দায়বর্জন বিবৃতি (DISCLAIMER)

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Microsoft Word - F. A. No. 468 of 2010

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                                IN THE SUPREME COURT OF BANDLADESH

      HIGH COURT DIVISION

          (CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

  And

Mr. Justice Sashanka Shekhar Sarkar

First Appeal No. 468  of 2010.

Matiar  Rahman  (Salam)  Hawlader  being  died  his legal heirs 1(a) Shahan Begum and others

                                   ………Plaintiffs- Appellants.

-Versus-

Md.  Habibur Rahman (Khoka) Hawlader being died

his legal heirs 1(a) Mst. Samsun Nahar and others.                                                                           ……..Defendants- Respondents

Mr. Tapos Kumar Biswas along with

Mr. Redwanul Karim, Advocates

For the Appellants

     Mrs. Anjuman Ara Begum, Advocate

For respondents

Heard on: 28.02.2024, 29.02.2024 and 04.03.2024 Judgment on: 11.03.2024.

Sashanka Shekhar Sarkar, J:

This  appeal  is  directed  against  judgment  and  decree  dated 14.09.2010 (decree signed on 20.09.10) passed by learned Joint District Judge, 1st Court, Madaripur in Title Suit No. 17 of 2007 dismissing the suit.

The appellants as plaintiffs instituted Title Suit No. 17 of 2007 in 1st Court of Joint District Judge, Madaripur impleading the respondents as defendants praying for the following reliefs:

  1.    A decree of declaration of title against the defendant Nos. 1-3 in respect of the suit land.
  1.    A decree that the Kabala No. 4182/4186 dated 27.07.1983       and Kabala No. 4197 dated 28.07.1983 executed by Mamota Rani

in  favour  of  defendant  Nos.  1-3  in  pursuance  of  order  of Certificate  Case  No.  11MT  of  1975-76  are  forged,  fabricated, collusive, inoperative and by virtue of which the decree of Title Suit No. 140 of 1984 is illegal and inoperative.

The case of the plaintiffs in short is that Benilal Kundu Bhuiyan, Gobinda Lal Kundu Bhuiyan, Hiralal Kundu Bhuiyan, Kaloshashi Kundu, Baloram  Kundu,  Jogabondhu  Kundu,  Durgacharan  Kundu, Debendranath  Shaha,  Paresh  Lal  Shaha,  Vashani  Kundu  being  the owners of 1.99 acres of land of R.S. Khatian No. 91 and R.S. Plots No. 139,  919,  154  and  140   made   a  settlement  (pattan)  in  favour  of Azizunnessa, the mother of the plaintiffs. During her enjoyment and possession, Rent Case No. 1225 of 1956 for arrear of rents was started which, was decreed on a compromise on 24.11.1956. The landlords admitting the right, title and possession of the Mother of the plaintiffs came to the compromise in the rent case but subsequently record was wrongly prepared in the name of previous land lords instead of their mother. Though the update record was not prepared in their mother’s name  nevertheless  the  plaintiffs  did  not  face  any  obstructions  or hindrance in maintaining peaceful possession. Azizunnessa died leaving behind her husband, the plaintiffs and the defendant No. 1 as her heirs

and, each son got 2837 and each daughter got 14 134 decimals of land.

The defendant No. 1 is a brother of the plaintiffs who using the name of one Mamta Rani filed a Rent Case for depriving the plaintiffs (his other  brothers)  claiming  to  have  purchased  from  their  mother  for arrears of rents. Practically 3.19 acres of land of S.A. Khatian No. 89 and R.S. Khatian No. 91 was never auction sold and Mamota Rani never purchased the same. The story of auction purchase by Mamota Rani is false and fabricated and subsequent purchase by the defendants from Mamota  Rani  by  three  separate  deeds  are  also  false,  fabricated, collusive  and  not  binding  upon  them  and  as  such  the  plaintiffs  are entitled to get decree in respect of the suit land.

Defendant Nos. 1-3 contested the suit by filing a joint written statements  denying  all  material  averments  of  the  plaint  contending inter alia that the suit is not maintainable, bad for defect of parties, barred by limitation and the averments of the plaint itself is liable to be rejected as contrary to law. The defendants contended that the land in question belonged to Benilal Kundu Bhuiyan and others. Due to their arrear of rents, the Government of Bangladesh initiated Rent Case No. 11MT of 1975-76 against them in which, on auction, one Mamota Rani Kundu purchased on 07.09.1976 and got sale certificate and writ of delivery of possession. In the above way, Mamota Rani Kundu became the  absolute  owner  of  the  suit  land.  Thereafter  Mamota  Rani transferred 66 decimals of land to the defendant No. 2 and  3 vide kabala  No.  4182  dated  27.07.1983,  66  decimals  of  land  to  the defendant No. 1 vide kabala No. 4186 dated 27.07.1983 and lastly 66 decimals  of  land  vide  kabala  No.  4197  dated  28.07.1983  to  the defendants. In the above way, the defendant Nos. 1-3 became owners of 1.98 acres of land. They mutated their names and have paid upto date rents to the government. When one woman organization claimed the suit land to have obtained through settlement, then the defendant No. 1-3 challenging the said settlement, filed Title Suit No. 140 of 1984 and obtained decree which was affirmed in appeal. In the above way the defendants No. 1-3 being the absolute owner mutated their names and having approval a plan from Municipality constructed a building and have been living therein peacefully within the knowledge of all. So the suit is liable to be dismissed with cost.

On  the  above  contentions  of  the  pleadings  of  the  contesting parties the trial court framed the following issues:

  1. Whether the suit is maintainable in its present form?
  2. Whether the suit is bad for defect of parties ?
  3. Whether the suit is barred by limitation?
  4. Whether the plaint of the suit is liable to be rejected under Order VII rule 11 of the Code of Civil Procedure?
  5. Whether the plaintiffs have been able to prove their right, title, interest and possession in respect of the suit land?
  6. Whether the auction held in Rent Suit No. 11MP/75-76 and the  decree  of  Title  Suit  No.  140  of  1984  are  forged, fabricated, concocted and inoperative?
  7. Whether the plaintiffs are entitled to have any other reliefs as prayed for?

At  trial,  the  plaintiffs  examined  4  witnesses  and  adduced documents which were marked as Exhibits-1 -7 (Uma), Exhibit-1 is the information  slip  of  S.A.  Khatian  No.  89,  Exhibit-2  is  the Solenama decree, Exhibit-3 is the information of Solenama decree, Exhibit-4(Ka) is certified copy of R.S. Khatian No. 150, Exhibit-5, 5 (Ka), 5 (Kha) are three  deeds  being  No.  1809,  1407  and  1016,  Exhibit-6  is  a  plan approved by Municipality, Exhibit-7 to 7 (Uma) are all electricity bills in support of their claim.

On the other hand, the defendants examined three witnesses as DW-1-3  and  adduced  some  documents  to  substantiate  their  claim which have been marked as Exhibit- “Ka to Naa” Exhibit- Ka is certified copy of R.S. Khatian No. 91, Exhibit- Ka(1) to Ka (3) are certified copies

of Bata Khatian of R.S. Khatian No. 91, Exhibit- “Kha” is certified copy of S.A.  Khatian  No.  89,  Exhibit-Ga  is  certificate  of  the  Rent  Case  No. 11MT/95-96,  Exhibit-“Ga(1)”  is  boinama  and  writ  of  delivery  of possession. Exhibit-“Gha” is the order sheet of the Settlement Case No. IX-PI-71MT/83-84,  Exhibit-“Uma”  is  a  mutation  khatian  held  in  the name of Mamota Rani Kundu, Exhibit-“Cha”, “Cha(1)” and “Cha(2)” are sub kabalas executed by Mamota Rani in favour of the defendants, Exhibit- Chha, Chha(1) are the judgment and decree of Title Suit No. 140 of 1984, Exhibit- Chha (3) is the plaint of Title Suit No. 140 of 1984, Exhibit-Ja  (3)  is  the  amended  plaint  of  Title  Suit  No.  140  of  1984, Exhibit-“Ja” is a rejection order in Title Appeal No. 212 of 1987. Exhibit- “Jha” is certified copy of mutation Khatian held in the name of the defendants, Exhibit-“Ua” is mutation porcha , Exhibit- Ta - Ta(4) are rent receipts, Exhibit-“Tha”-Tha(9) are the corresponding of payments made to Municipality to have a plan for making a construction on the suit land,  Exhibit-“Da”  is  boinama  in  Certificate  Case  No.  1095  of  1958, Exhibit-“Dha(1)” is deed of delivery of possession of Rent Suit No. 1095 of 1958, Exhibit- “Na” is order sheet of the petition case , Exhibit-“Taa” is certified copy of the deed executed on 12.12.1988, Exhibit-“Thaa” is certified copy of the proceedings of section 30 of the State Acquisition and Tenancy Act, Exhibit-“Daa” is a receipt of Municipality rent, Exhibit- “Dhaa” is death certificate of Joygunnessa, Exhibit-“Naa” is an order of rejection of plan submitted by Azizur Rahman. The trial court dismissed the suit against which the plaintiffs have preferred this appeal. 

Mr. Tapos Kumar Biswas along with Mr. Redwanul Karim, the learned Advocates, appearing for the appellants, has taken us through the impugned judgment, oral and documentary evidences and submits that  the  predecessor  of  the  plaintiffs  i.e.  their  mother  Azizunnessa obtained the land in question by way of settlement from landlords. Due to their arrears of rent, Rent Case being No. 1225 of 1956 was started against their mother which was decreed on compromise on 24.11.1956. The mother of the plaintiffs being the absolute owner and possessor died leaving behind the plaintffs and the defendant No. 1. Before her death, the plaintiffs and defendant No. 1 got their proportionate share and  accordingly  they  all  are  in  peaceful  possession  by  erecting  and constructing  respective  houses  within  the  knowledge  of  all.  The defendant  No.  1  was  so  cunning  who  by  creating  some  forged documents claimed the entire land of his own and then the plaintiffs filed the suit.

 Mr. Biswas submits that the plaintiffs and defendant No.1 are full brothers and they all are in possession to their respective shares. Their mother obtained best right, title and interest by virtue of pattan and  sole  decree  which  has  been  proved  by  Exhibit  -2  and  the documents so produced by the defendants being forged, fabricated and collusive, the suit is liable to be decreed.

 Mr. Biswas further submits that the landlords executed a pattan in favour of the mother of the plaintiffs and defendant No. 1 but due to arrear of rents, a rent case was started in 1956 after abolishment of Zaminderi and since the said rent case was decreed on compromise, the mother of the plaintiffs became the absolute owner. Mr. Biswas further submits that after abolition of Zaminderi, the landlords were no more Zamider and the story of purchase from Zaminder in auction by one Mamota Rani Kundu is absurd because there is no explanations from the defendants that since 1950-1975 why the Government did not take any steps against the tenants for arrear of rent and that create a doubt regarding  the  auction  case  and  auction  purchase  by  Mamota  Rani. Mamota Rani never purchased the land in question on auction and from her, the defendants did not obtain any right, title and interest by three  sale  deeds.  Mr.  Biswas  lastly  submits  that  since  the  plaintiffs successfully  proved  their  right,  title  and  possession  while  the defendants failed, nonetheless, the trial court dismissed the suit, which requires to go on remand for further scrutiny of evidences as was not considered and appreciated by the trial court.

 Mrs. Anjuman Ara Begum, the learned Counsel appearing for the respondents submits that admittedly Beni Lal Kundu and others were the  superior  landlords  of  the  disputed  land.  S.A.  record  was  duly prepared in their names but after abolition of jamidari the Government initiated a Rent Case against them in which the decree was passed and in pursuance of decree a Certificate Case was started and one Mamota Rani  purchased  entire  3.19  acres  of  land.  Mamota  Rani  was  issued boinama  and writ of delivery of possession through which she got possession and being absolute owner mutated her name (Exhibit-Kha). Thereafter Mamota Rani by three separate deeds of kabala transferred 1.98  acre  land  to  defendant Nos.  1-3.  The  property  in  question appeared in V.P. list which was challenged in Title Suit No. 140 of 1984 and was decreed and in appeal the decree was upheld. Thereafter the defendants  mutated  their  names  and  being  absolute  owners constructed  multistoried  building  having  approval  of  plan  from Municipality  and  rest  part  of  the  land  being  possessed  by  planting valuable trees and cultivating fishes.

 Mrs. Anjuman Ara Begum further submits that the rent case was lawfully adjudicated and Mamota Rani purchasing in auction became owner and transferred to the defendants and the trial court considering


the evidences, oral and documentary, rightly and lawfully dismissed the suit in which nothing remains to be interfered with by this court.

  Mrs.  Anjuman  Ara  Begum  lastly  submits  that  the  plaintiffs totally failed to prove their right, title and possession by adducing any cogent and reliable oral and documentary evidences. The document of title i.e. the pottonnama was not produced at trial by the plaintiffs and the  information  slip  submitted  by  way  of  exhibit  in  regard  to  sole decree  has  not  been  proved  by  any  reliable  witnesses  and  after abolition  of  jamindari,  the  superior  landlords  had  no  authority  to transfer by executing pattan or any other means.

To appreciate the submissions of the learned Advocates for the parties,  we  have  meticulously  perused  the  oral  and  documentary evidences  and  have  given  our  anxious  consideration  to  their submissions. The Trial Court dismissed the suit on a clear observation and  findings  that  the  plaintiffs  have  failed  to  prove  their  claim  by adducing independent oral and cogent documentary evidences.

Now the question calls for consideration whether the plaintiffs have been able to prove their right, title and possession in the suit land by adducing sufficient oral and cogent documentary evidences.

The plaintiffs examined 4 witnesses for substantiating the plaint case, of them, the PW-1 in chief stated that the land in question was given settlement in favour of his mother which, in Rent Case No. 1225 of 1926 was compromised by a sole  in favour of their mother and thereafter they being the absolute owners by inheritance have been in possession but due to wrong preparation of record in the name of superior landlord in place of their mother, the defendants No. 1 taking that chance created some forged documents and claimed the entire property of his own. This witness in cross examination stated that no suit was filed challenging the wrong record of right. His mother died in 1998. He does not have even a single rent receipt to submit to the court.  In  cross  examination  he  stated  that  the  three  documents  he produced before the court are not concerned with the disputed land.

PW-2 is a neighbour of the parties and knows them. He in his deposition in chief stated that he purchased some lands from Habibur Rahman vide registered deed No. 1197 the mentioning the reference of bia deed No. 1497 executed by Mamota Rani Kundu to the defendants. How she obtained the property was not mentioned in sale deed. The defendant No. 1 purchased the land in question from Mamota Rani and his wife also subsequently purchased from the defendant No. 1. He admitted that Mamota Rani purchased the land in question on auction and  there  was  a  building  which  is  now  under  possession  of  the defendant  No.  1  who  possesses  more  than  one  acre  of  land.  The plaintiffs have only two houses therein.

PW-3 is a neighbour of the parties in his deposition stated that both the plaintiffs and defendants possess the suit land and in cross examination  stated  that  there  is  only  one  building  on  the  suit  land where the defendant No. 1 resides.

PW-4, one Yeasin Mollah, deposed that both the plaintiffs and defendants possess the suit land and in his cross examination stated that there is only one building in the suit property where the defendant No. 1 resides alone. The land in question previously belonged to Beni Lal Kundu but he has no idea whether it was auction sold. Sukumar Kundu  is  the  husband  of  Mamota  Rani  and  they  would  live  at  the disputed homestead.

On  the  other  hand  DW-1  Habibur  Rahman  in  his  deposition stated  that  Mamota  Rani  became  owner  by  auction  purchase  on 07.09.1976 and she was handed over possession on 30.07.1977 through writ of delivery of possession. She mutated her name and transferred 66 decimals of land to the defendant Nos. 1-3 vide kabala No. 4182 dated 27.07.1983. On the same date she also transferred 66 decimals of land to them. Again on 28.07.1983 by kabala deed No. 1497 transferred 66 decimals of land to the defendants. In this way, in total 1.98 acres of land was purchased by the defendants by three separate sale deeds and got possession. He further deposed that he being absolute owner and possessor planted trees and constructed dwelling houses etc. When a women organization illegally tried to dispossess him from the suit land claiming vested property, he challenged the same by filing a suit and obtained decree which on appeal was affirmed. Thereafter mutated his name and got plan approved by Municipality for building construction. He proved the documents submitted by way of exhibits in support of his case.

DW-2 Kalipado Kundu stated in chief that Mamota Rani Kundu purchased  the  land  in  question  on  auction  sale,  thereafter she  was given  possession  by  issuing  writ  of  delivery  of  possession  and defendants  have  a  building  on  the  land  in  question.  In  cross examination he said that Mamota Rani purchased the land on auction sale then no one except Mamota Rain resided in the house. He denied the suggestion that Azizunnessa was residing at the house and Mamota Rani did not purchase the land and the mother of the plaintiffs got potton and both the plaintiffs and defendants are jointly possessing the suit land .

DW-3 is a neighbor of the parties in his chief stated that Habibur Rahman possesses the suit land and the plaintiffs do not possess the same. In cross examination he denied the suggestion that Azizunnessan would  live  in  the  land  in  question  and  Habibur  Rahman  was  given permission to live there.

Apart from the oral evidences the plaintiffs also adduced some documentary  evidences  (Exhibit  -1-  7  (Uma)).  Basically  the  plaintiffs claimed their right, title and interest by virtue of potton alleged to had executed by superior landlords in favour of their mother and also by dint of solenama decree. Save and except these two documents i.e. Exhibit-2 and 3 they did not submit and adduce any other documents in support of their claim.

 On the other hand the defendants apart from oral evidence also adduced documentary evidences (Exhibits- “Ka-Na”). Amongst those, exhibit “Ka-ka(3)” are R.S. Khatian; exhibit “Kha” is S.A. Khatian; exhibit “Ga” is Certificate Case No. 11MT/1976-76; exhibit “Ga (1) is boinama and writ of delivery of possession; Exhibit “Gha” is mutation in the name  of  auction  purchaser;  Exhibit-“Um”,  mutation  porcha  and Exhibits-  “Cha”,  “Cha(1)”,  “Cha(2)” are  three  deeds  executed  by Mamota  Rani  in  favour  of  the  defendants;  Exhibits  “Chha”  and “Chha(1)” are the judgment and decree of Title Suit No. 140 of 1984; Exhibit-”Neo” is mutation porcha; Exhibit- “ Ta, Ta-(1), Ta-(2), Ta-(3),    T-(4) are rent receipts; Exhibit-“Ta - Ta(4)” are Municipal plan. Exhibit Tha-  Tha  (9)  are  the  plan  approval  from  Municipality  and  other necessary documents relating the same.

Having considered the submissions of the learned Advocates of both  the  parties  and  perusing  the  evidences  on  record,  oral  and documentary, the following issues being framed for adjudication;

  1.     Whether the plaintiffs have been able to prove their right, title, interest and possession in respect of the disputed land by virtue of “potton nama” and by “sole decree” passed in Rent Case No. 1225 of 1956 along with documents submitted to substantiate their claim?
  1.    Whether  the  plaintiffs  have  been  able  to  prove  that  the Certificate  Case  No.  11MT/1975-76,  though  which,  auction held and purchased by Mamota Rani Kundu and subsequent transfer  by  her  to  the  defendants  by  three  deeds  and  the decree  of  Title  Suit  No.  140  of  1984  are  false,  fabricated, collusive by adducing cogent ,reliable, oral and documentary evidences and lastly;
  2.     Whether the plaintiffs have been able to prove their case in any manner whatsoever?

All  the  above  issues  are  being  discussed  and  decided  taken

together.

It appears that the plaintiffs claim their right, title, interest and possession in the suit land by virtue of “pattan” executed by superior landlords in favour of their mother and by “sole decree” held in Rent Case No. 1225 of 1956.

On  the  other  hand,  the  defendants  in  support  of  their  claim mainly based upon the Certificate Case No. 11MT/1975-76, boinama and writ of delivery of possession, the mutation in the name of auction purchaser  Mamota  Rani  Kundu,  three  purchase  deeds  and  lastly  a decree of Title Suit No. 140 of 1984 by which the inclusion of the suit land as vested property was nullified.

 On meticulous perusal of the documentary evidences adduced by  the  plaintiffs,  we  find  that,  the  story  of  “pattan”  claimed  to  be executed by superior landlord in favour of their mother has not been proved  by  adducing  and  producing  any  oral  and  documentary evidences. The sole decree, (exhibit-2) basing upon which, the plaintiffs claim their right, title and possession is not an authentic document because the information slip in support of “sole decree” produced to substantiate the claim of sole decree  has no scope to be taken into consideration under Evidence Act.

We also find no documents as to “pattan” claimed to had executed by superior land lord and after “Pattan” no record in their names and mutation opening holding and payment receipts of rents.

It is settled principle of law that the plaintiffs have to prove their own case  by  oral  and  documentary  evidences.  The  documentary  evidence [Exhibit-“1-7(Uma)”] and oral evidence (PW-1-4) adduced and produced do not however help the plaintiffs to have decree for declaration of title in respect of the suit land. We have meticulously perused the oral evidence from which it has been revealed that the plaintiffs witnesses admitted in their testimonies that the defendants are in possession in the suit land. The PW-2 very specifically admitted in his deposition that he purchased some lands from the defendant No. 1 in the name of his wife which the defendant No.  1  had  purchased  from  Mamota  Rani  Kundu.  So  practically,  by  the evidences of the PWs it has been proved that the defendants purchased the suit land from auction purchaser Mamata Rani Kundu.

Side  by  side,  we  have  meticulously  perused  the  documentary evidences as well as oral evidences of the defendants. In the Certificate Case 11 MT/1975-76 one Mamota Rani Kundu took part and purchased the land on  auction.  The  defendants  purchased  from  her  and  subsequently  their names have been properly recorded in accordance with law. To remove the cloud created in respect of the suit land enlisting as enemy property the defendants filed suit challenging its legality and obtained decree which even was affirmed by the Court of appeal. As long as a decree of a court is not set aside by any competent court of law, the right, title and interest in respect of the suit land established by virtue such decree no way be hampered. 

The learned Advocate for the appellants prayed for fresh trial claiming them to be possessor in the suit land but we do not find any legal reasons to send back the suit for trial afresh on remand.

On considering above all facts and circumstances we are of the view that the plaintiffs have failed to prove their case by adducing and producing cogent, oral and documentary evidences. On the other hand the defendants by adducing and producing sufficient oral and documentary evidences have substantiated  their  claim  and  the  trial  court  rightly  dismissed  the  suit whereof  we  find  no  illegalities  and  infirmities  and  hence  calls  for  no interference. 

In the result, the appeal is dismissed.

However without any order as to costs.

The Civil Rule No. 58 (F) of 2011 arose out of this appeal is discharged and order of statusquo granted thereat is vacated.

Communicate the judgment and order at once.

Send down the Lower Courts Records immediately.

(Justice Sashanka Shekhar Sarkar)

I agree.

                                                       (Justice Md. Badruzzaman)