Present:

                               Mr. Justice A.K.M. Asaduzzaman

                    Civil Revision No.1576 of 2004

A. Aziz Hawlader and another.

       ……………Petitioners.

          -Versus-

Shahid Mia.

                ………….Opposite party.

                                        Mr.Md. Shariful Islam, Advocate.

……….For the petitioners.

  None appears.

                                                  .........For the Opposite party.

                                        Heard and judgment on 07.05.2024. A.K.M.Asaduzzaman,J.

This Rule was issued calling upon the opposite party to

show cause as to why the judgment and decree dated 18.02.2004 passed by the Joint District Judge, 2nd Court, Gopalgonj in Title Appeal No. 48 of 2003 affirming those dated 04.08.2003 passed by the Assistant Judge, Kotalipara, Gopalgonj in Title Suit No. 92 of 2002 dismissing the suit should not be set aside.

Petitioner as plaintiff filed Title Suit No. 92 of 2002 before the Court of Assistant Judge, Kotalipara, Gopalgonj against the

opposite party for declaration of title and recovery of khas possession. 

Plaint case in short inter alia, is that before R.S. survey, the suit land belonged to Bonomali Bhaterjee. During R.S. operation, it was recorded in the name of the said Bonomali Bhaterjee correctly in R.S. khatian No. 318 corresponding to plot No. 253. She sold the same to Ganesh Biswas alias Madhu, son of Debicharan Biswas alias Modhu by a kabala deed bearing No. 1056 and handed over possession to him. During S.A. operation, Ganesh Chandra died leaving his 03 sons namely Naresh, Paresh and Shuresh as heirs and having their title and possession. Naresh Chandra sold 2/3 share including other land to Nikhil Chandra Modhu, son of Dasharath Modhu and to Usharani, wife of Anil Chandra Madhu by way of a Kabala deed bearing No. 2652 dated 25.06.77  and handed over possession. Usharani and Nikhil Chandra Modhu sold the suit land to plaintiff No. 1-2 by two kabala deed bearing nos. 2028 and 2029 respectively on the same day i.e. on 24.03.78 and accordingly the plaintiff-petitioner acquired title and possession over 1/3 of the suit land by purchase and thereafter Naresh and Shuresh, two sons of Ganesh Chandra sold their share to the wife of Asen Sikder namely Choto Bibi by way of a kabala deed bearing no. 2966 dated 25.05.79 and Choto Bibi while owning and possessing the suit land, sold the same to the plaintiff by way of a registered deed being no. 3616 dated 04.07.79.  On the basis of those deeds, plaintiff have been possessing 23 decimals of land having their title. But the defendant opposite party no. 1 herein being a powerful man having long standing enmity with the plaintiff tried to cause harm to the plaintiff and on 31.12.2001, he along with his followers built plinth there, on filling earth and on the next day, the plaintiff found that they had been erecting houses in their part and instantly the plaintiff opposed to erect the same before Moslem Sikder, Syed Ali Howlader and many others and told them to give up possession but they refused. Defendant No. 1 is a trespasser in the suit land in question. He had no title in the suit land and erected homestead forcibly and hence the suit.

Opposite party as defendant contested the suit by filing written statement, denying the plaint case, alleging, inter alia, that plaintiff nos. 1-2 proposed to sell the suit land i.e. 23 decimals from plot no. 253 and to sell .07 decimals of land from other plot nos. 161/165 for sending Manik Gazi, son-in-law of the plaintiff no. 2 abroad and accordingly Sonavan Bibi for his son and daughter agreed to purchase the same to erect dwelling house there. On 02.02.90 the value of the land had been settled in between of them at Tk. 15,000/-. At that time Majed Gazi, Nizam Mia, Paresh Madhu, Barek Gazi, Anil Modhu were present there. Sonavan paid to Lal Mia at Tk. 15,000/- on behalf of her son and daughter and Lal Mia accepted that consideration of money for his necessity and Lal Mia and his brother A. Aziz gave him possession of 12 katha from the western side of the suit land in question. Defendant No. 1 told the plaintiff to register sell deed but they were causing delay saying that some part of the suit land had been listed in the vested property list and after releasing the same, they would register the sale deed in the name of the defendants. Mazid Gazi was acquainted with the defendant and he was the mediator of this sell and the defendant did not disbelieve him and accordingly none of them disbelieved Lal Mia. Accordingly, defendants erected dwelling housed to the western side of the suit plot no. 253 comprising area of 30 decimals of the land earlier in the year of 1396 B.s. and their mother has been living together. On the eve of the month of Baishakh in 1397 B.S defendants told the plaintiff to register the deed of transfer but they consumed time making different pleas and subsequently the

By the judgment and decree dated 04.08.2003 Assistant Judge, Kotalipara, Gopalgonj dismissed the suit on contest.

Challenging the said judgment and decree, plaintiff preferred Title Appeal No. 48 of 2003 before the Court of District Judge, Gopalgonj, which was heard on transfer by the Court of Joint District Judge, 2nd Court, Gopalgonj, who by the impugned judgment and decree dated 18.02.2004 dismissed the appeal and affirmed the judgment of the trial court.

Challenging the said judgment and decree plaintiff- petitioners obtained the instant rule.

Mr. Md. Shariful Islam, the learned advocate appearing for the petitioners drawing my attention to the judgment of the court below submits that when both the courts below concurrently found that plaintiff is the owner of the suit land and defendant by way of oral testimonies admits that they had erected the houses on the land, which was admittedly owned by plaintiff but only upon wrong presumption held that suit is barred by limitation and dismissed the suit illegally. The impugned judgment of the court below is thus not sustainable in law, which is liable to be set aside. 

Although the matter is posted in the list for several days and on 04.03.2024 a vokalatnama was filed by the learned advocate Rexona on behalf of the opposite party and the same was kept with the record and finally posted today for delivering judgment but no one appears to oppose the rule.     

Heard the learned Advocate and perused the impugned judgment and the L.C. Records.

This is a suit for simple declaration of title and recovery of khas possession. Admittedly suit land was belonged to the plaintiffs. Plaintiff filed the suit claiming that defendant is a trespasser and dispossessed the plaintiff from the suit land by erecting 02(two) huts on 31.12.2001 and as such he filed this suit for declaration of title and recovery of khas possession.

On the other hand defendant claimed that plaintiff intend to sell the suit property fixing a consideration money of Tk. 15,000/- and thereafter handed over the possession to him on the basis of an oral agreement long before the institution of this suit in the month of Falugun 1396 B.S. and he is not a trespasser rather he is a valid purchaser and is also in possession in the suit property. Both the courts below although found on evidence on record that plaintiff is the owner of the suit property and defendant is found to be in possession thereon but dismissed the suit on holding that plaintiff could not succeed to prove the date of dispossession i.e. a cause of action of institution of this suit.

Now let us see how far this finding is justifiable, since it has been questioned in this rule that it was held arbitrarily.

In order to prove the respective cases both the party adduced 04 witnesses. In order to substantiate, the plaintiff contention that he was dispossessed by the trespasser defendant illegally on 31.12.2001, plaintiff Ajij Howlader deposed in court as P.W.1 and asserted the same. In support of his contention P.W.2 Siddiqur Rahman corroborate the same and said that

"31/12/2001 Zvwi‡L bvwjkx Rwg‡Z 1bs weev`x gvwU Kv‡U| ciw`b †mLv‡b Nl †Zv‡j|'

P.W.3 Abul Hossain Mia stated in his deposition that

"gvgjvi  Rwg‡Z  1408  mv‡ji  †cŠl  gv‡m  31.12.2001 Zvwi‡L kwn` gvwU Kv‡U| Zvi Av‡M weev`xiv †fvM `Lj KiZ bv|' 

P.W.4 Shamsher Ali stated in his deposition that

"weev`x mK‡j †Rvi K‡i gvwU Kv‡U| Avi GKwU Ni w`‡q

Miy iv‡L| '

This way plaintiff tried to prove that he was dispossessed on 31.12.2001 and thereafter he instituted this suit on 10.07.2002, which is well within time under Article 120 of the Limitation Act.

On the other hand D.W. 1 Md. Shahid Mia while deposing in court said that

"gwR` MvRxi Avkª‡q Avgiv _vwK| 253 `v‡M evox K‡i 2wU Ni Zywj| 17 e‡›`i GKwU GKwU wU‡bi GKwU L‡oi Ni Zywj|13/14 eQi Av‡M dvêyb gv‡m Ni Zywj| Ni Zy‡j †mLv‡ b emevm KiwQ|' 

This statement was made on 11.06.2003, which means they took possession over the suit land in the year 1988 or 1989 but in the written statement defendant stated that when plaintiff no. 2 Lal Miah wanted to sell the property consideration money was fixed at Tk. 15,000/- on 02.02.1990 and on paying the said consideration money, defendant took possession on 12 kathas land. Thus the statement of defendant as D.W.1 is not in conformity with the statement made by him in the written statement as well as is also a vague.

 D.W.2 A. Mazid Gazi regarding the possession has said

that

"evsjv 1396 m‡bi 20 †k gvN Zv‡`i 12 KvVv Rwg wb‡q †ePv‡Kbvi K_vevZ©v nq| 15,000/- UvKv `vg w¯’i nq| Zv‡`i evox‡Z N‡ii eviv›`vq e‡m K_vevZ©v nq| UvKvcqmv H mgq †jb‡`b nq| RvqMvi `Lj eyS K‡i †`q| '

He further stated that

"weev`x `Lj cvIqvi ci evox K‡i Ni Zy‡j H mv‡ji dvêyj gv‡mi 1g w`K w`‡q `yevi Ni Zy‡j emevm Ki‡Q' | 

D.W.3 Anil Madhu a day labourer, who claimed to be worked on the construction of the tin shed house on the suit land stated that

"kwn` wgqvi mv‡_ AvwRR nvIjv‡`i †ePv †Kbvi K_vevZ©v nq Zv Rvwb| gvN gv‡mi 20 Zvwi‡L 13/14 eQi Av‡M Avwg †mLv‡b Dcw¯’Z wQjvg| '

D.W.4 Nikhil Madhu also another day labourer, who has stated a similar version as D.W.3 and said that

"bvwjkx `v‡M Avwg cyKzi KvwU| Avwg gvwU KvUvi KvR Kwi| 13/14 eQi Av‡M gvN gv‡mi †kl w`K w`‡q bvwjkx `v‡M GKwU

cyKzi KvwU| weev`x kwn` wgqv cyKzi KvUvq| `v‡Mi gv‡S kwn` wgqvi

Ni Av‡Q| Zvnv 13/14 eQi Av‡M †_‡K| kwn` wgqv 13/14 eQi

nq bvwjkx `v‡M emevm Ki‡Q|'

Upon perusal of the deposition of the D.W it appears that all the defendant’s witnesses although made a vague assertion on taking possession over the suit land by the defendant as well as not in conformity with the statement made in the written statement but taking into consideration of this statement of the D.W.s, Court below most arbitrarily held that cause of action of the suit was not been proved. When defendant could not show any scarp of paper that he has got any title over the suit land and holding the possession thereon on the basis of any legal valid document rather he is found to be an illegal possessor as well as trespasser there on the suit property and that admittedly plaintiff is the owner of the suit property and being in possession in the suit property since before the date of dispossession and the defendant’s story of getting the suit property by way of an oral agreement of sell not been proved. Court below ought to have decreed the suit in favour of the plaintiff, failing which both the courts below concurrently committed error of law in dismissing the suit resulting error in the decision occasioning failure of justice and accordingly the judgment is not sustainable in law, which is liable to be set aside.  

In that view of the matter, I find merits in this rule. Accordingly the Rule is made absolute without any order as to costs. The judgment and decree passed by the court below are hereby set aside and suit is decreed in favour of the plaintiff and defendant is hereby directed to vacate the suit premises forthfully failing which plaintiff may entitle to get possession into the suit property in due course of law.

Let the order of status-quo granted earlier by this court is hereby recalled and vacated.

Send down the L.C.Records and communicate the judgment to the court below at once.