 4), registered deed No. 1719 dated  30.01.1970  (Ext.  5),  registered  deed  No.  9675  dated 02.04.1974 (Ext.6).  In cross examination the defendant side could not able to discover anything as to the credibility of this witness (PW-1) on the matter to which she testifies. PW2 Md. Sohag, PW3 Md. Iqbal Hossain & PW4 Md. Helal Uddin, all of them in their respective evidence corroborate the evidence of PW-1 in respect of material particulars.

On the other hand DW.1, Obhilash Chandra Chokroborty
stated in this deposition that - এই খিতয়ােন C.S দাগ ১৩৯, খিতয়ােন জিমর

পিরমাণ ৪৯। এই জিম ভাওয়াল রাজ এে েটর নােম  রকড হেয়েছ। পরবত েত S.A, R.S ভাওয়াল রাজ এে েটর নােম হয় নাই। িস  জিরেপ ৩৪৯ নং খিতয়া দাগ নং-২৫৬২, ৩৫০৮ ভাওয়াল রাজ এে েটর নােম  রকড হয়। এই স  ি    ভাগ দখেল  কাট অব ওয়াড স আেছ। বাদীর মামলা খািরজ চাই। বাদী ভু তলেথ  মামলা কেরেছ। This witness stated in his

cross examination that : বাদীর মামলায় আরিজ  দেখিছ। বাদীর মামলা C.S খিতয়ান নং-১৯২, দাগ নং-৫৪। এই দােগ ভূিম প রিরমাণ ৪৯ শতাংশ। আমােদর দাবীকৃ তভূিম র C.S দাগ খিতয়ান নং-০২, C.S দাগ নং-১৩৯। বাদীর দাবীকৃ তভূ িওম  কাট অব ও াড েসর দাবীকৃ তভূ িমএক দাগ ন । ইহা আমােদর জানা  নই  য, এই মামলার নািলশী স  ি    কাট অব

ও ােসর  অ ভূ    নই। S.A খিতয়ান এই মামলার বাদীর নােম হেয়েছ িকনা আমার জানা  নই। সত  নয়  য, বাদীগণ নািলশী স  ি েত  ভাগ দখল এ আেছ। সত  নয়  য, ভু লেম  কাট অব ওয়াড েসর নােম ভু লেম িস  জিরেপ হেয়েছ। সত  নয়  য, জবােব ১-২ জবােব বেলিছ তা িমথ া।

Trial  court  below  on  due  considering  the  evidence  and materials on record came to its conclusion that: “I found plaintiff’s claimed  property  and  defendant  No-l's  claimed  property  is different.” This finding finds supports from admitted evidence of DW-1.

This  being  purely  a  finding  of  fact  based  on  proper assessment  of  the  evidence  on  record  that  plaintiff’s  claimed property and defendant No-l's claimed property is different.

From the evidence on record it is found that the plaintiff has been possessing the suit land chronologically for more than 60 years in accordance with law. According to survey and settlement manual Rule 391 khatian is made on the basis of possession. In present case, it appears that impugned city survey khatian no. 349 corresponding  plot  no.  2562,  3508  does  not  indicate  the  true picture/ position of the possession. Therefore, we do not find any ground to differ with the view taken by the trial court below that impugned  city  survey  khatian  no.  349  corresponding  plot  no. 2562, 3508 recorded wrongfully and contain errors and it is not binding upon the plaintiff.

Weighing the evidence of both the parties, we find that the evidence in plaintiff side is credible and tenable in Law.

The learned Joint District Judge, 4th Court, Dhaka appears to have considered all the material aspects of the case and justly decreed the suit by his judgment and decree dated 10.07.2019 (decree signed on 18.07.2019). We find no reason to interfere therewith. 

  In view of our discussions made in the foregoing paragraphs it is by now clear that the instant first Appeal must fail.

In the result, the Appeal is dismissed without any order as to costs. The judgment and decree dated 10.07.2019 (decree signed on 18.07.2019)  passed  in  Title Suit No.  392 of 2016  by  the learned  Joint  District  Judge,  4th  Court,  Dhaka   is  hereby maintained.

Let a copy of this judgment along with lower Courts record be sent down at once.

Md. Mansur Alam, J:

I agree.