SHEIKH AHMED SHOWDAGAR AND OTH­ERS VS. MOSTAFIZUR RAHMAN AND ANOTHER

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SHAWKAT ALI KHAN VS. AHMED ALI AND OTHERS

Case No: Civil Appeal No. 1 of 1995

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,,

Citation: 1 ADC (2004) 326

Case Year: 2004

Appellant: Sheikh Ahmed Showdagar and oth­ers

Respondent: Mostafizur Rahman and another

Subject: Property Law,

Delivery Date: 2002-11-24

Sheikh Ahmed Showdagar and oth­ers Vs. Mostafizur Rahman and another
1 ADC (2004) 326

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Syed JR Mudassir Husain J
Md. Fazlul Haque J

Sheikh Ahmed Showdagar and oth­ers………………Appellants
Vs.
Mostafizur Rahman and another…………………………..Respondent

Judgment
November 24, 2002.

Declaration of title, confirmation of possession relief of permanent—
Because the land so covered by the said documents is unspecified as to excess land and as such High Court Division was not in error in not decreeing the suit in respect of the land covered by the said documents alone and was quite correct in dismissing the suit since the relief sought in respect of the land in suit were unspecified. The plaintiffs have the relief’s sought in the suit were require to prove the vital fact of exclusive possession of the land in suit. …. (9)

Lawyers Involved:
Khandker‌ Mahbubuddin Ahmed, Senior Advocate, instructed by S. R. Khoshnabish, Advocate-on-Record-For the Appellants.
Not represented- the Respondents.

Civil Appeal No. 1 of 1995.
(From the judgment and order dated August 2, 1994 passed by the High Court Division in First Appeal No. 717 of 1991).

Judgment

Md. Ruhul Amin J. – This appeal by the plaintiffs, by leave, is against the judgment and decree dated August 2, 1994 in First Appeal No. 717 of 1991 of a Division Bench of the High Court Division allowing the appeal upon reversing the judgment and decree dated July 25, 1989 of the Court of Subordinate Judge, Patiya, Chittagong, in other suit No. 29 of 1986 decreeing the same. The plaintiffs filed the suit seeking declaration of title, confirmation of possession and further relief of permanent injection in respect of 8 kanis, 10 gandas and 2 karas of land described in the schedule attached to the plaint. The plaintiffs claimed the said land by purchase in between the period February 1982 and November 1984.

2. Facts, in short, are that one Ahmed Ali said to have been the owner of the land claim­ing which plaintiffs have filed the suit. In the revenue record of different times Ahmed Ali’s name was recorded. Ahmed Ali settled six kanis of land by the ext.1 dated June 1, 1891 to Bashir Mohammed and Kasir Mohammad. The land of this Patta was described by boundaries. The said settlement holders got the possession. Ahmed Ali died leaving 2 sons Basarat Ali and Aju Meah. It is the case of the plaintiffs that Aju Meah by amicable arrangement with the broth­er became owner of 1 kani 5 Gandas of land and remained in exclusive possession of the same. Aju Meah by Patta ext. 1 (ka) dated August 30, 1928 settled 7 kanis, 5 gandas of land to Nasarat Ali son of Bashir Mohammad, Ali Hossain son of Karsir Mohammad and others admitting the previous Patta dated June 1, 1981 regarding 6 kanies of land executed by Ahmed Ali, father of Aju Meah. Basarat Ali died leaving a son by same Md. Shanchi and two daughters. Aju Meah and heirs of Basharat Ali received rent from Nasarat Ali and others by granting registered and unregistered receipts and thereby they admitted Nasarat Ali and others as tenants under them. The further case of the plaintiffs was that there were fellow lands and jungle land adjacent to the pattani land and the pattan holders and their heirs made said excess land, “Gunjaish” fit for cultivation and thereby the pattan holders had been possessing land more than their pattani land for more than the statutory period of limitation on payment of rent to their landlord. The plaintiffs purchased the land from the heirs of pattan holders in whose name S. A. record was prepared and that after purchase of the land in suit from the recorded tenants while they were owning and possessing the same through bargadars. The defendant Nos. 1-6 threatened to dispossess them from the land in suit in April 1986

3. The suit was contested by defendant Nos. 1 and 4 as well as by the added defendant Nos. 7-10 by filing separate set of written statements.

4. It was the case of the defendant Nos.1 and 4 that they by purchase from the successive heirs of Ahmed Ali acquired the land in suit and are owning and possessing the same. The case of the defendant Nos. 7-10 was that their prede­cessor auction purchased on January 13, 1955 land of R.S Khatian No. 928 in Rent Execution Case No. 325 of 1954 and took delivery of pos­session through court on October 16, 1956 that rent receiving interest of R. S Khatian No. 2574/1 was put to auction and the government purchased the same and that later on land in suit was put in auction in connection with Certificate Case No. 1042 of 1953-54 and the defendants father purchased the same in auction held on March 4,1954 and took delivery of pos­session of the land of R. S Khatian No. 2574/1 by filing Miscellaneous Case No. 16 of 1954-55, that in the aforesaid manner defendants predecessor became owner of the land of R.S. Khatian Nos. 928 and 2574/1 that they as heirs of Kabir Ahmed Merited the land of the afore­said Khatians.

5. On the basis of materials on record the trial court decreed the suit on the finding that the plaintiffs have been able to prove their case of exclusive possession.

6. Defendant Nos.1 and 4 preferred appeal as against the judgment and decree of the trial Court. The High Court Division set aside the judgment and decree of the trial court and dis­missed the suit on the finding “…………………….The plaintiffs are claming 8 Kani 10 ganda 2 kara of lands………alleging gunjaish by their vendors predecessors in inter­est in R. S. Plot Nos. 4369 and 4369/9716 but if the plaintiffs failed to prove this allegation of gunjaish then the actual pattani lands (7 kanis 5 gandas) of the land become unspecified portion of land in relation to R.S plots ……..onus of proving this allegation of gunjaish lay solely upon the plaintiff’s but the plaintiffs did not adduce any documentary evidence to prove the same and on the contrary the recital in the patta, Ext. 1 (ka) and in the rent receipts, Ext. 3 series, filed by the plaintiffs themselves as already noticed by us disprove their allegation of gunjaish…….we do not fined the evidence of wit­nesses sufficient to prove the plaintiff’s case as alleged in the plaint…………the plaintiffs failed to prove their case as alleged in the plaint.”

7. Leave was granted to consider the con­tention of the appellants that the High Court Division did not disbelieve patta Ext. 1 and have not recorded any finding that the same can not be relied upon and as such the High Court Division ought to have maintained the title of the plaintiffs to the extent of land measuring 6 kanis at least, that claim of the plaintiffs were based on Ext. 1 and Ext. 1 (ka) as well as the deed executed by the heirs of Ahmed Ali, orig­inal owner and that High Court Division having not disbelieved or discarded Ext.1 and Ext. 1 (ka) as well as Ext. 5 to 5 (ga) (plaintiff’s kabalas) committed gross error in not declaring the title of the plaintiffs to the extent of the land covered by those documents if not in respect of ‘gunjaish’.

8. Plaintiffs filed the suit seeking declaration of title, confirmation of possession and a further decree for permanent injection in respect of 8 kanis 10 gandas 2 karas of land, plaintiffs as regard the relief’s sought for were required to prove title as well as possession and that in case of their failure to establish exclusive possession even if title would have been proved they were not entitled to have a decree as preyed for in the suit.

9. The learned Counsel for the appellants in support of the appeal has submitted since patta executed by Ahmed Ali settling 6 kanis of land to Bashir Mohammad and Kasir Mohammad and that patta Ext.1 (ka) executed by Aju Meah son of Ahmed Ali settling 7 kanis 5 gandas of land (admitting settlement of earlier 6 kanis of land by his father) to the heirs of Bashir Mohammad and Kasir Mohammad and that the labials by which plaintiffs purchased the land in suit from the successive heirs of Bashir Mohammad and Kasir Mohammad are not disputed by the defendants or were not rejected by any court the High Court Division was in error in dismissing the suit instead of not decreeing the same in respect of land covered by pattas and the kabalas Ext. 5 series. This contention of the appellants would have substance in case the relief’s of the kinds sought for in the suit were in respect of 7 kanis 5 gandas of land covered by the pattas Ext.1 and 1 (ka) but the plaintiffs have prayed for a decree of the kind as men­tioned herein over in the suit in respect of 8 kanis 10 gandas 2 karas of land claming to be in possession there of. It is the claim of the plain­tiffs that excess land, “Gunjaish”, was pos­sessed by the pattan holders, thereafter their successors-in-interest and that upon purchase from the successors in interest of the pattan holders are in possession. It may be men­tioned total land in respect whereof relief sought for has been described by referring to the plots and the boundary thereof but without specifying the excess land, “gunjaish”. Measuring 1 kanis 5 gandas 2 karas appertains to which particular plots and that are within which particular boundaries. In such situation contortion raising which plaintiffs sought to appeal against the judgment in question and leave was obtained it can not be considered to entitle them to have a decree as regard the land covered by Ext.1 (ka) and Ext. 5 series as because the land so covered by the said docu­ments is unspecified as to excess land and as such High Court Division was not in error in not decreeing the suit in respect of the land cov­ered by the said documents alone and was quite correct in dismissing the suit since the relief sought in respect of the land in suit were unspecified. The plaintiffs to have the relief’s sought in the suit were require to prove the vital fact of exclusive possession of the land in suit. It was the case of the plaintiffs that they were possessing the land through borgadars. The plaintiffs to establish the aforesaid claim of pos­session examined P.Ws. 3, 4 and 5. P. W. 5 was disbelieved by the trail court. The High Court Division upon discussion of the evidence of the remaining 2 witnesses i.e. P.Ws. 3 and 4 arrived at the finding that the evidence of the said 2 wit­nesses was not sufficient to prove plaintiffs case if possession of the land in suit, from the appel­lants side no exception could be taken as regard the consideration of the evidence of P.Ws 3 and 4 by the High Court Division and that we also do not fined any infirmity or any reason to take exception to the discussion of P.Ws. 3 and 4 as made by the High Court Division. In support of the claim of the plaintiffs that pattan holders possessed land in excess of the pattan land no reliable evidence has been brought on record rather the documents, exhibit 3 series (rent receipts), show that pattan holders were paying rent for 7 kanis and 5 gandas of land i.e. land covered by pattan Ext.1 and 1 (ka). In the face of the documentary evidence and because of the total absence of evidence relating to possession of land excess of pattan land we are of the view that High Court Division was quite correct in dismissing the suit since plaintiff prayed for the relief’s in respect of the land in excess of the land covered by pattas and that they fail to prove possession on the lands as to which relief’s have been sought for. More over there is no evidence on record for making that land cov­ered by pattas, Exts.1 and 1 (ka) ascertainable and as such their contention that High Court Division was in error in dismissing the suit, rather then decreeing the suit in respect of the lands covered by pattase is of merit.

In the background of the discussion made above we do not find merit in this appeal.
Accordingly the appeal is dismissed with­out any order as to costs.
Ed.

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