IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3229 of 2002

In the matter of:

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

And

Mowlavi Siddique Ahamad and others

.... Petitioners

-Versus-

Kabir Ahamad and others

.... Opposite parties

None appears

.... For the petitioners.

Mr. A.K.M. Foiz, Senior Advocate with

Mr. Mahbubur Rahman, Advocate

.... For the opposite party Nos.1(a)- 1(f).

Heard on 29.10.2024 and Judgment on 10.12.2024

On  an  application  under  Section  115(1)  of  the  Code  of  Civil Procedure this Rule was issued calling upon the opposite party Nos.1-9 to show cause as to why the impugned judgment and decree dated 24.04.2002 passed by the learned Joint District Judge, 1st Court, Cox’s Bazar  in  Other  Appeal  No.96  of  1999  allowing  the  appeal  setting aside/reversing the judgment and decree dated 18.03.1999 passed by the Senior Assistant Judge, Sadar, Cox’s Bazar in Other Suit No.126 of 1996 dismissing the suit 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 opposite party as plaintiff instituted above  suit  alleging  that  as  the  heirs  of  deceased  Amzad  Hossain plaintiffs were in lawful possession in 2.46 acres land as described in the schedule to the plaint and defendant Nos.1-3 forcibly dispossessed the plaintiffs from 1 acre land on 03.01.1994. After above dispossession plaintiffs  lodged  a  complaint  to  the  Thana  Nirbahi  Officer  on 24.01.1994.  In  above  report  (Exhibit  No.5)  defendants  possession  in above land was found and the case of the plaintiffs was dismissed. It was alleged by the defendant that on 08.12.1987 plaintiffs agreed to sale 1.20 acres land to the defendant and on receipt of advance payment of Taka 30,000/- delivered possession of above land to the defendants. But above claims of the defendants were not proved by any evidence and defendants  Case  No.66  of  1994  was  dismissed.  But  the  defendants refused to return possession of the disputed 1 acre land on 10.11.1994.

Defendant  No.1-3  contested  the  suit  by  filing  a  joint  written statement denying all claims and allegations made in the plaint and alleging that the plaintiffs offered to sale the disputed land and the defendants agree to purchase the same at a price of Taka 48,000/- and on receipt of Taka 30,000/- on 08.12.1987 plaintiffs delivered possession and since then defendants are possessing above land by cultivating salt. It was stipulated that within next 4 months plaintiffs would on receipt of remaining consideration money execute and register a kabala deed and  no  written  bainapatra  was  made  or  executed.  Defendants purchased stamp paper for writing of the sale deed and gave it to deed writer Mustaq Ahmed but in the meantime plaintiff No.3 got the job of Tahshilder and went to another thana which delayed the execution of a sale deed. During devastating cyclone of 1991 above stamp paper was lost from the possession of Mustaq Ahmed and on 10.12.1993 plaintiffs denied above transaction and refused to execute a sale deed for above land.

At  trial  plaintiffs  examined  2  witness  and  documents  of  the plaintiffs  were  marked  as  Exhibit  Nos.1-6.  On  the  other  hand defendants examined 4 witnesses and their documents were marked as Exhibit Nos.’Ka’ and ‘Kha’ series.

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

Being aggrieved by above judgment and decree of the trial Court above plaintiffs as appellants preferred Other Appeal No.96 of 1999 to the District Judge, Cox’s Bazar which was heard by the learned Joint District Judge, 1st Court who allowed the appeal, set aside the judgment and decree of the trial Court and decreed the suit.

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

Mr.  Md.  Alamgir  Kabir,  learned  Advocate  for  the  petitioners submits  that  this  is  a  case  for  declaration  of  title  and  recovery  of possession for 1 acre land which is the possession of the defendants. The defendant Nos.1-3 claim possession in 1.20 acres land on the basis of an oral bainapatra for purchase of above land for Taka 48,000/-. The defendants  examined  4  witnesses  and  they  have  given  mutually consistent evidence as to above oral bainapatra and receipt of Taka 30,000/- by the plaintiffs and delivery of possession. Despite extensive cross  examination  by  the  plaintiffs  their  above  evidence  remained consistent, mutually supportive and credence inspiring. Since both the plaintiffs and defendants were inhabitants of the same locality and they had very good relation and there was an agreement for execution of a sale  deed  within  4  months  the  plaintiffs  did  not  seek  any  written bainapatra.  On  the  other  hand  plaintiffs  could  not  prove  by  legal evidence  that  the  defendants  forcibly  dispossessed  them  from  the disputed land. PW1 Kabir Ahmed was in Chattogram at the time of the alleged dispossession and PW2 Mukter Ahmed has given contradictory evidence as to the names and number of bargaders of the plaintiffs who were  in  possession  of  the  disputed  land.  Moreover,  PW2  Mukter Ahmed stated in his cross examination that he could not recognize the persons who dispossessed them. On consideration of above facts and circumstances of the case and evidence on record the learned Judge of the trial Court rightly dismissed the suit. But the learned Judge of the Court of Appeal below without reversing above findings of the trial Court most illegally allowed the appeal, set aside the lawful judgment and decree of the trial Court and decreed the suit which is not tenable in law.

Mr. A.K.M. Faiz, learned Senior Advocate for the opposite party Nos.1(a)-1(f) submits that admittedly the petitioners were the lawful owner  and  possessor  of  2.46  acres  land  including  disputed  1  acre. Plaintiff No.1 while giving evidence as PW1 has corroborated all claims and  allegations  made  in  the  plaint  and  stated  that  the  defendants forcibly dispossessed them from the disputed land on 03.01.1994. PW2 Mukter Ahmed who is a owner of the land contiguous to the disputed land  has  corroborated  above  evidence  of  PW1  as  to  forcible dispossession.  PW1  Kabir  Ahmed  and  PW2  Mukter  Ahmed  were subjected to intensive cross examination by the defendants. But their above  evidence  remained  consistent,  mutually  corroborative  and credence  inspiring.  As  far  as  the  claim  of  the  defendants  that  the plaintiffs contracted to sale above land to the defendants and on receipt of  an  advance  consideration  money  of  Taka  30,000/-  delivered possession  on  08.12.1987  is  concerned  above  claims  remained  not proved. The defendants could not produce any written bainanama or money receipt nor they have instituted any case for enforcement of above  contract  till  date.  On  consideration  of  above  facts  and circumstances of the case and evidence on record the learned Judge of the Court of Appeal below has rightly allowed the appeal, set aside the flawed judgment and decree of the trial Court and decreed the suit which calls for no interference.   

I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record including the pleadings, Judgments of the Courts below and evidence on record.

It is admitted that the plaintiffs were the owners and possessors of 2.46 acres land as described in the schedule to the plaint and now defendant Nos.1-3 are in possession in 1 acre land out of above 2.46 acres.

It has been alleged by the plaintiffs that they have been forcibly dispossessed from above land by defendant Nos.1-3 on 03.01.1994. In this suit under Section 8 of the Specific Relief Act, 1877 in addition to prove lawful title in the disputed land the plaintiff must prove his previous possession and subsequently dispossessed by the defendant by legal evidence and further prove that this suit has been filed within the statutory period of 12 years from the date of alleged dispossession.

In a civil litigation the initial onus to prove always lies on the plaintiffs  and  above  onus  shifts  upon  the  defendants  only  after successful discharge of the same by the plaintiff and a suit cannot be decreed on the basis of failure of the defendant to establish his case by legal evidence. The plaintiff must stand on his own feet and prove his case by legal evidence to get a decree.

As far as previous possession and subsequent dispossession is concerned it has been alleged in the plaint that the plaintiffs possessed 2.46 acres land separately not jointly. It has not been stated as to how disputed 1 acre land was possessed by 9 plaintiffs. Plaintiff No.1 while giving evidence as PW1 stated that disputed 1 acre land was borga cultivated  by  Syed  Ahmed  and  in  fact  he  was  dispossessed  by  the defendants. As such it is clear that at the time of alleged dispossession plaintiffs  were  not  in  actual  possession  but  their  borgader  was  in possession  of  disputed  land.  PW1  has  further  stated  that  he  was informed about above dispossession by his nephew while he was in Chattagram.  As  such  PW1  did  not  see  the  occurrence  of  forcible dispossession of the plaintiffs from the disputed land by defendant Nos.1-3.

Above  nephew  who  informed  PW1  about  above  forcible dispossession  was  not  examined  as  a  witness.  Nor  the  plaintiffs examined above Syed who was the borgader of the plaintiffs and who was allegedly dispossessed by the defendants. No explanation has been provided by the plaintiffs as to non examination of above important witnesses at trial.

PW2 Mukter Ahmed has contradicted PW1 by stating in his cross examination  that  Liakat  Ali  and  Syed  were  the  borgaders  of  the disputed land at the time of alleged dispossession. Above Liakat Ali was also not examined in this suit as a plaintiff witness. Above witness further  stated  that  above  borgaders  stated  to  him  about  alleged dispossession but he did not know any persons who dispossessed the plaintiffs. PW1 Kabir Ahmed did not endorse PW2 Mukter Ahmed as a witness of possession or dispossession of the disputed land.

On a detailed analysis of above evidence on record the learned Judge of the trial Court rightly held that the plaintiffs could not prove by legal evidence that they were forcibly dispossessed from disputed 1 acre land by the defendants on 03.01.1994.

On the other hand defendants have examined 4 witnesses who have given consistent evidence about possession of the defendants in the disputed land. They have also given evidence as to receipt of Taka 30,000/- by the plaintiffs as advance money for 1.20 acres land which they agreed to sale for Taka 48,000/-.

On consideration of above evidence the learned Judge of the trial Court held that the defendants have succeeded to prove their claim that the  possession  of  1.20  acres  land  was  delivered  by  the  plaintiffs peacefully and defendants did not dispossess the defendants forcibly from the above land. The learned Judge of the Court of Appeal below allowed the appeal and set aside the judgment and decree of the trial Court but the learned Judge could not reverse above material findings of the trial Court.

On consideration of above facts and circumstances of the case and materials on record I hold that the learned Judge of the Court of Appeal below  committed  serious  illegality  in  allowing  the  appeal  and decreeing the suit 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 24.04.2002 passed by the learned Joint District Judge, 1st Court, Cox’s Bazar in Other Appeal No.96 of 1999 is set aside and the judgment and decree dated 18.03.1999 passed by the Senior Assistant Judge, Sadar, Cox’s Bazar is restored

However, there is no order as to costs.

Send down the lower Courts record immediately.

ZMD. MASUDUR RAHMAN     BENCH OFFICER