IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.2066 OF 2023

In the matter of:

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

And

Taruni Mohon Saha

... Petitioners

-Versus-

Government of Bangladesh represented by its Deputy Commissioner, Manikgonj and others

... Opposite parties

Mr. Ashim Kumar Mallik, Advocate

... For the petitioner.

Mr. Saifur Rahman, Deputy Attorney General with

Mr. Md. Arifur Rahman, Assistant Attorney General Mr. Md. Mizanur Rahman, Assistant Attorney General Mr. Md. Moshihur Rahman, Attorney General

….For the opposite parities.

Heard and Judgment on 08.05.2025.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 12.02.2023 passed by the learned Additional District Judge, 2nd Court, Manikgonj allowing the appeal and thereby reversing the judgment and decree dated 06.02.2014 passed by the learned Joint District Judge, 1st Court, Manikgonj in Title Suit No.14 of 2008 should not be set aside and/or 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 for declaration of title for 59 decimal land appertaining to R. S. Plot No.86, R.S. Khatian No.1 corresponding to S. A. Khatian No.312 and C. S.  Khatian  No.235  alleging  that  above  land  belonged  to  Ramesh Chandra Shaha, Chandra Mohon, Tarokeshshor, Sudhangsho Bala Saha and Protima and the same was rightly recorded in S. A. Khatian No.312. Above  Ramesh  Chandra  Saha  died  leaving  two  brothers  Chandra Mohon  and  Tarokeshshor  as  heirs  and  above  Tarokeshshor  died leaving Chandra Mohon Saha as the brother and heir. Sudangsho Bala Saha and Protima Chandra Saha died leaving Chandra Mohon Shaha as heir. Thus Chandra Mohon Saha alone became owner and processor of above 59 decimal land and died leaving only son Toruni Mohon Saha who is in possession in above land. Above Taruni Mohon Saha remains busy with his business and he executed and registered a deed of power of  attorney  to  the  plaintiff  on  24.10.2007.  Above  land  has  been erroneously  recorded  in  R.  S.  Khatian  No.1  in  the  name  of  the defendants.

Defendant Nos.1-5 contested above suit by filling a joint written statement alleging that above land went into the Kaliganga River due to erosion immediately after publication of S. A. Khatian and remained under the river during preparation of R. S. Khatian. As such above land vested in the Government pursuant to Presidential Order No.135 of 1972 and the same was correctly recorded in R. S. Khatian No.1.

At  trial  plaintiff  examined  four  witnesses  and  defendants examined 1. Documents produced and proved by the plaintiff were marked as Exhibit Nos.1, 2 and 3 series. On the other hand documents of the defendant were marked Exhibit “ka” series.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record learned Joint District Judge, 1st Court decreed the suit.

Being aggrieved by above judgment and decree of the trial Court above defendants as appellants preferred Title Appeal No.23 of 2022 to the  District  Judge,  Manikganj  which  was  heard  by  the  learned Additional District Judge, 2nd Court who allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit.

Being aggrieved by and the dissatisfied with above judgment and decree of the Court of Appeal below above appellants as petitioners moved to this Court with this civil revisional application under section 115(1) of the Code of Civil Procedure and obtained this rule.

Mr. Ashim Kumar Mallik, learned Advocate for the petitioners submits that admittedly 59 decimal land belonged to Romesh Chandra, Chandra Mohon, Tarokshshor, Sudangso Bala Saha and Protima and the same was rightly recorded in S. A, Khatian No.312. In R. S. Khatian No.1  above  property  was  erroneously  recorded  in  the  name  of  the defendant Nos.1-5. It is also admitted that Tarini Mohon Saha was the son  of  Chandra  Mohon  Saha  who  appointed  Mohammad  Khalilur Rahman as his constituted attorney by an unregistered deed of power of attorney dated 24.10.2007 and on the basis of above authorization above Khalilur Rahman as plaintiff has instituted this suit.

While  giving  evidence  as  PW1  above  Khalilur  Rahman  have given a detailed description of the genology of above mentioned S. A. recorded  tenants  stating  that  Romesh  Chandra,  Tarokshshor, Sudangsho Lal Bala Saha and Protima died one after another leaving Chandra Mohon as the sole owner and processor of above 59 decimal land and above Chandra Mohon died leaving Taruni Mohon Saha as the only son and sole heir. PW1 has produced above deed of power of attorney which was marked as Exhibit No.1. He also gave consistent evidence as to his possession in 59 decimal land. PW2 Rois Uddin, PW3 Jalil  Miah,  PW4  Gois  Uddin  have  given  mutually  corroborative evidence  in  support  of  possession  of  the  plaintiff  in  above  land. Moreover, DW1 Abdur Rahman has admitted possession of the plaintiff in above land.

On consideration of above facts and circumstances of the case and evidence on record the learned Judge of the trial Court rightly decreed the suit but the learned Additional District Judge without reversing any material findings of the trial Court most illegally allowed above appeal, set  aside  the  lawful  judgment  and  decree  of  the  trial  Court  and dismissed the suit which is not tenable in law.

On the other hand Mr. Md. Moshihur Rahman, learned Assistant Attorney  General  submits  that  at  Paragraph  No.1  of  the  plaint  the plaintiff has claimed that Taroni Mohon Saha executed and registered an irrevocable power of attorney deed on 24.10.2007 to the plaintiff for disputed 59 decimal land. But Exhibit No.1 shows that above deed of power of attorney was not a registered document. As such the plaintiff was required to prove due execution of above private document in accordance with law but the plaintiff did not make any endeavor to prove due execution of above deed of power of attorney. As such the plaintiff did not have any authority to institute and maintain this suit for Taruni Mohon Saha. In above deed of power of attorney Taruni Mohon Saha has claimed to have acquired disputed 59 decimal land on the basis of oral amicable partition not by inheritance. But in the plaint the  plaintiff  has  provided  a  genology  showing  Taruni  Mohon  Saha acquired above land by inheritance which is not tenable in law. On consideration of above facts and circumstance of the case and materials on  record  the  learned  Judge  of  the  Court  of  Appeal  below  rightly allowed the appeal, set aside the flawed judgment and decree of the trial Court and dismissed above suit which calls for no interference.

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

It is admitted that 59 decimal land was recorded in S. A. Khatian No.312 and Plot No.708 in the names of Ramesh Chandra, Chandra Mohon, Tarokeshshor, Sudhangso Bala Saha and Protima and above land was recorded in R. S. Khatian No.1 in the names of defendant Nos.1-5 but the quantity of the land was reduced to 52 decimal.

The plaintiff did not dispute that the quantity of above land was erroneously recorded in R. S. Khatian No.1. In the schedule of the plaint the plaintiff has sought declaration of title for 59 decimal land of R. S. Kahtian No.1. Since above Khatian does not comprise 59 decimal land and the plaintiff seeks a decree for 59 decimal land not 52 decimal land this suit was liable to be dismissed on this ground alone.

At paragraph No.1 of the plaint the plaintiff claimed that Taroni Mohon Saha executed and registered an irrevocal power of attorney deed to plaintiff Khalilur Rahman on 24.10.2017 for 59 decimal land. While giving evidence as PW1 above Khalilur Rahman produced above power of attorney deed which was marked as Exhibit No.1. It turns out from above document that the same was not a registered deed of power of attorney. In above power of attorney deed disputed land has been described by mentioning C. S. and S. A. Khatians and plots Numbers without mentioning the latest R. S. Khatian and R. S. plot Number.

In above power of attorney deed it has been merely stated that 59 decimal land of S. A. Khatian No.312 belonged to Romesh Chandra and others without mentioning the names of all the Maliks of above land. No genology of above Ramesh Chandra and others was provided in above deed of power of attorney nor Taruni Mohon Saha claimed title and possession in 59 decimal land as the sole heir of Chandra Mohon Saha. It has been merely stated that on the basis of amicable partition among S. A. recorded tenants plaintiff was owning and possessing of above 59 decimal land. PW1 Khalilur Rahman has provided a genology of  Ramesh  Chandra,  Chandra  Mohon,  Tarokshshor,  Sudangsho  Lal Saha and Protima and stated that all above S. A. recorded tenants died leaving Chandra Mohon as their sole heir and Chandra Mohon died leaving Taruni Mohon Saha as his only heir. But above claim has not been corroborated by any other evidence oral or documentary. Above Khalilur Rahman did not mention his capacity as to his give evidence as to the genolgoy of Ramesh Chandra and their family.

As  mentioned  above  the  deed  of  power  of  attorney  dated 24.10.2007 is an unregistered private document and the plaintiff was required to prove due execution of above document in accordance with law.  But  the  plaintiff  did  not  make  any  endeavor  to  prove  due execution of above document. PW2 Rois Uddin, PW3 Jalil Miah and PW4 Gois Uddin did not say anything about the genology of Ramesh Chandra or due execution of above deed of power of attorney dated 24.10.2007.

In  above  view  of the  facts and  circumstances  of  the case  and evidence on record I hold that the learned Judge of the Court of Appeal below on correct appreciation of materials on record rightly held that the  plaintiff  could  not  prove  his  claim  of  title  and  possession  in disputed  52  decimal  land  of  R.  S.  Khatian  No.1  which  is  based  on evidence on record.

I  am  unable  to  find  any  illegality  or  irregularity  in  above judgment  and  decree  of  the  Court  of  Appeal below  nor  I  find  any substance in this Civil Revisional application under Section 115(1) of the Code of Civil Procedure and the Rule issued in this connection is liable to be discharged.

In the result, the Rule is discharged. 

However, there will be no order as to costs.

Send down the lower Court’s records immediately.

MD. MASUDUR RAHMAN      BENCH OFFICER.