IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO. 308 OF 2003

In the matter of:

An application under Section 115 of the Code of Civil Procedure.

And

Hiron Banu

... Petitioner

-Versus-

Md. Hasan Ali Prodhan and another

... Opposite parties

None appears

.... For the petitioner.

Mr. Sk. Sharifuddin, Advocate

…. For the opposite party No.1. Heard and Judgment on 27.08.2024.

This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and decree dated 15.09.2002 passed by the learned Joint District Judge, Narayangonj in Title appeal No.88 of 1992 disallowing the appeal and affirming the judgment and decree dated  30.09.1992  passed  by  the  learned  Senior  Assistant  Judge,  2nd Court,  Narayangonj  in  Title  Suit  No.87  of  1990  dismissing  the  suit 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  declaration  of  title  for  8  decimal  land  appertaining  to  plot

No.440 as described in the schedule to the plaint and for a decree of mandatory injunction for removal of pacca wall and signboard erected by  the  defendant  in  above  land  and  for  further  declaration  that registered kabala deed dated 18.11.1957 and 20.12.1984 (Exhibit-Kha and Gha respectively) are forged and ineffective documents and those are not binding upon the plaintiff.

It was alleged that 11 decimals land of plot No.440 belonged to Monai Matbbar and his three nephews and on amicable partition above land was possessed by Imam Uddin, Main Uddin and Rahim Uddin and  pursuant  to  amicable  settlement  above  land  was  possessed  by Rahim Uddin alone who died leaving three sons namely Afiz Uddin, Mofiz Uddin and Yeaz Uddin and three daughters and by amicable partition Amiz Uddin alone possessed above land. Above Afiz Uddin died leaving four sons and three daughters and by amicable partition Almas Mollah a son of Afiz Uddin and husband of the plaintiff alone possessed above land. The Government acquired 4 decimal land of the disputed plot and Almas Mollah transferred disputed 8 decimals land to the plaintiff by a deed of Heba-bil-ewaz. Plaintiff was in possession in above land but during pendency of this suit the defendant forcibly dispossessed  the  plaintiff  by  erecting  a  pacca  wall  and  signboard. Defendants claimed to have purchased above land from Musa Fakir and Rabeya who were heirs of Afil Uddin by a registered deed kabala dated 18.11.1957 (Exhibit No.Ga) but above is a forged document. 

Defendant  No.1  contested  the  suit  by  filing  written  statement alleging that by exchange with the C.S. recorded tenants 11 decimals land of the disputed plot was owned and possessed by Afil Uddin who died  leaving  behind  one  son  Musa  and  one  daughter  Rabeya  who transferred above land to Chand Miah by registered kabala deed dated 18.11.1957 (Exhibit No.Kha) and above Chand Miah transferred above land  to his son Md. Hasan Ali Prodhan by registered kabala deed dated 20.12.1984 (Exhibit No.Uma). The R.S. and S.A. Khatians of the suit land were correctly recorded in the names of above Chand Miah and defendant No.1 Md. Hasan Ali Prodhan. Plaintiff did not have any right, title and possession in the disputed land.

At trial plaintiff examined three witnesses and defendant No.1 examined  four  witnesses.  Documents  produced  and  proved  by  the plaintiff were marked as Exhibit No.1 and those of the defendants were marked as Exhibit Nos.Ka – Uma.

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

Being aggrieved by and dissatisfied with above judgment and decree plaintiff preferred Title Appeal No.88 of 1992 to the District Judge,  Narayangonj  which  was  heard  by  the  learned  Joint  District Judge, 1st Court, Narayangonj who dismissed the appeal and affirmed the judgment and decree of the trial Court.

Being aggrieved by above judgment and decree of the Court of appeal  below  the  appellant  as  petitioner  moved  to  this  Court  and obtained this Rule.

No one appears on behalf of the petitioner at the time of hearing of this Rule.

Mr. Sk. Sharifuddin, learned Advocate for the opposite party No.1 submits that plaintiff did not dispute the correctness of the C.S. Khatian of the disputed plot rather she has claimed title as a successive heir of the C.S. Khatian recorded tenant.

In C.S. Khatian No.320 it has been clearly stated that on the basis of exchange defendants predecessor Afil Uddin was in possession in 11 decimal land of disputed plot No.440. The S.A. and R.S. Khatian of the disputed  plot  have  been  recorded  in  the  name  of  the  father  of  the defendant Chand Miah and in the name of the defendant respectively. The plaintiff has admitted that the defendant is in possession in the disputed  land  by constructing  a wall  and  erecting  a  signboard.  On consideration of above materials on record the Judges of the Courts below  have  concurrently  found  that  the  plaintiff  did  not  have  any lawful title and possession in the disputed land and in the absence of any claim of misreading or non-consideration of any evidence on record this Court cannot interfere with above concurrent findings of fact. The learned  Joint  District  Judge  has  rightly  on  correct  appreciation  of materials  on  record  dismissed  the  appeal  which  calls  for  no interference.

I  have  considered  the  submissions  of  learned  Advocate  for opposite party No.1 and carefully examined all materials on record including the pleadings, judgments of the Courts below and evidence on record.

It is admitted that plot No.440 comprising 11 decimals land was recorded in C.S. Khatian No.320 in the names of the predecessors of the plaintiff Monai Mattabar and others and 4 decimals land of above plot was subsequently acquired by the Government. It is also admitted that disputed 7 decimals land of above plot has been recorded in the name of Chand Miah, father of the defendant No.1 in S.A. Khatian No.640 and above land has been recorded in the relevant R.S. Khatian in the name  of  defendant  No.1.  By  amendment  of  the  plaint  the  plaintiff claimed that on 17.09.1990 defendant No.1 has forcibly dispossessed her from the disputed land by constructing a pacca wall and erecting a signboard.

The husband of the plaintiff Almas Mollah gave evidence as PW1 and produced and proved a copy of the disputed C.S. Khatian No.320 which  was  marked  as  Exhibit  No.1.  It  turns  out  from  above  C.S. Khatian that in the relevant column of the possession clear mention has been  made  that  by  way  of  exchange  Afil  Uddin,  predecessor  of defendant No.1 is in possession in 11 decimals land of disputed plot No.440.

Plaintiff did not provide any explanation as to above record nor claim  that  above  entry  in  the  C.S.  Khatian  was  erroneous  nor  the plaintiff  sought  any  relief  against  above  entry  in  the  disputed  C.S. Khatian. There is no evidence on record to hold that above entry as to possession  of  the  disputed  land  as  made  in  the  C.S.  Kuatian  was erroneous or fraudulent which did not represent the correct position of the disputed land. The source of claim of title of the plaintiff is above C.S. Khatian and above entry in the C.S. Khatian shows that the claim of title of the plaintiff does not have any legal basis at all.

Chand  Miah  the  father  of  the  defendant  has  claimed  to  have purchased disputed land from heirs of above Afil Uddin by a registered kabala  deed  dated  18.11.1957  and  he  transferred  above  land  to defendant No.1 by registered kabala deed dated 20.12.1984. Defendant No.1 himself evidence in this suit as DW1 and he has produced and proved  above  mentioned  two  kabala  deeds  dated  18.11.1957  and 20.12.1984  which  were  marked  as  Exhibit  Nos.  Gha  and  Uma respectively. Admittedly the disputed land has been recorded in the relevant S.A. Khatian in the name of Chand Miah and in the relevant R.S. Khatian in the name of defendant No.1 on the basis of two kabala deeds.

As far as possession of the disputed land is concerned the plaintiff has admitted the possession of defendant No.1 but claimed that the defendant  has  forcibly  dispossessed  her  from  the  above  land  on 17.09.1990. But the plaintiff could not prove by legal evidence above claim of her previous possession and subsequent dispossession from the disputed land. The plaintiff could not produce a single peace of documentary evidence in support of her possession in the disputed land nor she could adduce any consistence oral evidence of competent witness to prove that she was in peaceful possession in the above land before alleged forcible dispossession by the defendant.

On consideration of above facts and circumstances of the case and evidence on record the learned Judges of the Courts below concurrently found that the plaintiff was not in possession of the disputed land but the  same  was  in  possession  of  defendant  No.1  on  the  basis  of  his rightful title. Since above concurrent finds of fact arrived at by both the Courts below is based on legal evidence on record this Court cannot in its revisional jurisdiction interfere with above concurrent findings of fact.   

In  above  view  of the  facts and  circumstances  of  the case  and materials  on  record  I  am  unable  to  find  any  substance  in  this application under Section 115 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 cost.

The order of status-quo granted at the time of issuance of the Rule is hereby recalled and vacated. 

Send down the lower Court’s record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER