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. 152/2021
Mr. Md. Mortuza Reja (Plaintiff) Versus Mr. Abdur Rajjak (Defendant).
The suit's trial ended and the argument was 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
tenants of the suit lands described as RS khatian No. 286 in the schedules to
the plaint was one Bablu, Abul Kashem, Md. Hashem, and Zillur Rahman. The
recorded tenants of RS khatian No. 286 had exchanged 10 acres lands with the
plaintiffs via deed No. 1742/1991 and deed No. 1743/1991. Each of the
plaintiffs thus becomes entitled to the suit lands through these two deeds and
mutated their names accordingly. The plaintiffs have already transferred some
portion of their lands to different persons via different deeds. The plaintiffs
claim that they are now in exclusive possession of the suit land measuring 3.47
Acres for each of them. Despite having no title to the suit land, the
defendants made threats to the plaintiffs for dispossession from the scheduled
lands and hence is the suit. The Plaintiffs claimed that the suit land belongs
to them; that is now under their possession by way of planting different trees thereon. Hence, he is entitled to get relief as prayed
for.
The Written Statements in Brief:
The 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. The Defendants
stated that the SA recorded tenants of the suit lands described in the
schedules to the plaint was one Jatindranath Sarkar, Birendranath Sarkar, Aunil
Chandra Sarkar and Sunil Chandra Sarkar. Birendranath Sarkar was an advocate
from Rajshahi Advocate Bar Association. Of them, Birendranath Sarkar was killed
in 1971. Birendranath Sarkar left his brothers as heirs, who orally exchanged
the suit lands with the defendants’ predecessor for Tk. 700 and delivered
possession to them, before going to India.
There was an
oral agreement between them on the point that they would execute a registered
deed after improving the conditions of the country. Since then, like their
predecessors, the plaintiffs are in possession of the suit lands and have house
and garden therein. Defendants also stated that RS record of rights is not
prepared and published against the proper names. Accordingly, the plaintiffs have
no cause of action and any rights to sue regarding the land in question. Hence,
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 of the suit land.
4. Whether the plaintiffs are entitled to the relief as prayed for.
Discussions and Decisions:
During the trial, the plaintiff examined 03 witnesses and produced
documentary pieces of evidence marked as exhibits No. 1-14. There are two sets
of the defendant. Defendants also examined 03 witnesses and produced documents
marked as Exhibit No. Ka-Kha. Arguments were heard from both parties after the
conclusion of the trial of the suit.
Issue No. 01:
Since a fair trial demands that “no party should not be taken by
surprise, the purpose of the pleading is to pinpoint the controversy between
the contending parties to enable them to meet their respective cases. In our
case, it is noticeable that if the prayer portion of the plaint and testimony of
the PW-01 is taken into close consideration, it clearly appears that the
plaintiffs prays for a decree of a permanent injunction, as well as the
plaintiffs also prayed for a declaration of title and recovery of possession by
ejectment regarding the landed property described in the schedule to the plaint
at the same time in the same suit. So, it occurs that although the cause
of actions in a suit is a bundle of facts, such a trinity of prayers poses to
be “self-contradictory”, given that there are few exceptions so far.
03. However, now consider the principle construction of the pleading.
The general rule is that every pleading should receive liberal construction; no
pedantic approach should be adopted to defeat justice. The plaintiff is also
permitted to seek several different rights alternatively but he cannot be
permitted to allege two absolutely inconsistent states of facts, each of which
is destructive of the other [e.g., ILR 15 Cal 648 (PC)]. So, alternative, not inconsistent,
pleas are welcomed. To decide what alternatives are and what are inconsistent
pleas, it is the general principle that such a decision rests on the test
of whether the plaintiff can verify both statements of fact as true.
In addition, it is also desirable that it could be looked into which plea(s)
the plaintiff presses at the stage of evidence or subsequent stage [vides 15
DLR SC 315; AIR 1988 Ker 298].
04. As such, the PW-01 in his examination-in-chief states “how the cause
of actions regarding a prayer for a permanent injunction has arisen,
independent of the other prayers like the declaration of title and recovery of
possession by ejectment”. Besides, where an issue of exclusive
possession in question is involved and the determination of title is not a
cardinal question in a suit, another suit involving the deep and critical
examination of title and dispossession seemingly appears to be inconsistent
self-contradictory, as well as abusive. So is applicable in our
occasion. Then, since the plaintiffs have put much emphasis upon the relief of
permanent injunction at the stage of evidence or so on, the good sense of
justice persuades the court to opine that this is a suit for a permanent
injunction.
05. Accordingly, 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, had 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. Accordingly, it is apparently
decisive to the court that the suit is maintainable in its current form and
manner. So, this issue is settled in the plaintiffs’ favor.
Issue No. 02:
No skepticism, it becomes high time to see through the plaintiffs’ prima
facie title to the suit land envisaged in the schedule. In proof of such kind
of title thereto, the plaintiffs narrated in ways that the recorded tenants of
the suit lands described as RS khatian No. 286 in the schedules to the plaint
was one Bablu, Abul Kashem, Md. Hashem, and Zillur Rahman. These recorded
tenants had exchanged 10.00 acres of lands with the plaintiffs via deed No.
1742/1991 and deed No. 1743/1991 [ext.: 01 (series)]. Each of the
plaintiffs being in possession of the exchanged lands, including the suit
lands, they mutated their names, and taxes are paid accordingly [ext.: 2-5].
The plaintiffs (as PW-01) clarified their position by claiming that apart
from the lands they have already transferred to different persons via different
deeds, they are now in exclusive possession of the suit land measuring 3.47
Acres each of them.
07. The plaintiff places the judgments and decrees passed in the O.C suit No. 107/95 and Title Appeal No. 167/97 before the court. On perusal of Exhibit No. 6-7 (judgments and decrees passed in the O.C suit No. 107/95 and Title Appeal No. 167/97), it occurs that title to the suit lands described in the schedule has been declared in the plaintiffs’ favor. However, as per provision enshrined in section 43 of the 1887 Specific Relief Act, the defendants are not a party to that suit; rather the government was impleaded as the defendant in that suit. So, it would be verbose to reiterate that the judgments and decrees, passed in the O.C suit No. 107/95 and Title Appeal No. 167/97, are not binding upon the defendants to this instant suit.
08. What is more, the PW-01 admitted in cross-examination that he does
not provide the chain of title emanated from CS or SA record of rights, as well
as does not know the basis of the inclusion of the names of the so-called RS
recorded tenants of the RS khatian No. 286. However, as this is not a suit for
declaration of title or a suit for the partition where a deep and critical
analysis of title is required, the court is not marching in that direction. As
such, in consideration of the above materials adduced by the plaintiffs, it is
decided that a good case of prima facie title of the plaintiffs has arisen
in the suit. So, this issue is also settled in the plaintiffs’ favor.
Issue No. 03:
The pleading and other materials available on record suggest that the possession
of the plaintiffs in the suit land is critically challenged by the defendants. As a result, it is opportune to
consider a critical aspect of the suit lands’ current possession. Upon careful
perusal of the plaintiffs’ oral evidence, it transpires that the PW-01 clearly
claims title and possession to the suit land on the basis of the documentary
pieces of evidence mentioned above and current possession in the suit land.
Since the term ‘title’ refers to interest and ownership of something, title to
the landed property also denotes ownership of the property whether ownership
flows from that of ‘possession’. Accordingly, the court is first looking
forward to discussing the propriety of the plaintiff’s current possession in
the suit lands.
10. As a result, first things first: the state of the current possession
in the suit lands requires being decided first. In pleading and evidence
(PW-01), the plaintiffs claim their exclusive possession of the suit land, and also
maintained that 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. To
substantiate the plaintiff’s exclusive possession, the PW-01 also asserted
the same proposition relation to their current possession in evidence, even in
addition to the fact that no defendant has any possession therein. Moreover, the
plaintiff's pleading spells out that they have different types of trees planted
on the suit lands, including mangoes, lychees, olives, and lemons, etc.
11. Here, it is the suit lands are comprised in RS plot No. 2713, 2714, and 2715 of RS Khatian No. 286. While deposing as PW-01, he (PW-01) is not found to be able to identify the suit lands. Also, the PW-01 asserted that he himself never cultivates the suit lands; instead, the suit lands have been on borga cultivation since the last 23 years. Surprisingly, the plaintiffs’ pleading sheds no sufficient light on whether they are currently in possession of the suit lands on borga agreement. It is more surprising that the PW-02 (Foyej Uddin) himself claims to be cultivating the suit lands on borga agreement for 22 years; but, remarkably, he testified in his cross-examination by admitting that out of the three plots, there is a house made of tin on a plot of the suit lands, which belongs to the defendant Abdur Razzak. Here, the PW-02 supports the state of possession of the defendant's side.
12. Besides, the PW-02 also stated in his cross-examination that the
plaintiffs themselves had cultivated the suit lands for 3-4 years, whereas the
PW-01 stated that he never does that. Like the PW-01, the PW-03 is also
found to be unable to identify the boundary of the suit lands. So, having taken
such precarious evidence together, it seems to the court that such a bunch of
testimony adduced by the plaintiff side appears to be indubitably
self-contradictory. Consequently, such contradictory assertions by the
plaintiff’s witnesses fade away from their credibility and reliability, and
thus, they are not found in harmony with the same sense and manner.
Accordingly, the plaintiff cannot claim any support from his adduced tons of evidence.
Thus, it evidently transpires that the plaintiffs could not come before the
court with convincing and dependable evidence regarding the suit lands’
possession on his favor.
13. In contrast, the defendants in their pleading stated that they are
in possession of the suit lands over a period of 12 years and now, have been
cultivating the suit lands on their own. In evidence, the DW-01 affirms that
they possess the suit land and the PW 02-supported him by outlining the suit
lands’ boundary that the plaintiffs are not in possession of the suit lands. The
DW-0 is here found to be agreeing with them on the point of suit land
identification and boundary affirmation. However, the credibility of the DW-3’s
evidence appears to have not of high credibility. Nevertheless, the cogency and
connectedness of the testimony adduced by the PW-01 and PW-02 demonstrate
sufficient standard. Thus, it occurs that the defendants' possession in the
suit lands have more practical certainty and reasonable propriety than that of
the plaintiffs. Hence, it is decided that the balance of
preponderance towards the suit lands ‘possession goes against the plaintiffs.
14. In a jurisprudential sense, title to the property also refers to
‘ownership of the property". As such, to demystify, it is the
jurisprudential understanding that title to lands is an interest and
ownership of those lands, and the concept of ownership flows from that
of possession [vide A Textbook of Jurisprudence, G. W. Paton,
(1973) OUP, p. 539, 546]. Here lies in the significance of the possession
in a suit like this. Furthermore, 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. For that reason, it could be trite
to say that the issues at hand have already become decisive so far. 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 exclusive possession in the suit
lands. As a result, this issue is not settled in the plaintiff’s favor.
Issue No. 04:
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). And, an injunction cannot be granted in a case where the plaintiff
has no legal character as to title and possession of the suit property (vide 13
MLR AD 2008). Moreover, 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 defense case does not entitle the plaintiff to get a decree
[vide 06 BLC AD 2001].
As aforesaid, 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 their exclusive possession, the plaintiffs are not
entitled to get relief as prayed for. So, this issue is not settled in the
plaintiff’s favor.
Consequently, 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 on contest.
The court fee paid is
sufficient.
Hence,
it is
ORDERED
that the suit
be dismissed on contest against defendants without costs.
Composed and corrected by