IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION) Present:

Mr. Justice S.M. Kuddus Zaman

CIVIL REVISION NO. 5572 OF 2022 Khusnehar Begum and others.            

…                      Petitioners.

 -Versus-

Md. Nurul Islam Master and another.

…               Opposite Parties.

Mr. Md. Shumon Sikdar, Advocate.

…                For the petitioners.

Mr. Zulfiqur Ahmed, Advocate with

Mrs. Sayeda Saukat Ara, Advocate

…              For the opposite parties.

Heard on: 01.09.2024

                              Judgment on: 21.10.2024

In  an  application  under  section  115(1)  of  Code  of  Civil Procedure, the instant Rule was issued calling upon the opposite party Nos. 1-2 to show cause as to why the impugned judgment and decree dated 31.10.2022 (decree signed on 01.11.2022) passed by the learned District Judge and Sessions Judge, Jono Nirapotta Bignokari Oporadh Tribunal and Special District Judge, Cumilla in Title Appeal No. 28 of 2020  (112/2016)  setting  aside  the  judgment  and  decree  dated 31.03.20216  (decree  signed  on  06.04.2016) passed  by  the  learned Assistant Judge, Burichang, Cumilla in Title Suit No. 107 of 2013 with a direction (remand) to dispose of the suit giving opportunity to adduce evidence shall not set-aside and/or pass other or further order or orders passed as to this court may seem fit and proper.

Facts in short, are that petitioners as plaintiffs instituted above suit for declaration of title and recovery of khas possession for 32 decimal of land after evicting the dwelling house of the defendants. It was  alleged  that  54  decimal  land  including  disputed  32  decimal belonged to Abdul Hamid who exchanged the same orally with the father  of  the  plaintiff  namely  Akamat  Ali  in  1952  and  delivered possession. Above Akamat Ali died leaving two sons the plaintiffs who were in peaceful possession in the same. Taking advantage of long absence of plaintiff No. 1 in the locality defendants got their names recorded fraudulently in the B.S. Khatian and dispossessed the plaintiffs from the same by constructing a half pucca dwelling house on 02.11.2013.

Defendant Nos. 1 and 2 contested the suit by filing a joint written statement contending, inter alia, that the above land originally belonged to Abdul Hamid who exchanged the same orally with the father  of  the  plaintiffs  namely  Akamat  Ali  and  his  two  brothers namely Dula Miah and Tota Miah & defendants are heirs of above Dula Miah and Tota Miah. On amicable partition the defendants got disputed 32 decimals of land and they are in the possession of the same by constructing dwelling house for a long time and above land was correctly recorded in their name in the relevant BS khatian. The plaintiffs did not have any possession in the above land nor they have ever dispossessed the plaintiffs from the same. 

At trial, the plaintiffs and the defendants examined 3 (three) witnesses  each.  Documents produced  and  proved  by  the  plaintiffs were marked as Exhibit Nos. 1-5 and those of the defendants were marked as Exhibit No.

On conclusion of trial, the learned Assistant Judge, Cumilla considering the material facts and evidence on record decreed the suit vide  judgment  and  decree  dated  31.03.20216  and  against  above judgment and decree defendant Nos. 1-2 preferred an appeal being Title Appeal No. 112 of 2016 and subsequently renumbered as Title Appeal No. 28 of 2020 to the learned District Judge, Cumilla which was heard by the learned Special District Judge, Cumilla who allowed the appeal, set aside the judgment and decree of the trial court and remanded the suit to the trial court for re-trial.

Being  dissatisfied  by  and  aggrieved  with  the  judgment  and decree  passed  by  the  court  of  appeal  below,  the  respondents  as petitioners preferred this revisional application under section 115(1) of the Code of Civil Procedure before this court and obtained the instant Rule.

Mr. Md. Shumon Sikdar, the learned Advocate appearing for the petitioners submits that undisputedly the disputed land belonged to Abdul Hamid and he transferred the same by oral exchange and the plaintiffs are heirs of Akamat Ali and the defendants are the heirs of uterine  brother  of  above  Akamat  Ali  namely  Dula  Miah.  Due  to absence  of  defendant  No.  1  in  the  locality  above  defendants fraudulently  recorded  the  land  in  their  names  and  forcibly dispossessed them from land and constructed building house. The plaintiffs  have  succeeded  to  prove  above  claims  by  adducing consistent and mutually corroborative evidence of three competent witnesses. On consideration of above evidence on record the learned Judge of the trial court rightly decreed the suit but the learned Judge of the court of appeal below miserably failed to appreciate the facts and laws involved in this case and most illegally allowed the appeal set aside the judgment and order of the trial court and remanded the suit for re-trial which is not tenable in the eye of law.

On the other hand, Mr. Zulfiqur Ahmed along with Mrs. Sayeda Saukat Ara, the learned Advocates for the opposite parties submits that admittedly the disputed land is in possession of the defendant Nos. 1 and 2 and the same was recorded in their names in the relevant BS Khatian. The plaintiff could not prove their previous possession and  alleged  subsequent  dispossession  from  above  land  by  legal evidence nor the plaintiffs have succeeded to prove their valid title in above land but the learned Judge of the trial most illegally decreed the suit. The learned Judge of the court of appeal below should have on consideration  of  the  evidence  on  record  allowed  the  appeal  and dismissed the suit but the learned Judge most illegally remanded the suit for re-trial which will not tenable in law.

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

It  is  admitted  that  54  decimal  land  including  disputed  32 decimal land belonged to Abdul Hamid who transferred the same by oral exchange and the plaintiffs are heirs of Akamat Ali and defendant Nos. 1 and 2 are heirs of Dula Miah and Tota Miah who were uterine brothers of Akamat Ali. It is also admitted that disputed 32 decimal land has been recorded in the name of defendants in the relevant B.S. Khatian and they are in possession in above land by constructing their dwelling house.

It has been alleged by the plaintiffs that above mentioned oral exchange of 54 decimals land by Abdul Hamid was solely with their father Akamat Ali and defendants’ claim is that above exchange was between Abdul Hamid and Akamat Ali and his two uterine brothers namely Dula Miah and Tota Miah.

It is well settled that in a civil suit the initial onus to prove the claim as set out in the plaint lies with the plaintiffs and since the disputed  land  admittedly  stands in the  name  of  defendants  in  the relevant B.S. khatian and they are in possession the onus to prove that above oral exchange by Abdul Hamid was exclusively with Akamat Ali rests with the plaintiffs. But the plaintiff could not substantiate above claim even by mentioning the date, time and the place or the person in whose presence above oral exchange took place nor any competent witness was examined in support of above claim. In fact not an iota of evidence was adduced by the plaintiffs to prove the claim  that  Abdul  Hamid  exchanged  above  54  decimals  land exclusively with their father Akamat Ali.

It is well settled that besides proving lawful title a plaintiff must prove his previous possession and subsequent dispossession from the disputed land in a suit for declaration of title and recovery of khas possession.

As far as previous possession is concerned the plaintiff did not make any mention in the plaint as to the mood of their possession in the disputed land. Plaintiff himself gave evidence as P.W. 1 and stated that he was not present at the time of alleged dispossession by the defendants. His wife was present and she tried to resist above forcibly dispossession. But the wife of the plaintiff was not examined as a witness  in  this  case.  P.W.  2  Anamul  Hoque,  son  of  P.W.  1  has claimed that he was present at the time of above dispossession but he was not endorsed by his father that he was present at the time of alleged dispossession. Similarly, P.W. 3 Abdul Latif Rasel who also gave evidence in support of alleged dispossession was not endorsed by P.W. 1 that at the time of alleged dispossession P.W. 3 Abdul Latif was present.

On consideration of above facts and circumstances of this case and  evidence  on  record  it  is  crystal  clear  that  the  plaintiffs  have miserably  failed  to  prove  their  alleged  previous  possession  and subsequent dispossession by the defendants by legal evidence.

On  consideration  of  above  evidence  on  record,  the  learned Assistant Judge should have dismissed the suit but the learned Judge failed  to  appreciate  the  legal  meaning  of  the  evidence  on  record properly and thus most illegally decreed the suit. Similarly the learned Judge of the court of appeal below instead of allowing appeal and dismissing the suit by setting aside the unlawful judgment and decree of the trial court but most illegally remanded the suit for re-trial which is not tenable in law.

In  view  of  the  above  facts  and  circumstances  of  case  and evidence on record, I find substance in this revisional application and the rule issued deserves to be made absolute.

In the result, the rule is made absolute. The impugned judgment and decree passed in Title Appeal No. 28 of 2020 by the learned Judge of the court of Appeal below is hereby set aside and Title Suit No. 107 of 2013 is hereby dismissed on contest without cost.

The order of stay granted earlier by this court is hereby vacated. Send down the Lower Courts’ Records, at once.

Md. Masudur Rahman/B.O