Judgement passed in the other class No. 61/2015 (Declaration of Title)

District: Rajshahi

In the Court of the Senior Assistant Judge, Mohonpur, Rajshahi

Present: - Md. Abdul Malek, Senior Assistant Judge

Other Class Suit No. 61/2015 

Mr. Md. Nilchad (Plaintiff) Versus Md. Yakub (Defendant).

 

The suit’s trial gets ended and the argument is heard.

In the presence of...

 

And having stood for consideration to this day, the Court delivered the following judgment: This is a suit for declaration that the plaintiff is entitled to the landed property described in the schedule to the plaint through adverse possession.

The Plaint in the nutshell:

The landed property described in the schedule to the plaint has been in possession of the plaintiff from the lifetime of their predecessor over a period of 40 years by way of adverse possession of the suit lands. Actually, there was an oral exchange transactions between the fathers of the plaitifff and defendants. In that exchange, the defendants’ father took 16 decimal of lands comprising plot No. 150 of the SA khatian No. 52, and the plaintiff’s father took the suit lands. Nevertheless, RS record was wrongly prepared in the name of the defendants’ father Shahban. In fact, although the RS recorded tenant of the landed property described in the schedule to the plaint is one Shahban, the father of the defendants, they are completely out of the possession of the suit lands over 40 years. Even the predecessor of the plaintiffs attempted to take possession of the suit lands mentioning such RS record, but the plaintiffs' father drove them away from the suit lands.  But all of a sudden, the defendant made threats for dispossessing the plaintiffs from the suit lands on 10/05/2015, and hence, the plaintiff instituted the suit and invoked the court’s jurisdiction as prayed for.

The Written Statement in brief:

The Defendants contested the suit by filing a written statement denying the material averments made in the plaint. He contended therein, inter alia, that suit is the defect of parties, barred by limitation, and not maintainable in present form. Besides, the very suit’s facts are falsified that produce no cause of action and thus, is legally untenable, unjustifiable; and dismissible in law.

The SA recorded tenant of the landed property described in the schedule to the plaint is one Shahban Soardar and Shobhan Sardar. They were in possession of the suit lands on the basis of oral partitions. The RS record was prepared in the name of Shahban, the father of the plaintiffs, against 15 decimal of the suit lands comprised in the RS khatian No. 170. While in the exclusive possession of the suit lands, Shahban Sardar died leaving behind the plaintiffs, who were then placed in possession thereof. But after the plaintiff dispossessed them from the suit lands in the first half of the year of 2013, the defendants lodged an allegation with the concerned Union Parishod on 16/04/2013 but got no positive results from there. The plaintiff also made threats to them for not instituting any lawsuit in the regular court. Accordingly, the plaintiffs acquire no title to the suit lands. Hence, the suit is liable to be dismissed with costs.

Issues:

The pleadings of the parties are considered. As such, looking forward to determining the matters in controversy, the already framed issues are reframed under Rule 5 of Order 14 of the 1908 Code of Civil Procedure in the following way:

1.      Whether the suit is maintainable in the present form and manner.

2.     Whether the suit suffers from the defect of party. 

3.     Whether the plaintiffs have acquired title to the suit land.

4.     Whether the plaintiffs may get relief as prayed for.

Findings and Decisions

As proof of the claims, the plaintiff examined 04 witnesses and produced for the court's inspection documentary shreds of evidence which are marked as Exhibit No. 1. Defendants also examined 02 witnesses and produced documents marked as exhibit Nos. Ka-Gha. Heard the argument of the learned advocates appearing for both the parties.

Issue No. 2:

Pleading is a statement of claims. For every cause of action or relief, there must have a foundation in the pleadings. The purpose of Pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. The relevant law in this respect is well-settled so far. On perusal of the suit record, it appears before the Court that in absence of anything contrary to it, the plaintiffs impleaded all heirs of the RS recorded tenant in the suit. In addition, except averments made in pleadings, no party to the suit raised any point as to the fact that the suit is bad for parties, and there is no materials on record that demonstrates the non-joinder of parties to the suit. Hence, this issue is decided in favor of the Plaintiffs.

Issue No. 3:  

It is admitted that the defendant is out of the possession of the suit lands and now, the plaintiff is in the possession of that landed property. Since the plaintiffs are claiming their rights by way of adverse possession, the burden of proof in respect to adverse possession is on them (for they claim that they have acquired title to the suit lands by way of adverse possession). As per Article 142 (and 144 respectively) of the 1908 Limitation Act, the plaintiff can only take a plea of adverse possession only if he has adversely to the defendant been in the physical possession of the property for the last 12 years and the defendant’s right under section 28 of the Limitation Act is extinguished. Since the plea of adverse possession is not a pure question of law but a blended one of fact and law, there are some required elements for an adverse possession to be effective.

03. In a case of adverse possession of land, these aspects are to be taken into consideration: the plaintiffs’ possessor must have actually entered the property and must have exclusive possession of the property; the possession must be “open and notorious”; the possession must be adverse to the rightful owner and under a claim of right; and the possession must be “continuous” for the statutory period. More specifically, the plaintiffs claiming adverse possession must demonstrate (a) on what date, he came into possession; (b) what was the nature of his possession; (c) whether his possession was open, exclusive, continuous and undisturbed; (d) how long his possession has continued, and (e) whether the factum of possession was known and hostile to the true owner.

04. On perusal of the materials available on record, it becomes trite to say that the plaintiffs appear to have claimed that they are in the exclusive possession of the suit lands over a period of 40 years. Interestingly, the defendants admitted [vide DW-01] in ways that currently, the plaintiffs are in possession of 15 decimal lands comprised in the RS plot No. 203. But they (plaintiffs) don't admit the plaintiff's possession in the suit lands before the year of 2013. As a result, on perusal of the shred of evidence adduced by the PW-01 and DW-01, it first becomes evident that the plaintiffs are now in “actual physical” possession and “not merely constructive” possession over the land.

05. Secondly, the plaintiffs further have proved that they have the requisite ingredient of animus possidendi (intention to possess) while claiming ownership by taking the plea of adverse possession. Hostile Possession is a kind of possession that is without the consent of the owner and the assertion of which conflicts with the property ownership interests of the owner. Moreover, since animus possidendi is necessary, possession does not become adverse when the intention to hold adversely is wanting. In our case, the materials on record vividly suggest that the plaintiffs holding the suit property by way of adverse possession must have published his intention to deny the right of the real owner, and such an intention of adverse possession is within the notice, knowledge of the defendant. Hence, it is also established with a credible piece of evidence that the plaintiff’s possession is “open, known and hostile” to the actual owner (defendants).

06. Now, consider whether his possession was exclusive, undisturbed, and "continuous" for the statutory period. In this respect, oral testimony could be instrumental to make a decision thereon. The PW-01 stated that the landed property described in the schedule to the plaint has been in possession of the plaintiff from the lifetime of their predecessor over a period of 40 years by way of adverse possession of the suit lands. In the inception, there was an oral exchange transaction between the fathers of the plaintiffs and defendants. By way of that exchange, the defendants' father took 16 decimal of lands comprising plot No. 150 of the SA khatian No. 52, and the plaintiff’s father took the suit lands. Subsequently, the RS record was wrongly prepared in the name of the defendants’ father Shahban. The plaintiffs thus claims that although the RS recorded tenant of the landed property described in the schedule to the plaint is the father of the defendants, Shahban, they (defendants) are completely out of the possession of the suit lands for over 40 years.

07. In evidence, the plaintiff-side depends on the premise that the suit landed property has been in possession of the plaintiff from the lifetime of their predecessor by way of adverse possession of the suit lands; and that period already becomes over a period of 40 years. Apparently, although the plaintiffs mention no starting point of adverse possession, they admitted [PW-01] that the defendants made threats to them for dispossession from the suit lands on 10.05.2015. So, the statutory period could be reckoned reversely from the ending point of the plaintiffs’ alleged peaceful and continuous possession.

08. The PW-01 further claims in his evidence that he has himself been cultivating the suit lands, by establishing betel fields the last five years. He also added that his father cultivated paddy on the suit lands too. But the PW-03 stated that one “Jamal” establishes the betel field upon agreement. The other two witnesses [PW-02 and 03] only certify that there is a betel field on the suit lands and the plaintiffs are in possession of it. So, it is noticeable that none supported the plaintiffs (PW-01) on the fact of their predecessor’s paddy cultivation over a certain period. What becomes vivid is that PW-01 and PW-03 added a fact of betel field, which has been installed just five or six years ago. Interestingly, PW-03 deposed as such in September of 2019 and at best six-year back goes in 2013. The defendants in their pleading conspicuously stated that the plaintiffs made them out of possession in the first half of 2013. Even, the DW-02 added that the plaintiffs along with “Jamal” had dispossessed the defendants 6/7 years ago. Accordingly, there arises a material point that goes antithesis to the plaintiffs’ proposition.

09. Moreover, both PW-03 and DW-02 stated that one “Jamal” establishes the betel field upon agreement. Both are the most competent witnesses as they have lands adjacent to the suit lands. As aforesaid, the DW-02 added that the plaintiffs along with “Jamal” had dispossessed the defendants 6/7 years ago. The fact is that Mr. “Jamal” currently cultivating the suit lands is “not examined” before the court. Although the plaintiffs’ witness PW-03 made an addendum of Jamal’s episode, non-examination of Mr. Jamal before the court becomes mischievous to the plaintiffs under section 103 of the 1872 Evidence Act (the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence). So, it is deducible that the plaintiffs have not been able to discharge such an onus legally cast on him.

10. Even, if the plaintiff’s evidence in this regard is considered as it were, the plaintiffs' positions become unsupportive with another witness like the PW-03. Plus, the non-examination of Mr. Jamal procreates adverse presumption against the plaintiffs under section 114 (G) of the 1872 Evidence Act. For that reason, there arises another fact that also goes antithetical to the plaintiffs’ discourse of evidence. That being such, it is decisive that the evidence of the plaintiff coterie carries them nowhere in the proof of their claim of exclusive, continuous, and undisturbed possession for over the statutory period. The legal position counsels that the possession must be adequate in continuity, in publicity and in the extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, and hostile and continued over the statutory period, which is 12 years from the date of alleged dispossession [vide Art. 142 of the 1908 Limitation Act]. Hence, the whole fabric of the materials on record persuades the court to opine that the plaintiffs should suffer from such an annihilating position.

11. Furthermore, on careful consideration of the materials on record, it also transpires that in the case of declaration of title based on adverse possession, material consideration is the question of adverse possession is to be determined on the basis of the specific averment made in the plaint. In our case, the plaintiffs' pleading enumerates that an oral exchange was executed between the fathers of both plaintiffs and defendants. In that exchange transaction, the defendants' father took 16 decimal of lands comprising plot No. 150 of the SA khatian No. 52, and the plaintiff’s father took the suit lands. In cross-examination, the PW01 stated that Saibot, Kamal, and Ashraf know about that exchange. Saibot deposed as PW-02 who testified that he was yet to be borne at the time of exchange. PW-03 & PW-04 having lands just adjacent to the suit lands are found totally silent about the plaintiffs’ specific fact- “oral exchange”. So, the PW-01 remains unsupported by other witnesses adduced by him. In addition, since RS record was prepared in the name of the defendant's predecessor one Shahban, not in the name of the plaintiff’s predecessor. Consequently, the plaintiffs are precluded from claiming the presumptive value of the latest Record of Rights.

12. Interestingly, the DW-01 convincingly states in his cross-examination a basis of his dispossession from the suit lands, that is to say, the suit lands situate on the western side adjacent to the other lands of the plaintiffs. As such, it appears that the so-called basis of adverse possession on the specific averment made in the plaint has not been proved with credible and weighty evidence. Additionally, there comes in the pertinence of the dicta observed by the Privy Council [vide 28 AIR 1934 PC 23] that “the ordinary classical requirement of adverse possession is that it should be “nec vi nec clam, nec precario” (without force, without secrecy, without permission). Pertinently, the use of “force” to dispossess a true owner seemingly affects the fine-terrain of the court’s discretionary and equitable relief.  Pertinently, another cardinal principle also resounds here that although the plea of adverse possession can be used both as a sword and as a shield, a person pleading adverse possession has no equities in his favor, simply because, he is trying to defeat the rights of the true owner [vide 2015 (5) ALT 634]. Thus, it is for the plaintiff to clearly plead and establish all facts necessary for adverse possession.

13. However, it also appears that the defendants did not take the plea that the plaintiffs are now in possession, by way of permissive possession, or as the co-owner of the land claiming ownership by way of adverse possession, or, as part performance in according to an agreement to sell as provided under Section 53A of Transfer of Property Act, 1882. So, any discussion about these points fairly stands outside the ambit of the present context.

14. In fact, the court understands that adverse possession is also known as squatter’s rights. Basically, the term ‘adverse possession’ is not defined anywhere in the Limitation Act, as it is not a positive right and merely a negative and consequential right, which is based on the negligence or inaction on the part of the rightful owner of the land to come forward and take legal recourse in case any person is in hostile possession of his land. The relevant law is that only having long continuous possession is not enough to perfect title by adverse possession and all other ingredients, that are hostile, exclusive, and uninterrupted possession for 12 years, are also necessary. So, since the plaintiffs are trying to defeat the rights of true owner (defendants), it is for them to clearly plead and establish all facts necessary to establish his adverse possession. But here, the court is of the view that the plaintiffs are not found to be able to prove and establish their adverse possession of the suit lands.

15.  No doubt, this suit is for declaration of title to the suit land on the basis of adverse possession. In short, title is a legal term that refers to an interest and ownership of something. In jurisprudential sense, title to property thus refers to ownership of the property, meaning that you have the rights to use that property. On the other hands, ownership to lands refers to an aggregate of all the rights a person has with those lands that he owns. Particularly, the concept of ownership flows from that of possession [vide A Textbook of Jurisprudence, G. W. Paton, (1973) OUP, p. 539, 546]. Accordingly, it can be said that when you have ownership, then you have only ownership; and when you have title, then you have ownership as well as title. Here is the germane fact is that unless the enjoyment of the property is accompanied by adverse animus for a statutory period, mere possession would not be sufficient to mature the title to the property by adverse possession. Therefore, it is the courts’ view that although the plaintiff’s current possession over the suit lands in entirety has been proved with credible and weighty evidence; they are in legal parlance not adjudged to be entitled to the suit lands by way of adverse possession.

In dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter upon a detail discussion of the question of onus. The reason is simple: the whole fabric of the evidential edifice is before the court; which finds no difficulty in arriving at a conclusion with regard to the issues in discussion. So, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that the plaintiff’s title through adverse possession to the suit lands is not proved and established with unimpeachable evidence. Hence, this issue is not settled in the plaintiff’s favor.

Issue No. 1 and 4:

For brevity, convenience and correlation, all the issues are taken together in discussing the matter in the suit. These issues are certainly crucial in point of laws and facts for being related to the questions of the maintainability and eligibility for getting relief sought for in the Plaint. On perusal of the suit materials, the court is of opinion that this is a competent court to grant relief as prayed for in this suit. But, as aforesaid, since it appears to the Court that the plaintiffs have not been able to prove on their own strength with credible pieces of evidence that the plaintiffs have acquired title to the suit land by way of adverse possession, the court finds adequate reasons to hold that the instant suit is not maintainable in its present form and manner. Furthermore, as such, because of all of the issues discussed above, it is thus held that since the plaintiffs have not been successful in proving all issues in their favor, the plaintiffs are not adjudged to be entitled to get relief as prayed for. And thus, it is decided that the suit deserves to be dismissed on contest.

Court fee paid is sufficient.

Hence,

it is ORDERED that

the suit be dismissed on contest against the defendants without any order as to costs.

            (Composed and corrected by me)

continue reading Judgement passed in the other class No. 61/2015 (Declaration of Title)

Judgement passed in the Misc. Case No. 35/2015 (Pre-emption)

BANGLADESH FORM NO. 3701

HIGH COURT FORM NO. (J) 2

HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE 

District: Rajshahi

In the Court of the Senior Assistant Judge, Mohonpur, Rajshahi

Present:  Md. Abdul Malek, Senior Assistant Judge

13 July, 2022

Miscellaneous Case No. 35/2015 (Pre-emption) 

Mr. Sri Aujoy Sarkar....................…...Petitioner

Versus

Mr. Sri Bipod Chandro Shaha and Others.......Opposite Parties

The suit/case’s trial ended and arguments are heard

In the presence of

Mr...........................…………….……Learned Advocate for the Petitioner

Mr.....................................…. Learned Advocate for the Opposite Party

And having stood for consideration to this day, the Court delivered the following judgment: This is an application under section 96 of the State Acquisition and Tenancy Act, 1950. The petitioner filed the case for getting the case lands by way of pre-emption as described in the schedule to the application.

The application in the nutshell:

The recorded tenant of the RS khatian Nos. 253 and 254 was one Zogendronath Pramanik, who died leaving behind his spouse one Srimoti Khiroda Sundari. Srimoti Khiroda Sundari transferred 02.06 acres lands to the father of the petitioner Shushil Kumar via a deed No. 1250 dated 27.02.1983. Shushil Kumar died leaving behind the petitioner Aujoy Sarkar, Bijoy Kumar Sarkar (O.P. No. 02) and Aujit Kumar Sarkar as heirs. The O.P. No. 03 is a son of Aujit Kumar Sarkar. The Petitioner pre-emtors and the seller proforma opposite parties are co-sharers by inheritance. Suddenly, the opposite party No. 02 surreptitiously sold the scheduled lands in question to the opposite party No. 01 without serving any notice or furnishing any information upon the petitioners whatsoever. Subsequently, the petitioner came to know about the disputed sale when the O.P. No. 01 wanted to take possession of the lands in question 25/07/2015 and definitely on 30/07/2015 after obtaining the certified copy of the disputed sale. The petitioner prayed for pre-empting the lands scheduled to the petition and hence is the case.

Written objections in short:

The Purchaser Opposite Party (hereinafter, O.P.) No. 01 contested the case by filing the written objection, denying the material averments made in the pre-emptors’ petition. They contended inter alia that the very petition is legally untenable, barred by limitation, and hit by the defect of parties. The contesting Opposite Party stated that the recorded tenant of the RS khatian Nos. 253 and 254 was one Zogendronath Pramanik, who died leaving behind his spouse one Srimoti Khiroda Sundari. Srimoti Khiroda Sundari transferred the lands to one Shushil Kumar, who died leaving behind the petitioner Aujoy Sarkar, Bijoy Kumar Karkar (O.P. No. 02) and Aujit Kumar Sarkar as heirs. Upon request by the O.P. No. 02, he purchased the lands in question in cognizance of the many others, including the petitioner. 

He also stated that the Petitioners were aware of the disputed sale and cognizant of the disputed deed from the very inception. He has mutated the suit lands after the said purchase. Accordingly, separate holding is opened and taxes are being paid accordingly, as well as an improvement is also made to the case lands subsequently. Additionally, since the Petitioners filed the case for unlawful gain and based the same on false and fabricated statements; they (the Petitioners) are not entitled to get back the case lands as they prayed for.

Points for Determination:

Considering the parties’ petition and written objection, the points for determination are fixed with a modification in the following way:

1)      Whether the case is maintainable in the present form and manner. 

2)    Whether the case is bad for the defect of parties.

3)     Whether the case is barred by limitation

4)    Whether the petitioners are co-sharers by inheritance in the holding in question.

5)     Whether the petitioners may get relief as prayed for.

Discussions and the Decisions:

In proof of the claims, the petitioner examined two oral witnesses as PW 01-02, and produced documentary evidence marked as exhibit Nos. 01-03). On the other side, the Opposite Party No. 01 also examined oral witnesses as OPWs 01-03 and put forward documents marked exhibit Nos. Ka-Kha.

Point for Determination No. 02:

All the co-shares are necessary parties in a pre-emption case. Waiver of the right is one thing, but defeating the right by deliberate omission in the pre-emption application is a different thing. So, pre-empting right is not absolute, but subject to the right of other co-sharers. Since the cause of actions for a pre-empting right accrues to those all who are entitled to file an application for pre-emption against the transferee, impleading necessary parties are considered as mandatory and not directory one. Consequently, the Omission does not absolve the pre-emptor of his mandatory duty to implead them by ascertaining necessary particulars [vide 4 BLD (AD) 27].  Thus, an omission of a necessary party is vitiating and fatal to pre-emption cases.

On perusal of the case record, it appears before the Court that with regard to the plea of defect of parties for the instant case, the opposite parties produced discourses as to the omission of a necessary party in pleading and particularly mentioned the name of some purchasers not made party to the case. It is the plea of the O.P. No. 01 that they (“purchasers”) are “necessary party” in this miscellaneous proceeding.

 Consider the explicit provisions of the relevant law. The combined reading of the provisions enshrined in section 96 (2) & (4) of the 1950 State Acquisition and Tenancy Act, all other co-sharer tenants “by inheritance” of the holding and the purchaser shall be made parties. It is admitted that Shushil Kumar died leaving behind Aujoy Sarkar (petitioner), Bijoy Kumar Sarkar (O.P. No. 02) and Aujit Kumar Sarkar as heirs. The O.P. No. 03 is a son of Aujit Kumar Sarkar. So, considering the exhibited documents and the depositions given in examination-in-chief as PW- 01 and DW-01, it appears that all co-sharer tenants by inheritance in the holding are made parties to the instant case. It is, therefore, decided that the Petitioner has successfully impleaded all the necessary parties in the case, and thus, the case seems to imply that the same is free from the defect of parties. Hence, this point is also decided in favor of the Petitioner.

Point for Determination No. 04:

As aforesaid, it is admitted the O.P No. 01 in his pleading that the recorded tenant of the RS khatian Nos. 253 and 254 was one Zogendronath Pramanik, who died leaving behind his spouse one Srimoti Khiroda Sundari. Srimoti Khiroda Sundari transferred the lands to one Shushil Kumar, who died leaving behind three sons, Aujoy Sarkar, Bijoy Kumar Sarkar (O.P. No. 02) and Aujit Kumar Sarkar. Here, Aujoy Kumar Sarkar instituted the case as a co-sharer; and Bijoy Kumar Sarkar and the legal representative of Aujit Kumar are made parties to the case as O.P. No. 02-03. Even, on perusal of the pleading of the parties and the testimony of the DW-01 (vide cross-examination), it further appears that the instant petitioner turns into coherer tenants by inheritance of the holding. The PW-01 as well as DW-01 along with other witnesses supported this premise in many ways that the current petitioners are also co-sharers by inheritance. 

05. However, the O.P. also bases his plea of defence in ways that after the demise of Shushil Kumar Sarkar, the share(s) of the case lands are allotted to his heirs on oral partition. But, what transpires on the materials on record reveals that no partition either through a registered deed or otherwise is proven to be complete so far, as well as the tenancy of the holding is yet to be split up through mutation regarding the lands in question before the institution of this case. Surprisingly, the O.P. No. 01 admittedly appears to be a stranger to the disputed tenancy in holding.

06. Moreover, the OPs further robustly claimed that the pre-emptor is not a co-sharer in the holding in question for a separate holding has been opened in the name of the OP No. 01 after his disputed purchase, and on the basis of which, rents are being paid by them. In evidence, it appears that the O.P. No. 01 places no documentary piece of evidence in support of his case in denial of the petitioners’ co-shareship due to the alleged separate holding. It is no denying that the process of separation or sub-division of holding is altogether a different thing and it shall have to be done only after observing the procedure as laid down in section 117c of the aforesaid Act of 1950. Besides, '[a] non-notified co-sharer of the holding which was divided would remain co shares of the holding as if there was no sub-division of holding relating to the claim.' As such, these premises require to minutely be scrutinized on our purposes.

07. On scrutiny of materials on records, it appears that there is no proof of a separate holding opened with regard to the lands disclosed in the deed in the question of pre-emption. Accordingly, the plea of splitting up of the tenancy of the holding holds no water in legal parlance. The relevant law is well-spoken that when separate Khatians are prepared in the names of the original co-sharers, that co-sharer in whose names separate Khatian have been prepared will cease to be co-sharers of the original holding. [Vide 13 MLR (AD) 144]. Therefore, the court finds no convincing or unimpeachable evidence that is independently led by the O.P. in support of the alleged extinguishment of the petitioner’s co-shareship in the holding in question.  Therefore, it is the court’s view that the Petitioners are “co-sharer tenants by inheritance” in the holding in question.

Point for Determination No. 01, 03 & 05:

These issues are taken together for the sake of brevity, convenience, and interrelation. As per section 96(1) of the 1950 State Acquisition and Tenancy Act, a pre-emption case is to be filed within two months of the service of notice under section 89; or if no notice has been served under that section, within two months of the “date of knowledge” of the disputed sale. The relevant law envisages that the date of obtaining a certified copy of the sale deed will be considered as the 'date of knowledge' contemplated as a 'complete and definite date of knowledge as to the disputed sale' in case of non-service of notice [vide 15 MLR 207, 9 BLD 197]. On perusal of the materials on record, it appears that there is no proof in the support of the service of notice as aforesaid. Accordingly, this application for pre-emption will not be barred if it is filed within two months from the date of knowledge for no notice is served under section 89. Hence, the date of initial knowledge is to be relaxed; instead, the date of definite knowledge is to purposively be considered here.

09. In pleading, the petitioner claims that he came to know about the disputed sale when the O.P. No. 01 wanted to take possession of the lands in question on 25/07/2015 and he also definitely got informed of the same after making an educated person read over it to them after obtaining the certified copy of the disputed sale. In evidence, it occurs on record that the petitioners concurred with the same propositions with sufficient explanation as to how he came to know about the disputed sale [vide PW-01]. However, the opposite side objected to the reckoning of the limitation on account of the date of knowledge, both in pleading and in cross-examination. The O.P. underscores (OPW-01) that they purchased the lands in the case jote in the presence of Bijoy, Salam, Goutam, Aujoy, Mukul and Shahidul and made an improvement to the case lands subsequently. They claim that the petitioner had known about the disputed sale and when they declined to purchase the case lands in their presence.

On close perusal of the testimony led by the opposite parties, it seemingly appears that the OPW-01 reiterated the same in his cross-examination; but it also occurs that his other witnesses DW 02-03 did not convincingly support his testimony, simply because the OP did not particularly, on one hand, examine Bijoy, Salam, Goutam and Mukul, except Shahidul (OPW-02) who he himself went to Bijoy’s home with Apod. Here, Bijoy is the seller and Apod is the purchased of the case lands. As a result, it is deducible that the said event happened at Bijoy’s home, not at the home of the petitioner Ajoy Sardar. As a result, it cogently transpires that the petitioner has come before the court with more weighty evidence than the opposite party did as to the knowledge of the sale.

11. Moreover, the OP side additionally presented that the petitioner had prior knowledge about the disputed sale and narrated a particular fact: the marriage of Tripti Rani, a daughter of the seller, and a niece of the pre-emptor. But as it transpires on the materials on record that, although the very fact is ostensibly relevant, it did establish no robust connection to the propriety of the pre-emptor’s date of knowledge. The court, therefore, finds no reason for not being satisfied with the standard of proofs led by the petitioner on the point that the whole fabric of the evidential edifice convinces the court to hold that the instant miscellaneous case (pre-emption) was filed within the prescribed period of time. In view of the above propositions of law and facts, it is, therefore, found that the case has been filed within the period of time prescribed in law; and thus, the same is not barred by law. Hence, this point for determination No. 03 is decided in favor of the Petitioner.

12. Furthermore, it is also noticeable that the OP side clearly claims that the lands in question are not pre-emptible for they are not agricultural lands. But, it surprisingly occurs that the O.P. side also mentions in pleading that the land class is vita and there have been built betel field and cluster or clump of bamboos, and that is the improvement made by them therein. Besides, both side admitted in their testimony that there is a betel field and cluster or clump of bamboos on the case lands. So, such a plea holds no water.

13. Then, it is also noticeable that as a matter of expediency, section 96 (11) of the 1950 State Acquisition and Tenancy Act can be considered and discussed here for lawful adjudication of the instant case. Section 96 (11) articulates that ‘nothing in this section shall be deemed to apply to homestead land. Hopefully, the definition of the term ‘homestead’ is found in section 2(14) of the aforesaid Act. It runs as “homestead” means a dwelling house with the land under it, together with any courtyard, garden, tank, place of worship and private burial or cremation ground attached and appertaining to such dwelling house, and includes any out-buildings used for the purpose of enjoying the dwelling house or for purpose connected with agriculture or horticulture and such lands within well-defined limits, whether vacant or not, as are treated to be appertaining thereto. According to these provisions, it is unquestionable that homestead land is not pre-emptible. So, a vita having no connection to attributes mentioned in this definition is in no way homestead. The materials available on record suggest that the lands in question is not, in legal parlance, homestead. Besides, both side admitted in their testimony that there is a betel field and cluster or clump of bamboos on the case lands. So, the application stands outside the bar of the provisions enumerated in section 96 (16) of the 1950 State Acquisition and Tenancy Act.

As a result, since the application is barred by limitation, the instant case is not maintainable in the present form and manner. As such, since the petitioners are held to be co-sharer of holding in the tenancy and the application is not otherwise barred, they may get relief as prayed for. In consideration and cognizance of the petitions, facts, surrounding circumstances, submitted shred of shreds of evidence, both oral and documentary, on record, and relevant laws, it appears to the Court that the application deserves to be disallowed on contest. 

 

Court fee paid is correct.

Hence,

it is  ordered

that the pre-emption application be allowed on contest against the Opposite Party No.1 without any order as to costs. The pre-emptor will get scheduled lands by way of pre-emption. The Opposite Party No. 1 is allowed to withdraw the money deposited in their credit. The OP No. 1 directed to execute and register a sale deed in respect of case lands in favour of the Petitioner within 60 days from this order provided that no tax, duty or fee shall be payable on such registration. In default, the Petitioner may get the same through Court in accordance with the law. 

(Composed and corrected by me)

continue reading Judgement passed in the Misc. Case No. 35/2015 (Pre-emption)

Judgement passed in the Family Suit No. 60/19 (dower money and maintenance)

HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE

District: Rajshahi                        

In the Court of Family Judge, Mohonpur, Rajshahi

Present: - Mr. Md. Abdul Malek, Judge, Family Court

Family Suit No. 60/19

Mst. Joli Begum, Plaintiff Versus Mr. Md. Hafijul Rahman, Defendant

The suit coming on trial ended and the argument was heard.

In the presence of...

And having stood for consideration to this day, the Court delivered the following judgment: This is a family suit instituted with a prayer for recovering unpaid dower money and maintenance against the Defendant.

 

The Plaintiffs’ Plaint in the nutshell:

A marriage was contracted and registered between the Plaintiff and the Defendant on 20/07/2019 upon fixing dower money at Tk. 3,00,000/. In the aftermath, the Defendant demanded dowry; and on refusal to give him dowry, he drove the Plaintiff away from his adobe on 01/08/2019 and then, she took shelter in her father’s house. From that time, the Plaintiff started staying at that abode and later on, she repudiated their marital tie on 04/08/2019. On 01/08/2019, the Plaintiff demanded unpaid dower money and her maintenance from the Defendant but the latter refused to pay the same; and hence the suit.

 

The Written Statement in Brief:

On the other hand, the Defendant contested the suit by filing written statement denying the material averments made in the plaint. He contended, inter alia, that the Plaintiff lacks in locus standi, the impugned facts are fabricated and fraudulent, and the very suit is legally untenable, unjustifiable; and dismissible for cloudy cause of actions.

The Defendant stated that the plaintiff is a spouse of his step brother, who got married to each other ten years ago and now, they have two offspring in their family. The defendant also claimed that there is or was no marriage between the plaintiff and the defendant; and they never reside under same roof upon marital knot. Since there was no marriage either through sharia law or registered nikahnama, there arises no question as to the dissolution by the plaintiff of that alleged marriage in between. Hence, the plaintiff is not entitled to get any reliefs as prayed for and the suit is liable to be dismissed.

 

Issues:

Considering the parties’ pleadings, the issues are framed with modifications for discussion in the following way:

1.     Whether the suit is maintainable in the present form and manner.

2.    Whether the plaintiff is entitled to get her dower money.

3.    Whether the plaintiff is entitled to iddat maintenance.

4.    Whether the plaintiffs are entitled to get remedy as prayed for.

 

Discussions and Decisions

In proof of the claims, the Plaintiff examined herself as PW. 01, and other witnesses as PW 02-06, and produced documentary evidences marked as Exhibit No. 01-05. On the other side, the Defendant examined himself as DW 01 and another witness as DW-02. Another witness as CW-01 is also examined before the court. After the trial of the suit ended, the last reconciliation effort was failed and then, heard arguments from both sides.  

Issue No. 01:

The plaintiff filed the suit before this family court having jurisdiction under the provisions of the Family Court Ordinance, 1985; and paid proper court fees, with a prayer for a decree for dower and maintenance. Section 05 of the Family Court Ordinance, 1985 recognizes any aggrieved person’s right to file a lawsuit concerning the matter of dower and maintenance. So, since there appear no contrary materials to the aforesaid premise, it is decided that the suit is maintainable in the current form and manner. Hence, in the absence of materials to the contrary, the issue is settled in the plaintiff’s favor.

Issue No. 02 and 03:

On perusal of the materials available on record, it appears that it is admitted that marriage was contracted and registered between the plaintiff Joly Begum and her current husband, one Selim Reza (PW-05) and now the plaintiff is leading conjugal life with him (Selim Reza) with having two offspring in their family [vide PW-01, (cross-examination). Accordingly, it is conspicuous that there existed and now exists a spousal relationship between the plaintiff and Selim Reza to date. Consequently, as issue No. 02 suggests, there arises a pertinent question as to whether the plaintiff got legally married to the defendant meanwhile so that she should get dower money from the defendant.

04. In the search of an answer to the aforesaid question, it appears that the plaintiff claims in her pleading and evidence that her marriage with Selim Reza (allegedly 1st husband) was dissolved through a khua talaq on 20/04/19 (ext: 06) and then, following the event, she further married to the defendant Hafizul Rahman (allegedly 2nd husband) on 20/07/2019 upon fixing dower money at Tk. 3,00,000 [PW-01; ext: 01]. Having claimed as such, the plaintiff tried to establish a case on the point that she meanwhile got married to the defendant and thus, is entitled to dower money and maintenance. On the other hand, the defendant is found in total disagreement with the plaintiff in ways that the plaintiff is a spouse of his stepbrother, who got married to each other ten years ago and now, they are leading their marital life with having two offspring in their family. The defendant also claimed that there is or was no marriage between the plaintiff and the defendant, and they never reside under the same roof upon marital knot (vide DW-01). Likewise, the defendant claims that since there was no marriage either through sharia law or registered Nikahnama, there arises no question as to the dissolution by the plaintiff of that alleged marriage in between (DW. 01-02). Hence, the defendant claims on those premises that the plaintiff is not entitled to get any reliefs as prayed for.

05. Now, considering aforesaid propositions as such, another incidental question comes into play on the fact that whether the marital relationship between the plaintiff and Selim Reza meanwhile lawfully terminated or not. That is to say, was there any lawful marriage between them (plaintiff and defendant)? On perusal of the materials on record, it transpires in evidence that Selim Reza got examined as PW-05 who vividly deposed that the plaintiff is his spouse and spent 7/8 years together as a spouse, and now, they have two offspring in their family. He also asserted that he repudiated his marital tie with the plaintiff after the birth of their 2nd child through khula talaq in 2019. On the issue at hand, he unequivocally asserted that he did not serve notice of talaq to the concerned U.P. chairman. Even, the plaintiff did not place any evidence on the fact that the notice of khula talaq was served upon the concerned U.P. chairman.

06. However, on this very vital point, the plaintiff only put forward the certified copy of the registration of khula talaq (ext: 06), and thus, claims that the talaq in question becomes effective as such.  On the other hand, the defendant underscored his position on the demand that a spousal relationship between the plaintiff and Selim Reza exists to date since its inception. Accordingly, it becomes incumbent to consider the pertinent provisions of law that touch the ensuing facts. Section 7 of the 1961Muslim Family Laws Ordinance stipulates that “Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. It also envisages that “Save, as provided in sub-section (5,), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

07. The plain reading of the above statutory provision gives us a lucid understanding that any pronouncement of talaq shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman. The words “in any form whatsoever” appearing in section 7(1) of the Ordinance 1961 is very much significant; as it spells out that “in any form" means and includes khula talaq too; no matter whether talaq is registered or not), or no matter whether any modes of Talaq stated in Mahomedan Law. Because section 7 requires only a notice of a talaq to be given to the Chairman to give effect to divorce. In fact, Khula or Mubara'at is another form of talaq or dissolution of marriage by agreement Khula or Mubarat is stated in section 319 of Mulla's Principles of Mahomedan Law [19th Ed. 1990, (2010 reprint)].

08. Now, consider a bird's eye view on some judicial pronouncements on section 7 of The Ordinance of 1961. With regard to the objects, requirements, and consequences of section 7 of the 1961Ordinance, it has been highlighted that the object of section 7 of The Ordinance is to prevent the hasty dissolution of marriage by talaq proposed by the husband, unilaterally, without an attempt is being made to prevent disruption of matrimonial status [vide 15 DLR (SC) 9]. It has also been laid down that in the event of failure of compliance of provision of sub-section 1 of section 7 of The Ordinance a Talaq even if pronounced by a husband cannot be effective in law and the marriage between husband and wife subsists [vide Abdul Aziz vs Rezia Khatoon 21 DLR 733].

09. It has further been reported [46 DLR 700] that divorce under the Ordinance is not a unilateral act, and it precludes a divorce on talaq from being effective from a period of ninety days from the date of receipt of the notice by the Chairman and consequently marital status of the parties will not in any way change and parties in law will continue to remain, husband and wife, till the divorce is confirmed. Ninety days reconciliation period is to start from the date of receipt of notice by the Chairman, and not from the date when it was written. Although the failure of the Chairman to constitute an arbitration council or that of a duly constituted arbitration council to take necessary steps to bring about reconciliation is inconsequential, it is the legal position that there shall be not Talak in the eye of law unless provision contained in section 7(1) is sternly complied with; and marriage between husband and wife shall subsist. In the event of subsistence of the existing marriage, no man or woman can enter into a second marriage. And if he enters, he shall contribute himself to be punished under section 6(5) of the Ordinance. [vide Dilruba Aktar vs AHM Mohsin, 55 DLR 568].

 

10. Non-service of notice to the Chairman of the Union Parishad under the provision of this section cannot render ineffective divorce disclosed in an affidavit. [vide Sirajul Islam vs Helana Begum and others, 48 DLR 48]. The whole materials on record reveal that the Khula talaq in question was not disclosed in an affidavit. It was also aptly argued in an occasion reported in Md Sirajul Islam vs Mosammat Helena Begum, [1996 BLD 477] that “when divorce is clearly established by the conduct of the husband, mere non-service of notice upon the Chairman as enjoined by section 7 of the Ordinance does not render the divorce ineffective.” In this respect, it can be opined that with respect to the Khula talaq in question, a duty was cast upon the husband to give notice under section 7 of the said Ordinance. Here, the current husband of the plaintiff, Selim Reza, admitted in evidence (PW-05) that he did not discharge his duty to serve notice to the concerned U.P. chairman. Moreover, because Selim Reza is still leading his conjugal life with the plaintiff, his Khula talaq attempt was presumably not intended by him, not for eternity. Even, the non-service of notice to the chairman provided no change of reconciliation whatsoever.  Accordingly, it vividly transpires to the court that the conduct of the plaintiff and Selim Reza carries them nowhere in dissolving their marital tie.

 

11. Talaq pronounced by the wife must be communicated to the husband. In our case, it was the alleged khula talaq. A divorce by Khula is a divorce with consent. So, it is assumable that although the communication of consents was over and complete, the defendant was not that communicated husband; instead, her current husband was communicated as such (as admittedly, the defendant and the plaintiff’s current husband is not identical person). Hence, there arises no question as to effective communication between the plaintiff and defendant. In addition, the defendant does not admit the fact of any divorce between the plaintiff and her spouse Selim Reza. Accordingly, the conduct of the parties has no pertinence in deciding, whether the requirement of section 7(1) of the 1961 Ordinance was constructively compiled or not, or whether the intendment of the legislature is served. The literal or popular interpretation suggests that if the language of a statute is plain, the only duty of the court is to give effect to it, and the court has no business to look into the consequences of such interpretation.

 

12. Therefore, it becomes clear that “no notice” under section 7(1) means “no talaq”....unless the provisions of section 7(1) of the 1961 Muslim Family Laws Ordinance are complied with regarding service of notice to the Chairman of Union Council. In essence, such a talaq attempt would fail to operate. Therefore, it is the court’s view that the alleged talaq between the plaintiff and her current spouse Selim Reza could not free her (plaintiff) to marry (the defendant) ‘meanwhile’. The provision of section 7(1) of the Ordinance was standing on their way [vide 15 DLR (SC) 9] To demystify, one may again come up with a question whether the deed of divorce (ext. 06), even if held to be genuine, would operate as a valid divorce under the current statutory provisions. The answer to this question, so as to the fact of the suit is pertinent, is resounding “no”; it would not operate as a valid divorce under the current statutory provisions of section 7(1) of the 1961 Muslim Family Laws Ordinance. The boom line counsels that section 7(1) must sternly be complied with in order to give legal effect to an intended divorce. Hence, upon the aforesaid premise, it is the court’s view that in the subsistence of marital tie between the plaintiff and Selim Reza, the plaintiff’s claim that marriage was contracted and registered between the Plaintiff and the Defendant on 20/07/2019 upon fixing dower money at Tk. 3,00,000 is not sustainable in law.

 

13. Furthermore, as aforesaid, the defendant does not admit the marriage contract and denies the authenticity of the marriage registration (the plaintiff’s alleged second marriage). Although the certified copy of the Nikahnama is placed before that court, and later on divorce papers (ext: 1-5), a close perusal of the materials available on record, it speaks out that the fact of the plaintiff’s second marriage with the defendant appears to be incongruent and unconvincing. The PW-01 once stated in her cross-examination that her second marriage was done at the house of Altaf Kazi. She again stated at the office of Altaf Kazi. Altaf Kazi was not examined before the court; instead, Md. Shohrab Hosen as CW-01 deposed that Altaf was his assistant, and Altaf as a witness to the marriage and Altaf as Kazi are not the same person. Besides, PWs 01-02 stated that the marriage in question was contracted in the afternoon and in the presence of the plaintiff’s father, but PW-04 underscored that it was done at 8 PM (at night), and he omitted to mention the presence of her father at that occasion. In addition, the DW-01 denies his signatures on both Nikahnama and the acknowledgment of talaq notice. No expert evidence is led by either party too. However, the DW02 also asserted the fact of his ignorance of any marriage between the plaintiff and defendant, although he claims to be one of their close relatives.

 

Taking into consideration of the aforesaid facts, relevant laws, and ensuing circumstances, it is the court’s view that the whole fabric of the legal and evidentiary edifice cannot make the plaintiff stand on her own strength in proving her claims as such. So, the court is decisive on the point that the alleged talaq between the plaintiff and her husband Selim Reza was not effective, and thus, there was no valid marriage, allegedly contracted on 20/07/2019, between the Plaintiff and the Defendant upon fixing the aforesaid dower money. The relevant law is enunciated in section 256 of Mulla's Principles of Mahomedan Law [19th Ed. 1990, (2010 reprint)] that “no Mohamedan woman cannot have more than one husband at the same time.” Accordingly, the claims of the plaintiff are not sufficiently proved with convincing and unimpeachable evidence and thus, not sustainable in law. As a result, where there is no valid marriage, there is no question of dower or talaq between the plaintiff and defendant on board. Hence, the issues Nos. 02 and 03 are not decided in the plaintiff’s favor.

 

Issue No. 04:

In essence, since the issues Nos. 02 and 03 are not decided in the plaintiff’s favor, it is, therefore, held that the plaintiff is not entitled to get the relief as prayed for. Accordingly, in the light of the discussions and decisions and the consideration of pleadings, facts, surrounding circumstances, evidence both oral and documentary on record as well as relevant laws, the court is of view that the suit deserves to be dismissed on the contest.

 

The court fee paid is sufficient.

Hence, it is ordered that the suit be dismissed on contest against the Defendant without any order as to costs.

 

continue reading Judgement passed in the Family Suit No. 60/19 (dower money and maintenance)