HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of the
Assistant Judge, Mohonpur, Rajshahi
Present: - Md. Abdul Malek, Assistant Judge
Other Class Suit No. 35/2003
Mr. Md. Amir Hosen (Plaintiff Versus Mr. Taser Shah (Defendant)
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 plaintiff is entitled to the landed property described in the schedule to the plaint.
The Plaint in the nutshell:
The recorded tenant of
the CS Khatian No. 42 & 177 and SA Khatian No. 209 was one Kofai Shah, who
died leaving behind two sons Nasir Shah & Basir Shah. Basir Shah died
leaving behind his 2nd wife Kachu Beowa, and three sons Ahsan Shah,
Taser Shah, and Ichashah. Later on, SA
khatian Nos. 232 & 57 were prepared against the name of these heirs except Kachu
Beowa. Kachu Beowa died leaving behind her 2nd husband Gopal Mondol
and consanguine brother Shaharam Mondol. They were also in ejmali possession of
the suit lands along with aforesaid heirs. Gopal Mondol died leaving behind a
son Anu Mondol. Then, Anu Mondol transferred his share of lands to one
Ausimuddin and Jalal Mondol on 02/11/1967 via deed No. 22837. Thereafter, Jalal
Mondol transferred his share to Ausimuddin on 15/06/74 via deed No. 27633. This
way, Ausimuddin becomes an owner of 12 decimal lands out of the suit property.
Then, Ausimuddin orally exchanged his lands comprising in SA plot No. 1413 & 1343 with the lands comprising in SA plot No. 854 of the SA khatian No. 209. Due to this exchange transaction, SA plot No. 854 was recorded in the RS plot No. 1040 of the RS khatian No. 311. RS khatian’s comment segment contains information about that exchange. Particularly, Ahsan Shah and Taser Shah transferred the lands comprising in Plot No. 1413 & 1343, once taken up on that exchange, to Baidol Madrasha and Frodon Nesha in 1970. Being in possession of 12 decimal lands in question, Ausimuddin transferred the same to the plaintiffs via deed No. 13635 dated 19/08/1974. The plaint further added that this way, the plaintiffs have been in possession of the only 12 decimal of the suit land comprised in the RS plot No. 1040 of the RS khatian No. 311. On 10/05/2013, the defendant intervened with the plaintiffs’ open and peaceful possession; and hence is the suit.
The Written Statement in the nutshell:
Defendants 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, and suffers from the defect of parties and cause of action. The defendants state that the recorded tenant of the CS Khatian No. 161 was one Kukai Shah, who died leaving behind two sons Nasir Shah & Basir Shah. Nasir Shah died before getting married. Basir Shah then died leaving behind his 2nd wife Moton Bibi, and three sons Ahsan Shah, Taser Shah, and Ichashah. Moton Bibi is still alive to date. Mr. Ahsan Shah died leaving behind wife Kolejan Bibi, and 6 sons Mokbul Shah, Siraj Shah, Forman, Shah, Joynal Shah, Aynal Shah, & fainal Shah and 02 daughters Ful bibi and farida Bibi. Ichha Shah died leaving behind wife Fefura Bibi and a son Ashraf Ali and four daughters Sufia Bibi, Rokeya Bibi, Shorifa Bibi and Aklema Bibi.
The
recorded tenants of the SA khatian No. 209 was Noschir Shah, Bosir Shah. RS
khatian No. 311 was prepared in the name of Nasir Shah, Ocher Shah, Ichha Shah,
Ehsan Shah, and Ausimuddin Mondol and Jalal Hosen. But this record was
mistakenly done because of the fact that there was no wife of Basir Shah named as
Kachu Beowa; and Nasir Shah had no spouse at all. The two deeds bearing numbers
of 22837 and 27633 are, thus, false, fabricated, and have no force of law. The
defendants have been in possession of the suit land to date by way of
cultivating varied plains and trees. And 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 plaintiff 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 pieces of evidence, which are marked as Exhibit Nos. 1-7. Defendants also examined 03 witnesses and produced documents marked as exhibit Ka-Gh. Another witness is also examined as CW. The argument of the learned advocates appearing for both the parties is heard.
Issue
No. 2:
Pleading is a statement of claims. For every cause of action or relief, there must have 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. 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 the suit land on 10/05/2003 and intimidated for dispossessing them from the suit land. On the other hand, the defendant's side argued that since the suit is barred by limitation, any relief in the suit should be refused by the court; because the period of limitation should be reckoned against him since 1981. The relevant law in this respect is well-settled so far. Cause of action is a bundle of facts, and the court is required to consider the plaintiff’s pleading in its entirety [vide BCR 2004 AD 138]. On perusal of the suit record, it appears to the Court that 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 material available on record that demonstrates the non-joinder of parties to the suit. Therefore, it appears that, in absence of anything proved to be contrary to it, the cause of action of the suit arose on 10/05/2003 and the instant suit was instituted on 19/05/2003. 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. 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 a 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. Therefore, it is high time to determine and discuss first whether the plaintiff's side is in the possession of the suit property. On perusal of the materials available on record, the plaintiffs appear to have claimed that they are now in the exclusive possession of the lands of 12 decimal, comprised in RS plot No. 1040 since they purchased the same from Ausimuddin via deed No. 13635 dated 19/08/1974. Accordingly, it is now a key task to resolve questions revolving around who is now in the possession of over 12 decimal lands comprised in RS plot No. 1049.
05. In evidence, the PW-01 asserted their possession over the disputed land of 12 decimals that comprised in the RS plot No. 1040, the scheduled landed property. The PW-02 supports the facts asserted by the PW-01 in his examination in chief. On the other hand, although the defendant adduced his evidence as DW-01 in ways that he (the defendant) has also been in possession of 12 decimal of lands as well, But, surprisingly, the DW-02 and 03 are not found to be in support of him on this crucial point of current possession. As a result, if the total shreds of evidence about the possession of the suit land are closely and wholly considered, the court would tend to opine that the balance of probabilities goes in favor of the plaintiff’s assertion on the premise that they (the plaintiffs) are in possession of suit lands (12 decimal). Thus, the court holds that the plaintiffs’ defacto possession in the suit lands is proved with the adequacy of oral testimony set forth in this respect.
06. Now, consider the
documentary pieces of evidence adduced by the parties on this premise. On the careful
perusal of the plaintiff’s property deed No. 13635 dated 19/08/1974 and the RS
khatian No. 311 [ext.: 03], it
appears to support the plaintiffs’ narrative about the chain of his title to
and possession of the only 12 decimal of the suit land comprised in the RS plot
No. 1040 of the RS khatian No. 311. The reasons are self-explanatory; since it
is an apparent fact that the plaintiff’s property deed was executed in 1974 [ext.: 06], as well as the RS record was
shown to be prepared accordingly [ext.:
03]. If the averment of the plaint is reconsidered,
it clearly visualizes Ausimuddin’s oral exchange of the lands comprising in SA
plot No. 1413 & 1343 with the lands comprising in SA plot No. 854 of the SA
khatian No. 209. Due to this exchange transaction, SA plot No. 854 was recorded
in the RS plot No. 1040 of the RS khatian No. 311.
07. Interestingly, the RS khatian’s comment segment contains information about that exchange; in other words, it supports the plaintiff’s case. It is also relevant that the RS record is the latest record in respect of the suit land, and an entry to such a record has presumptive value as to the question of possession over lands in question. As aforesaid, the materials available on record suggest that such a presumption is not displaced by the defendant's side with a more convincing piece of evidence. For that reason, considering the evidentiary value of the materials available on record, the court is constrained to hold that the explanations and reasons the plaintiff side offers regarding the entry of the fact regarding an exchange in the RS record seemingly seem to be more convincing than the defendant’s objection to that entry. As such, the court is of opinion that the balance of preponderance goes towards the plaintiff’s possession over 12 decimal of the suit lands.
08. Moreover, the plaintiff’s property deed No. 13635 dated 19/08/1974 [ext.: I, CW-01] also appears to support the plaintiffs’ narrative about the chain of his title to the suit lands. On this point, the plaintiff’s pleading states that although SA khatian Nos. 232 & 57 were prepared against the name except for Kachu Beowa. The plaintiff-side underscores such non-inclusion by saying that Kachu Beowa died leaving behind her 2nd husband Gopal Mondol and consanguine brother Shaharam Mondol. Then, Gopal Mondol died leaving behind a son Anu Mondol who transferred his share of lands to one Ausimuddin and Jalal Mondol via deed No. 22837 in 1967 [ext.: 04]. Thereafter, Jalal Mondol also transferred his share to Ausimuddin via deed No. 27633 in 1974. This way, Ausimuddin becomes an owner of 12 decimal lands out of the suit property. Then and there, Ausimuddin orally exchanged his lands comprising in SA plots No. 1413 & 1343 with the lands comprising in SA plot No. 854 of the SA khatian No. 209 (belonging to Ahsan Shah and Taser Shah at that time).
09. In fact, it is admitted that SA plot No. 854 was recorded in the RS plot No. 1040 of the RS khatian No. 311. Pertinently, the RS khatian’s comment segment contains information about that exchange. Accordingly, Ausimuddin’s orally exchange between the suit lands and lands comprising in SA plot No. 854 of the SA khatian No. 209, once belonging to Ahsan Shah and Taser Shah, is sufficiently supported by the said entry into the RS record of rights [ext.: 03],. Moreover, the plaintiffs’ property deed No. 13635 dated 19/08/1974 from Ausimuddin earns strength because of the fact that the plaintiffs have been able to prove that they are now in possession of the suit land (12 decimal) comprised in the RS plot No. 1040 of the RS khatian No. 311.
10. On the contrary, although the defendant side claimed that there was no person named Kachu Beowa, being the 2nd spouse of Basir Shah; and thus, Gopal Mondol as the 2nd husband of Kachu Beowa belonged nothing to the suit lands. However, it appears to the court that the defendant-side has failed to discharge the burden of proof of this particular fact under section 103 of the 1872 Evidence Act. On the other hand, the plaintiff-side surprisingly places a robust proof of the incident of the aforesaid exchange by way of the fact that Ahsan Shah and Taser Shah have already transferred the lands of 26 decimal lands, comprising in SA Plot No. 1413, corresponding to RS plot No. 1054, once taken up on that exchange from Ausimuddin, to Baidol Madrasha and Frodon Nesh [ext.: 05]. But, on this crucial point, the defendant provides no contrary material before the court against it. Therefore, it occurs before that court that the shred of evidence adduced by the defendants carries them nowhere.
10. No doubt, this suit is for declaration of title to the suit land. 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, meaning that you have the rights to use that property. On the other hands, 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]. Moreover, titles are transferred by deeds: the actual legal document that would transfer the ownership (title) of a property from one person to another. Accordingly, when you have ownership, then you have only ownership; and when you have the title, then you have ownership as well as title. Therefore, since it transpires on record that the plaintiffs acquire rights and interest in the suit lands via deed No. 13635 dated 19/08/1974 and the plaintiff had been in possession of the only 12 decimal of the suit land comprised in the RS plot No. 1040 of the RS khatian No. 311, supporting the plaintiffs’ narrative of the chain of title, it is safe to hold that the plaintiff’s possession, interests and ownership over 12 decimal of the suit lands in entirety has been proved and established with credible and weighty evidence.
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 with regard to the issues in discussion. Accordingly, 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 12 decimal of lands comprised in the RS plot No. 1040 is sufficiently proved and established. Hence, this issue is settled in the plaintiff’s favor.
Issue No. 1 and 4:
For brevity, convenience and correlation, these 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 by 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 been able to prove on their own strength with the standard of proof and credible shreds of evidence that the plaintiffs have rights, interests, and possession over only 12 decimal of the suit land, the court finds no reason to hold that that the instant suit is not mischievous as per 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 invoking the relief as prayed for. 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. And thus, it is decided that the suit deserves to be decreed on contest.
The court fee paid is sufficient.
Hence,
it is ordered
that the suit be decreed on contest against the defendants without any order as to costs. The plaintiff is hereby adjudged to have title to the 12 decimal lands described in the schedule Kha to the plaint.
(Composed and corrected by me)