IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 4720 of 2015 In the matter of:

Md. Badsha Mia and another

Plaintiff-respondent-petitioners

-Versus-

Rushiya Begum and another

Defendant-appellant-opposite parties

Mr. Abdullah Al Mamun, Advocate

...For the petitioners Mr. Sakib Mabud, Advocate

... For the opposite party No. 2

Heard on: 23.10.2024, 24.10.2024 and 30.10.2024 Judgment on: 07.11.2024

Present opposite parties as plaintiffs filed Title Suit No. 283 of 2007 impleading the present petitioners as defendants in the Court of Senior Assistant Judge, Sadar, Barishal praying for eviction of the defendants on the ground that they were permissive possessors of the suit land. The plaintiffs further prayed for recovery of khas possession of the suit land. The trial Court dismissed the suit on contest, vide judgment  and  decree  dated  28.11.2013.  The  plaintiffs  filed  Title Appeal  No.  102  of  2014 before the  Court  of  the learned District

Judge, Barishal. The appeal was heard and disposed by the learned Additional District Judge, 2nd Court, Barishal, who, vide judgment and decree dated 01.10.2015 allowed the appeal and decreed the suit on contest. Thereafter, the defendants filed instant revision and obtained the Rule.

The Rule has been contested by the plaintiff-opposite parties.

The plaintiffs’ case, in short, is that plaintiff No. 1 is the mother of the plaintiff No. 2. They separately obtained lease of 1 decimal of land each, total 2 decimals of land in a cluster village situated at Palaspur,  cluster  village  No.  5,  Barishal  for  99  years  from  the government  by  executing  separate  kabuliyat  on  12.12.1990.  They obtained  the  possession  of  the  respective  plots  on  30.12.1990. Thereafter, they erected home on the plots and started living there.

The husband of the plaintiff No. 1 became seriously ill which could not be treated in the said cluster village. He was required to be taken  to  Dhaka  and  other  big  cities  for  treatment.  In  the circumstances, the plaintiffs permitted the defendants to stay at the homes of the plaintiffs constructed on the leasehold plots to look after and maintain those. On 01.02.2004, the plaintiffs left the home for treatment of the husband of the plaintiff No. 1 and the defendants started staying there with the permission of the plaintiffs to look after the  property.  Eventually,  the  patient  died  on  22.08.2005.  After observing the religious rituals, the plaintiffs returned home situated at the cluster village on 12.10.2005 and asked the defendants to vacate the property. However, the defendants refused to vacate the same and hence, the suit for eviction and recovery of khas possession.

The defendants’ case, as stated in the written statement, is that the  plaintiff  No.  1  sold  the  land  (1  decimal)  on  21.08.1991  by executing an unregistered sale deed to one Jahura Bibi and handed over the possession of the same to her. Jahura Bibi sold the land to one Keya Begum on 04.05.1993 by executing an unregistered sale deed. The defendant No. 2 purchased the land from Keya Begum on 16.11.2001 by executing an unregistered sale deed and since then he has been possessing of the same. Similarly, the plaintiff No. 2 (son of plaintiff  No.  1)  sold  the  land  in  question  to  one  Nazimnessa  on 07.09.1991, Nazimnessa sold the land to one Yunus Howlader on 15.12.1992  and  finally,  Yunus  Howlader  sold  the  land  to  the defendant No. 1 on 16.11.2001 and since then the defendant No. 1 has been possessing the same. All the transfers were documented but not registered. The defendants categorically  denied  the plaintiffs’ case that they are permissive possessors of the land. Their specific case is that they own the land through adverse possession. It is further stated in the written statement that in respect of the dispute between the parties a local shalish was held and an award was given supporting the case of defendants.

The trial Court scrutinized the evidence on record and observed that clause 13 of the settlement deed (exhibit-3) by which the suit land was settled for 99 years in favour of the plaintiffs by the government puts a bar on the lessee (plaintiffs) to transfer the settled land in any manner. The trial Court further observed that the defendants did not produce the unregistered sale deeds purported to have been executed by the plaintiffs in favour of the 1st purchaser and unregistered sale deeds executed by the 1st purchaser in favour of the 2nd purchaser. The defendants purchased the suit land from the 2nd purchaser through an unregistered  sale  deed  which  was  produced  before  the  Court  as documentary evidence. However, the trial Court did not consider the said documentary evidence for the reason that the settlement deed (exhibit-3) prohibits such transfer of the land and the alleged transfer of the land to the defendants by an unregistered sale deed was a void transaction. The trial Court further observed that the plaintiffs have title in the suit land based on the 99 years settlement deed (exhibit-3).

Be that as it may, the trial Court dismissed the suit holding that the defendants had been possessing the suit land since 2001 that is for 10/12 years and that the defendants had not dispossessed the plaintiffs from  the  suit  land  and  that  the  defendants  were  not  permissive possessors of the same.

The  instant  suit  was filed on 28.11.2007. It is  categorically stated in the written statement that the defendants were given the

possession of the suit land by the alleged 2nd purchaser on 16.11.2001. The appellate Court below rightly pointed out that the finding of the trial Court in respect of duration of possession of the suit land by the defendants is palpably wrong. The appellate Court below rightly held that the case of the defendants was not proved. The appellate Court on assessments of both oral and documentary evidence on record found that the defendants are permissive possessors of the suit land. The appellate Court further held that the defendants had no right, title and interest in the suit land and as such, they are liable to be evicted. I have perused the evidence of record. The finding of the appellate Court is based on proper appreciation of the evidence.

Now, I turn to the award given in the local shalish. The award is an exhibited document. The trial Court relied on the award and held that the plaintiffs leased out the suit land in favour of the defendants

which  supports  the  defence  case.  I  have  perused  the  award.  The shalish  was held on  02.03.2008  during pendency of the suit.  The award was given on 20.03.2008. The shalish was not held under the Arbitration  Act,  2001  rather  it  was  a  local  shalish.  The  award concludes,

defendants

plaintiffs

The award in question cannot be considered as a piece of legal evidence since it does not have any evidentiary value for the reasons stated earlier.

The learned Advocate appearing for the defendant-petitioners submits that the plaintiffs did not pray for declaration of title and as such, the suit is not maintainable. In reply, the learned Advocate appearing for the plaintiff-opposite parties refers to the case of Sreemati Priti Rani Chakraborty and others vs. J.M. Sen Institute, IV ADC 37 and submits that the suit in its present form and manner without seeking declaration as to title is maintainable.

In the instant case, the title of the plaintiffs is not disputed by the defendants. Their case is that they are not permissive possessors of the  suit  land,  rather  they  purchased  it  which  has  been  disproved. Therefore, in my view, there is no necessity to seek declaration of title by the plaintiffs. The case cited by the learned Advocate appearing for the plaintiffs lays support to this proposition of law.

 The upshot of the above discussions is that the plaintiffs have right, title and interest in suit land. The defendants occupied the suit land as permissive possessors. Later on, the plaintiffs withdrew the said permission and asked the defendants to vacate the land which they  refused.  The  defendants’  case  of  purchase  and/or  adverse possession  has  been  disproved.  Therefore,  the  defendants  have become unauthorised occupants of the suit land and are liable to be evicted from the same.

 In view of the foregoing discussions, this Court does not find merit in the Rule.

In the result, the Rule is discharged. The judgment and decree passed by the appellate Court below is affirmed.

Send down the L.C.R.

Arif, ABO