District: Magura

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

   Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 3535 of 1991

In the matter of : Moniruddin Shaik and others

… Petitioners

-Versus-

Md. Shahajan Shaik and others

…Opposite-parties

Mr. Bivash Chandra Biswas, Senior Advocate

…For the petitioners

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

…For the opposite-parties

Heard on: 30.10.2024 Judgment on: 05.11.2024

Rule was issued on an application under section 115 of the Code of Civil Procedure calling upon the opposite party Nos. 1-8 to  show  cause  as  to  why  the  judgment  and  decree  dated 03.07.1989 passed by the Sub-ordinate Judge, Magura in Title Appeal  No.  17  of  1988  affirming  those  of  dated  28.12.1987 passed by the Assistant Judge, Mohammadpur, Magura in Title Suit No. 778 of 1984 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 petitioners as plaintiffs filed Title Suit No. 525 of 1981 before the Court of First Munsif, Magura subsequently on transfer the suit was renumbered as Title Suit No. 778 of 1984 and was  heard  by  the  Upazila  Munsif,  Mohammadpur,  Magura, wherein  the  plaintiff  sought  for  declaration  of  title  and confirmation  of  possession  contending,  inter-alia,  that  the  suit land was originally belonged to Kazem Shaik; Kasimuddin got the property through settlement from the aforesaid Kazem Shaik and thereby  enjoying  the  property  peacefully.  Kasimuddin  died intestate  leaving  behind  a  son  Tasiruddin,  who  inherited  his paternal property. Thereafter on 23.11.1959 Tasiruddin transferred the property to Saleha Khatoon wife of plaintiff No. 1 and mother of plaintiff Nos. 2-5 through registered kabala dated 23.11.1959. Saleha Khatoon died intestate leaving behind the plaintiffs as legal heirs. Plaintiffs are in possession in the suit land. The defendants have  no  title  or  possession  into  the  suit  land.  The  defendants threatened the plaintiffs to dispossess denying their title into the land on 10.11.1981 and upon such cause of action the plaintiffs instituted the suit.

The defendant Nos. 1-8 contested the suit by filing written statement  denying  all  the  material  averments  of  the  plaint contending, inter-alia, that the suit land was originally belonged to Kazem Shaik; while Kazem Shaik was in peaceful possession and enjoyment of the suit property died intestate leaving behind only  son  Falu  Shaik  as  legal  heir.  Falu  Shaik  transferred  the property  to  Narendra  Nath  Basu  by  registered  kabala  dated 07.11.1959.  Subsequently,  the  said  Narendra  Nath  Basu transferred 25 decimals of land from the suit property to Abdul Gani and Gafur Mollah by registered kabala dated 28.11.1962. Gafur Molla died intestate leaving behind defendant Nos. 1-3 as his legal heirs and Abdul Gani Molla died intestate leaving behind defendant Nos. 4-8 as his legal heirs. Narendra nath Basu also transferred the rest 37 decimals of land to defendant No. 1 and inducted him into the possession, but due to insufficient fund the said defendant could not get the kabala registered. The plaintiffs have no right, title possession over the suit land and as such the suit is liable to be dismissed.

During hearing the plaintiffs examined 3(three) witnesses and adduced documentary evidences and exhibited kabala dated 23.11.1959 as Exhibit-‘Ka’ and ‘Khazna Dakhilas’ as Exhibit- ‘Kha-series’. On the other hand, the defendants also examined 3(three) witnesses and exhibited 2(two) kabalas dated 7.11.1959 (Exhibit-1) and kabala dated 28.11.1962 (Exhibit-2).

On conclusion of hearing learned Judge of the trial Court by his judgment and decree dated 28.12.1987 dismissed the suit, on the findings that the plaintiffs’ suit is barred by limitation, hit by section 42 of the Specific Relief Act, 1877 and the plaintiffs also failed to prove their title over the suit land.

Having  been  aggrieved  by  the  aforesaid  judgment  and decree dated 28.12.1987, the plaintiffs preferred Title Appeal No. 17 of 1998 before the District Judge, Magura, which on transfer ultimately heard by the Sub-ordinate Judge, Magura and learned Sub-ordinate Judge by his judgment and decree dated 03.07.1989 dismissed the appeal affirming those of the trial Court.

On being aggrieved by and dissatisfied with the aforesaid judgment dated 03.07.1989 of the Sub-ordinate Judge, Magura, the  plaintiffs-petitioners  filed  this  revisional  application  and obtained the Rule.

Mr.  Bivash  Chandra  Biswas,  learned  Senior  Advocate appearing  for  the  petitioners  submits  that  the  Court  of  appeal below failed to discuss all the evidences on record and thereby arrived at any independent findings as per Order XLI, rule 31 of the Code of Civil Procedure. He next submits that the Exhibit- ‘Kha  series’  proved  the  chain  of  title  of  the  plaintiffs,  the defendants  even  did  not  challenge  the  dakhilas  as  forged  and created, thus, the dakhilas stand. He further submits that if it is proved that the title of the property was transferred to Tasiruddin from Kazem Shaik through settlement, thus the predecessor of the defendants, named Falu Shaik would be title less person and in that  case  Exhibit-‘1’  and  ‘2’,  the  deeds  dated  07.11.1959  and 28.11.1962 would be baseless and conferred no title upon the defendants. He continues to submit that if the settlement is not proved then the defendants could have a case.

He  again  submits  that  the  plaintiffs-appellants  on 10.04.1989 filed an application sought for sending back the suit on remand to the trial Court contending, inter-alia, that the plaintiffs with due diligence could not produce the registered kabuliyats, the basic documents of settlement, dated 12.06.1925 and 11.01.1927. On 31.01.1988 and 22.02.1988, they could manage to obtain the certified  copies  of  those  kabuliyats  and  now  through  the application they were filing those documents and thereby prayed for sending back the case on remand. The Court of appeal below failed to deal with the said application in accordance with law and thereafter, before this Court the plaintiffs-petitioners by way of supplementary  affidavit  submitted  certified  copies  of  those kabuliyats. In such facts and circumstances he sought for sending back  the  case  on  remand  for  ends  of  justice  to  enable  the petitioners to establish their title over the suit land.

On  the  other  hand,  Mr.  A.H.M  Obaidul  Kabir,  learned Advocate appearing for the opposite-party Nos. 1-8 submits that both  the  Courts  below  concurrently  found  that  the  plaintiffs miserably failed to prove their title and exclusive possession over the suit land. The concurrent findings of fact arrived at by the Courts below upon proper appreciation of the evidences on record is immune from interference in revision. He next submits that the

plaintiffs failed to prove exclusive possession over the suit land and  thus,  the  suit  for  declaration  of  title  and  confirmation  of possession is hit by section 42 of the Specific Relief Act, 1877. He further submits that the dakhilas or related documents, the basic title  documents  of  the  plaintiffs  having  not  been  proved  in accordance with law. He also submits that the application filed by the  plaintiffs-appellants-petitioners  before  the  appellate  Court below on 10.04.1989 was not pressed before the Court concerned, even at the argument stage or any time before pronouncement of judgment and accordingly, the appellate Court below has come to a positive finding that the appellants are not entitled to get any remedy through the aforesaid application and now, the plaintiffs- petitioners cannot be allowed to agitate the same prayer before the revisional Court, because they are barred by Estoppel. He further submits that the order of remand cannot be allowed as a matter of course to fill up the lacuna of plaintiffs’ case, thus, the prayer for remand to fill up the lacuna cannot not be allowed legally at this revisional stage. In support of his submission, he referred the case of Abdus Sobhan Vs. Anwar Rahim and others reported in 53 DLR(AD) 110, the case of Md. Abdus Satter and others Vs. Lalon Mazar Sharif and Seba Sadan Committee and others reported in 24 BLD(AD) 125, the case of A.K.M Abu Sayed Chowdhury Vs. A.K.M Abdul Wahed Chowdhury and others reported in 64 DLR 298.

Heard learned Advocate of both the parties, perused the revisional application, the supplementary affidavit filed on behalf of the petitioners, having gone through the cited judgments and lower Courts’ record.

It appears that the plaintiffs filed a suit for declaration of title  and  confirmation  of  possession,  contending  that  their predecessor-in-interest, named Kasiruddin took settlement of 62 decimals of land from one Kazem Shaik. It is evident from the record that the plaintiffs could not prove the aforesaid settlement, through  the  basic  document  of  their  title  by  adducing  any evidence, oral or documentary before both the Courts below. As a result,  the  suit  was  dismissed,  against  which  they  took  Title Appeal No. 17 of 1988, ultimately which was heard by the Sub- ordinate  Judge,  Magura.  During  pendency  of  the  appeal  on 10.04.1989, they filed an application before the appellate Court below sought for sending back the case on remand to the trial Court. Thereafter, on the occasion of 28.05.1989 the plaintiffs- appellants took adjournment by filing an application. Thereafter, on 28.06.1989 the appellants placed their argument at length, but surprisingly they did not press the application dated 10.04.1989. Thereafter, on 03.07.1989, the appellate Court below delivered it’s judgment  and  rejected  the  said  application  stating  that  the plaintiffs-appellants  did  not  press  the  application  for  unknown

reason and as such, the application for sending back the case on remand cannot be considered.

More  so,  it is  the  specific  findings  of  learned  Assistant Judge that the plaintiffs failed to prove their possession over the suit land and the defendants are in possession into the suit land and as such, without having any prayer of consequential remedy under the proviso to section 42 of the Specific Relief Act, 1877 praying for recovery of possession, the suit for declaration of title and confirmation of possession is not maintainable and hit by section 42 of the Specific Relief Act, 1877. The appellate Court below concurred with the aforesaid findings to the effect that the defendants are also in possession in the suit property.

The proviso to the section 42 of the Specific Relief Act, 1877  contemplated  that  the  plaintiffs  are  to sue  for  all  reliefs which can possibly be granted, but where the consequential relief is found necessary, but has not been asked for; omission to sought for the said consequential relief makes the suit not maintainable.

 In  the  present  case,  the  plaintiffs  are  found  out  of possession of the suit land and at the same time, the defendants are found to be in possession over the said land. In such facts and circumstance, without having prayer of recovery of possession, the suit for mere declaration and confirmation of possession is not maintainable and in such situation, remanding back the case to the Court of original jurisdiction is amount to allow the plaintiffs to fill up their lacuna.

Moreover,  in  no  point  of  time,  the  plaintiffs  filed  an application sought for adducing additional evidences under the relevant provisions of the Code of Civil Procedure, rather opted to file an application before the appellate Court below on 10.04.1989 sought for sending back the case on remand, but thereafter, they did not pursue or place the said application and accordingly, at time of pronouncement of judgment the appellate Court below came  to  the  specific  finding  that  the  application  cannot  be entertained and rejected as not pressed.

Through  supplementary  affidavit  dated  31.03.1990  the plaintiffs-petitioners  submitted  certified  copies  of  2(two) kabuliyats.  And  now  prayed  for  remanding  back  the  case  on remand again without having any explanation what so ever for not placing or pursuing the application dated 10.04.1989. And in view of above, the plaintiffs-petitioners are not allowed to submit the identical  application  again  with  identical  prayer,  which  was rejected earlier by the appellate Court below for the allegation of not pressed.

In the premise above, I do not find any reason to interfere into the concurrent findings of fact of both Courts below as to the title and regarding possession of the suit land. Moreover, the suit is not maintainable, hit by section 42 of the Specific Relief Act, 1877.

In view of above, this Court finds no reason to interfere into the judgment of the Courts below.

Accordingly, the Rule is discharged without any order as to

cost.

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

Obaidul Hasan/B.O.