IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.5576 OF 2022

In the matter of:

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

And

Atufa Mollah and others

.... Petitioners

-Versus-

Md. Shofiqul Alam and others

.... Opposite parties

Mr. Md. Mosiul Alam, Advocate

.... For the petitioners.

Mr. Md. Mahabubur Rashid, Advocate

…. For the opposite party Nos.1-8.

Heard on 21.11.2024.

Judgment on 01.12.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 05.09.2022 passed by the learned Senior District Judge, Jamalpur, in Other Appeal No.115  of  2021  disallowing  the  appeal  and  thereby  affirming  the judgment and decree dated 10.10.2021 passed by the learned Additional Assistant Judge, Jamalpur, in Other Class Suit No.82 of 2007 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 petitioners as plaintiffs instituted above suit for declaration that order dated 29.06.2006 passed by the Additional District  Commissioner  (ADC)  in  Miscellaneous  Case  No.2(XIII)2005-

2006  modifying  three  land  settlement  cases  of  the  plaintiffs  by deducting 1.57 acres land is unlawful and not binding upon the plaintiff and for further declaration that judgment and decree dated 29.06.1990 passed by the learned Munsif in Title Suit No.179 of 1985 is unlawful and not binding upon the plaintiffs.

It  was  alleged  that  plaintiffs  are  landless  peasant  and  they submitted three separate petitions to defendant No.9 for settlement of Government land and on conclusion of necessary inquiry disputed 2.9 acre  land  was  given  settlement  to  them  by  a  three  separate

Miscellaneous  Cases  being  Nos.50681((XXIIII))0033--0044 ,  51614((XXIIII))0033--0044 and

51625((XXIIII))0033--0044  for 99 years and on the direction of above defendant

plaintiffs executed separate registered kabuliyat deed Nos.18028, 18026 and 18031 dated 13.12.2003 and their names were mutated and separate khatians were prepared for each plaintiffs and they were paying rent to the Government and possessing above land peacefully.

Defendant  Nos.1-8  did  not  have  any  right,  title,  interest  and possession in above land and they obtained a collusive decree in Title Suit No.179 of 1985 on 22.08.1985 for 4.73 acre land. Pursuant to above judgment  and  decree  the  defendants  did  not  acquire  any  title  and possession in above land.

Above suit was contested by defendant Nos.1-6 by filing a joint written  statement  alleging  that  4.96  acre  land  belonged  to  Muslem Uddin and Moharani Hemonto and the same was correctly recorded in C.S. Khatian Nos.582 and 127 and above Muslem Uddin surrendered his land of C.S. Khatian No.582 to Hemonto who became owner and possessor of 4.96 decimal land and gave settlement to Hasan Ali and Kashem Ali by a registered kabuliyat dated 26.09.1946. Above Kashem Ali transferred his 2.48 decimal land to the defendant and defendants are  in  peaceful  possession  in  above  land  but  above  land  was erroneously  recorded  in  the  name  of  the  Government  and  the defendants  filed  Title  Suit  No.179  of  1985  in  the  Court  of  Munsif, Jamalpur and obtained a decree on 29.06.1990. Plaintiffs do not have any right, title, interest and possession in above land.

At trial plaintiffs examined 4 witnesses and defendants examined 3.  Documents  of  the  plaintiffs  were marked  as  Exhibit  Nos.1-4 and those of the defendants were marked as Exhibit Nos.’Ka’-‘Jha’. 

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

Being aggrieved by above judgment and decree of the trial Court plaintiffs preferred Other Class Appeal No.115 of 2021 to the learned District Judge, Jamalpur who dismissed the appeal and affirmed the judgment and decree of the trial Court.

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

Mr.  Md.  Mosiul  Alam,  learned  Advocate  for  the  petitioners submits that undisputedly six plaintiffs acquired disputed 291 decimal land from defendant No.9 by three separate settlement case and above plaintiffs executed three separate registered deed of kabuliyat in favour of the Government on 13.12.2003 and the plaintiffs mutated their names and created separate khatians in their names on the basis of above settlement.

It  is  also  admitted  that  on  an  objection  petition  filed  by  the defendant  Nos.1-8,  defendant  Nos.9-10  modified  above  three Settlement Cases of the plaintiffs and deducted 1.57 acre land from above settlement causes and transferred above 1.57 acre land to khatian No.1.

Since  above  three  Settlement  Cases  were  for  different  land  in favour of different plaintiffs as such defendant No.9 committed serious illegality by reducing 1.57 acres land three Settlement Cases by one impugned order. Defendant No.9 did not mention any cogent ground or reason for above deduction of land from three settlement cases of the plaintiffs. Nor specific mention was made as to from which settlement case what quantity land was deducted. In no enquiry held by defendant Nos.9 or 10 it was found that the plaintiffs were not landless peasant at the time of obtaining above settlements. As far as the impugned decree of the Title Suit No.1979 of 1985 of defendant Nos.1-8 is concerned plaintiffs were no party to above suit and the disputed land of this suit and the land of above judgment and decree are not identical. As such the  learned  Judge  of  the  trial  Court  committed  serious  illegality  in dismissing  the  suit  and  the  learned  District  Judge  without  an independent assessment of materials on record most illegally dismissed the appeal and affirmed the flawed judgment and decree of the trial Court which is not tenable in law.

Mr. Md. Mahabubur Rashid, learned Advocate for the opposite party Nos.1-8 submits that above defendants acquired disputed land by a registered kabuliyat dated 26.09.1946 but above land was erroneously recorded  in  the  name  of  the  Government  and  they  filed  Title  Suit No.179  of  1985  and  obtained  a  decree  against  the  Government  on contest. But above land was again recorded erroneously in the name of the Government in the B.R.S. Khatian and above defendants has filed Title  Suit  No.253  of  2018  in  the  1st  Court  of  Joint  District  Judge, Jamalpur for declaration of their title in 3.86 acres land including the disputed  land  and  above  suit  is  still  pending  for  trial.  Since  the Government has rejected the kabuliyat of the plaintiffs they do not have any locus standi to maintain this suit without a declaration for title.

I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

It  is  admitted  that  the  plaintiffs  acquired  by  three  separate settlement  cases  the  disputed  land  from  the  Government  and  they executed  three  separate  registered  deed  of  kabuliyat  and  defendant Nos.9 and  10  accepted  above  kabuliyats,  mutated  the names  of  the plaintiffs  and  created  separate  khatians  and  received  rent  from  the plaintiffs.  It  is  also  admitted  that  defendant  No.9  on  receipt  of  an application from defendant Nos1-8 deducted 1.57 acres land of above

561(XII)03-04 564(XII)03-04 three Miscellaneous Cases being Nos.  08(XII)03-04 ,  11(XII)03-04 and

565(XII)03-04

12(XII)03-04 without mentioning the quantity of land being deducted

from each settlement case nor any rectification was effected of the three registered kabuliyat deeds executed by the plaintiffs and accepted by defendant Nos.9 and 10.

Above reduction of land of the settlement cases was done by the Additional Deputy Commissioner (Revenue) on an allegation that the plaintiffs  were  not  landless  peasants  and  they  obtained  above settlement  by  false  representation.   But  there  is  nothing  in  above impugned  order  to  show  that  any  enquiry  was  held  to  ascertain truthfulness  or  falsity  of  above  allegation  or  it  was  found  that  the plaintiffs were not in fact landless peasants at the time of obtaining above settlements. In his cross examination PW1 Mozahar Uddin who is an Assistant Land Officer stated that settlement of the disputed land was given to the plaintiffs for 99 years and before giving of settlement appropriated inquiry was held. He could not produce any document before the Court to show that the plaintiffs were not landless peasants.

In  above  view  of the  facts and  circumstances  of  the case  and materials  on  record  I  hold  that  defendant  No.9  committed  serious illegality in reducing 1.57 acres land of three Settlement Cases of the plaintiffs without any valid reason and by an unspeaking order and without following due process which is not tenable in law.

As far as the impugned decree of Title Suit No.179 of 1985 of defendant No.1-8 is concerned. Admittedly plaintiffs were not parties to above suit and there is nothing on record to show that the land of registered kabuliyat dated 26.09.1946 corresponds to the disputed land of this suit.  Above defendants have produced and proved certified copy of the judgment and decree of Title Suit No.179 of 1985 but they did  not  produce  a  certified  copy  of  above  deed  of  kabuliyat  dated 26.09.1946. There is nothing on record to show that the land of above kabuliyat was relayed by an survey knowing Advocate to identify the present location of above land and to determine whether above land corresponds to the disputed land or not.

Learned Advocate for the opposite party Nos.1-8 concedes that above defendants have filed Title Suit No.253 of 2018 in the 1st Court of Joint  District,  Jamalpur  for  declaration  of  title  for  3.86  acre  land including the disputed land and above suit is pending for trial. Above conduct of defendant Nos.1-4 proves that they have in fact abandoned above judgment and decree of Title Suit No.179 of 1985.

On consideration of above facts and circumstances of the case and evidence on record I hold that the plaintiff succeeded to prove their title and possession in disputed 2.9 acre land but the learned Judges of both the  Courts  below  failed  to  appreciate  above  evidence  on  record properly and most illegality the trial Court dismissed the suit and the Court  of  Appeal  below  dismissed  the  appeal  and  affirmed  above flawed judgment and decree of the trial Court which is not tenable in law.

In  above  view  of  the  facts  and  circumstance  of  the  case  and evidence on record I find substance in this civil revisional application under Section 115(1) of the Code of Civil Procedure and the Rule issued in this connection deserves to be made absolute.

In the result, this Rule is hereby made absolute. The impugned judgment and decree dated 05.09.2022 passed by the learned Senior District Judge, Jamalpur, in Other Appeal No.115 of 2021 affirming the judgment and decree dated 10.10.2021 passed by the learned Additional Assistant Judge, Jamalpur, in Other Class Suit No.82 of 2007 is set aside and above suit is decreed on contest against the defendant Nso.1-10 without cost. It is hereby declared that the impugned order passed by defendant No.10 reducing 1.57 acres land of above settlement cases of the  plaintiffs  is  unlawful  and  not  binding  upon  the  plaintiffs.  It  is further declared that the judgment and decree of Title Suit No.179 of 1985 is not binding upon the plaintiffs

However, there is no order as to costs.

Send down the lower Courts record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER