দায়বর্জন বিবৃতি (DISCLAIMER)

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             Present:

                               Mr. Justice A.K.M. Asaduzzaman

                    Civil Revision No.2574 of 2022

                                      Md. Aftabuddin.

               ……………Petitioner.

          -Versus-

                                        Government of Bangladesh and others.

                 ………….Opposite parties.

                                    Mr. S.M. Obaidul Haque, Adv.

……….For the petitioner.

                 Mr. Md. Ensan Uddin Sheikh, D.A.G.

                                                .........For the Opposite parties.                                                Heard and Judgment on 01.08.2024. A.K.M.Asaduzzaman,J.

This Rule was issued calling upon the opposite party nos. 1-

2  to  show  cause  as  to  why  the  judgment  and  decree  dated 08.12.2021 passed by the Joint District Judge, 3rd Court, Naogaon in Title Appeal No. 228 of 2018 affirming those dated 31.07.2018 passed by the Senior Assistant Judge, Patnitala, Naogaon in Other Class Suit No. 33 of 2002 dismissing the suit should not be set aside.


1

Petitioner as plaintiff filed the above suit for declaration of title with regard to the suit property measuring an area of 7.33 acres of land as described in the schedule of the plaint.

Plaint case in short inter alia, is that suit property described in  the  schedule  to  the  plaint  belonged  to  Shil  Shree  Juktya Maharaj Jagadis Nath Ray, who proposed for perpetual settlement of  the  suit  property.  Plaintiff’s  predecessor  applied  for  the settlement of the suit property and Jamindar gave assent to that proposal  for  consideration  of  Tk.  11/-  as  annual  premium Jamindar gave perpetual settlement of the suit property by way of hukumnana  to  the  plaintiff’s  predecessor  on  the  1st  day  of Baishakh, 1350 B.S. Plaintiff’s predecessor paid rents to Jamindar and obtained dakhilas. The draft of the S.A. and the R.S. records were  prepared  in  the  name  of  the  plaintiff’s  predecessor,  but wrongly the final publication of the S.A. and the R.S. records as to the suit property were recorded in the name of the defendant no. 1 as khas property. On 18.02.2002 the Tahshildar declined to collect rents  of  the  suit  property  from  the  plaintiff  expressing  the recording of the suit property as Government khas property. The wrong recording of the suit property as Government khas property cast cloud over the plaintiff in the suit property and as such the cause of action has been arisen. Now the plaintiff prays for the declaration of title as to the 7.33 acres of land in favour of him.

Opposite party as defendants contested the suit by filing written statements denying the plaint case, alleging inter alia that originally the suit property is the khas property of the Government and the S.A. record no. 1 was prepared and published in the name of the defendant no. 1. Thereafter, Government transferred the suit property to the Forest Department vide the gazette notification being No. II/For 6M 31/61/1666 dated 18.11.1961 and the suit property was declared as protected forest. R.S. record no. 2 had been rightly prepared in the name of Forest Department. Plaintiff in order to grab the forest land of the Government has filed the suit on false, forged and fabricated papers. Forest Department has title  and  possession  of  the  suit  property.  Forest  Department planted akashmoni and arjun trees for the years 1994-95 over the suit property. Hence the suit will be dismissed with cost.

Trial Court framed the following issues-

  1.    Whether the suit is maintainable in it’s present form and manner?
  2.    Whether the present suit is barred by limitation?
  1.    Whether the suit is bad for defect of parties ?
  2.    Whether  the  plaintiff  has  got  right,  title,  interest  and possession in the suit property?
  3.    Whether the plaintiff is entitled to get relief as prayed for? By the judgment and decree dated 31.07.2018, the learned

Senior Assistant Judge, Patnitala, Naogaon dismissed the suit on contest. 

Challenging  the  said  judgment  and  decree,  Plaintiff- Petitioner preferred Title Appeal No. 228 of 2018 before the Court of District Judge, Naogaon, which was heard on transfer by the Joint District Judge, 3rd Court, Naogaon, who by the impugned judgment and decree dated 08.12.2021 dismissed the appeal and affirmed the judgment of the trial court. 

Challenging  the  said  judgment  and  decree  Plaintiff- Petitioner obtained the instant rule.

Mr. S.M. Obaidul Haque, the learned advocate appearing for the petitioner submits that when the plaintiff’s predecessor Mohiuddin has successfully able to prove that he obtained the suit property from Ex-Jamindar by way of hukumnama (Exhibit No. 1) issued on 1st Baishakh, 1350 B.S. and remaining in possession by paying  rents  to  Jamindar  (Exhibit  No.  3  series)  and  the  field survey of R.S. khatian was prepared in his name (Exhibit No. 2) and all his P.Ws in a voice stated that plaintiff are in possession into  the  suit  property  but  the  courts  below  totally  failed  to consider this aspect of this case properly and dismissed the suit most illegally and as such the impugned judgment of the courts below are not sustainable in law, which are liable to be set aside. He thus prays for making the rule absolute

Mr. Md. Ensan Uddin Sheikh, the learned Deputy Attorney General  appearing  for  the  government  opposed  the  rule  and submits that property is a reserved Forest and Forest Department is now owning and possessing the same by plantations. The S.A. and R.S. khatian has rightly and finally been published in the name of the Forest Department, who are now in possession into the suit property. Plaintiff neither have any title nor possession into the suit property and has failed to prove his chain of title into the suit property. Accordingly Court below thus rightly dismissed the suit. In the said concurrent judgment since there is nothing to show that it was suffered by any misreading or non reading of the evidences, rule contains no merits, it may be discharged.

Heard the learned Advocate of both the sides and perused the impugned judgment and the L.C. Records.

Since the S.A. and R.S. khatians were not prepared in the name of the plaintiff, the instant suit was filed for declaration of title. Plaintiff claimed that property was belonged to Shil Shree Juktya Maharaj Jagadis Nath Ray. From whom plaintiff’s father got settlement at Tk. 11/- as annual premium. Ex-Jamindar then gave  perpetual  settlement  of  the  suit  property  by  way  of hukumnama to the plaintiff’s predecessor on 1st Baishakh, 1350 B.S. Plaintiff’s predecessor paid rents to Jamindar and obtained dakhilas.  In  draft  of  S.A.  and  R.S.  khatinan  although  it  was prepared in the name of the plaintiff’s predecessor but wrongly they were finally published in the name of defendant no. 1 as khash property. On 18.02.2002 when local Tahshildar declined to collect rent from the plaintiff, expressing the recording of the suit property as government khash property, plaintiff filed this suit for declaration of title.

On the other hand, defendants claimed that suit property is the khash property of the Government. S.A. khatian was prepared in  the  name  of  the  defendant  no.  1.  Government  thereafter transferred the suit property to the Forest Department vide gazette notification being No. II/For 6M/31/61/1666 dated 18.11.1961 and the suit property was declared as protected forest. R.S. khatian was rightly prepared in the name of Forest Department. In order to grab the government khash land, plaintiff filed this false suit.

During trial plaintiff has filed the draft copy of the S.A. record and the draft copy of the R.S. record (Exhibit Nos. 1 and 2),  the  original  hukumnama  (Exhibit  No.  3),  the  original  rent receipts (Exhibit No. 3(ka-ga)) and the rent receipt, paying rent to the government (Exhibit No.3 gha) and also adduced 03 P.Ws to prove  the  possession  in  the  suit  property.  Although  this hukumnama as well as original rent receipt of the Jamindar were ancient documents more than above 75 years old but the courts below  most  illegally  without  appreciating  the  provision  under Section 60 of the  Evidence  Act  most  illegally  held that  these documents were not been properly proved and disbelieved these documents.  Rent  receipt  to  the  Ex-Jamindar  and  to  the government proved the possession of the plaintiff into the suit property, which also got corroboration from the recording of the name of the plaintiff’s predecessor, in the draft copy of the S.A. and R.S. khatian (Exhibit Nos. 1 and 2) but the court below failed

to  appreciate  these  documents.  Moreover,  plaintiff’s  witnesses P.W.2 Abdul Kuddus together with P.W.3 Md. Toyab Ali when corroborate the possession as being ascertained by the P.W.1 of the plaintiff in the suit land, the courts below totally disbelieved their statements most illegally.

On the contrary, defendants produced gazette (Exhibit No. ga) showing unspecified land of different plot including plot no. 402 under Rahimpur Mouza and the R.S. khatian (which is under challenged). Defendants could not show that a property was ever at all been acquired by the government as khash land and being possessed by the Forest Department in any way. In the absence of any document as well as any fact of acquiring the property of the ex-Jamindar, it is difficult to hold the view that property was at all been owned by the government and it was rightly been given to the Forest Department and the recording of the khatian in the name of the government was correct. In the premises, when the plaintiff’s  title  and  possession  has  been  proved  by  way  of documentary  as  well  as  oral  evidences  and  the  defendants contention of acquiring the property by the Forest Department is not been proved, Plaintiff is entitled to get a decree as prayed for. Failing which both the courts below concurrently committed error of law resulting an decision occasioning failure of justice. 

In that view of the matter, I thus find merits in this rule.

 Accordingly the Rule is made absolute without any order as to costs. The judgment and decree passed by the Courts below are hereby set aside and the suit is decreed. The recording of S.A. and R.S. khatian found no basis and accordingly are erroneous and is directed to correct.

Send down the L.C.Records and communicate the judgment to the court below at once.