দায়বর্জন বিবৃতি (DISCLAIMER)

এই ওয়েবসাইটে প্রকাশিত রায় বা আদেশ আপনি google translation এর মাধ্যমে বাংলায় দেখতে পাচ্ছেন তা সুপ্রীম কোর্ট কর্তৃক বাংলায় অনূদিত নয়। জনসাধারণের বিচার-প্রক্রিয়ায় সহজ অভিগম্যতা নিশ্চিতকরণের অভিপ্রায়ে বাংলায় অনূদিত রায়-আদেশ দেখার ব্যবস্থা রাখা হয়েছে। অনূদিত রায় বা আদেশের অনুলিপি সইমোহরী/জাবেদা নকলের (certified copy) বিকল্প হিসেবে অথবা অন্য কোন উদ্দেশ্যে ব্যবহার করা যাবে না। রায় ও আদেশ বাস্তবায়নের ক্ষেত্রে মামলার নথিতে বিধৃত মূল রায় বা আদেশ প্রণিধানযোগ্য।

1

Present:

    MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO.3595 OF 2013.

IN THE MATTER OF:

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

- AND -

IN THE MATTER OF:

Krishna Prashad Dhar and others

        ..... Defendant-Appellant-Petitioners

      -Versus-

Naresh Chandra Chakraborty

…… Defendant-Opposite parties.

Mr. Md. Ekramul Islam, Advocate

          ….. For the petitioners.

Mr. Md. Zakir Hossain, Advocate

            …. For the opposite party.

Heard on: 06.03.2024 and Judgment on: 24.04.2024.

On an application of the petitioner  Krishna Prashad Dhar and others under section 115 (1) of the Code of Civil Procedure, 1908, the Rule was issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and decree dated 15.09.2013 (decree signed on 22.09.2013) passed by the learned Additional District Judge, (in charge) Bankruptcy Court, Chattogram in Other Appeal No.518 of 2005 disallowing the appeal and hereby affirming the judgment and decree dated 05.09.2005, (decree signed on 11.09.2015), passed by the Assistant Judge Court, Boalkhali, Chattogram in Title Suit No.17 of 2002 decreeing the suit should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Facts  necessary  for  disposal  of  the  Rule,  in  short,  is  that  the opposite party No.1 as  plaintiff instituted Other Class Suit No.17 of 2002 in the Court of Assistant Judge, Boalkhali, Chattogram against the defendants for declaration of title and confirmation of possession and further  seeking  prayer  for  declaration  that  the  P.S  and  B.S  record, prepared in the name of the predecessor of the defendants, are illegal, wrong and incorrect and contending  inter-alia,  that the suit land as mentioned in the plaint originally belonged to Rakhal Chandra that at the time of R.S. operation, the suit land has been recorded in the name of Rakhal Chandra in R.S. khatian and the column for remarks contained in the said khatian has recorded in the name of Rakhal Chandra as tenant of that land of which recently the plaintiffs came to know from the  defendants  Nos.1,  2  and  4  that  at  the  time  of  P.S.  and  B.S. operation,  the  suit  land,  instead  of  being  recorded  in  the  name  of Rakhal,  was  wrongly  recorded  in  the  names  of  predecessor  of  the defendants  Nos.1-7.  Rakhal  Chandra  died,  leaving  his  only  son,  the plaintiff, with his property that the plaintiff claimed to have acquired interest in the suit land and asserts that he is in the possession of this entire land; that the plaintiffs empathically stated that the record of the suit land in favour of the predecessor of the defendant no.7 is false and wrong and hence the plaintiffs filed the suit.

The suit was contested by the defendant Nos.1, 2 and 4 by filing joint written statement denying all the material assertions made in the plaint, contending, inter-alia, that the suit land originally belonged to Rakhal Chandra, who sold the suit land to one Kali Kumar by a kabala deed dated 17.12.1936 and thereafter Kali Kumar sold the suit land to Jogesh Chardra Chowdhury, the predecessor of defendant Nos.5-7 by kabala deed dated 02.12.1954 and accordingly P.S. record was correctly recorded in his name and thereafter Jogesh Chardra Chowdhury sold the suit land to Jhunu Ram Sarder and Sona Ram Sarder by kabala being Nos.6277 and 6178 deed dated 13.10.1969 and Jhunu Ram and Sona Ram Sarder sons of Kali Kumar Sarder, while in possession, sold the suit land to Moti Bala Dhar by kabala deed being No.1363 dated 29.4.1974 the predecessor of defendant Nos.1-4 and accordingly B.S. record was prepared  in  her  name  correctly;  that  the  defendants  have  been possessing  the  suit  land  peacefully  with  the  full  knowledge  of  the plaintiff more than 12 years that the plaintiff has/had no right, title and possession over the suit land and the suit is false which is liable to be dismissed with cost.

The defendant No.3 also contested the suit by filing separate written statement denying all the material assertions made in the plaint admitting the case of the defendant Nos.1, 2 and 4.

Thereafter, the trial Court framed 05 (five) issues for disposal of the suit.

At the time of trial, the plaintiff examined three witnesses as P.Ws and the defendant examined two witnesses as D.Ws and both the parties exhibited some documents to prove their respective cases.

The  trial  Court,  after  hearing  the  parties  and  considering  the evidence on record, decreed the suit by its judgment and decree dated 05.09.2005.

Against  the  said  judgment  and  decree  of  the  trial  Court  the defendants preferred Other Class Appeal No.518 of 2005 before the learned  District  Judge,  Chattogram.  The  said  appeal  was  heard  and disposed of by the learned Additional District Judge and Bankruptcy Court, Chattogram.

During the pendency of the appeal the appellants after procuring the  certified  copy  of  kabala  being  No.769  dated  22.03.1937  and registered on 22.03.1937 executed on 17.12.1936 and registered on 22.03.1937 executed by the R.S recorded owner, Sree Rakhal Chandra, in favour of Sree Kali Kumar Sarder and accordingly submitted the same with an application to exhibited the said deed of certified copy and also file an application for calling the balam book on 04.10.2009 but the Appellate  Court,  in  order  No.22  dated  04.10.2009,  passed  an  order mentioned that as the respondent did not raise any objection regarding the genuineness of the certified copy and accordingly took view that no requirements of calling for the balam book.

Thereafter,  the  Appellate  Court  after  hearing  the  parties  and considering the evidence on record dismissing the appeal and thereby affirming the judgment and decree of the trial Court by its judgment and decree dated 15.09.2013.

 Being aggrieved by and dissatisfied with the impugned judgment and decree of the  Courts  below the  defendant-appellant-petitioners filed this revisional application under Section 115(1) of the Code of Civil Procedure, 1908 and obtained the Rule.

Mr. Md. Zakir Hossain, the learned Advocate entered appear on behalf of the plaintiff-opposite parties through vokalatanama to oppose the Rule.

Mr.  Md.  Ekramul  Islam,  the  learned  Advocate  appearing  on behalf  of  the  defendant  petitioners  submit  that  both  the  Court committed serious error in law resulting in an error in the decision occasioning  failure  of  justice  in  not  considering  the  facts  that  the predecessor of the plaintiffs, the original R.S recorded owner Rakhal Chandra Chakraborti, sold the schedule land in favour of one Sree Kali Kumar  Sarder.  He  further  submits  that  though  the  defendant  side stated the said facts in their written statement but did not exhibit any documents and accordingly the trial Court decreed the suit but in the appellate stage that defendant-appellants submitted the said certified copy of the said deed with an application to exhibit the same and made a prayer for calling the balam book to prove the genuinity of the deed

and  though  the  plaintiff  side  did  not  raise  any  objection  about  the same, thus the Appellate Court, by its order No.22 dated 04.10.2009, passed  an  order  that  no  requirements  to  call  for  the  balam  book, whereas  the  Appellate  Court  without  considering  the  said  facts erroneously passed the impugned judgment, taking the view that the defendant-appellants did not take any step to prove the certified copy of the said deed by calling the balam book which is clearly reflecting a failure to consider the evidence on record and also did not apply its judicial mind as such the finding of the Appellate Court is error in law resulting in an error in the decision occasioning failure of justice. He further submits that the Appellate Court shifted the burden of proof to the  defendant  whereas  it  is  the  settled  principle  that  the  plaintiff should  prove  his  case  by  adducing  sufficient  evidence.  He  further submits that the said property was transferred and the predecessor of the  defendant  exhibited  the  original  deeds  of  the  transfer  but  the Appellate Court also did not consider the same and erroneously passed the impugned judgment. He further submits that the defendant also exhibited the series of rent receipts but the Appellate Court took view that in the said rent receipts it appears that the rent was paid in favour of the original R.S recorded owner which is also erroneous decision of the Court. He further submits that, regarding the possession, both the Courts took view that P.W-2 and 3 corroborated the case of the plaintiff that the plaintiff is in possession of the suit land whereas in the plaint

as  well  as  in  the  deposition  of  P.W-2  the  said  facts  has  not  been disclosed  that  they  possesses  the  suit  land  through  their  borgader      P.W-2 and 3 which is beyond the pleadings, whereas both the Courts

did not consider the said vital facts and wrongly evaluated the evidence

of the witnesses thus the impugned judgment of the Courts below is erroneous one and the same is committed error in law resulting in an

error in the decision occasioning failure of justice. He prayed for making

the Rule absolute.                                                                                                                  

On the contrary, Mr. Md. Zakir Hossain, the learned Advocate, appearing on behalf of the plaintiff-opposite parties, submits that this is

a case of affirmation of the judgment and both the Courts, after proper consideration of the evidence on record, found the right and title of the

plaintiff over the suit land. He further submits that both the Courts

below after making proper discussions of the provisions of law that the

alleged deed in the Year of 1936 was not proved by the examination of

the balam book and rightly found that the secondary evidence should

not be considered in case of establishing the title. He further submits

that  the  Court  also  consider  the  provision  of  Section  28  of  the Registration Act, 1908  that the suit property under the sub-registry

office of Boalkhali whereas the deed was registered in the Potia sub-

registry office without any satisfactory explanation and as per provision

of Section 28, the said deed should not be considered as genuine and

the Court, after making an elaborate discussion, following a thorough

examination  of  the  provisions  of  law  and  the  decision  of  our  Apex Court, rightly took a view that the genuinity of the said deed was not proved by the defendants by adducing sufficient evidence and rightly passed the impugned judgment. He prayed for discharging the Rule. 

I have heard the learned Advocate of both the sides, perused the impugned  judgment  of  the  Courts  below  and  the  papers  and documents as available on the record.

It appears that the plaintiff filed this suit for declaration of title and confirmation of possession of the suit land and further prayed for a declaration that the subsequent record of rights that is P.S and B.S was illegally or wrongly prepared in the name of the defendant, claiming that the suit land originally belonged to their predecessor, Sree Rakhal Chandra,  and  the  R.S  record  in  the  area  of  Chattogram  was  rightly prepared in his name and the said property has not been transferred but the record was prepared in the names of the defendants without any supporting documentation.

But the defendant claimed that the said R.S recorded owner, Sree Rakhal Chandra, transferred the said property through registered deed No.769  dated  22.07.1936  in  favour  of  Sree  Kali  kumar  Sardar  and subsequently the said suit land was also transferred by registered deed No.6314 dated 02.12.1954 in favour  of  Jogesh Chandra  Chowdhury. Their  further  case  is  that  subsequently  the  said  Jogesh  Chandra Chowdhury also transferred the suit land in favour of Jodunam Sardar

wife of Sona Ram Sardar by two separate deeds dated 13.10.1969 and

the predecessor of the plaintiff also purchased the said land from them

through registered deed and accordingly the P.S and B.S were prepared

rightly  in  their  name.  To  prove  the  said  case  the  defendant  side

exhibited  the  certified  copy  of  the  deed  being  No.6314  dated

02.12.1954 as Exhibits-C and the original deeds and all the subsequent

original  deeds  exhibited  as  Exhibit-d,  e  and  f  and  claims  that  their predecessor subsequently purchased the said suit land and regularly

paying the rents to the Government and in support of the same also

submitted the rent receipts.

It appears at the Appellate stage that the defendant-appellant

filed  an  application with  a  certified copy of the deed being No.769

executed on 17.12.1936 and registered on 22.03.1937, for exhibiting

the same along with an application for calling the balam book to prove

the said secondary evidence regarding the transfer of the suit land by

the  R.S  recorded  owner,  Sree  Rakhal  Chandra.  It  appears  that  the

Appellate Court, by its order No.22 dated 04.10.2009, passed an order

that no requirements of calling for the balam book since the plaintiff

side did not raise any objection about the genuineness of the certified

copy of the deed and the same is as follow:

ö¢em¡j z e¢b ®c¢Mm¡j z Bf£mL¡l£l frNa 22 -03-1937 a¡¢l M ®l¢S¢øÊL«a 7699 c¢m ml HL¢V S¡ hc¡ eLm L fËj¡ el hÉhq¡ ll ü¡ bÑ ü¡r£ i¢muj h¢q ah ml fË¡bÑe¡ L le z Eiu f­rl hš²hÉ f¡Ju¡ k¡u ®k

Eš² S¡­hce¡ eLm¢Vl kb¡bÑa¡ pÇf­LÑ ®lpf­ä¾V f­r ®L¡e Bf¢š haÑj¡e e¡C z ®pC ®r­œ S¡­hc¡ eLm¢V fËj¡­e hÉhq¡ ll SeÉ pw¢nÔø i¢muj h¢q

am h BCeNa ®L¡e fË u¡Se e¡ b¡L¡ ®qa¥ Bf£mL¡l£l f r i¢muj am hl clM¡Ø¹¢V ¢h hQe¡ Ll¡ ®Nm e¡ z  

The learned Advocate Mr. Md. Ekramul Islam, submits that as the

plaintiff respondents have acknowledged the transfer deed, in such a

case there is no question of genuinity of the said deed, whereas the

Appellate Court without applying its judicial mind and the earlier order

though exhibited the certified copy as exhibit No.N but took view that

the defendant-appellant did not take any step to prove the same by

recalling the balam book which is a clear error in law resulting in an

error in the decision occasioning failure of justice.

Mr. Md. Zakir Hossain submits that the order above does not say

that  the  plaintiff  respondent  side  admitted  the  execution  by  the

aforesaid order, of the deed; rather, it merely indicates their lack of

objection to the application for recalling the balam book.

In the instant case, on considering the Exhibit-N, it is found that

the predecessor of the plaintiff the original R.S recorded owner, Sree

Rakhal  Chandra,  transferred  his  property  through  a  registered  deed

No.769, executed on 17.12.1936 and registered on 22.03.1937. After considering the said facts it is also found that the defendant has tried to

prove the facts that the original R.S recorded owner, the predecessor of

the plaintiff, Sree Rakhal Chandra, transferred his right, therefore, the plaintiff has lost his rights and title over the suit land.

Mr.  Md.  Ekramul  Islam  submits  that  in  addition  to  the aforementioned deed, the defendant’s side presented a certified copy of the subsequent transfer executed by the purchaser, Sree Kali Kumar, which was also exhibited. Furthermore, it is noted that he subsequently transferred  the  property  to  another  person  and  the  defendant  also exhibited the original deed dated 13.10.1969, which, being 30 Years old, does not require any formal proof.  

I have also examined the record and the Exhibit, C to F, consists of original deeds, specially the Exhibit-C and D are more than 30 Years old  documents.  But  if  the  initial  transfer  has  not  been  proved,  the defendant cannot seek relief based on subsequent claims. Later in this case, the defendant filed an application for recalling the balam book and the Court took view that there is no requirement to call the balam book since the plaintiff did not raise any objection about the genuiness of the certified copy. Whereas, in the judgment, the Appellate Court took view that the defendant-appellant did not take any step to prove the certified copy, which was secondary evidence, by calling the balam book.  After  considering  consideration  the  order  No.22  dated 04.10.2009, it is my view that the Appellate Court without applying its judicial  mind  took  such  view.  In  this  case,  the  Appellate  Court  also considered the Section 28 of the Registration Act, 1908 that the said deed was registered in the Potia Sub-registry office instead of Boalkhali sub-registry  office  and  the  Appellate  Court  also  took  view  that  the defendant failed to prove their possession over the suit land and the rent receipts, submitted by the defendant, favored the original owner of the land.

Since in the instant case, the learned Advocate Mr. Md. Ekramul Islam, submits that the defendant tried to prove the said transfer by the original R.S recorded owner and also submitted the certified copy and which was also exhibited as Exhibit-N and in such a case it is my view that since by the order No.22 dated 04.10.2009, the Appellate Court took view that the calling for balam book is not required so from the aforesaid facts and circumstances of the case it is my view that the Appellate Court, without applying its judicial mind and also without considering the earlier order, took view that the defendant did not take any step to prove the genuinity of the deed which is a purely erroneous decision  and  committed  serious  error  in  law  resulting  error  in  the decision occasioning failure of justice. But since the Appellate Court also  took  view  regarding  the  registration  of  the  deed  and  the possession, in such a case, it is my view that the case should be sent back  on  remand  to  the  Appellate  Court,  with  a  direction  to  give opportunities  to  the  parties  to  prove  their  respective  cases  and specially the defendant’s prayer to recall the balam book in order to prove  the  transfer  of  the  original  R.S  recorded  owner,  who  is  the predecessor of the plaintiff, Sree Kali Charan.

As  per  the  provision  of  Section  107  of  the  Code  of  Civil Procedure, 1908, the Appellate Court, being the final Court of facts, shall have the same powers and duties as nearly as may be the said duties are conferred and imposed by this Code on the Courts of original jurisdiction in respect of suits instituted therein. And also shall have the powers to determine a case, to remand a case, to frame issues and refer  them  for  trial,  to  take  additional  evidence  or  to  require  such evidence to be taken. 

Considered the aforesaid facts and circumstances of the case it is my view that the judgment of the Appellate Court is erroneous one and thus I find merit in the Rule.

In the result, the Rule is made absolute. The impugned judgment and decree dated 15.09.2013 (decree signed on 22.09.2013) passed by the  learned  Additional  District  Judge  (in  charge),  Bankruptcy  Court, Chattogram in Other Appeal No.518 of 2005, disallowing the appeal and hereby affirming the judgment and decree dated 05.09.2005 (decree signed on 11.09.2015) passed by the Assistant Judge Court, Boalkhali, Chattogram in Title Suit No.17 of 2002 are hereby set-aside.

The Other Class Appeal No.518 of 2005 is sent back on remand to the Appellate Court to dispose of the appeal afresh in accordance with law.

The Appellate Court is also directed to give opportunities to the parties to prove their respective cases and also consider the application for recalling the balam book.

 The Appellate Court is directed to dispose of the appeal as early as possible preferably within 06 (six) months from the date of receipt of this  judgment  considering  the  observations  as  made  above  and  in accordance with law. 

The  order  of  status-quo  granted  earlier  by  this  Court  should continue till disposal of the appeal.

Send down the Lower Court’s Records at once.

B.O. Obayedur