HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of the Senior Assistant
Judge, Mohonpur, Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
Other Class Suit No. 35/2014
Mr. Md. Abed Ali Shaha (Plaintiff) Versus Mr. Md. Arab Ali Sheikh (Defendant)
The suit’s trial 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 declaration
that the plaintiff is entitled to the landed property described in the schedule
to the plaint.
The Plaint in the nutshell:
The C.S. recorded tenants of the suit land were Sonai, Dewan, Sanu Dewan, Nasir Khamaru, Kadır Shaha and Niyamat Deowan, Sompatti Bewa, Sorup Dewan, Nepal Gain, Chikon Gain, and Apal Gain. Through an amicable arrangement among the CS recorded tenants, Kadir Shaha became the Owner of 0.12 acres lands and had been in possession of the same. The C.S. recorded tenant Kadir Shaha died leaving behind a son Kasimuddin Shana and he became the owner of that 0.12 acres lands and had been in possession of the same. Thereafter, Kasımuddin Shaha died leaving behind two sons, plaintiff Nos. 01-02 and a daughter, Mst. Mazeda Bibi who sold her entire share of land, what she got lawful share from her father, to the plaintiffs on 06.04.1987 by a deed No. 2217 and handed over the possession of the suit land to the plaintiffs. The S.A. record was prepared in the name of aforesaid Kasimuddin Shaha in the S.A. Khatian No. 769; but during the R.S. record, the suit land is erroneously recorded in name of one Arab Ali Sheikh and others. The plaint runs as that as such, the plaintiffs had been in possession of the only 12 decimal of the suit land comprised in the RS plot No. 4337 of the RS khatian No. 155. On 20/02/2014, the defendant intervened with the plaintiffs’ open and peaceful possession. And hence is the suit.
The Written Statement in the nutshell:
The Defendant No. 01-03
and 04-06 submitted separate pleadings. Together, they contested the suit by
denying the material averments made in the plaint. They 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.
It is stated that the C.S. recorded tenants of the suit land were Sonai, Dewan, Sanu Dewan, Nasir Khamaru, Kadır Shaha and Niyamat Deowan, Sompatti Bewa, Sorup Dewan, Nepal Gain, Chikon Gain, and Apal Gain. Through an amicable arrangement among the CS recorded tenants, Kadir Shaha became the Owner of 0.12 acres lands and had been in possession of the same. The C.S. recorded tenant Kadir Shaha transferred the suit lands to Azgar Sheikh, and the SA khatian No. 767 is prepared against his name. The defendants are the heirs of Asgar Sheikhand and the RS record was prepared in their names. The suit land is rightly recorded in name of one Arab Ali Sheikh and others. The defendant have been in possession of the suit land comprised in the RS plot No. 4337 of the RS khatian No. 155. The defendant’s pleading also states that 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. 1-5. Defendant No. 01-03 also examined 03 witnesses and produced documents marked as exhibit Ka-Jha. The argument of the learned advocates for both the parties was heard. Although defendants No. 4-6 submitted their pleading, they produced no witness in their favor.
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 a 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 and intimidated for dispossessing them from the suit land. On the other hand, the defendant's side argued that their suit is barred by limitation, and any relief in the suit should be refused by the court. 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 on record to demonstrate the non-joinder of parties to the suit. Therefore, it gives the impression that, in absence of anything contrary to it, the cause of action of the suit arose on 20/02/2014 and the instant suit was instituted on 03/03/2014. Given the above propositions of law and facts, it is, therefore, held that the suit has been filed within the period 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. Hence, it is high time to determine and discuss first whether the plaintiff is in possession of the suit property. On perusal of the materials available on record, the plaintiffs appear to have claimed that they are now exclusive possession of 06 decimal of lands that comprised in RS plot No. 4337 since they had purchased the same from the hears of the SA tenant Kasimuddin via deed No. 2217 dated 06/04/1987 [ext.: 02]. Consequently, the question about who is in the possession of over 06 decimal of the lands that comprised in RS plot No. 4337 is our cardinal point to decide first.
05. In evidence, the PW-01 asserted their possession in the 06 decimal lands. The PW-02 is found to be in support of the facts asserted by the PW-01 in his examination in chief. Although PW-02 has no lands adjacent to the suit lands, he claims to be using the suit pond by way of taking bath therein. PW-03 has little relevance to the evidence adduced by the PW-01 and PW-02, because, his competency for being a witness has little significance as he has almost no knowledge about the suit lands. However, if the shreds of evidence produced by the PWs 01-02 are closely considered, they are found to be mutually supportive. Pertinently, the defendant side made a cross-examination to the PW-01 as to the boundary, but that is not made over to the PW-01. Hence, nothing contradictory in terms of evidence is unearthed regarding the current possession of the suit lands.
06. On the other hand, the defendants No. 01-03 adduced evidence as DW-01 in ways that they (defendants) have been in possession of 06 decimal of lands that comprised in the RS plot No. 1040: the scheduled landed property. But, it appears that the DWs- 02 and 03 did not support him (DW-01) on this point. The DW-02 is a relative of the DW-01 and the former claims that he farms fish along with the defendants; and DW-03 also claims the same way. However, the DW-02 has failed to identify the suit lands within the larger pond in question. Surprisingly, DW-03 did the same thing in ways that what the DW-01 said in his disposition as to the boundary of the suit lands does not match with what he said about it. Accordingly, 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 plaintiff’s assertion that the plaintiffs are in possession of 06 decimal suit lands. Therefore, the court holds that the plaintiff’s defacto possession in the suit lands is proved and established by the adduced oral testimony in this regard.
10. Now, consider the documentary shreds of evidence adduced by the parties to the suit in this respect. The RS khatian No. 155 does not support the plaintiffs’ narrative about the plaintiffs’ possession of the 06 decimal of the suit land comprised in RS plot No. 4337. The plaintiff’s property deed (No. 2217 dated 06/04/1987) was executed in 1987, meaning that it was after the RS record was prepared. Accordingly, considering the evidentiary value of the materials available on record, the court finds that the plaintiff’s explanations and reasons for the absence of his name in the RS record appear to be more convincing than the defendant’s objection to the RS record. As such, although the RS record is the latest record of rights in respect of the suit land and such record has presumptive value regarding the possession of the recorded tenant over lands in question, the court is decisive that such presumption is fairly displaced by the plaintiff’s unimpeachable evidence, and thus, the balance of preponderance vividly supports the plaintiff’s possession over 06 decimal of the suit lands.
11. It is also germane to look into the chain of title by analyzing property deeds and genealogy reflected on the materials available on record. It is both parties’ case that the C.S. recorded tenants of the suit land were Sonai, Dewan, Sanu Dewan, Nasir Khamaru, Kadır Shaha, and Niyamat Deowan, Sompatti Bewa, Sorup Dewan, Nepal Gain, Chikon Gain, and Apal Gain. Through an amicable arrangement among the CS recorded tenants, Kadir Shaha became the Owner of 0.12 acres lands and had been in possession of the same. But, it is only the plaintiff’s claim that the C.S. recorded tenant Kadir Shaha died leaving behind a son Kasimuddin Shana and he became the owner of that 0.12 acres lands and had been in possession of the same. Thereafter, Kasımuddin Shaha died leaving behind two sons, plaintiff Nos. 01-02 and a daughter, Mst. Mazeda Bibi who sold her entire share of land, which she got a lawful share from her father to the plaintiffs on 06.04.1987 by deed No. 2217 and handed over the possession of the suit land to the plaintiffs. The S.A. record was prepared in the name of aforesaid Kasimuddin Shaha in the S.A. Khatian No. 769; but during the R.S. record, the suit land is erroneously recorded in name of one Arab Ali Sheikh and others. Contrary, it is the defendant’s case that the C.S. recorded tenant Kadir Shaha transferred the suit lands to Azgar Sheikh, and the SA khatian No. 767 is prepared against his name. The defendants are the heirs of Asgar Sheikh and the RS record was rightly prepared in their (defendants’) names.
12. Indubitably, CS khatian No. 640 is admitted [ext.: 04], and Kadir Shaha is allocated to .12 acres land. The are no materials on record to disregard the fact that C.S. recorded tenant Kadir Shaha died leaving behind a son Kasimuddin Shana. The SA khatian No. 769 [ext.: 4 Ka] gives an idea that Kasimuddin Shana is a son of Kadir Shaha, who is also the recorded tenant of the suit lands. Here also appears on record that Kasimuddin Shana died leaving behind plaintiffs Nos. 01-02 and a daughter, Mst. Mazeda Bibi, who, later on, sold her entire share of land, which she got a lawful share from her father Kasimuddin shaha, to the plaintiffs on 06.04.1987 by deed No. 2217 [ext.: 02] and handed over the possession of the suit land to the plaintiffs. And also, the plaintiffs are decided to be in the current possession of the suit lands.
13. As such, since the predecessor (Azgar Sheikh) of the defendants (RS recorded tenants) is not found to be a recorded tenant of the RS Record of Rights regarding the suit lands, and also there is no established linkage between the defendants' facts with the Kadir Shaha, it cogently appears that the plaintiffs are going to carry the day in their favor. To clarify, although the defendant side places a copy of SA khatian No. 767, which mentions the name of their predecessor Azgar Sheikh, the final publication of the SA Record of rights regarding the suit lands does not support this fact. It is also true that the defendants have submitted some subsequently executed property deeds and mutation khatians prepared in their names. It would be verbose to retell that the record of rights is not evidence of title. And since the defendants are out of the suit lands, and the presumptive value of the latest record of rights is displaced, the defendants are not found to be entitled to receive the fruits of the balance of preponderance in this occasion. Therefore, it is opportune to hold that the plaintiffs appear to have acquired rights, and interest in the suit lands.
14. 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 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]. 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, since it transpires on record that the plaintiffs acquire rights and interest in the suit lands via deed No. 2217 dated 06/04/1987 and the plaintiff had been in possession of the only 06 decimal of the suit land, it is safe to hold that the plaintiff’s possession, interests and ownership over 06 decimal of the suit lands in entirety has been proved 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. 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 06 decimal of lands comprised in the RS plot No. 4337 is 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 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 plaintiff has proved on his own strength with credible pieces of evidence that the plaintiff has rights, interests, and possession over only 06 decimal of the suit land, the court finds no reason to hold that the instant suit is hit by the mischief of the Proviso of section 42 of the 1877 Specific Reliefs Act. As such, because of all of the issues discussed above, proven facts, and legal parlance, it is thus held that the plaintiff has 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 on the contest.
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 06 decimal lands described in the schedule to the plaint.
(Composed and corrected by me)