IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3277of 2002

In the matter of:

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

And

Arun Chandra Bhadra and others

.... Petitioners

-Versus-

Amar Chandra Dutta and others

.... Opposite parties

None appears

....For both the parties.

Heard and Judgment on 01.12.2024

On  an  application  under  Section  115(1)  of  the  Code  of  Civil Procedure this Rule was issued calling upon the opposite party Nos.1-3 to show cause as to why the impugned judgment and decree dated 27.05.2002 passed by the learned Joint District Judge, 1st Court, Cumilla in Title Appeal No.154 of 1999 affirming the judgment and decree dated 28.07.1999 passed by the learned Assistant Judge, Homna, Cumilla in Title Suit No.18 of 1997 should not be set aside and/or pass such other or further order or as to this Court may seem fit and proper.

Facts in short are that the petitioner as plaintiff instituted above suit for declaration of title for 31 decimal land appertaining to Plot

No.254 and 159720 of C.S. Khatian No.64 corresponding to S.A. Khatian

No.69.

It was alleged that above property belonged to Ram Chandra Mudi who died issueless living wife Muktabasi who died leaving one brother Purnachandra as his heir and above Purnachandra died leaving 5  sons  namely  Dinnath,  Pearinath,  Rajmohon,  Orshini  Mohon  and Nonimohon.  Plaintiffs  are  successive  heirs  of  above  5  sons  of Purnachandra and they are in peaceful possession in above land. But in S.A.  Khatian  No.69  the  names  of  the  defendants  were  recorded erroneously for above land and on the basis of above erroneous record defendants denied plaintiffs title.

Defendants  contested  the  case  by  filing  a  written  statement alleging  that  Muktabashi  did  not  have  any  brother  namely Purnachandra nor the plaintiffs inherited any land of Muktabashi as successive heirs. Above Muktabashi sold 19 decimal land by registered kabala  deed  dated  29.09.1915  to  Purnachandra  who  in  his  turn transferred the same to Chandi Charan Saha by registered mortgage deed  dated  02.05.2017  (Exhibit-Kha).  Above  Muktabashi  transferred

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152 decimal land to Gogon Chandra by a registered kabala deed on

17.01.2015 (Exhibit No.Ka) and above land was rightly recorded in S.A.

Khatian No.69 and defendant Nos.1-4 are in possession of above land as successors  of  Gogon  Chandra.  Plaintiffs  do  not  have  any  title  and possession in above land.

At trial plaintiffs examined 5 witnesses and documents of the plaintiffs were marked as Exhibit Nos.1, 1(Ka) and 2 and defendants examined 4 witnesses and their documents were marked as Exhibit No. Ka, Kha, Ga and Ga(1). 

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

for 1252 decimal land .

Being aggrieved by above judgment and decree of the trial Court defendants as appellants preferred Title Appeal No.154 of 1999 to the District Judge, Cumilla which was heard by the learned Joint District Judge who dismissed above appeal and affirmed the judgment and decree of the trial Court.

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

No one appears on behalf of the petitioners or the opposite parties at the time of hearing of the Rule although this matter appeared in the list for hearing on several dates.

I have carefully examined the judgments of the Courts below, evidence and other materials on record.

It  is  admitted  that  disputed  31  decimal  land  belonged  to Ransundar Mudi who died issueless leaving his wife Muktabasi as the owner and possessor of above land. It is also admitted that in a S.A. Khatian  No.69  above  land  has  been  recorded  in  the  names  of  the defendants.

Plaintiffs  claim  that  Muktabasi  died  leaving  only  brother Purnachandra who is the predecessor of the plaintiffs and the plaintiffs are  owning  and  possessing  above  land  as  successive  heir  of Purnachandra.  At  the  very  outset  the  plaintiffs  did  not  make  any endeavor to prove by legal evidence that Purnachandra was a brother and heir of Muktabasi. The defendants have produced and proved two registered documents executed by above Muktabasi. The first one is a registered kabala deed dated 29.09.1915 to Purnachandra who in his turn transferred the same to Chandicharan Saha by a registered deed of mortgage dated 02.05.1917 (Exhibit Nos.Ka and Kha respectively). The defendants also produced a registered kabala deed dated 07.01.1915 executed by above Muktabasi to the predecessor of defendant Nos.1-4

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namely Gogon Chandra Vadra for 152 decimal land. Above registered

documents  are  more  than  30  years  old  and  on  the  basis  of  above

documents  survey  khatians  were  prepared.  The  rent  receipt  of  the defendants show payment of rent to the Government for above land on the basis of above record of rights.

It may be mentioned that a mortgage is always a mortgage unless the mortgage is redeemed. There is nothing on record to show that above  Purnachandra  or  his  heirs  redeemed  above  mortgage  of  19 decimal land from Chandicharan Saha.

On consideration of above facts and circumstances of the case and evidence that I hold that the plaintiffs miserably failed to prove by legal evidence  that  Purnachandra  was  a  brother  of  Muktabasi  and  he inherited disputed 30 decimal land and he was in possession in the same. But the learned Judges of both the Courts below miserably failed to appreciate above evidence on record properly and most illegally the learned Assistant Judge decreed the suit in part and the learned Joint District Judge erroneously affirmed above flawed judgment and decree of the trial Court which is not tenable in law.

In above view of the materials on record I find substance in this revisional  application  under  Section  115(1)  of  the  Code  of  Civil Procedure and the Rule issued in this connection deserves to be made absolute.

In the result, the Rule is hereby made absolute. 

The impugned judgment and decree dated 27.05.2002 passed by the  learned  Joint  District  Judge,  1st  Court,  Cumilla  in  Title  Appeal No.154 of 1999 affirming the judgment and decree dated 28.07.1999 passed by the learned Assistant Judge, Homna, Cumilla in Title Suit No.18 of 1997 is set aside and above Title Suit 18 of 1997 is dismissed on contest without cost.

However, there is no order as to cost.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER