দায়বর্জন বিবৃতি (DISCLAIMER)

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IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO. 2883 OF 2006

In the matter of:

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

And

Md. Abul Hossain being dead his legal heirs: Md. Ali Mortuza and others

... Petitioners

-Versus-

Md. Robin Sarker and others

... Opposite parties

Mr. Md. Helal Uddin Mollah, Advocate

.... For the petitioners.

None appears

…. For the opposite party Nos.1 and 3-4.

Heard and Judgment on 22.08.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 15.03.2006 passed by the learned Joint District Judge, 3rd Court, Naogaon in Title Appeal No.78 of 2005 dismissing the same and thereby affirming the judgment and decree dated 30,03.2005 passed by the learned Senior Assistant Judge, 8th Court, Naogaon in Other Class Suit No.17 of 2005 dismissing the suit on contest with cost should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.


1

Facts in short are that petitioners as plaintiffs instituted Title Suit No.17  of  2005  for  a  decree  of  perpetual  injunction  against  the defendants in respect of a pond as described in the schedule to the plaint  alleging  that  above  propriety  belonged  to  Abdur  Rahman Chowdhury  who  transferred  the  same  to  plaintiff  No.1  and  Oli Mohammad by a registered kabala deed on 01.03.1973 and delivered possession. Oli mohammad died leaving behind plaintiff Nos.2-11 as his heirs and plaintiffs are in peaceful possession in above property and the same has been recorded in the name of the plaintiffs in R.S. Khatian No.74.  On  01.01.2005  the  defendants  threatened  the  plaintiffs  with dispossession from the above property.

Defendants contested the suit by filing a joint written statement alleging  that  above  disputed  pond  belonged  to  Abdur  Rahman Chowdhury  who  transferred  the  same  to  Bholovodra  Chandra  by registered kabala deed dated 04.08.1972 and delivered possession. The predecessor of defendant No.1 Abdus Samad preferred Pre-emption Case No.188 of 1975 which was allowed on 03.01.1981 and he obtained possession in above property through Court on 11.01.1981. After the demise of defendant No.1 these defendants as his heirs are in peaceful possession of above property for more than 12 years. Plaintiff No.1 and Oli  Mohammad  filed  Title  Suit  No.768  of  1981  challenging  the

judgment  and  order  passed  in  above  pre-emption  case  which  was renumbered  as  Title  Suit  No.116  of  1987  which  was  dismissed  on contest. Challenging the legality and propriety of above judgment and decree plaintiff No.1 and Oli Mohammad preferred several Appeals which was finally dismissed. At trial plaintiff examined 5 witnesses and defendants  examined  3.   Documents  produced  and  proved  by  the plaintiffs were marked as Exhibit Nos.1 and those of the defendants were marked as Exhibit Nos.Ka-Ja.

On  consideration  of  facts  and  circumstances  of  the  case  and materials on record the learned Senior Assistant Judge dismissed above suit.

Being aggrieved by and dissatisfied with above judgment and decree plaintiffs preferred Title Appeal No.78 of 2005 to the District Judge, Naogaon which was transferred to the Court of Joint District Judge who on consideration of submissions of the learned Advocates for the respective parties and evidence on record dismissed the appeal and affirmed the judgment and decree of the trial Court.

Being aggrieved by and dissatisfied with above judgment and decree of the Court of Appeal below the plaintiff as petitioners moved to this Court and obtained this Rule.

Mr. Md. Helal Uddin Mollah, learned Advocate for the petitioners submits that plaintiff No.1 and predecessor in interest of plaintiff Nos.2- 11  jointly  purchased  disputed  property  from  Abdur  Rahman Chowdhury  by  a  registered  kabala  deed  on  09.03.1973  and  got possession of the same and they are in peaceful possession of the above property till date. The defendants have claimed that Abdur Rahman Chowdhury transferred above property to one Bholivodra but above bholivoda  did  not  get  possession  of  the  property.  The  alleged  pre- emption of the defendants against the document of the Bholivodra was ineffective document and they did not get any possession in the suit property by virtue of above judgment and order of the pre-emption case. But the learned Judges of the Courts below failed to appreciate the evidence on record properly and most illegally dismissed the appeal and affirmed the judgment and decree of the trial Court which is not tenable in law.

No one appears on behalf of the opposite party Nos.1 and 3-4 at the time of hearing of this Rule. 

I have considered the submissions of the learned Advocate for the petitioners and carefully examined all materials on record including the pleadings, evidence adduced by both the parties and other materials on record.

Admittedly  the  suit  property  belonged  to  Abdur  Rahman Chowdhury.  Plaintiffs  claimed  to  have  purchased  the  same  by  a registered  kabala  deed  from  above  Abdur  Rahman  Chowdhury  on 09.03.1973.  The  defendants  claimed  that  above  Abdur  Rahman Chowdhury  transferred  above  property  to  Bholivodra  by  an  earlier registered kabala deed dated 04.08.1972. The father of defendant No.1 namely  Abdus  Samad  instituted  Pre-emption  Case  No.185  of  1975 against  above  kabala  deed  dated  11.08.1972  which  was  allowed  on 03.01.1981 and Abdus Samad got possession of above property through Court on 11.01.1981.

It was further stated in above written statement that challenging the legality and propriety of above judgment and order passed in above pre-emption case plaintiff instituted Title Suit No.768 of 1981 which was dismissed on contest on 17.02.1992 and the defendants preferred Title Appeal No.42 of 1992 against above judgment and decree but the same was dismissed for default.

In view of above statements made in the written statement by the defendants the plaintiffs should have amended the plaint and set out his case or claim against above mentioned facts and documents but the plaintiff did not make any endeavor to do so.

Both the parties have produced their respective kabala deed as mentioned  above  and  it  is  found  that  the  registered  kabala  deed executed by Abdur Rahman Chowdhury in favour of Bholivodra was earlier  at  the  point  of  time  and  that  was  a  lawful  and  effective document. Since the kobla deed of the plaintiffs was latter to above kobla deed of the defendants the plaintiffs did not acquire any lawful title or possession in the disputed of property on the basis of the same. Defendants  has  acquired,  valid  title  as  well  as  possession  of  the disputed land by the judgment and order passed in Pre-emption Case No.6 of 1980. The plaintiffs challenged the legality and propriety of above judgment and order passed in above pre-emption case by filing T. S. No.668 of 1981 which was dismissed on contest and the appeal preferred against above judgment and decree was also dismissed. The defendants have produced the certified copies of above judgment and order and decree of pre-emption Case No.06 of 1980, Title Suit No.116 of 1987 and Title Appeal No.42 of 1992 which were marked as Exhibit No.Ka, Kha, Ja and Jha respectively.

On consideration of above facts and circumstances of the case and materials on record I hold that the learned Senior Assistant Judge has rightly on detailed analysis of evidence on record dismissed the suit and the learned Joint District Judge on correct appreciation of materials on record rightly dismissed the appeal and affirmed the judgment and decree of the trial Court which calls for no interference.

I  am  unable  to  find  any  substance  in  this  application  under Section 115 (1) of the Code of Criminal Procedure and the Rule issued in this connection is liable to be discharged.

In the result, the Rule is discharged.

However, there is no order as to cost.

Send down the lower Court’s record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER