District: Jhenidah

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

   Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 3521 of 1991

In the matter of : Md. Barik Biswas

… Petitioner

-Versus-

Anar Ali and others

…Opposite parties

Mr. A.H.M. Obaydul Kabir, Advocate

…for the petitioner

No one appears

…For the opposite parties

      Heard on: 10.11.2024

     Judgment on: 12.11.2024

Rule was issued on an application under section 115(1) of the Code of Civil Procedure calling upon the opposite party No. 1 to  show  cause  as  to  why  the  judgment  and  decree  dated 24.10.1989 passed by the Sub-ordinate Judge, Jhenidah in Title Appeal  No.  143  of  1986  reversing  those  of  dated  28.06.1986 passed by the Assistant Judge, Kaliganj, Jhenidah in Title Suit No. 138 of 1985, decreeing the suit should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.

The present petitioner as plaintiff instituted Title Suit No. 1668 of 1976 in the Court of Second Munsif at Jhenidah. On transfer to the Court of Munsif, Kaliganj, Jhenidah the suit was renumbered as Title Suit No. 138 of 1985 sought for declaration of title, confirmation of possession and for permanent injunction.

The  case  of  plaintiff  briefly  are  that  the  suit  property appertaining to previous khatian No. 374, plot No. 758 measuring an  area  of  2.03  acres  within  bahirgachi  mouza  under  Police Station- Kaliganj was originally belonged to Hasan Mondol and Pachu  Mondal  in  equal  share.  Ranjet  and  Nesaron,  son  and daughter of Hasan Mondol transferred 51 decimals of land out of the aforesaid property to the plaintiff through a registered kabala dated 24.09.1958. Plaintiff also purchased 85 decimals of land from other 2(two) sons of Hasan Mondol, namely Ebadad and Azibar and Chand Ali son of Mandari Mondol (grandson of Pachu Mondol). Later on, plaintiff transferred 33 decimals of land to defendant  No.  3.  The  plaintiff  has  right,  title  and  exclusive possession over the rest 1.03 acres of land out of the scheduled property. The defendant on 15 Kartik, 1383 B.S. threatened to dispossess the plaintiff from the suit land, hence the suit.

The defendant No. 1 contested the suit by filing written statement denying all the material averments of plaint contending, inter alia that the suit is barred by limitation, the plaintiff has no

right, title and possession over the suit land. The specific case of the defendant is that Refezuddin, grandson of Pachu Mondol gave oral settlement of 33 decimals of land out of his share to defendant No. 2, Fakir Ahmmad on 10 Chaitra, 1357 B.S. Later on, the defendant  No.  2  transferred  the  said  33  decimals  of  land  to defendant  No.  1  through  registered  kabala  dated  26.08.1975. Ranjet  and  Nesaron,  son  and  daughter  of  Hasan  Mondol  also transferred 51 decimals of land out of the scheduled property to defendant No. 1 through a registered kabala dated 28.07.1975. The defendant No. 1 in the way as aforesaid acquiring title over 84 decimals of land of the scheduled property has possessed the same peacefully. Thus, the plaintiff’s suit is liable to be dismissed.

During trial the plaintiff examined 3(three) witnesses and adduced documentary evidences to prove his case. On the other hand, the defendant examined 5(five) witnesses and also adduced documentary  evidences  to  prove  his  respective  case.  On conclusion  of  hearing  learned  Munsif  of  Kaliganj  Upazila, Jhenidah by his judgment and decree dated 28.06.1986 decreed the suit on contest against the defendant No. 1.

Having  been  aggrieved  by  the  aforesaid  judgment  and decree  of  learned  Munsif  at  the  Court  of  Kaliganj  Upozilla, Jhenidah, the defendant No.1 preferred Title Appeal No. 143 of 1986 before the District Judge, Jhenidah. On transfer the said appeal was heard by the Sub-ordinate Judge, Jhenidah and by his judgment  and  decree  dated  24.10.1989  allowed  the  appeal reversing  those  of  dated  28.06.1986  passed  by  the  Munsif, Kaliganj, Jhenidah in Title Suit No. 138 of 1985.

On being aggrieved by and dissatisfied with the aforesaid judgment and decree of learned Sub-ordinate Judge, the plaintiff filed this revisional application and obtained the Rule.

Mr. A.H.M. Obaydul Kabir, learned Advocate appearing for the petitioner submits that it is the positive and specific finding of the trial Court that the plaintiff is in possession over the suit land, conversely, it was specifically also found by the trial Court that the  defendants  have  no  possession  over  the  suit  land.  The appellate Court below while reversing the judgment and decree of the trial Court did not at all disturb or controvert the finding of the trial Court regarding possession of the suit land. Thus, the finding of the trial Court as to the possession stands.

He next submits that the defendant opposite party did not challenged the aforesaid findings of possession before the High Court Division in revisional jurisdiction and the uncontroverted findings of fact regarding possession proves that the plaintiff has been enjoying the property uninterruptedly since 24.09.1958, thus acquired a valid title adversely against the defendants.

He further submits that the Court of appeal below reversed the judgment of the trial Court on the findings that the transfer deed  dated  24.09.1958  executed  by  Ebadad,  elder  brother  of Ranjet and Nesaron, son and daughter of Hasan Mondol, as the guardian of minors. It was also found that the said Ebadad had no legal authority to transfer the property on behalf of the minors. Thus, the basic title document of plaintiff regarding 51 decimals of land is an invalid one, which does not confer any right or title upon the plaintiff. Mr. Kabir continues to submit that it is the settled  principle  that  though  the  transferee  (plaintiff)  did  not acquire  any  valid  title  through  an  invalid  document  over  the aforesaid  51  decimals  of  land,  but  when  he  continues  in possession into the said property more than the statutory period of 12(twelve)  years  uninterruptedly  on  the  basis  of  said  invalid document, therefore, he acquires a good title in the said property by way of adverse possession against the defendants as well as their predecessor-in-interest.

He also submits that from the findings of the trial Court it is established that the plaintiff is in possession of the suit property since  1958  and  from  the  record  it  also  appears  that  the predecessor-in-interest of the defendant No.1, namely Ranjet and Nesaron, son and daughter of Hasan Mondol though had valid title over the suit land, but could not take any initiate to recover or restore  their  possession  in  the  suit  property  within  12(twelve) years from discontinuation of the possession or within 3(three) years after attainment of their majority. Thus, their title has been extinguished under section 28 of the Limitation Act, conversely, the plaintiff acquired a valid title by way of adverse possession. The Court of appeal below committed an error of law resulting in an error in the decision occasioning failure of justice in dismissing the suit without taking into consideration the aforesaid provision and findings of fact into his judicial mind.

He  lastly  submits  that  although  the  plaintiff  could  not specifically seek his title over the suit land by way of adverse possession, but the provision of Order VII, rule 7 of the Code of Civil Procedure provides scope to declare his entitlement to a decree  for  a  declaration  of  title  through  adverse  possession, though not specifically prayed for.

In support of his submission Mr. Kabir cited the case of Sree Santipada Datta Vs. Satish Chandra Das and others reported in 7 MLR(AD) 249, the case of Syed Aynul Akhter Vs. Sanjit Kumar Bhowmik and others reported in 20 BLC 598, the case of Kashem Molla Vs. Fajel Shek and others reported in 3 DLR 206 and  in  the  case  of  Commander  (Retd.)  A.A.  Chowdhury  Vs. A.K.M. Imam Hossain and others reported in 16 BLD 510.

No one appeared to contest the Rule.

Heard  learned  Advocate  for  the  petitioner,  perused  the revisional application. Having gone through the cited judgments and the provision of law.

From the record, it transpires that whole controversy of the suit in question is relates to a property measuring an area of 51 or

51 decimals out of the scheduled property, which was belonged to Ranjet and Nesaron by way of inheritance. It is the case of plaintiff that he acquired title through a registered kabala dated 24.09.1958  executed  by  Ebadad,  the  elder  brother  of  2(two) minors  on  their  behalf,  namely,  Ranjet  and  Nesaron,  son  and daughter of Hasan Mondol, the admitted co-owners of the said property.

On  the  other  hand,  the  defendant’s  case  is  that  Ebadad being elder brother of minors had no authority to transfer the minors’ property in favour of the plaintiff through registered deed dated 24.09.1958.

The  trial  Court  upon  believing  the  case  of  the  plaintiff decreed the suit on the basis of the aforesaid registered title deed dated 24.09.1958, together with a specific and positive findings that the plaintiff is in possession of the suit land since execution of the  deed  dated  24.09.1959,  conversely,  also  found  that  the defendants have no possession in the suit land.

The appellate Court below while reversing the judgment and decree of the trial Court found that the registered deed dated 24.09.1958  (Exibit-‘1’)  was  an  invalid  one  and  void-ab-initio, because the executant, Ebadad had no authority to transfer the minors property. Thus, the said deed does not confer any valid title upon the plaintiff and on the basis of the said finding he dismissed the suit.

The appellate Court below came to the definite finding that plaintiff did not acquire any title into the suit land through the invalid or void registered deed dated 24.09.1958, but did not at all disturb or controvert the specific findings of the trial Court to the effect that the plaintiff is in possession and the defendants have not possession in the suit land. Thus, the finding of fact of the trial Court  regarding  possession  of  the  plaintiff  stands  and  which continues uninterruptedly from the execution of the deed of the year 1958. Under section 28 of the Limitation Act, 1908, the title of the legal owner of the property would be extinguished for his failure to claim or exercise his right or title over a period more than  12(twelve)  years  from  the  date  of  discontinuation  of possession or in case of minors 3(three) years after attainment of his/their majority, whichever is later.

Although the appellate Court below found that the elder brother of the minors had no authority to transfer their property on their behalf, but failed to consider that on the strength of the said

invalid  document  dated  24.09.1958,  the  plaintiff  has  been continuing into the possession and uninterruptedly enjoyed the property  and  thus,  acquired  a  valid  title  through  ‘Acquisitive Prescription’, adversely against the defendant or his predecessors- in-interest, who lost their title by failure to claim or institute a suit for  possession  within  12(twelve)  years  from  the  date  of discontinuation of possession on the basis of the aforesaid invalid deed i.e. since 24.09.1958 and or within 3(three) years from the date of their attainment of majority, whichever is later.

From the premise above, it appears that in the year, 1975 when Ranjet and Nesaron by a registered kabala transferred the property in favour of defendant No. 1, had lost their title by way of Extinctive Prescription, under the provision of section 28 of the Limitation Act, 1908.

I have examined the plaint of the suit, although the plaintiff in the prayer portion of the plaint could not specifically sought for the title by way of adverse possession, but at paragraph No. 2 of the plaint, the plaintiff specifically asserted that he has acquired his title even by way of adverse possession. The mere fact that the plaintiff did not specifically sought for the declaration of title by way of adverse possession, cannot be a legal ground to disentitle him from getting a decree of declaration to that effect by way of adverse possession.

The  aforesaid  view  of  this  Court  is  supported  by  the judgment passed in the case of Sadek Ali Vs. Suruj Ali and others reported in 7 DLR 94 and in view of the cited cases from the petitioner’s side, this Court finds merit in the Rule.

Accordingly, the Rule is made absolute.

The judgment and decree dated 24.11.1989 passed by the Sub-ordinate Judge, Jhenidah in Title Appeal No. 143 of 1986 is hereby set aside and the judgment and decree dated 28.06.1986 passed by the Munsif, Kaliganj, Jhenidah in Title Suit No. 138 of 1985 is hereby restored.

The  interim  order  of  status-quo  passed  at  the  time  of issuance of the Rule is hereby recalled.

No order as to cost.

Send down the lower Courts’ record. Communicate the judgment and order at once.

Obaidul Hasan/B.O.