District: Rajshahi
In the Court of the Assistant Judge, Mohonpur, Rajshahi
Present: Md. Abdul Malek, Senior Assistant Judge
Other Class Suit No. 44/2012
(Plaintiff) Versus (Defendant)
And having stood for consideration to this day, the Court delivered the following judgment: This is a suit for declaration of title and recovery of possession.
The
Plaint in the nutshell:
The recorded C.S.
tenant of the landed property described in the schedule to the plaint was Zoyan
Bewa who died leaving behind Kabir Kheikh and Abir Kheikh. The father of the
plaintiff Ramjan Sarkar and paternal unlce of the plaintiff Diljan Sarkar
purchased the suit land from Kabir and Abir Sheikh through an unregistered deed
dated 15/09/1938. Then, Ramjan Sarkar and Diljan Sarkar took possession
of the suit land after the purchase. Diljan Sarkar died before getting married,
leaving behind his only brother Ramjan Sarkar, and thus, Ramjan Sarkar became
the owner of the suit land. While being in possession, Ramjan Sarkar died
leaving behind a wife Fuljan, 2 sons Moyej alias Moje Sarkar & Afaj Sarkar,
2 daughters Bibijan & Kopijan.
But, SA & RS record concerning the disputed 02
decimal lands comprised in the plot No. SA 799/RS 849 were erroneously prepared
in the name of the defendant’s father and defendants respectively. This kind of
wrong entry in the respective RoR is fraudulent, erroneous and collusive. The
sharers of the disputed land transferred their shares to the plaintiff via gift
deeds. Thus, as of an heir and transferee, the plaintiff was in exclusive
possession of 07 decimal lands comprised in the RS plot No. 849; but was dispossessed
by the defendants from the suit lands of 2 decimal on 21.02.2015. And thus, the plaintiff 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 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 recorded C.S. tenant of the landed property described in the
schedule to the plaint was Zoyan Bewa who transferred 02 decimal of land in
question to her brother one Bahar Mondol via oral gift. Being in possession
therein, Bahar Mondol built his home on the suit land. Later on, Bahar Mondol
died leaving behind his son one Khaja Ahmed, in whose name, SA khatian No. 341
duly was prepared. Khaja Ahmed then died leaving behind the defendants, and the
the disputed lands comprised in the RS kharian No. 225, plot No. 849 was
prepared and published in the defendant’s names. As such, they are paying taxes
and taking in possession of the suit landed property. The plaintiff is not in
possession in and not entitled to the land in question and hence,
the suit shall stand dismissed.
Issues:
The
pleadings of the parties are considered. In cognizance of the parties’ pleadings and in the
determination of the matters in controversy, the issues are reframed under O. 14/ R. 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 plaintiffs have
title to the suit land.
4. Whether the plaintiff was
in possession of the land in question before he was dispossessed by the
defendant therefrom.
5. Whether the plaintiff is entitled to the relief as prayed for?
Findings
and Decisions
In proof of the claims, the plaintiff examined 04 witnesses and produced for the court’s inspection documentary evidences which are marked as Exhibit Nos. 1-8. Defendants also examined 03 witnesses and produced documents marked as Ka-Ga. The argument of the learned advocates appearing for both the parties heard.
Issue No. 3 & 4:
For brevity, convenience and interrelation, these issues are also taken together in discussing the case matter. It is not disputable that the recorded C.S. tenant of the landed property described in the schedule to the plaint was Zoyan Bewa who died leaving behind Kabir Kheikh and Abir Kheikh. However, on perusal of the suit materials, it appears that it is the plaintiff’s claims (PW-01) that the plaintiff’s father Ramjan Sarkar and paternal uncle Diljan Sarkar purchased the suit land from Kabir and Abir Sheikh through an unregistered deed dated 15/09/1938. Then, Ramjan Sarkar and Diljan Sarkar took possession of the suit land after the purchase. After the demise of Diljan Sarkar, as only brother Ramjan Sarkar became the owner of the suit lands. While being in possession, Ramjan Sarkar died leaving behind a wife Fuljan, 2 sons Moyej alias Moje Sarkar & Afaj Sarkar, 2 daughters Bibijan & Kopijan. Accordingly, Ramjan Sarkar is the plaintiff’s father. The plaintiff as PW-01 claims that the aforesaid sharers of the disputed land transferred their shares to the plaintiff via gift deeds. Thus, by dint of being an heir and transferee of Ramjan Sarkar, the plaintiff claims that he was in exclusive possession of 07 decimal lands comprised in the RS plot No. 849; but he becomes dispossessed by the defendants from the suit lands on 21.02.2015.
Now, it is high time to decide first whether the plaintiff was in possession of the land in question before he was dispossessed by the defendant therefrom. Plus, it is also to be decided that whether the plaintiff have title to the suit lands, which enables him to recover his dispossessed lands. In evidence, the PW-01 asserted that the plaintiff was in exclusive possession of 07 decimal lands comprised in the RS plot No. 849; but the defendants dispossessed him from the suit lands on 21.02.2015 by way of dismantling his “cowshed and house” built thereon. The PWs 02-04 only mention the month of alleged dispossession from his cowshed in 2015 with no specific date. So, their shred of evidence lacks consistency in support of the plaintiff’s assertion that the defendants dispossessed him from the suit lands on “21.02.2015” by way of dismantling his “cowshed” and “house” built thereon.
Moreover, PW-02 in his cross-examination admitted that he is the plaintiff’s neighboring brother and also a close relative; and he did not know whether one Bahar Mondal, the defendants' predecessor, ever was in possession of the suit land. Even, it is not disclosed in his testimony how he knows or recognizes the suit lands. PW-03 also added that he was not present (seen) at the time when the plaintiff's "house" was being diminished. Besides, the PW-04 claims in his cross-examination that this suit was instituted after the plaintiff was dispossessed from the suit land. Accordingly, if the whole evidence of the plaintiff side is taken into consideration as a whole, even a lay man’s mind would come up with a decision that the plaintiffs’ piece of evidence adduced in support of his dispossession from the suit land on “21.02.2015 appears to be mutually incongruent, contradictory and digressive.
Conversely, DW-01 claims that the plaintiff never occupies the two decimal of the disputed lands. In cross-examination, she also asserted that her father's house exists on the northern side of the suit plot, which is placed within the boundary of her father's house. As such, she underscores the non-existence of the fact of demolishing the plaintiffs' cowshed. The DWs 02-03 are also found to be consistent with the testimony of the DW-01. They also have identified the suit land by stating the boundary of the suit lands with ignoble pitfalls. Especially, DW-03 becomes one of the most competent witnesses as his home situates just adjacent to 300 hands-distances from the suit lands, not merely he is just a villager. Furthermore, the defendants also took a position by suggesting that the plaintiff has resorted to a hoax of dispossession through amendment of plain when his petition for temporary injunction got disallowed by the court, although the plaintiff gainsaid the same in his cross-examination.
The plaintiff also raised a good point relating to a criminal case allegedly arising out of the conflict resulting from the fact of alleged dispossession. The police report shows the existence of allegation of Criminal Trespass (punishment for house-trespass under section 448 of the Penal Code). But the verdict of that criminal case did not support the plaintiff, because the accused got acquitted for the offense under section 448 of the 1860 Penal Code, although the accused got sanctioned under sections 323 and 427 in that case [ext.: 09-10]. As a result, the court finds no relevance of the averment of that verdict so far as the fact of the plaintiff’s dispossession from the suit lands is an issue under consideration.
Furthermore, the latest khatian (RS) favors the defendants. It is trite to say that Khatian itself is not a document of title. It is an evidence of present possession. A Khatian neither creates nor destroys title. It is merely a record of physical possession at the time when it is prepared [vide 59 DLR 207]. On this premise, the testimony of the DW-01 underscores that they have been in possession of the suit land (two decimal) since the preparation of RS record of rights. Consequently, it transpires that the presumptive value of the defendant’s latest record of rights is not rebutted by the plaintiff's side with the best possible evidence. The relevant law is that the plaintiffs having failed to displace the presumption of correctness of the RS khatian prepared in the name of the defendant by proving their title and possession in the suit land, they are not entitled to any decree. Hence, with being the facts and laws as discussed hereinbefore, it appears to the court that if these pieces of evidence are considered together, the defendant side comes up before the court with more convincing and persuasive evidentiary materials than the plaintiff on the point that whether the plaintiff was in possession of the suit land before he is dispossessed from the suit lands on his mentioned date.
Now, another issue at hand is whether the plaintiff has title to the suit land as he claims. It appears on record that it is the plaintiff’s claims (PW-01) that the plaintiff’s father Ramjan Sarkar and paternal uncle Diljan Sarkar purchased the suit land from Kabir and Abir Sheikh, the heirs of the CS recorder tenant Zoyan Bewa, through an unregistered deed dated 15/09/1938. The plaintiff’s claim to title to the suit lands emanates from the interests and rights of Ramjan Sarkar, the plaintiff’s father. The unregistered deed speaks for itself as being a sale deed that was executed in 1938 [ext.: 01]. The law relating to an unregistered deed is well-spoken. The provisions relating to the effect of unregistered contract for sale executed prior to section 17A of the Registration Act becomes effective are available under section 17B of the said Act. The combined understanding of the section 17, 17A, 17B, and 49 of the Registration Act suggest that the legal effect of non-registration envisages that document, registration of which is mandatory, if not registered, does not have any effect. An unregistered deed will not pass any title [vide 14 MLR (2009) 69]. However, if the defendant side admits of the unregistered deed, the effect of non-registration might get relaxed for the non-registration of a document creates no bar to its being admitted in evidence; but that is not the case in our context.
That being the case, since the aforesaid evidential proposition persuades the court to be decisive that the plaintiff is now admittedly out of the possession of the suit lands; and the plaintiff appears not to provably be dispossessed from the suit lands on his mentioned date, the court holds that the plaintiff is not entitled to get the reliefs due to the issues under discussions. Moreover, the effect of his predecessor’s unregistered deed aggravates his position in this respect. In short, title is a legal term that refers to an interest and ownership of something. In a jurisprudential sense, title to property thus refers to ownership of the property, whereas 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. Therefore, it transpires that because the plaintiff’s possession and interests over 02 decimal of the suit lands at least before his alleged dispossession has not been proved with credible and weighty evidence, he cannot stand on his own strength to prove his claims. On the other hands, the defendants’ record of rights, and both defacto and dejure possessory evidence relating to the suit lands redirect the balance of preponderance towards the defendant's side. In whatever way, in dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter upon 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 with regard to the issues in discussion. As such, the evidence of the plaintiff adduced on the record carries the plaintiff nowhere. Hence, the court decides that these two issues are settled against the plaintiff.
Issue
No. 01 & 02:
It is tautological to say that the plaintiff instituted the suit praying
for declaration of title and recovery of possession. This issue is thus
certainly crucial point to decide for being related to the questions of
limitation, and defect of parties. As per Article 142 of the First Schedule of
the 1908 Limitation Act, a suit for recovery of possession ought to be filed
within 12 years from the date of dispossession. Pertinently, it is already
discussed hereinbefore that the plaintiff’s dispossession from the
respective suit lands is ‘not proved’ in the instant suit. Absence of
unimpeachable proof of the alleged dispossession clearly affects a suit’s cause
of action, which is antecedent to the operation of limitation period. As a
result, the court has no criterion before it to decide upon the matter whether
the plaintiff was in possession of the suit lands within 12 years prior to the
filing of the instant suit.
The relevant law is that under article 142, it is the duty of the plaintiff first to prove to the satisfaction of the court that he was in possession of the suit premises within 12 years prior to the filing of the suit and if he fails to do so, he cannot get decree for declaration of title and recovery of possession. Pertinently, it was held that ‘until the plaintiff proves his possession within 12 years, there is no onus on the defendant to prove his adverse possession (vide 19 DLR 912). So, considering legal points and prevalent facts of the present case, it is decided that whether the suit appears to have been filed within the statutory period of limitation or not has been ruled out in this suit; and thus, the suit has no cause of action. Moreover, the plaintiff as PW-01 in his cross-examination admitted that he did not make his brother Moyej Sarkar and sister Bibijan as any party to the suit. In addition, He also admitted that his brother Moyej Sarkar transferred 9 decimal of lands to one Salam, who is also not made a party to the suit lands. Hence, it is decided that the issue with regard to the question of Limitation as well as the joinder of parties is settled in the negative against the plaintiff.
Issue
No. 05:
General principle of evidence law is that “the plaintiffs in order to
succeed must establish their own case by credible evidence” (67 DLR HCD 259). Furthermore,
it is also pertinent to mention 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”. In view of all of the above discussions, the Court is of
view that since all the issues are decided against the plaintiff and thus, the
instant suit is not found fit for exercising the Court’s discretion in
decreeing the same. As such, the suit is not maintainable in present form and
manner, and the Plaintiffs may not get equitable relief as prayed for. On
consideration and cognizance of the Pleadings, facts, surrounding circumstances
of the case, shreds of evidence on record, and relevant laws, it appears to the
Court that the suit deserves to be dismissed on contest without any order as to
costs.
Court fee paid is sufficient.
Hence, it is ordered that the suit be dismissed on contest against the defendants.
(Composed and corrected by)