IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1602 of 2002. In the matter of:

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

And

Surobala Nath

                 ...Petitioner

-Versus-

1(a)  Norattam  Deb  Nath  and others

           ...opposite parties

Mr. M. A. Jabber, Advocate

         ...For the petitioner No one appears

   ...For the opposite parties    

Heard & Judgment on 06.11.2024.  

This  Rule  was  issued  calling  upon  the opposite party No.1 to show cause as to why the judgment  and  decree  dated  03.02.2002  of  the learned  Joint  District  Judge  and  Artha  Rin Adalat, Sylhet in Title Appeal No.93 of 1996 reversing those dated 20.05.1996 of the learned Senior Assistant Judge, Balaganj, Sylhet in Title Suit No.43 of 1994 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper. 

Facts in short are that opposite parties as plaintiffs instituted above suit for declaration

of  title  in  respect  of  74  decimal  land  as described  in  the  schedule  to  the  plaint  by adverse possession and on the basis of registered deed of Nadabipatra executed by Kingkor Nath on 16.06.1981.

It was alleged that Kingkor Nath was the owner and possessor of the above land and he was living in the dwelling house situated in the disputed land. Plaintiff was the wife of the nephew of above Kingkor Nath namely Monoranjan and Kingkor Nath was issueless and plaintiff used to take care of him and above Kingkor Nath being satisfied  with  the  care  and  service  of  the plaintiff orally gifted above property to the plaintiff and in support of above oral gift executed  and  registered  a  Nadabipatra  on 16.06.1981.

About 10-12 years before execution of above Nadabipatra plaintiff was in possession in above property on the basis of above oral gift and she is continuing above possession as the owner of above property to the knowledge of all concerned and  recorded  above  property  in  her  name notwithstanding the objection of the defendant and  thereby  she  acquired  title  by  adverse possession. 

Defendant No.1 contested the suit by filing a written statement alleging that Kingkor Nath was the owner and possessor of the disputed land and he died leaving Monoranjan.

The  husband  of  the  plaintiff  and  the defendant No.1 as his nephews and heirs who accordingly  inherited  above  property  and possessing  the  same.  Kingkor  Nath  never transferred above property to the plaintiff by oral gift nor he executed and registered any Nadabipatra  in  favour  of  the  plaintiff.  The alleged  Nadabipatra  of  the  plaintiff  dated 16.06.1981 is a forged and collusive document which was never acted upon.

At trial plaintiff examined five witnesses and  documents  produced  and  proved  by  the plaintiff were marked as Exhibit No.1-6 series. Defendant  examined  three  witnesses  and  the documents of the defendant were marked as Exhibit No.Ka-Gha.    

On consideration of facts and circumstances of the case and evidence on record the learned Senior Assistant Judge decreed the suit.

Being aggrieved by above judgment and decree of the learned Senior Assistant Judge defendant preferred Title Appeal No.93 of 1996 to the District Judge, Sylhet which was heard by the learned Joint District Judge who allowed the appeal and set aside the judgment and decree of the trial court and decreed the suit.

Being  aggrieved  by  above  judgment  and decree  of  the  court  of  appeal  below  above respondent as petitioner moved to this court with this petition and obtained this rule.

Mr. M. A. Jabber learned Advocate for the petitioner submits that undisputedly Kingkor Nath was the owner and possessor of the disputed land which includes his dwelling house. Above Kingkor was issueless and the plaintiff who was the wife of his nephew Monoranjan used to take care of above Kingkor Nath and being satisfied with her care and service above Kingkor transferred the disputed property to the plaintiff by oral gift and in support of above oral gift executed and registered a deed of Nadabipatra on 16.06.1981 (Exhibit No.3).

The plaintiff is in possession in the above land from long before the execution of above Nadabipatra and thereby acquired good title by adverse possession and relevant record of above land has been prepared in her name and she is paying  rent  to  the  government.  On  correct appreciation on facts and circumstances of the case and evidence on record the learned Judge of the trial court has righty decreed the suit but the learned Judge of the court of appeal below without reversing any material findings of the trial court most illegally allowed the appeal and dismissed the suit which is not tenable in law.

No one appears on behalf of the opposite party at the time of hearing of this revision although the matter appeared in the list for hearing on several dates.  

I have considered the submissions of the learned Advocate for the petitioner and carefully examined all materials on record.

It is admitted that disputed property which includes a dwelling house belonged to Kingkor Nath who died issueless leaving defendant No.1 and  the  husband  of  the  plaintiff,  namely, Monoranjan as his heirs.

Plaintiff is the wife of nephew of above Kingkor Nath namely Monoranjan. Plaintiff claims title on the basis of oral gift by Kingkor Nath. It is well settled that the Hindu Dayavaga law does not recognize transfer of property by oral gift. It has been alleged by the learned Advocate for the petitioner that in order to avoid above legal hurdle above Kingkor Nath executed and registered a Nadabipatra to substantiate above oral gift.

A gift oral or written comprises a formal offer by the donor and acceptance by the donnee which must be fllowed by delivery of possession. In the plaint or in her evidence as P.W.1 the plaintiff did not mention where and on what date and in presence of which persons Kingkor Nath made above gift and when the possession of the disputed  property  was  delivered.  In  fact  no evidence oral and documentary has been produced to substantiate the claim of gift by Kingkor Nath to the plaintiff.

The plaintiff while giving evidence as P.W.1 has produced and proved a certified copy of a Nadabipatra allegedly executed by Kingkor Nath on 16.06.1981 which was marked as Exhibit No.3. It turns out from above document that there are two recipients of above document and the name of the plaintiff  stands  at  serial  No.2.  The  first recipient  is  the  brother  of  the  plaintiff Jotindra Nath. In the recital of above deed there is no mention of oral gift of the disputed property by Kingkor Nath. It is well settled that a deed of Nadabipatra is not a deed of transfer of title in land and such a document does not create title in the land.

The learned Judge of the court of appeal below rightly pointed out that the plaintiff did not provide any explanation as to non production of the original Nadabipatra. The learned Advocate for the petitioner submits that the original Nadabipattra was in the custody of the brother of the plaintiff but there is no explanation as to why above Jotindra Nath did not give evidence in this suit.

The claim of title by adverse possession is the wildest method of acquisition of title in the immovable property which requires strict proves to get endorsement of law.

In order to substantiate such a claim the plaintiff must mention in the plaint the date of his entry into the possession of the disputed property  and  the  date  when  above  possession became adverse against the true owner and to further prove that before institution of this suit above adverse possess  ion  has  been matured into title my lapse of time.

But neither in the plaint nor in her evidence as P.W.1 the plaintiff has mentioned the date of her entry into the possession of the disputed land or when above possession became adverse against  Kingkor  Nath  and  how  above  adverse possession matured into title.

In above view of the facts and circumstances of the case and materials on record I hold that the learned Judge of the court of appeal below has rightly held that the plaintiff could not prove her claim of lawful title in the disputed land by legal evidence and accordingly allowed the appeal, set aside the flawed judgment and decree of the trial court and dismissed the suit which calls for on interference.     

I am unable to find any substance in this petition under section 115(1) of the Code of Civil Procedure and the rule issued in this connection is liable to be discharged.

In the result, the Rule is discharged without any order as to costs.     

Let the lower Court’s record along with a copy of this judgment be transmitted down to the Court concerned at once.

Md.Kamrul Islam

Assistant Bench Officer