IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3459 of 2022

In the matter of:

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

And

Mst. Rina Akter being dead his heirs-Tahura Akter and others

.... Petitioners

-Versus-

Md. Nurul Islam and another

.... Opposite parties

Mr. Md. Moshihur Rahman, Advocate

.... For the petitioners.

None appears

.... For the opposite parties.

Heard on 19.11.2024 and Judgment on 06.01.2025.

On  an  application  under  Section  115(1)  of  the  Code  of  Civil Procedure this Rule was issued calling upon the opposite parties to show  cause  as  to  why  the  impugned  judgment  and  decree  dated 06.06.2022  passed  by  the  learned  Joint  District  Judge,  2nd   Court, Netrakona in Other Class Appeal No.35 of 2022 allowing the same and setting aside the judgment and decree dated 25.01.2022 passed by the learned Senior Assistant Judge, Sador, Netrakona in Other Class Suit No.62 of 2020 should not be set aside and/or pass such other or further order or as to this Court may seem fit and proper.

Facts in short are that the opposite party as plaintiff instituted above  suit  for  declaration  of  title  for  1.50  acres  land  by  adverse possession  alleging  that  above  land  was  acquired  by  Abdul  Jabber predecessor  of  the  petitioners  by  way  of  settlement  from  the Government by registered deed of kabuliyat dated 19.10.1981. Above Abdul Jabber transferred above land to the plaintiff in January 2000 for a  consideration  of  Taka  75,000/-  and  delivered  possession.  The defendant  repeatedly  asked  above  Abdul  Jabber  for  execution  and registration of a sale deed who delayed the same on various pretexts and the plaintiff angrily stated that he would acquire title in above land without any sale deed. On 15 November 2019 the defendants who are heirs of above Abdul Jabber claimed title in above land by inheritance.

The suit was contested by defendant Nos.1-2 and 4-6 by filing a joint  written  statement  alleging  that  Abdul  Jabber  was  the  rightful owner and possessor of above land and after his demise defendants inherited the same. Defendants are in peaceful possession of above land by  cultivation.  Above  Abdul  Jabber  did  not  sale  above  land  to  the plaintiff nor he delivered possession of above land.

At trial plaintiff examined 5 witnesses and defendant examined 3. Documents of the plaintiff were marked as Exhibit Nos.1-3 and those of the defendant were marked as Exhibit Nos.1 and 2.

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 above plaintiff preferred Other Class Appeal No.35 of 2022 to the Court of  District  Judge,  Netrokona  which  was  heard  by  the  learned  Joint District  Judge,  2nd  Court  who  allowed  above  appeal,  set  aside  the judgment and decree of the trial Court and decreed the suit.

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

Mr. Md. Moshihur Rahman, learned Advocate for the petitioners submits that the plaintiff was the Chairman of the local Union Council and Abdul Jabber was a landless peasant who acquired above land from the Government by way of settlement. Had Abdul Jabber actually sold above land to the plaintiff he would surely execute and register a kabala  deed  to  the  plaintiff.  The  plaintiff  could  not  prove  by  legal evidence that he paid any money to above Abdul Jabber for purchase of above land. Plaintiff witnesses have given contradictory evidence with regard to the place of talk of sale and there was no evidence on record to  show  that  Abdul  Jabber  ever  received  Taka  75,000/-  from  the plaintiff.  The  plaintiff  witnesses  could  not  prove  continuous  and peaceful possession of the plaintiff in the above land creating title by adverse possession. On consideration of the facts and circumstances of the case and evidence on record the learned Judge of the trial Court rightly dismissed the suit but the learned Judge of the Court of appeal below without an independent assessment of evidence on record and reversing any material findings of the trial Court most illegally allowed the appeal, set aside the lawful judgment and decree of the trial Court and decreed the suit which is not tenable in law.

No one appears on behalf of the opposite parties at the time of hearing of this 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 all materials on record including the judgments of the Courts below and the evidence adduced by both the parties at trail.

It is admitted that disputed 1.50 acres was owned and possessed by Abdul Jabber who acquired the same from the Government as a landless  peasant  by  registered  kabuliyat  dated  19.10.1981  and defendants are heirs of above Abdul Jabber.

The plaintiff has filed this suit for declaration of title in above land  by  adverse  possession.  But  while  giving  evidence  as  PW1  the plaintiff stated that he sought declaration of jote title.

It turns out from the plaint and the evidence of PW1 that the plaintiff has claimed to have entered into the possession of the disputed land not unlawfully but lawfully with the consent of Abdul Jabber. It has been alleged that Abdul Jabber sold above land on receipt of Taka 75,000/- and delivered possession. There is no mention either in the plaint or in the evidence of PW1 as to when alleged lawful possession of the plaintiff became adverse against above Abdul Jabber. There is no claim in the plaint or in the evidence of PW1 that Abdul Jabber denied the alleged transaction of sale or denied to execute and register a sale deed. It has been stated in the plaint that it was not Abdul Jabber but the plaintiff himself who angrily refused to obtain any sale deed from Abdul Jabber. In this regard PW1 Md. Nurul Islam has contradicted above claim of the plaint by stating that Abdul Jabber stated that there was no necessity of any sale deed. Since above Abdul Jabber did not deny the alleged transaction of sale of the disputed land and denied to execute  a  sale  deed  or  denied  the  alleged  lawful  possession  of  the plaintiff  in  the  disputed  land  the  alleged  lawful  possession  of  the plaintiff did not became adverse against Abdul Jabber. As such there is no lawful basis of claim of title by adverse possession against Abdul Jabber of the defendants.

As mentioned above plaintiff was a locally influential person and Union Parishad Chairman and Abdul Jabber a poor peasant. As such it is not believable that after receipt of full consideration money Abdul Jabber delaye4d the execution and registration of sale deed and the plaintiff remained inactive in getting an appropriate remedy.

In the plaint no specific date was mentioned as to above sale of the disputed land and receipt of Taka 75, 000/- by Abdul Jabber. Nor any mention has been made as to the venue where above transaction or take of sale was held. In his evidence PW1 Md. Nurul Islam merely stated that above Abdul Jabber sold above land to the plaintiff orally but  he  did  not  mention  the  date,  venue  or  the  persons  who  were present at the time of above sale.

As to the entry of the plaintiff into the possession of the disputed land nothing has been mentioned the evidence of PW1. PW2 Nayeb Ali, PW3 Abdul Gafur, PW4 Md. Kamal Hossain, PW5 Abdul Wahab did not mention the date of entry of the plaintiff into the possession of the disputed land. Nor any of them has stated when the alleged lawful possession  of  the  plaintiff  became  adverse  against  the  real  owners Abduls Jabber.

On consideration of above facts and circumstances of the case and evidence on record I hold that the plaintiff has miserably failed to prove his claim of title by adverse possession in disputed 1.50 acres land by legal  evidence  and  the  learned  Senior  Assistant  Judge  on  correct appreciation of evidence on record rightly dismissed the suit but the learned  Judge  of  the  Court  of  Appeal  below  miserably  failed  to appreciate properly the facts of the case and the law as to adverse possession and most illegally allowed the appeal set aside the lawful judgment and decree of the trial Court and decreed the suit which is not tenable in law.

In above view of the materials on record I find substance in this application under Section 115(1) of the Code of Criminal Procedure 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  06.06.2022  passed  by  the  learned  Joint District Judge, 2nd Court, Netrakona in Other Class Appeal No.35 of 2022  is  set  aside  and  those  dated  25.01.2022  passed  by  the  learned Senior Assistant Judge, Sador, Netrakona in Other Class Suit No.62 of 2020 is restored. 

However, there is no order as to costs.

Send down the lower Courts record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER