Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 55 of 2015

In the Matter of:

Memorandum of appeal from the original order.

-and-

In the Matter of:

Md. Abdus Salam Hawlader

                               .....Plaintiff-appellant.

        -Versus-

Md. Badsha Matbor and others

                ...Defendant-respondents.

Mr. Md. Shariful Islam, Advocate

  ……. For the appellant. None appears.

        ….......For the respondents.

Heard on 24.10.2024, 27.10.2024 and Judgment on 30.10.2024.

Sheikh Abdul Awal, J: 

This appeal at the instance of the defendant-appellant is directed  against  the  judgment  and  decree  dated  13.11.2014 (decree  signed  on  20.11.2014)  passed  by  the  learned  Joint District Judge, 2nd Court, Narayangonj in Title Suit No. 483 of 2009 dismissing the suit.

The relevant facts briefly are that Appellant, Md. Abdus Salam Hawlader as plaintiff filed Title Suit No. 483 of 2009 in the court of learned Joint District Judge, 2nd Court, Narayangonj impleading the defendants for declaration of title in the suit land

as described in the schedule of the plaint and also for declaration that the deed of agreement dated 07.05.2007 is not binding upon the plaintiff-appellant. The plaint case in short is that the suit land measuring 4.5 decimal originally belonged to Abdul Gafur & Abdul Matin (defendant No. 2 & 3), who sold 4.50 decimal out of 10 decimal land to the Plaintiff-appellant through deed of sale being sale deed No. 376 dated 13.01.2008 and handed over possession of the suit land to the plaintiff-appellant. Thereafter, plaintiff mutated his name and paid rent to the Government and thereafter the plaintiff made a tin-shed house on the suit property and also took electricity & gas connection in his name. In this background the plaintiff-appellant on 16.06.2008 came to know that a previous deed of contract for sale being No. 4003 dated 07.05.2007 was executed by the defendant Nos. 2 & 3 in favour of defendant No.1 and hence, the case.

Defendant No.1 entered appearance in the suit by filing written statement denying all the material allegations made in the plaint contending, inter-alia, that there is no cause of action for filing the suit and the suit is barred by limitation, plaintiff filed the case on false averments and as such, the suit is liable to be dismissed.

The  learned  Joint  District  Judge  upon  considering  the pleadings of the parties framed the following issues:

1. Whether the suit is maintainable in its present form and manner?
2. Whether the plaintiff has right, title and possession over the suit land?

3. Whether  the  bainapatra  dated  07.05.2007  is inoperative?
4. Whether the plaintiff is entitled to get a decree as prayed for?

At  the  trial  the  plaintiff  examined  3  witnesses  and defendant  side  examined  2  witnesses  and  the  parties  also exhibited some documents to prove their respective cases.

The learned trial Judge upon hearing the parties and on considering  the  evidence  and  materials  on  record  by  his judgment and decree dated 13.11.2014 dismissed the suit mainly on the ground that the plaintiff by adducing evidence could not prove his right, title and possession in the suit land.

Being aggrieved by the aforesaid impugned judgment and decree  dated  13.11.2014  passed  by  the  learned  Joint  District Judge, 2nd Court, Narayangonj the plaintiff-appellant preferred this First Appeal.

Mr. Md. Shariful Islam, the learned Advocate appearing for the plaintiff-petitioner in the course of argument takes me through  the  impugned  judgment,  plaint  of  the  suit,  written statements, deposition of witnesses and other materials on record and then submits that the trial court below without applying its judicial mind into the facts of the case and law bearing on the subject most illegally dismissed the suit on the finding that the plaintiff  could  not  prove  his  case  by  adducing  sufficient evidence. He further submits that in this case admittedly the plaintiff  purchased  the  suit  land  by  registered  deed  dated 13.01.2008 (Ext.-1) and thereafter he took possession over the suit land and developed the same by making a tin-shed house and the plaintiff also took all utilities namely, gas, electricity and other connections in his name in accordance with law. He further submits that the plaintiff also mutated his name and paid rent to the Government and during trial the plaintiff exhibited all those documents  being  exhibit  Nos.  1-12  although  the  trial  Court below without considering the exhibits from a correct angle most illegally dismissed the suit on a wrong finding that the plaintiff could not prove his right, title and possession in the suit land by adducing oral and documentary evidence and as such, the impugned judgment and decree is liable to be set-aside.

No one appears for the defendant-respondents.

Having heard the learned Advocate for the appellant and having gone  through  the  materials  on  record  including  the impugned judgment of the trial Court, the only question that calls  for  our  consideration  in  this  appeal  is  whether the trial Court  below  was  justified  in  arriving  at  a  finding  that  the plaintiff could not prove his right, title and possession in the suit land by adducing evidence.

On a scrutiny of the record, it appears that on 19.07.2009 the appellant as plaintiff filed the Title suit No. 483 of 2009 in the  court  of  the learned  Joint  District  Judge,  2nd  Court, Narayangonj praying the following reliefs:

It is found that during trial the plaintiff side examined in all 3 witnesses and exhibited some documents to prove his case out of which plaintiff, Md. Abdus Salam Hawlader himself was examined as PW-1, who stated in his deposition that defendant Nos. 2&3 transferred 4.5 decimal land through registered deed No. 376 dated 13.01.2008 and also handed over possession of the suit land to plaintiff and thereafter he developed the suit land and constructed 13 semi-paka rooms on the suit land, 2 toilets  and  2  kitchens  and  also  took  gas  and  electricity connections in his name. This witness also stated that he resides in 2 rooms and deals business in a shop situated on the front side of the suit land. This witness also stated that- “

”   This witness

in his cross-examination stated that- “

”  This witness in his cross-examination

also stated that- “

” This witness in his cross examination denied the suggestion that he did not develop the suit land and did not serve any notice of mutation to Badsha Mia.  On  recall  this  witness  exhibited  rent  receipt,  mutation khatian, electricity connection papers and gas connection papers and  other  documents  as  “Ext.-1-12.  This  witness  denied  the suggestion in the following language:  

PW-2, Iqbal Hossain, local witness stated in his deposition that he knew plaintiff and defendants. This witness also stated that his land is adjacent to the suit land. This witness stated that before transfer of the suit land to the plaintiff he did not know about the existence of bainapatra with regard to suit land. This witness stated in his evidence that- “

” PW-3, Md. Abdul Malek, local elected member. This witness stated in his deposition that- “

” This witness in his cross-examination denied the  suggestion  that  he  known as  to  the  fact  of  bainanama between Badsha and Salam.

On scrutiny of the above quoted evidence both oral and documentary,  it  appears  that  the  plaintiff  as  PW-1  testified details as to his right, title and possession in the suit land. PW-1 exhibited  all  his  material  documents  namely,  rent  receipt, mutation, electricity & gas bills, baya deed, registered deed etc. This witness having testified in detail about the factum of the case and the same having not been shaken in cross examination at  all  and  rest  PWs  namely  PW-2-3,  both  of  them   in  their respective  evidence  corroborated  the  evidence  of  PW-1  in respect of all material particulars.

Now,  let  me  advert  to  the  evidence  of  DWs.  DW-1, Mahbubul Alam Selim, power of attorney holder of defendant No.1, Badsha. This witness deposed that defendant No.1-2 were owner of 10 decimal land, they executed a bainanama on getting consideration  money  in  favour  of  Badsha  Matbor  (defendant No.1). This witness in his cross-examination stated that- “

”     DW-2, Md.

Yunus Molla stated in his deposition that- “

”  This  witness  in  his  cross-

examination stated that- “ ”

From the above, it appears that DW-1&2 in their respective evidence admitted part possession of the plaintiff in the suit land. It further appears that the defendants to prove their case did not produce  any  tangible/substantive  documentary  evidence. Weighing  the  evidence  of  both  the  parties,  we  find  that  the evidence in plaintiff side is credible and tenable in Law.

On a close perusal of the entire evidence both oral and documentary, it appears that at the trial the plaintiff-appellant to prove his right, title and possession in the suit land adduced sufficient evidence both oral and documentary. The initial onus lies on the plaintiff to prove his title. In this case the plaintiff is claiming his title to the suit land on the basis of a registered deed. We have already indicated that in this case the plaintiff having  succeeded  to  discharge  his  onus  by  proving  his documents of title. Therefore, we are constrained to hold that the impugned judgment of the trial Court below does not deserve to be sustained. The learned Trial Judge erred in law and fact when he failed to properly evaluate the evidence on record as to right, title and possession of the plaintiff in the suit land and erroneously concluded that the plaintiff by adducing evidence could not prove his right, title and possession in the suit land, which  is perverse being contrary to the evidence and materials on record.

In  view  of  our  discussions  made  in  the  foregoing paragraphs  by  now  it  is  clear  that  the  instant  appeal  must succeed.

In  the  result,  the  appeal  is  allowed.  The  impugned judgment and decree dated 13.11.2014 passed by the learned Joint District Judge, 2nd Court, Narayangonj in Title Suit No. 483 of 2009 dismissing the suit is set-aside and that the suit is decreed in favour of the plaintiff to the extent as to right, title of the plaintiff in the suit land.

Let  a  copy  of  this  judgment  along  with  lower  Courts’ record be sent down at once.

Md. Mansur Alam, J:

I agree.