In the Court of the Assistant Judge, Mohonpur, Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
Thursday, January 27, 2021
Other Class Suit No. 103/2015
Plaintiff Versus Defendant.
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.
The
Plaint in the nutshell:
The recorded tenant of the landed property
described in the schedule to the plaint was Domon Mondol alias Vajon Mondol who died leaving behind his son one
Manikullah Mondal before the SA record. Domon Mondol alias Vajon Mondol also transferred
some lands except the suit lands to one Boru and Moyej Mondol. SA record was
prepared in the names of Manikullah Monadal, Boru Mondol and Moyej Mondol. The lands
comprised in the SA khatian were partitioned on composition among them, and
accordingly, they were in possession of their shares of lands. Manikullah got
29 decimal of lands scheduled to the plaint this way. While he was in exclusive
possession, he transferred his possession and interests in 29 decimal of lands
to our father Samed Ali Mondol via deed No. 3104/57. In RS record, 29 decimal
lands got increased to be 30 decimal of land. While in peaceful possession of
the suit land, our father Samed Ali transferred only 04 decimal of land to one
Abdus Salam via deed No. 2121/81; and Abdus Salam is in possession of that 04
decimal of land. The plaintiffs claim that they are now exclusive possession of
26 decimal of lands that comprised in RS plot No. 1346. Thus, as heirs of Samed Ali, the plaintiffs are in exclusive possession
of 26 decimal lands comprised in the RS plot No. 1346. Upon the demand by the
defendant for the land from the suit property due to an
erounious inclusion in the R.S. Khatian in the defendant’s
name, 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 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 plaintiff and the defendant are brothers each other. Our father died
in 1995 leaving behind his wife Rabiya, two sons- the plaintiff and the
defendant and a daughter Sayera. When our father died, the plaintiff was 17 or
18 years old and he was 07 or 8 years old. After the demise of our father, we
all started living in a same family. My mother and my elder brother were then
taking care of our families. When I was at the age of 10 or 11, my mother
instructed my elder brother to purchase the suit property against the name of
our two brothers. Accordingly, my brother purchased the same land and informed
us that he did it against our two brothers' name equally. I did not peruse the
sale deed at all. However, RS record was prepared with regard to the suit land
on equal share between our two brothers- the plaintiff and the defendant.
Currently, I am in possession of 15 decimal of lands on the northern side and
my brother plaintiff is in possession of 11 decimal of lands on the southern
side, which comprised in the RS plot No. 1346. My brother plaintiff is in
possession of 11 decimal lands right now, because he has already transferred 04
decimal of lands comprising in in the RS Plot No. 1076 to other person. We
together possess the suit land according to our oral partition. Hence, the suit
is liable to be dismissed with costs.
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 Order 14 Rule 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 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. Defendants also examined 02 witnesses and produced no documents. Argument of the learned advocates appearing for both the parties heard.
Issue
No. 2:
Pleading is a statement of claims. For
every cause of actions or relief, there must have 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. With regard to the instant suit, prayers or claims are
clearly specified in the pleadings that the instant suit is for
declaration of title. 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 of title has to be filed within six years
from the date of cause of action.
03. The Plaintiff in his pleading and in evidence as PW-01 claims that the
defendant suddenly demanded for the half of the suit land on 20/08/2015 and
intimidated for dispossessing them from the suit land. On the other hand, the
defendant side argued that there suit is barred by limitation because the
plaintiff was well-conversant about the erroneous RS record, because he (Samed
Ali) transferred his 04 decimal of land to one Abdus Salam via registered deed in
1981. So, the defendant claims that any relief in the suit should be refused by
the court because the period of limitation should be reckoned against him since
1981.
04. The relevant law in this respect is well-settled so far. Cause of action is bundle of facts, and the court is required to consider the plaintiff’s pleading in its entirety [vide BCR 2004 AD 138]. Moreover, mere wrong record of rights by itself does not constitute ground of limitation. What is required underpins actual invasion upon the plaintiff’s title and interests in the suit lands. As a result, on perusal of the suit record, it appears before the Court that in absence of anything contrary to it, the cause of action of the suit arose on 20/08/2015 and the instant suit was instituted on 19/10/2015. In view of the above propositions of law and facts, it is, therefore, held that the suit has been filed within the period of time prescribed in law. 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:
As per proviso to section 42 of the
1877 Specific Reliefs Act, the Court shall be reluctant to make mere
declaration where the Plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so. A suit for a mere declaration is, for example,
bad where the possession is with the defendant and can be claimed by the
Plaintiff. Hence, it is high time to determine and discuss first whether the
plaintiffs are in possession of the suit property.
06. On perusal of the
materials available on record, the plaintiffs appear to have claims that they are now
exclusive possession of 26 decimal of lands that comprised in RS plot No. 1346 as heirs of Samed Ali Mondol who purchased 29 decimal of lands
scheduled to the plaint from Manikullah via deed No. 3104/57. The
plaintiffs claim that they are in possession of 26 decimal of lands out of 29
decimal of lands, because he (Samed Ali Mondol) has already transferred 04 decimal of lands comprising in the RS Plot
No. 1076 to other person named Abdus Salam. The lands of 04 decimal comprising
in the RS Plot No. 1076 is not the suit property; as such, there is no dispute
regarding it [ext. 03]. So, the question of possession over 26
decimal of lands that comprised in RS plot No. 1346 is our cardinal point to decide.
Interestingly, it becomes trite to say that the defendant admitted
[vide DW-01] in ways that currently, the
plaintiff is in possession of 11 decimal lands on the southern side, which comprised
in the RS plot No. 1346, while he (the defendant) is in possession of 15
decimal of lands on the northern side out of the scheduled landed property. Therefore,
the plaintiff’s defacto possession
over 11 decimal lands on the southern side of the RS plot No. 1346 is clearly
established.
07. In evidence, the
PW-01 asserted the possession of their father over the whole land of the RS
plot No. 1346. The PW-02 is also found to be in support of the facts asserted
by the PW-01 in his examination in chief. Although the PW-02 just mentioned
that the suit lands is a paddy field, the plaintiff himself as PW-01 stated
nothing about how they are in possession of or cultivating the suit lands,
either in his pleading nor his evidence. More specifically, since the evidence
adduced by PW-03 is in no way connected to the fact in issue, his testimony
appears to be digressive from our context and thus, stands beyond the court’s
consideration so far as the possession of the suit land is concerned.
08. On the other
hands, the defendant adduced his evidence as DW-01 in ways he (the defendant) has
been in possession of 15 decimal of lands on the northern side that comprised
in the RS plot No. 1346- the scheduled landed property. In cross-examination,
the DW-01 asserted that by dint of oral partition of the suit land on equal
basis, he got in possession of 15 decimal lands. And he also asserted that the
plaintiff as an elder brother initiated that oral partition. Out of his shares of
15 decimal lands, he transferred 04 decimal to Abdus Salam (PW03), and thus,
the plaintiff now possesses his left 11 decimal of lands. The DW-01 also
explained his possession of 15 decimal lands by stating that onion is now being
cultivated on his part (15 decimal); and there grows paddy and potato at times.
So apparently, the defendant comes up before the court with more elaborating
details about his possession of 15 decimal of lands out the suit property than
that of the plaintiff and his other witnesses. DW-01 faced cross-examination by
the plaintiff side but the court thinks that the credibility of his evidence is
not cast away by any means whatsoever.
09. The DW-02 is also
shown to walk in the way of the defendant so far as the question of possession
of the suit lands is related. This witness also explains his evidence in the
line of the defendant DW-01. The plaintiff made cross-examination to this
witness and raised a vital point that he is not believable because he lied
before the court as to the fact of his giving oral evidences in other cases.
The plaintiff side placed some documentary proof regarding that he deposed in
other cases; nevertheless this witness denied this fact while deposing on the
occasion of this suit. Accordingly, the credibility of this witness clearly
appears to be minimal in this context. However, if the whole shreds of evidence
regarding the possession of the suit land are closely and entirely considered,
the court is of opinion that the balance of probabilities goes in favor of the
defendant’s assertion that the plaintiff is found to be in possession of 11
decimal lands on the southern side of the RS plot No. 1346, whereas the defendant
is in possession of 15 decimal of lands on the northern side of the scheduled
landed property. Therefore, the court holds that plaintiff’s defacto possession is proved through
oral testimony only on the southern side of the RS plot No. 1346 over not more
than 11 decimal lands.
10. Now, consider the
documentary pieces of evidence adduced by the parties in this respect. The plaintiff’s property
deed reveals that only Samed Ali Mondol, the plaintiff’s father, purchased 29
decimal lands in two plots from Manikullah [ext: 01-02]. The suit lands
cover only 26 lands, against which the name of the defendant is recorded with
the name of the plaintiffs’ father in RS suit Khatian [ext. 05]. The
plaintiff’s property deed was executed in 1957, meaning that it was before the
inception of RS record. Accordingly, considering the evidentiary value of the
materials available on record, the court finds that the defendant’s explanations
and reasons for the entry of his name in the RS record appear to be more
convincing than the plaintiff’s objection to the erroneous RS record. As such,
since the RS record is the latest record in respect of the suit land, and such
record has presumptive value regarding the possession of the recorded
tenant over lands in question, and such presumption is not displaced with
unimpeachable evidence, the balance of preponderance does not support the
plaintiff’s possession over 26 decimal of lands in entirety.
11. Meanwhile, a question may arise now how
the plaintiff’s registered deed should be taken into consideration. No doubt,
this suit is for declaration of title to the suit land. In short, the title is a
legal term that refers to interest and ownership of something. In a 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
hand, ownership of 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].
12. Moreover, titles
are transferred by deeds. A deed is the actual legal document that would
transfer the ownership (title) of a property from one person to another. 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. Therefore, it
transpires that although only the name of the plaintiff’s predecessor appears
on the apparent face of the suit deed executed in 1957, a deed of more than 30
years old and produced from the proper custody, the plaintiff’s possession and
interests over 26 decimal of the suit lands in entirety has not been proved
with credible and weighty evidence.
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 to only 11 decimal of lands comprised in the RS plot No. 1346 on its southern side is admitted and established. Hence, these two issues are partially 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 the suit is not otherwise barred in laws and this is a competent court to grant relief as prayed for in this suit for declaration simpliciter. Since it appears to the Court that the plaintiffs have proved on his own strength with credible evidences that the plaintiffs have rights, interests, and possession over only 11 decimal of the suit land, the court finds no reason to hold that that the instant suit is hit by the mischief of the Proviso of section 42 of the 1877 Specific Reliefs Act. As such, in view of all of the issues discussed above, proven facts and legal parlance, it is thus held that the plaintiffs have met the requisites of section 42 of the 1877 Specific Reliefs Act in getting relief as prayed for “in part”. The instant suit is therefore found to be maintainable in the present form and manner and thus, the plaintiffs are adjudged to be entitled to get relief in part. And thus, it is decided that the suit deserves to be decreed in part on the contest.
Court fee paid is sufficient.
Hence, it is ordered that the suit be decreed in part on the contest against the defendant without any order as to costs. It is hereby declared that the plaintiffs have title to the 11 decimal of lands scheduled to the plaint.
(Composed and corrected by me)