IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

And

Ms. Justice Tamanna Rahman Khalidi

FIRST APPEAL NO.294 OF 2013

Sarder Moin Uddin and others

.... Appellants

-Versus-

The People’s Republic of Bangladesh and others

.... Respondents

Mr. Sasti Sarker, Advocate with

Mr. F.M. Mizanur Rahman, Advocate

…. For the appellants.

Mr. Md. Shaif Uddin Raton, Deputy Attorney General with

Mr. Junaed Hossen Khan, Assistant Attorney General

…. For the respondent Nos.1-4.

Heard on 07.07.2026 and Judgment on 15.07.2026.

S M Kuddus Zaman, J:

This First Appeal is directed against the impugned judgment and decree dated 24.04.2013 passed by the learned Joint District Judge, 3rd Court, Khulna in Title Suit No.28 of 2004 dismissing the same.

Facts in short are that the appellants as plaintiffs instituted above suit for declaration of title for 7.97 acres land appertaining to C. S. Khatian  No.223  corresponding  to  S.  A.  Khatian  No.296  and  Deyara Khatian No.1 alleging that 8.41 acres land including above 7.97 acres

belonged to Surendra Nath Roy and Panchanan Roy in equal sharers and C. S. Khatian No.223 was rightly prepared. Above Surendra Nath Roy and Panchanan Roy transferred above land to Elem Sarder and his son Younus Sarder by two registered kabla deeds dated 03.03.1939 and 22.03.1941 and delivered possession. On the basis of above purchase Elem Sarder and Younus Sarder were in possession in above land by cultivation and in S. A. Khatian No.296 was recorded in the name of Elem Sarder and Younus Sarder but erroneously with them names of previous owners Surendra Nath Roy and Panchanan Roy were also recorded. 40 decimal land out of above 8.41 acres was lost in Kazibacha river due to erosion and did not reappear and abve Elem Sarder and Younus Sarder were in possession in 8.01 acres land and on 4 decimal land a CARE Road was constructed and plaintiffs are in possession in 7.97  acres  land  by  mutating  their  names  and  paying  rents  to  the Government. But in Deyara survey 7.61 acres land was recorded in the name of Government and remaining 36 decimals land was erroneously recorded in the name of the defendant No.13 in R. S. Khatian No.431.

Defendant No.1 contested above suit by filing a written statement alleging that disputed property belonged to Plot No.35 of C. S. Khatian No.295 which went into the riverbed of Kazbacha river and 7.61 acres land  reappeared  after  independence  of  Bangladesh  and  rightly recorded in Deyara Khatian No.1 in the name of the Government. The plaintiffs do not have any right, title, interest and possession in above 7.61 acres land.

At trial plaintiffs examined three witnesses and defendant No.1 examined one. Documents produced and proved by the plaintiffs were marked as Exhibit Nos.1 series – 16 series and those of the defendant No.1 were marked as Exhibit No.“Ka”.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record learned Joint District Judge dismissed above suit.

Being aggrieved by and dissatisfied with above judgment and decree of the trial Court above plaintiffs as appellants moved to this Court and preferred this First Appeal.

Mr. Sasti Sarker, learned Advocate for the appellants submits that admittedly  8.41  acres  land  including  disputed  7.97  acres  originally belonged to Surendra Nath Roy and Pachanan Roy and C. S. Khatian No.223 was correctly prepared. Plaintiff’s predecessor Elem Sarder and Younus Sarder purchased above 8.41 acres land from above Surendra Nath  Roy  and  Pachanan  Roy  by  two  registered  kabla  deeds  dated 03.03.1939  and  22.03.1941.  Plaintiff  No.1  Sarder  Moin  Uddin  while giving evidence as PW1 produced above two original registered kabla deeds dated 03.03.1939 and 22.03.1941 which were marked as Exhibit Nos.2 and 3 respectively. The defendants did not challenge the legality and propriety of above two ancient registered kabla deeds and on the basis of above kabla deed S. A. Khatian No.296 was rightly prepared in the names of above Elem Sarder and Younus Sarder. But erroneously the names of above Surendera Nath Roy and Pachanan Roy were also recorded in above S. A. Khatian. The learned Joint District Judge utterly failed to appreciate the legal value of above registered kabla deeds of more than 30 years old and most illegally held that above documents were ineffective and the lawful execution of the same is not believable. Plaintiffs  purchased  above  land  from  the  heirs  of  Elem  Sarder  and Younus  Sarder  by  successive  registered  kabla  deed  which  were produced at trial and marked as Exhibit Nos.4-12. The defendants did not dispute the correctness and effectiveness of above documents and on above deeds the plaintiffs got their names mutated and paying rent to the Government and produced a series of rent receipts in support of above claim. Plaintiffs admit that only 40 decimals land of C. S. Khatian No.223 went into the river and did not reappear. The plaintiffs and their predecessors  Elem  Sarder  and  Younus  Sarder  were  continuously possessing remaining disputed land. But in the plaint the plaintiffs did not separately mention 4 decimal land which was used for constructing CARE Road nor R. S. Khatian No.431 was mentioned in the plaint or schedule of the plaint. 36 decimal land of C. S. Khatian No.223 was erroneously recorded in R. S. Khatian No.431 in the name of defendant No.13 but above Khatian was not incorporated in the schedule to the plaint nor above facts were stated in the plaint clearly. The learned Judge of the trial Court pointed out that since above S. A. Khatian also

On the other hand Mr. Junaed Hossen Khan, learned Assistant Attorney General for respondent Nos.1-4 submits that on consideration of  facts  and  circumstances  of  the  case  and  materials  on  record  the learned Joint District Judge rightly dismissed above suit which calls for no interference but since the learned Judge of the trial Court held that the suit was bad for defect of parties and the learned Advocate for the appellants had admitted that 4 decimals land of CARE Road and 36 decimals land of R. S. Khatian No.431 were not properly incorporated in the schedule of the plaint the impugned judgment and decree may be set  aside  and  above  suit  may  be  remanded  for  retrial  after  giving defendant No.1 an opportunity to submit additional written statement and adduce further evidence.

We have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

It is admitted that 8.41 acres land appertaining to C. S. Khatian No.223 and Plot No.35 belonged to two brothers Surendra Nath Roy and Pachanon Roy and above C. S. Khatian was correctly prepared. It is also admitted that above 8.41 acres land was recorded in S. A. Khatian No.296 jointly in the names of Surendra Nath Roy and Panchanon Roy and plaintiffs predecessors Younus Sarder and Elem Sarder.

Plaintiff  No.1  while  giving  evidence  as  PW1  produced  two original registered kabla deeds dated 03.03.1939 and 22.03.1941 which were marked as Exhibit Nos.2 and 3. It turns out from above original registered deeds of more than 60 years old that Surendra Nath Roy and Panchanon  Roy  by  above  two  deeds  transferred  8.41acres  land  to plaintiff’s  predecessors  Elem  Sarder  and  Younus  Sarder.  The defendants did not dispute the correctness and effectiveness of above two registered old deeds. As such no formal proof was required for admission of above deeds into evidence. Admittedly on the basis of above two deeds at least partial S. A. Khatian Admittedly was recorded in  the  names  of  Elem  Sarder  and  Younus  Sarder.  Plaintiffs  have admitted that 40 decimal land of above C. S. Khatian No.223 went into the riverbed due to erosion which did not reappear  and they have excluded above land from the plaint. The defendants claimed that total 8.41  acres  land  of  C.  S.  Khatian  No.223  went  into  the  river  due  to erosion  and  reappeared  after  independence  of  Bangladesh.  The defendants  did  not  mention  the  exact  date  of  above  erosion  or reappearance nor adduced any evidence in this regard. While giving evidence as solo defendants witness Mr. Babul Akter admitted that above 8.41 acres land originally belonged to Surendra Nath Roy and Pachanon Roy and relevant S. A. Khatian has been prepared in the name of plaintiff’s predecessor Elem Sarder and Younus Sarder. The defendants did not claim that they are in possession in above land and above DW expressed his ignorance about the possession of above land. On the other hand plaintiffs have produced a bunch of rent receipts showing  payment of  above  rent  for  above  land  to  the  Government which shows plaintiff’s possession in above land.

As mentioned above S. A. Khatian No.296 was prepared jointly in the names of Surendra Nath Roy and Panchanon Roy and Elem Sarder and  Younus  Sarder.  Plaintiffs  claimed  that  above  recording  in  the names of Surendra Nath Roy and Panchanon Roy were erroneous and they had no subsisting interest in above property. But the plaintiffs were required who make above claims in presence of above Surendra Nath Roy and Panchanon Roy or their heirs by impleading them as defendants in above suit. But above Surendra Nath Roy and Pachanon Roy  or  their  heirs  were  not  made  defendants  in  above  suit  for declaration of title. It is admitted that out of 8.41 acres land only 7.61 acres  has  been  recorded  in  the  name  of  defendant  No.1  in  Deyara Khatian No.1. The learned Advocate for the appellants submits that remaining 36 decimals land has been erroneously recorded in the name of defendant No.13 in R. S. Khatian No.431 and there is CARE Road in remaining 4 decimals land. But in the schedule to the plaint there is no mention  of  R.  S.  Khatian  No.431  nor  the  plaintiffs  have  expressly excluded 4 decimals land of care road nor specified above land in the schedule  to  the  plaint.  On  consideration  of  above  facts  and circumstances of the case and materials on record we hold that above suit was bad for defect of parties and for non specification of disputed land in respect of which a decree for declaration of title was sought. But the  plaintiffs  have  succeeded  to  prove  that  their  predecessor  Elem Sarder and Younus Sarder purchased total 8.41 acres land from C. S. recorded  tenants  Surendra  Nath  Roy  and  Pachanon  Roy  by  two registered kabla deeds (Exhibit Nos.2 and 3) and on the basis of above purchase their names were partially recorded in S. A. Khatian No.296. The  learned  Joint  District  Judge  erroneously  held  that  the  plaintiffs failed  to  formally  proved  above  two  registered  kabla  deeds  dated 03.03.1939 and 22.03.1941 which were original registered deeds of more than 30 years old and whose formal proof was not required by law.

In  above  view  of the  facts and  circumstances  of  the case  and materials on record we hold that the ends of justice will be met if the impugned judgment and decree is set aside and above suit is remanded to the trial Court for retrial after giving both parties an opportunity to amend their respective pleadings and adduce further evidence if any.

In the result, this First Appeal is allowed.

The impugned judgment and decree dated 24.04.2013 passed by the learned Joint District Judge, 3rd Court, Khulna in Title Suit No.28 of 2004 is set aside and above suit is remanded to the trial Court for retrial after  giving  both  parties  an  opportunity  to  amend  their  respective pleadings and adduce further evidence if any.

However, there will be no order as to cost.

Send down the lower Court record immediately.

Tamanna Rahman Khalidi, J:

I agree.

MD. MASUDUR RAHMAN

    BENCH OFFICER