Court Judgment: (For information purpose only).
In the Court of the Assistant Judge, Mohonpur, Rajshahi
Present: Assistant Judge
Sunday, Jan 31, 2021
Other Class Suit No. 48/15
Mr. Versus Mr.
And having stood for consideration to this day,
The Court delivered the following judgment:
This is a declaratory suit.
The Plaint in the nutshell:
With regard to the land described in the schedule Ka and Kha, an exchange deed no. 1993 dated 28.5.2001 was executed between the plaintiffs and the defendants of the suit. Although the said deed was executed between the parties to the suit, no possession of the land described in both schedules to the plant was handed over between them. Since the other heirs except the plaintiffs had already died, the plaintiffs have been in the possession of the land described in schedule No. Kha; and as such, the defendants in the possession of the land described in schedule No. Ka to date. The plaintiffs have houses on their kha scheduled land. On March 15 of 2015, the plaintiffs demanded handing over the possession of the suit land as per the exchange deed executed between them in 2001; but the defendant declined. And hence that suit.
The Written Statement in the nutshell:
Defendant contested the suit by filing a 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, false and baseless, and the very suit is legally untenable, barred by limitation, quiescence, waiver and estoppel and defect of parties; as well as dismissible for destitute of the cause of actions.
The defendant's claim is that the exchange Deed was executed and became effective after mutual delivery of possession between them. After taking possession of the land described in the schedule Kha, the defendants made improvements to his land so taken in possession; and he has been in possession of the land for 15 years by the way up planting himself mango and other kinds of trees. In this way, the Defendants are in peaceful possession of the Kha scheduled land to the knowledge of the Plaintiffs. Therefore, the Plaintiffs are not entitled to get the relief as prayed for. So, the suit is to be dismissed point blank with costs.
Issues:
Considering the pleadings of the parties and determining the matters in controversy, the issues are reframed under O/R 14/5 of the 1908 Code of Civil Procedure for discussions in the following way:
Whether the suit is maintainable in the present form and manner.
Whether the suit is barred by limitation or bad for the defect of parties.
Whether the plaintiffs have title and possession in the suit lands described in schedule No. 2?
Whether the deed No. 1993 dated 28.05.09 is ineffective and has no force in the eye of the law, and thus, is not binding upon the Plaintiffs.
Whether the plaintiff may get relief as prayed for.
Findings and Decisions
In proof of the claims during the course of the trial, Plaintiff no. 01, Mr. Sree Horendor Dus, examined himself as PW. 01 on behalf of himself and other Plaintiffs; adduced two more oral witnesses who are examined as PW- 03 and PW-03, and produced the certified copy of the exchange deed no. 1993 dated (exhibit: 01); Prostabit Khatian No. 1118 (Exhibit No. 02, two tax receipts (Exhibit No. 04) and a DCR (exhibit No. 03).
On the other side, Defendant Mr. Md. Nurul Islam, in support of his claims, examined himself as DW. 01 and adduced two more oral witnesses examined as DW.2 and DW.3 respectively, and put forward the certified copy of the orders passed in the other class suit no. 90/08; (exhibit: Ka).
Issue No. 3 and 04:
For brevity, convenience and interrelation, this issue is taken up first. This issue is certainly crucial in terms of laws and facts for deciding the fate of the suit. As a general rule, for every cause of action or relief, there must be 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. So, the averment of the pleadings are given due consideration so far they are material in law and evidence.
02. So far as the pleadings of the instant suit is concerned, these two issues can lawfully be decided considering: whether the said exchange deed was duly executed and registered; and whether the said deed was acted upon by mutual delivery of possession. Of course, it is admitted that the said exchange deed was duly executed and registered. So, this point is decided as such. But it is disputable that whether the said deed was acted upon by mutual delivery of possession or not. So, determining whom the possession of the land belongs to is an important question to be answered now. Moreover, the proviso to section 42 of the 1877 Specific Reliefs Act plays the cardinal part in decision-making; because a suit for a mere declaration is bad where the possession is with the defendant and can be claimed by the Plaintiff. So it thus becomes necessary beforehand to determine and discuss whether the plaintiffs are in possession of the suit property regarding which he claims to be so.
03. In pleading, the plaintiffs claimed the existence of another Other Class Suit No. 90/2008 instituted against the defendants on the allegation that the defendant refused to execute the exchange deed no. 1993 date 28.05.2001. Again on March 15 of 2015, the plaintiffs demanded handing over the possession of the suit land as per the exchange deed executed between them in 2001; but the defendant again declined. As such, as per the plaintiffs’ claim, the exchange Deed is “never acted upon” and made effective by mutual transfer of possession of the suit land. Accordingly, it is the plaintiff's claim that they are in exclusive possession of the land described in the schedule Kha to the plaint. In evidence, plaintiff No. 01 as the PW-01 concurred with the same proposition as aforesaid. He also reiterated that they have houses on the land described in the schedule Kha in both examinations in chief and cross-examination.
03. The plaintiff-side has also produced the PW-2 and PW-03 in support of his position in respect of the suit. They stated that the plaintiffs have houses and mango trees on their claimed land. They also added up in their cross-examination that the Kha scheduled property is Vita, but with no holes in the ground (PW-02-03); and an accident once happened on that Vita-land (PW-03). So it apparently appears that the plaintiff-side has not come up with sufficient details (how many or what types of houses, or how long they exist, etc.) regarding the narrative of their possession in the Kha scheduled property either in his pleadings or in evidence while depositing as PW-01, “except the fact that they have houses thereon”. The relevant law is that ‘the burden lies on the Plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary’ (vide 3 BLC 6).
04. On the other side, the defendant's claim in pleading demonstrates that the exchange Deed was acted upon, and thus became effective after mutual delivery of possession between them. He also added that after taking possession of the land described in the schedule Kha, the defendants made improvements to his land so taken in possession as there were holes in the grounds. He has then been in peaceful and uninterrupted possession of the Kha scheduled land for 15 years by the way of planting himself mango and other kinds of trees.
05. In evidence, the defendant stated as DW-1 that he is in possession of the Kha scheduled land for 18 years. He made an improvement on the land by filling in the holes with soil in the grounds, and now the same has become befitting for making houses and homes. He himself also added that at present, there is a mango tree, a pitraj, two jiyafol, and some banana trees on the said landed property. Currently, the land also bears up his Paddy husk and straw. On careful perusal of the written statement and evidence led by the defendant himself, it appears that he comes up before the court with more elaborating particulars than that of the plaintiffs.
06. Defendant as DW-01 is cross-examined and faced the fact that he took 10 decimal land in exchange for 6 decimal land. In justifying such an unequal exchange of land, he resonated that the plaintiff-side was the foreigner in the execution of the exchange deed because they were in the need of money for arranging the marriage of their sister. It also transpires that the DW-02 appears to be more convincing than any other witnesses examined by the plaintiff; because he declared himself to have his house just at the Eastern side of the 10 decimal kha-scheduled land. He was also found to be capable of stating the description of his adjacent land. He also found to be in support of the defendant in describing the things (paddy husk and straws, banana trees, etc.) standing and fastened on the said land. Hence, if the whole materials available on the record are taken and considered together, it becomes clear that the evidence led by the defendant side is more weighty than that of the plaintiff side.
07. It is also worth mentioning here that the plaintiff stated the existence of a particular fact both in his pleading and evidence that there happened a road accident on the land in which he has possession. As aforesaid, the DW-02 clearly concurred with him. Surprisingly, the PW-03 is also found to be in support of happening such mishaps. Since it was the defendants’ claim of the existence of a fact or particular fact, clearly independent of the plaintiff’s averment whatsoever, the burden of proof was upon the defendant side to evidently prove the existence of that fact [(sec.101, 103 of the 1872 Evidence Act); (39 DLR 290)]. So, the afore-discussed narrative must say that he did not fail to do so.
08. Besides, in dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter upon the details of discussion upon the question of onus. Because, the whole of the evidence in the case is before the Court sufficient to inform a decision, and it has no difficulty in arriving at a conclusion in respect thereof. So, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the Court that the balance of preponderance as to possession therein does not go in favor of the plaintiffs’ side.
Hence, the Court finds that the plaintiffs have not been successful in proving their possession over the suit landed property described in the Kha schedule. Moreover, the plaintiff made no plea under the provision of section 119 of the Transfer of Property Act, 1882; or any claim that the deed of exchange is void under any provisions of the Contract Act, 1872. Therefore, it is decided that since mutual-physical possession was delivered in the light of deed No. 1993 dated 28.05.09 between the parties; and thus, the plaintiffs have no title and possession to the suit land described in schedule No. Kha. Hence, the court finds no lawful reason to declare that the said deed is ineffective and has no force in the eye of the law, and thus, is not binding upon the Plaintiffs.
Issue No. 02:
As this is a declaratory suit, the period of limitation for filing suit is manifested by the provision of Article 120 of the Limitation Act, 1908. As per the provision of this Article, every suit for declaration that a deed is not binding upon the plaintiff has to be filed within six years from the date of cause of action. As the plaintiffs have no title and possession to the suit land described in schedule No. Kha, there arises no course of action against the defendant. Accordingly, the question of limitation and defect of parties are ensuingly ousted.
Issue No. I and 5:
Since, in view of the above-proven facts and legal parlance, it is seen that the plaintiffs have not been successful in proving their case of being in possession of the Kha scheduled land on their own strength with credible evidence, it is thus held that as the suit is for declaration simpliciter, the plaintiffs have not met the requisites of the proviso to section 42 of the 1877 Specific Reliefs Act in getting relief as prayed for. A suit for a mere declaration is bad where the possession is with the defendant and can be claimed by the Plaintiff. Therefore, the court finds that the instant suit is not free from the effect of the mischief of the Proviso. Hence, the suit is, on this point, not maintainable in the present form.
11. On perusal of materials on record, it also appears that there instituted another suit between the same pirates, with identical claims and issues regarding the same landed property and the deed (Exhibit-Ka). That suit was dismissed for default under the provisions of Or 17, rule 1(4) of the Code of Civil Procedure. Instead of preferring steps under the provisions of Or 17, Rule 1(7), the plaintiffs have turned up before the court with another suit in a similar fashion. Hence, the plaintiffs are found to bring in two litigation on the same issues between the same parties under the same title.
12. The requirement of the provisions of section 11 of the Code mandates that a suit or issue is to be “heard and finally decided”. Hence, since the former suit (09/2008) was not decided on merits, the event of either case does not bring into the operation of the bar of res judicata or constructive res judicata within the meaning of Section 11 of the Code in the institution of a second suit on the same cause of action [16 DLR; AIR 1966 SC 1332]. Even, the conduct of the defendant shows that the plea of res judicata is waived by a party to a proceeding [waiver is permissible, vide AIR 1971 Cal 512]. But the doctrine of collateral estoppel is found to be applicable, that bars issues (the identical cause of actions) that have been litigated from being litigated again; as the analogy of dismissal of a suit for default of the plaintiff, which bars the filing of a second suit (e.g. Or 9, Rule 9). This principle is an example of equitable public policy. Because, after the dismissal of the suit no. 09/2008, the plaintiffs have turned up before the court with another suit in a similar fashion, instead of preferring steps under the provisions of Or 17, Rule 1(7), this instant suit is standing within the mischief of this equitable principle. Hence, the suit is also not maintainable as such.
In essence, the law is now settled that ‘the burden lies on the Plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary’ (3 BLC 6). Furthermore, in this respect, it is also pertinent to mention that ‘the plaintiffs in order to succeed must establish their own case by credible evidence’ (67 DLR HCD 259). In view of all of the issues discussed above, the Court is decisive that the instant suit is, therefore, not maintainable in the present form and manner. As such, the Plaintiffs are not adjudged to be entitled to get relief as prayed for. In consideration and cognizance of the Pleadings, facts, surrounding circumstances, submitted evidence both oral and documentary on record and relevant laws, it appears to the Court that the suit deserves to be dismissed on the contest.
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.
(Composed and corrected by me)