HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of the Assistant Judge, Mohonpur, Rajshahi
Present: - Senior Assistant Judge
Sunday, August 29, 2021/ 14 Vadro, 1425
Other Class Suit No. 07/21
Versus
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 landed property described in the schedule be vita as a land class.
The
Plaint in the nutshell:
The
recorded R.S tenant of the landed property described in the schedule to the
plaint was Abdul Hai, Abdul Hoq, Khaleda Begum, Shahida Begum and Fatema
Khatun. The predecessor of the plaintiff purchased .2640 acre of land (of RS
Khatian No. 185) from Abdul Hoq, Khaleda Begum, and Shahida Begum through two
registered deeds (i.e., 10553/63; 5871/71). Facing challanges towards his title
to the suit land, the predecessor of the plaintiff brought in a civil
litigation (O/C suit No. 71/14) before the Ld. Joint District and Sessions
Judge-01, Rajshahi, and eventually carried his day before the court after
obtaining decree in his favour.
Later
on, he opend a prostabito Khatian No. 4884 and thus, had been in peaceful
possession of the suit land. On 30/10/2014, he transfered title to and
possession of the suit land to the plaintiff through the declaration of heba
No. 5040/14. The plaintiff also opend another prostabito Khatian (No. 4916) in
his favour thereafter; and this way, has been in exclusive possession of the
suit land. When the plaintiff initiated to build house on the suit land, his architect found the nature of the suit land as being pond
and pond bank, which appears to be an erounious inclusion in the R.S. Khatian;
rather it ought be vita in kind. On 24/02/16, he got well convarsant of the of
the very fact of the wrong inclusion form the concerned land office, and hence
the suit.
The
Written Statement in brief:
The
Defendants contested the suit by filing written statement denying the material
averments made in the plaint. He contended therein, inter alia, that suit is 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 suit landed property of the R.S. Khatian No.
185 belongs to a private person. The plaintiff has filled in the land at the
plot No. 1478 although the Khatian states the nature of the same as pond. In
fact, the plaintiff has changed the nature of the suit land by way of landfill and
the filled-in-land still has an
area of three-feets down. Despite being a private owned
property, public interest is not served with such a landfill, which affects
nature and ecosystem that may contribute to environmental degradation. So, the
suit shall stand dismissed.
Issues:
The pleadings of the
parties are considered. As such, in order for determining the matters in
controversy, the already framed issues are
reframed under Or. 14 Ru. 5 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 is barred
by limitation or defect of parties.
3. Whether the plaintiff has
title and possession in the
suit land.
4.
Whether the suit property is vita as land
class.
5. Whether the plaintiffs may get relief as prayed for.
Findings
and Decisions
In proof of
the claims, the plaintiff examined 03 witnesses and produced for
the court’s inspection documentary evidences which are marked as Exhibit Nos.
1-5. The defendant examined no witness in its favor. Local investigation is
made on the suit land and Ld. Commissioner is examined and marked his report as
exhibit-I. Argument of the learned advocates appearing for both the parties
heard.
Issue No. 1-5:
For brevity, convenience and correlation, all the issues are taken together in discussing the matter in the suit.
02. On perusal of the materials on record, it appears that the plaintiff’s title to and possession in the suit land is admitted (vide W/S, Para-10). In addition, the exhibit Nos. 1-5 envisage that the plaintiff has proved his ownership to the suit property with title documents (Court Decree, deed No. 5040/2014, etc.) and possessory evidence (DCR, prostabito khatian, rent receipt, etc.). Hence, in appreciation of such facts disclosed hereinbefore, the court is constrained to hold that since the plaintiff has become successful in establishing their clean title and undisputed possession to the land described in the plaint’s schedule, no cloud is seen in the sky of the plaintiff’s title. As such, it is decisive that the plaintiff has title and possession in the suit land and thus, the issue No. 03 is settled in favor of the plaintiff.
03.
Now is to discuss crucial points on facts
and laws related to the questions of the maintainability of the suit and suitability
of the suit for getting relief as prayed for. No scepticism, since a pleading
is a statement of claims, every cause of actions alleged or reliefs sought for
must have foundation in the pleadings. So far as land class of the suit land is
concerned, the plaintiff’s pleading speaks out that that there caused an error
of entry in the respective RoR khatian with regard to the land class of the
suit land out of the carefulness of their pre-owners and those who involved in
the preparation of the RS record of rights.
And thus, as the plaintiff claims, it should have been “Vita” as land
class in substitution of “pond” and “pond bank”. She also claims in his pleading
that the suit is brought into being in the “apprehension” that her title to the
suit land “maybe” in disturbance in the future.
04. In essence, on careful perusal of the materials
on record, it vividly appears in evidence that the plaintiff is not successful
in proving that there exists any substantial disturbance to the plaintiff’s title
and possession in the suit land, or any real apprehension of denial of her title
by any quarter. Even, at it appears, because the plaintiff suffers no actual
danger to her title and possession thereto, it becomes evidentially apparent
that the plaintiff suffers “mere apprehension of disturbance in the mode of
enjoyment of the possession” in the suit land that belongs to her. Now question
arises whether mere existence of a land class poses actual danger or denial of
the plaintiff’s right to property or her legal character in order for coming
within the purview of the provision of section 42 of the 1877 Specific relief
Act.
05. The
provision of section 42 manifests that a declaratory decree shall be awarded if
there should be any person denying or interested to deny” one’s legal
character or any rights as to his property. So the legal position is
that section 42 does not sanction every kind of declaration but only a
declaration a plaintiff is entitled to legal character or to any right as to
any property. In addition, so far a declaratory relief is concerned, there must
have some infringement, actual or threatened, of the plaintiff’s right. The
civil court does not possess any general power to make declaration beyond the
terms of s. 42 [vide P. Neogi, the L. of S. R. Act, Mullick Brothers,
Reprint 2018, p 581].
06. Notably, since
an entitlement to legal character means personal status or attributes attached
by law [vide P. Neogi 2018, p 585], the matter revealed in the suit does
not attract this part of the provision of section 42. Again, because the
plaintiff’s title and possession in the suit land is provably undisputed, the
denial of her entitlement as to such land property is vividly inattentive in
the suit. To demystify, although, as distinguished from rights in property, right
to property includes right to enjoy property, the materials on record shows
that the plaintiff’s such right is provably unrestricted, not factually denied
or threatened by anybody by whatsoever. Therefore, since cause of action must
be antecedent to the suit, mere possibility of the denial of rights carries the
plaintiff nowhere. Mere declaration cannot be allowed unless it can be
brought within the four corners of the section [vide 10 PLD 1967
Dacca 190]. Hence, the court holds that the long and sum of the suit stands
outside the purview of the provision of section 42 of the 1877 Specific relief
Act.
07. Furthermore,
as per the entry of the RS Khatian No. 185, the land class of the suit property
is “pond” and “pond bank”. With regard to the suit land, the corrected Khatian
No. 4884 prepared against one Md. Hasan Ali also shows the same so as to land
class. Even, the prostabito Khatian prepared (on 07.12.2014) in the name of the
plaintiff Mst. Shahina Perveen appears in coherence (pond and pond
bank). Even, the sketch map of the suit land appended with the Commission Report
(ext: I) demonstrates the existence of pond and pond bank in the suit land. Accordingly,
there is no gainsaying that the attribute of such a land class is well-known to
the plaintiff since her purchase of the suit land 0n 30.10. 2014. It is,
therefore, evidential that the land class in question exists in way as it was so
at the time of the preparation of the concerned RS record of rights.
08. Moreover,
it is notable that the whole fabric of the evidential outfit attributed by the
plaintiff sheds no light on any fact of the land class transformation (if any)
over any period of time. Apart from that, although the Commission Report (ext:
I) demonstrates only the existence of pond and pond bank in the suit land, the
report does not contain any information about when such improvement of or
transformation into land class happens. As a result, without any proof of
subsequent development or improvement made after during the period of time from
today back to the preparation of Record of Right, land class transformation from
“pond” and “pond bank” into “vita” has not been substantiated by the materials
available on record. Actually, mere an existence of land class does not disrupt
rights as to property. Therefore, it occurs that a relief like the correction
of an entry regarding land class in a RoR khatian also does not fall within the
ambit of section 42 of the 1877 Specific Relief Act. Hence, in the light of
discussions made hereinbefore, it is held that the issue No. 4 is not decided
in the plaintiff’s favour.
09. Pertinently,
relief is, perhaps, elsewhere. For example, the 2000 natural wetland
conservation Act (the Playground, Open Spaces, Gardens, and Water Bodies
Conservation Act)– has application on the water bodies of the cities,
divisional and district towns and municipalities. The suit land situates within
the divisional town (Rajshahi Metropolitan City). The word “natural wetland” is
defined in section 4 as it includes, inter
alia, “jolashoi” (জলাশয়), which also means “pond” (vide বাংলা একাডেমি সংক্ষিপ্ত বাংলা অভিধান, একাদশ
পুনর্মুদ্রণ (মে ২০১৫, পাতা ২২১).
Accordingly, in view of the pertinent provisions of the Act, an “authority” is
empowered to make changes to land class, in an applicable and appropriate case.
10. However, it is trite to say that the Government represented by the Deputy Commissioner (Rajshahi) is impleaded in the suit as a sole defendant. As per provision of article 06 of the President Order No. 142 of 1972, the government is a necessary party in a declaratory suit with regard to immovable property. As the government is impleaded as necessary party and any other necessary party appears not to be left out, it can be held that as this is a declaratory suit, the same suffers from no defect of party. Hence, this issue regarding the defect of party is settled in the plaintiff’s favor.
11. Furthermore, 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 has to be filed within six years from the date of the accrual of cause of action or right to sue. Since there accrues no actual cause of action or right to sue in the plaintiff’s favor, the question of limitation seems to be not an appropriate issue to be decided upon in the suit. So this issue is held to be ruled out, which goes against the plaintiff. Consequently, adding up to the aforesaid discussion, the plaintiff also has no bundle of facts that arises cause of action. Thus, the suit is not maintainable in present form and manner too. Hence, the issues Nos. 1-2 has not decided in the plaintiff’s favor.
Generally, law is 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. Furthermore, the plaintiffs in order to succeed must establish their own case by credible evidence and the weakness of the defendant is no ground for awarding a decree in favor of the plaintiff’ (vide 67 DLR HCD 259). In considering the aforesaid facts, shreds of evidence, relevant laws, and encompassing conditions, it appears to the court that although this suit is for a simple declaration that is brought in before the court of competent jurisdiction paying proper court fee, the instant suit is found to be unfit for exercising the Court’s discretion in decreeing the same. For all the issues framed in the suit are not decided in the plaintiff’s favor, the Plaintiff may not get relief as prayed for. Thus, 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 defendant without any order as to costs.
(Composed and corrected by)