IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1633 OF 2002

In the matter of:

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

And

Md. Habib Ullah

... Petitioner

-Versus-

San Ullah and others

... Opposite parties

None appears

… For both the parties.

Heard and Judgment on 25.11.2024.

On  an  application  under  Section  115(1)  of  the  Code  of  Civil Procedure this Rule was issued calling upon the opposite party No.1 to  to show cause as to why the impugned judgment and decree dated 19.11.2001  passed  by  the  learned  Additional  District  and  Sessions Judge, 1st Court, Sylhet in Title Appeal No.119 of 1997 reversing the judgment and decree dated 28.04.1997 passed by the learned Senior Assistant Judge, Balagonj, Sylhet in Title Suit No.09 of 1996 should not be set aside 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 the petitioner as plaintiff instituted above suit for a decree for perpetual injunction for 1.75 acre land alleging that that above property belonged to Ismail and others who sold 1.14 acres

to the plaintiff by registered kabala deed dated 24.10.1980. Remaining 40 decimal land belonged to Arshad Ullah, Syed Ullah, Abdul Barik and Abdul Malik who sold the same to the plaintiff by registered kabala deed  dated  24.10.1980  and  Yousuf  Ali  the  owner  of  remaining  30 decimal land sold the same to the plaintiff by a registered kabala deed dated 21.01.1981. Plaintiff is in peaceful possession in above land and in his  name  the  record  of  right  has  been  correctly  prepared.  The defendants threatened the plaintiff with dispossession from above land.

Defendant No.2 contested the suit by filing a written statement alleging that above property belonged to his grandfather Urfan Ullah and Zamir Uddin who acquired above property by inheritance. But in the settlement survey above land was erroneously recorded and the defendant purchased above land from several recorded tenants but no kabala deed was executed and registered. During the current survey defendants have got the draft khatian prepared in their names and also registered two kabala deeds dated 28.07.1996 and 01.08.1996.

At trial plaintiffs examined 7 witnesses and documents of the plaintiffs  were  marked  as  Exhibit  No.1  series  and  the  defendant examined  5  witnesses  and  his  documents  were  marked  as  Exhibit Nos.’Ka’-‘Kha’ series.

On consideration of the 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 trial Court above defendant preferred Title Appeal No.119 of 1997 to the District Judge, Sylhet which was heard by the learned Additional District Judge who allowed above appeal, set aside the judgment and decree of the trial Court and dismissed the suit.

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

No one appears on behalf of the petitioner or opposite parties when the Rule was taken up for hearing although this matter appeared in the list for hearing on several dates.

The plaintiff while giving evidence as PW1 reiterated his claims as set out in the plaint that Ismail was the owner and possessor of 1.14 acres land and Arshad Ullah and others were the owner of 40 decimal land and Yousuf Ali was owner and possessor of 32 decimal land and above owners transferred above land to the plaintiff by three registered kabala deeds dated 24.10.1980 and 02.01.1981. Above witness produced and proved above three kabala deeds which was marked as Exhibit No.1(Ka) and 1(Kha) respectively. But the plaintiffs did not mention in the plaint or in his evidence as PW1 as to the source of title of his above predecessors  namely  Ismail,  Arshad  Ullah  and  Eusuf  Ali.  Nor  any mention  has  been  made  as  to  in  which  khatian  names  of  above predecessors of the plaintiffs were recorded. Mere production of above three  registered  kabala  deeds  without  establishing  the  title  of  the executants of above kabala deeds does not establish the title of the recipients of above deeds .

It has been alleged in the plaint as well as in the evidence of above PW1 that the current khatian of the disputed land has been prepared in the  name  of  the  plaintiff.  But  no  such  khatian  was  produced  and proved at trial and marked as an Exhibit nor a single piece of rent receipt was produced at trial showing that the plaintiffs are paying rent to the Government for above land.

It  is  well  settled  that  in  order  to  get  a  decree  for  perpetual injunction the plaintiff is required not only to prove his possession but he must prove that above possession is referable to a lawful claim of title. The plaintiff has miserably failed to prove his prima facie title in the disputed land by way of purchase by Exhibit No.1 series.

As far as the oral evidence of 7 witnesses are concerned on a detailed analysis of above oral evidence the learned Judge of the Court of  Appeal  below  held  that  above  evidence  suffers  from  material contradictions and not reliance could be placed on above evidence.

On the other hand besides producing and proving their kabala deed of 1965 and examining 5 witnesses in support of their possession in above land the defendant has produced and proved the draft khatian No.1580 (Exhibit No.X) which shows that 2.3 acre land of the disputed jama was recorded primarily in the name of the defendant. It is true that since above khatian was not finally published no reliance can be placed on the same but above draft khatian falsifies the claim of the plaintiff that current khatian was prepared in his name.

In above view of the materials on record I hold that the learned Judge  of  the  Court  of  Appeal  below  on  correct  appreciation  of  the materials on record rightly allowed the appeal and set aside the flawed judgment and decree of the trial Court and dismissed the suit which suffers from no illegally or infirmity justifying any interference of this Court. 

I  find  no  substance  in  this  civil  revisional  application  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.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER