IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
First Appeal No. 167 of 2003
In the matter of:
Nazim Uddin Miah and another
… Appellants
-Versus- Amzed Hossain Miah
…Respondent Mr. Mohammad Kamrul Hasan, Advocate
…For the appellants Mr. Md. Faruk Hossein, Advocate
....For the respondent
Heard on 15.08.2024 29.08.2024 05.09.2024 and Judgment on 05.09.2024
Present:
Mr. Justice Md. Mozibur Rahman Miah
And
Mr. Justice Md. Bashir Ullah
Md. Mozibur Rahman Miah, J.
At the instance of the plaintiffs in Title Suit No. 217 of 1998, this appeal is directed against the judgment and decree dated 27.01.2003 passed by the learned Joint District Judge, 4th court, Dhaka in the said Suit dismissing the same.
The short facts leading to preferring this appeal are:
The present appellants as plaintiffs filed the aforesaid suit for declaration of tile in respect of 62 decimals of land and that of the declaration to the effect that, the registered sale deed bearing no. 26081/76 dated 01.11.1976 through which the defendant got the suit property from one, Amzad Hossain is illegal, inoperative and not binding upon the said
1
plaintiffs stating inter alia that, the suit land so have been described in schedule no. 1 originally belonged to one, Abdul Jalil Miah who had one son and 2 daughters namely, Siraj Uddn and Amena Begum and Sahela Begum Siraj Uddin Miah died before his father’s death leaving behind 2 son namely, the plaintiffs and 3 daughters, Sahera Begum and others. Subsequently, Abdul Jalil Miah by 2 separate deeds of heba dated 25.07.1972 and 26.07.1972 transferred 3.42 ‰ acres of land including the suit land in favour of the plaintiffs though the plaintiffs were minors at the time of transferring the said property when their mother took delivery of possession on their behalf of the property transferred and after they attain major they started possessing the suit property. Subsequently, the plaintiffs mutated their name for some of the purchased land property and kept on paying rent thereof. In the month of May, 1998 when land survey was started in the area, the defendant, Amzad Hossain disclosed that, he got the suit property in the year 1976 vide registered sale deed and claimed the suit property mentioned in schedule no. 1. Subsequently, after obtaining certified copy of the sale deed dated 29.05.1972, the plaintiffs came to learn about the alleged transfer and filed the suit.
On the contrary, the present respondent no. 1, Amzad Hossain Miah as defendant no. 1 contested the suit by filing a written statement denying all the material averment so made in the plaint contending inter alia that, while Abdul Jalil Miah had been enjoying title and possession over the suit property, he offered to sale the same and a deed of sale was then executed on 29.05.1972 at a consideration of taka 1,000/- and on that very date of executing the sale deed, Abdul Jalil Mia, that is the maternal grandfather of the defendant handed over possession of the suit land in his favour. But afterward, as the said vendor, Abdul Jalil Miah was attacked with different ailments he could not go to registry office register the sale deed and after recovery since he declined to register the sale deed, and as 4 months already elapsed since the date of execution, then the recipient, Amzad Hossain on 21.09.1972 prayed to the District register to register the sale deed and after completion of all the formalities, as provided in section 74 of the Registration Act, gat a sale deed registered by Abdul Jalil on 01.11.1976. Afterwards, as said Abdul Jalil threatened to dispossess the defendant no. 1 from the suit land, he then filed a suit being Title Suit No. 670 of 1978 for permanent injunction where the present appellant no. 1 was made as defendant no. 2 in the said suit. It has further been stated in the written statement that, after purchasing the suit property the defendant got his name mutated in the khatian and paid rent of the suit property and since the plaintiffs have got no title and possession over the same the suit is then liable to be dismissed.
In order to dispose of the suit, the learned judge of the trial court framed as many as 5 different issues and the plaintiffs produced several documents which were marked as exhibit nos. 1-8 while the defendant no. 1 produced documents which were marked as exhibit nos. ‘ka-gha’. Apart from that, the plaintiffs also adduced 5 witnesses as PW 1 to PW 5. While the defendant adduced 4 witnesses as DW 1 to DW 4. However, the learned judge of the trial court after conclusion of trial and taking into consideration of the materials and evidence and record vide impugned judgment and decree dismissed the suit.
It is at that stage, the plaintiffs of the suit as appellants preferred this
appeal.
Mr. Mohammad Kamrul Hasan, the learned counsel appearing for the appellants upon taking us to the memo of appeal and all the document appeared in the paper book at the very outset submits that, since the defendant no. 1 has failed to prove his title and possession in the suit property and the alleged deed of sale dated 29.05.1972 has not been properly registered under the provision of section 74 of the Registration Act yet the learned judge of the trial court has not taken into consideration of that very legal point rather very illegally dismissed the suit.
The learned counsel further contends that, under section 103 of the Evidence Act burden of proof also lies upon the defendant to prove his case though it has not been proved by the defendant that, after refusal to register the sale deed by his maternal grand-father, Abdul Jalil in his favour he by exhausting the provision provided in section 73 of the Registration Act got the suit land registered from the District Register and that very legal requirement has not been taken in to consideration by the learned judge while dismissing the suit.
The learned counsel further contends that, though it was the burden of the plaintiffs to prove their own case without depending on the weakness of the defendants case as provided in section 101 of the Evidence Act, but fact remains, the plaintiffs have proved their case through evidence yet the learned judge of the trial court has very illegally dismissed the suit without considering the fact that, all the witnesses adduced by the plaintiffs have proved title and possession of the plaintiffs in the suit property but the learned judge of the trial court did not take into consideration of such corroborative evidence of the plaintiffs and illegally dismissed the suit.
The learned counsel also contends that, during the course of trial, the plaintiffs though failed to produce the mutation khatian in respect of the suit land but the subsequently been obtained by the plaintiffs and annexed so with the application for taking additional evidence filed before this Hon’ble court for consideration which alternatively proves that, after getting the suit property through heba deeds the plaintiffs acquired title and possession over the suit property.
The learned counsel by referring to a decision so reported in ALR (AD) 2 and upon taking us to paragraph no. 17 thereof also contends that, if a deed is alleged to be forged one in that case the person on whose favour such deed is executed will not be exonerated to submit the original deed but in the instant case, though the defendant produced certified copy of the alleged sale deed and the trial court took the same as evidence making it as exhibit ‘ka’ and even though no objection was raised by the plaintiffs at that time yet the defendant will not be exonerated from proving the whereabouts of the original one and correctness of the sale deed since the propriety of the deed has been challenged by the plaintiffs but that very point has also been ignored by the learned judge of the trial court while dismissing the suit. With those submission, the learned counsel finally prays for allowing the appeal by setting aside the impugned judgment and decree.
On the contrary, Mr. Md. Faruk Hossein, the learned counsel appearing for the defendant-respondent very robustly opposes the contention taken by the learned counsel for the appellants and submits that, it is the
plaintiffs who is duty bound to prove their own case without depending on the weakness of the defendant’s case. To supplement the said submission, the learned counsel then contends that, it is the definite case of the plaintiffs that they after obtaining the suit property took possession by mutating their name in the khatian, but the learned judge of the trial court in his judgment has clearly found that, no mutation has ever been made with regard to suit property rather the mutation has been made in regard to none-suited property and the plaintiffs paid rent on that which clearly construe that, by virtue of the alleged heba deeds dated 25.07.1972 no title of the suit land has been passed in favour of the plaintiffs-appellants. The learned counsel by referring to annexure ‘kha’ and annexure ‘ga’ produced by the defendant also submits that, annexure ‘kha’ is related to the judgment and decree passed in Title Suit No. 678 of 1974 through which this defendant opposite party got decree on 03.03.1975 in a suit filed for permanent injunction against his predecessor, Abdul Jazil Mia, who was made as defendant no. 1 and that of the plaintiff-appellant no. 1, Nazimuddin Mia as defendant no. 2 in that suit and therefore it turns out that, the plaintiffs gathered knowledge about acquiring title over the suit property by the defendant through registered sale deed dated 01.11.1976 and therefore the suit is absolutely barred by limitation and the learned judge of the trial court has rightly found so and dismissed the suit on the point of limitation.
The learned counsel also contends that, since as per the sale deed dated 29.05.1972 that was registered on 01.11.1976, the defendant mutated his name in the khatian by mutation case no. 4949/77-78 and since then he has been paying rent regularly which has been proved through exhibit ‘ga’ and ‘gha’ so it also proves that, it is not the plaintiffs rather the defendant acquired title and possession over the suit property and the learned judge has rightly dismissed the suit.
Insofar as regards to the contention taken by the learned counsel for the appellants that, thought one named Nasiruddin @ Nazu has been shown as defendant no. 2 in Title Suit No. 678 of 1974 but that very person is not the plaintiff no. 1 in the instant suit when the learned counsel for the opposite eparty contends that, the said factum could not be proved by the plaintiffs-appellants by making any specific suggestion to any of the defendants’ witness to prove the alleged assertion which alternatively proves that, it is the plaintiff no. 1 who had rightly been impleaded as defendant no. 2 in Title Suit No. 678 of 1974 and the decree passed against him is also binding upon the plaintiffs-appellants as the said decree still remain unchallenged and hence the cause of action so described in the suit does not stand vis-a-vis the plaintiffs have no possession in the suit land. With all those submissions, the learned counsel finally prays for dismissing the appeal sustaining the impugned judgment and decree.
Be that as it may, we have considered the submission so advanced by the learned counsel for the parties, perused the memo of appeal including the impugned judgment and decree and all the documents appended with the paper book. It is the core point to have advanced by the learned counsel for the appellants that, in spite of proving the deeds of heba bearing nos. 1115 and 1116 as annexed as of Annexure-‘1ka’ series in acquiring title and possession over the suit property, the learned judge of the trial court has not considered the same and the suit should have been decreed by the trial court. But on going through the said two deeds we find that, in heba deed nos. 1116, plot no. 956 and 957 measuring a total area of 10+15=25 decimals of land and in heba deed no. 1115, 42 decimals of land has been transferred out of plot no. 673. So with those 3 plots, the total quantum of suit land does not come as 62 decimals rather it comes 67 decimals of land which does not conform schedule no. 1 to the plaint so far as regards to the quantum to suit land. Furthermore, though it has been alleged in the plaint that, after getting the suit property through heba deeds, mutation has been made in favour of the plaintiffs but as has been discussed and observed earlier, the plaintiffs mutated their names not in respect of the suit land rather other land as evident from exhibit -7. Though the appellants subsequently filed an application before this court for taking into consideration of the mutation made with regard to the suit land but as the said application has not been pressed leave alone pass any order to that effect by this court so there has been no scope to entertain any submission to that effect at this stage. Further, it has found that, they (the plaintiffs) have not mutated their name in the khatian in respect of the suit land. Also, it has been alleged by the plaintiffs in the plaint that soon after getting the suit property through heba from their paternal grand father, they got into possession thereof through their mothers as they were minor at that point of time but that very facts also remains disproved by any convincing evidence though as many as 5 witnesses have been adduced in support of their case. It is a universal proposition that, possession follows title however it has been proved that, the plaintiffs have not been in possessing in the suit property as mere adducing PW 2 to PW 4 and made them saying that, the plaintiffs have been possessing the suit
property does not ipsofacto proves the possession in the suit land until and unless those witnesses can specifically mention the manner of possession of the plaintiffs in the suit land. It has been very vehemently submitted by the learned counsel for the appellants that, since the respective provision of law has not been followed in registering the sale deed dated 01.11.1976 by the defendant so that sale deed cannot stand and no title has been passed thereby in his favour but that very assertion can be entertained and adjudicated upon through proper evidence had the suit filed within the period of limitation. Last but not the least, what has been asserted by the learned counsel for the appellants with regard to burden of proof quoting the provision of section 101 and 103 of the Evidence Act is found to be irrelevant. Because it is now well settled proposition of law and fortified by several decisions by our Appellate Division that, plaintiff is to prove his/her own case up to the hilt and with thousand of defects of defendant case, the plaintiff will not get any benefit from proving his/her own case. Certainly the decision cited by the learned counsel for the appellant has got no nexus with the facts of the case when the defendant has been able to prove exhibit ‘ka’ by DW-2 and DW-4 apart from convincing evidence to prove his defense case.
Regard being had to the above facts and circumstances we are of the view that, the learned judge of the trial court committed no error of law in dismissing the suit since the plaintiffs have utterly failed to prove acquiring title and possession over the suit property.
As a result, the appeal is dismissed however without any order as to costs.
Let a copy of this judgment and decree along with the lower court records be communicated to the court concerned forthwith.
Md. Bashir Ullah, J.
I agree.
Kawsar /A.B.O