District: Rajshahi
In the Court of the Senior Assistant Judge, Mohonpur, Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
Other Class Suit No. 124/2012
Mr................(Plaintiff) Versus Mr............... (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 a permanent injunction regarding the landed property described in the schedule to the plaint.
The Plaint in the nutshell:
The recorded tenant of the suit lands described as SA
khatian No. 26 and RS khatian No. 286/1 in the schedules to the plaint was one
Hamida Khatun who transferred 05.00 Acre out of 63.70 Acre of lands to the
predecessor of the plaintiffs Md. Heresh Mondal via deed No. 20692/72. Heresh
Mondal died leaving behind two daughters Maleka Bibi and Goljan Bibi. After the
demise of him, the plaintiffs as his heirs got title to and possession in the
suit landed property. The plaintiffs claim that they are now in exclusive possession
of the suit land; and their father Heresh Mondal never transferred any land to
any person. Despite having no title to the suit land, the defendants made
threats to the plaintiffs for dispossession from the suit lands, and hence the
suit. The Plaintiffs claimed that the suit land belongs to them; and that is now
under their possession. Hence, he is entitled to get relief as prayed for.
The Written Statements in Brief:
There are two sets of defendants. Both kinds of defendants contested the suit by filing written statements denying the material averments made in the plaint. They contended therein, inter alia, that the suit not maintainable in the present form, has no cause of action and thus, is legally untenable, unjustifiable; and dismissible in law. Defendant No. 01 stated that the plaintiff's title to the suit land is not sustainable in the light of the provisions provided in section 47 of the Registration Act. The mother predecessor of defendant No.01 purchased the suit land prior to the purchase by the plaintiff's predecessor of the suit land from the original landowner. Accordingly, the plaintiffs have no cause of action and any rights to sue regarding the land in question.
The subsequently added Defendant No. 02 also stated that
the CS recorded tenant of the suit lands described in the schedules to the
plaint was Srimoti Hemonta Kumari Debi who transferred the suit lands to the
father of defendant No. 02 Mohir Uddin Pramanik via a Permanent Pattan dated
03/04/1344 (Bengal). Accordingly, land rent was paid by Mohir Uddin, and
documents were submitted in respect of the suit land for the purpose of
recording his name in the SA RoR. But SA khatian No. 26 was eventually
published in the name of one Hamida Khatun.
Consequently, Mohir Uddin applied to the settlement
office and obtained an order in his favor in Objection Case No. 27. Mohir Uddin
died leaving behind his only son Monsur Rahman, defendant No. 02. Although
Monsur Rahman submitted his papers to the RS recording officers, his name
appeared in the Attested khatian No. 37; but not included in the RS RoR.
Instead, in the name of Hamida Khatun, RS khatian No. 286/1 was finally
published. In fact, Hamida khatun had no title and possession to the suit land,
and thus, the plaintiffs’ deed is not genuine, rather a forged and fabricated
one, and also, they have no possession of the suit lands. He also claims that on
such premise, he instituted a lawsuit regarding the suit land in the Court of
Joint District Judge (2nd), Rajshahi, which is still pending. Hence, the
plaintiffs have no title to or possession of the scheduled lands and the suit
will be dismissed.
Issues
In cognizance
of the parties’ pleadings and the matters in controversy, the issues are reframed under Or. 14, R. 05 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 plaintiffs
have prima facie title to the suit land.
3. Whether the plaintiffs
have exclusive possession in the suit land.
4. Whether the plaintiffs are entitled to the relief as prayed for?
Discussions and Decisions:
During the trial, the plaintiff examined 04 witnesses and produced documentary pieces of evidence marked as exhibits No. 1-3. There are two sets of the defendant. Defendant No. 01 examined 03 witnesses and produced documents marked as Exhibit No. Ka-Gha and defendant No. 02 placed two witnesses and also submitted Ka -Jha. A court witness as CW-01 is also examined before the court. Arguments were heard from both parties after the conclusion of the trial of the suit.
Issue No.
01:
The essence of the suit's alleged cause of action displayed in the plaint reveals that the defendants made threats to the plaintiff for dispossessing the latter from the suit lands and thus, caused interruption to the plaintiffs' exclusive possession of the suit property. There is thus no gainsaying that this is a suit for a permanent injunction. On perusal of the materials on record, it vividly appears that the plaintiff filed the suit before this court having jurisdiction with paying proper court fees and seeking a decree for perpetual injunction simpliciter. Section 54 of the 1877 Specific Relief Act recognizes any aggrieved person's right to file a lawsuit for such a relief as prayed for. Nothing appears to be contrary to this proposition of facts. Accordingly, it is apparently decisive to the court that the suit is maintainable in its current form and manner.
Issue No.
02 & 03:
These issues are taken together for concision, convenience, and interrelation. No skepticism, it becomes high time to see through the plaintiffs’ prima facie title to the suit land envisaged in the Kha schedule. In proof of his prima facie title thereto, the plaintiff narrated in ways that the recorded tenant of the suit lands described as SA khatian No. 26 and RS khatian No. 286/1 in the schedules to the plaint was one Hamida Khatun, who transferred 05.00 Acre out of 63.70 Acre of lands to the plaintiff’s predecessor Md. Heresh Mondal via deed No. 20692/72. The plaintiffs as an heir of Heresh Mondal acquired title to and possession in the suit landed property. The PW-01 Md. Mohsin Ali as a spouse of plaintiff No. 02 deposed standing in the witness box in favor of the plaintiffs.
04. Upon careful perusal of the plaintiffs’ oral evidence, it transpires that the PW-01 again claims title and possession to the suit land on the basis of deed No. 20692/72 and current possession in the suit land. Pertinently, it also appears that this deed is marked as exhibit No. 03 with an objection, and the plaintiffs' possession of the suit land is critically challenged by the defendants on its’ material grounds [vide Cross-examination of PW-01]. Accordingly, the court has got two issues to have discussed the propriety of the plaintiff’s property deed and the state of the current possession in the suit lands.
05. First things first. In essence, ‘title’ is a legal term that refers to interest and ownership of something. In a jurisprudential sense, title to property also refers to ‘ownership of the property’, meaning that you have ‘the rights to use’ that property. Particularly, the concept of ownership flows from that of ‘possession’ [vide A Textbook of Jurisprudence, G. W. Paton, (1973) OUP, p. 539, 546]. Accordingly, the court understands that the state of the current possession in the suit lands requires to be decided first. In pleading and evidence, the plaintiffs claim that they are now in exclusive possession of the suit land; and their father Heresh Mondal never transferred any land to any person. Despite having no title to the suit land, the defendants made threats to the plaintiffs for dispossession from the suit lands. The Plaintiffs also claimed that the suit land belongs to them, and that is now under their possession, and thus, they are entitled to get relief as prayed for.
06. To substantiate the plaintiff’s exclusive possession, the PW-01 also asserted the same proposition in evidence, even in addition to fact that no defendant has any possession therein. However, surprisingly, the plaintiff's pleading is totally silent about how they are in possession of 05 acres of land comprised in the RS plot No. 645 of RS Khatian No. 286/1. While deposing as PW-01, the plaintiff-side also shed no light on how they currently possess the suit lands. But one thing the PW-01 did is that their sketch map attached to the schedule shows their possession on the southern side of the plot in question. In cross-examination, the PW-01 also attempted to underscore the fact of his possession on the southern side of the plot. But, no other witnesses (PWs 02-03) are found to be in agreement with that fact.
07. Moreover, albeit the PW-02 Mokbul Hosen asserted that he has his landed property on the “western side” of the disputed plot. Conversely, the PW-01 said the same on the “eastern side”. So, the PW-01 and 02 are not in tune. Again, the PW-03 Roich Uddin also claims the existence of his lands on the “western side” of the disputed plot. Even, though the PW-04 claims that he has landed property on the southern part of the suit plot, he failed to reiterate the same in his cross-examination. Surprisingly, No witnesses went into an agreement about the narration of the boundary of the suit property. Besides, the PW03 claims that he also has his lands within the disputed plot, which appears to be foreign to other witnesses. Even, the PW-02 expresses his unfitness to assert the number of plots and quantity of the suit lands. Consequently, such contradictory assertions by the plaintiff’s witnesses fade away from their credibility, and thus, they are not found in harmony with the same sense and manner. Accordingly, the plaintiff cannot claim any support from them. Pertinently, the plot in question contains 63.70 acres of land, but, as it conspicuously transpires that, the plaintiffs are not able to specify their possession in 05 acres of the suit lands with credible and weighty evidence. Plus, because of exhibit- 03 not being a genuine deed, any averment contained therein touching the points of the suit lands’ possession holds no water.
08. In contrast, the defendant No. 01 as DW-01 affirms that he possesses the suit land and Md. Abul Hosen as the PW-02 supported him by saying that once he cultivated the suit land as borgadar, and now defendant No. 01 himself does the same. The DW-02 also stated that once the suit land was ‘underwater’, and the entry of land class mentioned in the RS khatian supports his statement that the land class is shown therein as ‘beel’. The DW-03 is also found to be agreeing with them on the point of land class and borga cultivation. The DW-04 and 05 further added separate episodes of possessory dispositions. And apart from defacto possessory evidence, defendant No. 01 also submitted prostabito khatian looking forward to proving de jure possession of the suit lands [ext.: Kha].
09. No doubt, the record of rights is evidence of present possession, (but) merely a record of physical possession at the time when it is prepared (vide 59 DLR 207; 07 ADC 945). Pertinently, the plaintiff-side also admitted as PW-01 that there is no record of rights prepared through mutation or otherwise on their behalf to date. In this way, it is cogent to opine that such a failure for a long time also gives rise to a presumption that they are not is in possession of the suit land. Therefore, it is quite reasonable to hold that the pieces of evidence concerning the plaintiffs' possession in the suit lands lack practical certainty and reasonable propriety. Hence, the balance of preponderance towards the suit lands’ possession goes against the plaintiffs so far.
10. Now, consider whether the plaintiffs have prima facie title to the suit lands. As aforesaid, the plaintiffs’ only property deed (No. 20692/72) marked as exhibit No. 03 is robustly challenged by the defendant's side. Accordingly, the concerned volume of the deed in question was called for and the officer-in-charge of the record room of the Sadar Sub-registry office, Rajshahi turned up before the court and placed the volume No. 180 which contains the description of deed No. 20692 of 1972 (vide CW-01). The concerned volume produced before the court certifies that the names of parties to the deed are displayed as Md. Sultan Islam and others (transferors) and Hello Beoya (transferee). The schedule of lands of the deed does not match with the plaintiff’s copy. On the contrary, the plaintiffs’ submitted-certified copy of the (so-called) deed (with a number of 20692/72) enumerates the names of Heresh Mondal as transferee and Hamida Khatun as the transferor. The record demonstrates that this unwarranted deed is marked exhibit-03 with objections.
11. Apparently, there goes no gainsaying that a plain perusal of the testimony adduced by the Sadar Sub-registrar of Rajshahi (CW-01), the contents of the concerned volume of the deed, and the certified copies of the deed No. 20692/72 (exhibit No. 03) explain that the names of the transferors and the transferees are not the same, and thus, the plaintiffs’ only property deed (No. 20692/72) marked exhibit No. 03 is not a genuine deed [vide CW-01, ext.: 03, & ext.: Jha]. So, it provably appears that the plaintiffs’ submitted deed carries no presumption of genuineness, and thus, the evidentiary proposition- a registered document is presumed to be genuine- is hereby dislodged against the plaintiffs. Hence, it becomes conspicuous that the plaintiffs’ claim that one recorded tenant Hamida Khatun transferred 05.00 Acre out of 63.70 Acre of lands to the plaintiff’s predecessor Md. Heresh Mondal via deed No. 20692/72 is not proved with credible and unimpeachable evidence.
12. Surprisingly, on perusal of the record, it further appears that the plaintiff submitted another version of a document with a number of 20692/72 via a firisti form dated 10.08.2016 but did not mark it as an exhibit. Instead, a so-called certified copy of the document is marked exhibit as such. In addition, it is too unbecoming that Mr. Md. Mohsin Ali as the PW-01 in cross-examination robustly denied the defendant’s repeated claims that the said deed in question is fake, and not genuine. That being so, the court’s view is that the plaintiff-side took every resort to misguide the court by submitting two copies of fabricated and distorted version [ext.: 03] of an original deed [(No. 20692/72), ext.: Jha]. Since the plaintiffs’ submitted deeds are not genuine, these instruments hereby require to be impounded under Rule 08 of Order XIII of the 1908 of the Cod of Civil Procedure. In addition, because giving false evidence, fabricating false evidence, or, making a false document, and using a false document in the judicial proceeding are subject to penal sanctions, the persons involved in this unwanted process also should face a criminal trial by a competent court.
13. As an alternative, the defendant's side also placed some registered deeds in favor of their claims that they have good property deeds and documentation concerning the suit lands. On perusal of the documentary evidence marked exhibit as Ga & Gha of the DW-01, and Umma-Ja of the DW-02, it vividly transpires to the court that the defendant side produced more convincing and dependable materials than the plaintiff side. In cognizance of the materials available on record, it becomes trite to argue that the plaintiffs vehemently suffer from the disconnection to the predecessor of the suit lands, to whom the suit lands originally belonged.
14. Of course, it is now well settled that ‘in a suit for permanent injunction, the court need not enter into disputed title except to the extent that it would help the court in finding which of the parties have prima facie title and exclusive possession’ (vide 56 DLR Ad 22). Since this suit is for permanent injunction, it is the rule that the question of title to the suit lands ought not to go much deeper. But if you take the aforesaid discussion into careful consideration, the question, of whether the plaintiff's chain of title is disconnected or not, does not require deep analysis and intense investigation into their entitlement to the suit lands. Rather, it becomes decisive so far. Since title to lands is an interest and ownership of those lands, and the concept of ownership flows from that of possession, it is safe to hold that the shred of evidence led by the plaintiffs contained in the record carries them nowhere in the race of proving prima facie title to the lands in question. So it is decided that the plaintiffs have not successfully established their prima facie title to the suit's landed property.
In dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter into a detailed 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 about 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 plaintiffs have not been successful in establishing his prima facie title to and proving exclusive possession in the suit lands. So, these issues at hand are not settled in favor of the plaintiffs.
Issue No.
4:
The general principle of evidence 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], and the weakness of the defence case does not entitle the plaintiff to get a decree [vide 06 BLC AD 2001]. In respect of the instant suit, the cumulative effect and cogency of legal inference help the court hold that since the plaintiffs have failed to prove the genuineness of their documents and also their possession, the plaintiffs have not been successful in establishing their prima facie title to and proving exclusive possession in the suit lands.
It would be verbose to reiterate that in a simple suit for permanent injunction with regard to a disputed landed property, relief is not available to a person who is not in possession’ (vide 43 DLR AD 215). Pertinently, an injunction cannot be granted in a case where the plaintiff has no legal character as to title and possession in the suit property (vide 13 MLR AD 2008). Accordingly, the Court is of the view that since all of these issues are not decided in the plaintiff’s favor, the instant suit is not a good fit for exercising the Court’s discretion in decreeing the same. As such, the Plaintiffs may not get relief as prayed for. As a result, the suit deserves to be dismissed.
The court fee paid is sufficient.
Hence,
it is ORDERED
that the suit be dismissed on contest against defendants with costs. It is further ordered that the document marked Exhibit No. 03 and the document submitted via the firisti form dated 10.08.2016 are hereby impounded.
Prosecute
the perpetrations disclosed in the discussion made hereinbefore.