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. 62/2018
Mst. Hameda Bibi
(Plaintiff) Versus Mr. Riaz Uddin (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 tenant of the suit lands described as RS
khatian No. 223 in the schedules to the plaint was one Nurjahan Beowa, who is the
predecessor mother of the plaintiffs. After the demise of Nurjahan Beowa, the
plaintiffs as his heirs got title to and possession in the suit landed
property. The plaintiffs claim that they are now in exclusive possession of the
suit land. Despite having no title to the suit land, the defendants made
threats to the plaintiffs for dispossession from the suit lands, and hence the
suit. The Plaintiffs claimed that the suit land belongs to them; and that is now
under their possession. Hence, he is entitled to get relief as prayed for.
The Written Statements in Brief:
The defendant No. 1 & 4-5 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. Defendants stated that the recorded tenant of the suit lands described as RS khatian No. 223 in the schedules to the plaint was one Nurjahan Beowa, who transferred 0.84 acres of lands to her daughter Mrs. Jobeda Beowa via a registered deed of gift No. 5419/1999. Recorded tenant Nurjahan also transferred 0.10 acres of land to her daughter Jobeda Beowa via a registered deed No. 2842/2000. Then, Jobeda Beowa transferred 0.93 acres of land to defendant No. 01 Mr. Riaz Uddin via a registered deed No. 1707/2003. Some lawsuits were also brought into being regarding the suit lands and respective deeds; but, final courts’ decisions do not support the plaintiffs’ title to the suit lands.
Defendant No. 01 also transferred some lands to
Defendant Nos. 4-5. Accordingly, the lands were mutated against the defendant’s
name and land rents are being paid by him accordingly. In fact, the plaintiffs
have no title as well as no exclusive possession of the suit land in its entirety. Accordingly,
the plaintiffs have no cause of action and any rights to sue regarding the land
in question and thus, the plaintiff's suit is not sustainable in the law. 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 04 witnesses and produced documentary pieces of evidence marked as exhibits No. 1-3. Defendants examined 03 witnesses and produced documents marked as Exhibit No. Ka-Dha Arguments were heard from both parties after the conclusion of the trial of the suit.
Issue No. 02:
These issues are taken together for concision, convenience, and interrelation. No skepticism, it becomes high time to see through the plaintiffs’ prima facie title to the suit land envisaged in the Kha schedule. In proof of their prima facie title thereto, the plaintiffs narrated in ways that the recorded tenant of the suit lands described as RS khatian No. 223 [ext.: 01-02] in the schedules to the plaint was one Nurjahan Beowa, who is the predecessor mother of the plaintiffs. After the demise of Nurjahan Beowa, the plaintiffs as his heirs got title to and possession in the suit landed property.
06. On the contrary, the defendant No. 1 & 4-5 contended that
the recorded tenant of the suit lands described as RS khatian No. 223 in the
schedules to the plaint was one Nurjahan Beowa, who transferred 0.84 acres of
lands to her daughter Mrs. Jobeda Beowa via a registered deed of gift No.
5419/1999[ext.: Cha]. Recorded
tenant Nurjahan also transferred 0.10 acres of land to her daughter Jobeda
Beowa via a registered deed No. 2842/2000. Then, Jobeda Beowa transferred 0.93
acres of land to defendant No. 01 Mr. Riaz Uddin via a registered deed No.
1707/2003[ext.: Chha]. It is also
stated that defendant No. 01 also transferred some lands to Defendant Nos.
4-5 [ext.: Ja-Jha]. Accordingly, the
lands were mutated against the defendant’s name and land rents are being paid
by him as such [ext.: Tha-Da]. On
perusal of the Exhibit Ka-Kha, it also appears that the defendants’ title to
the suit lands in part has been established through the court’s verdicts. In giving
testimony, the DW-01 evidently claims that they are entitled to 93 decimal
lands out of the suit property.
07. Now, consider the scheduled property: RS khatian No. 223
[ext.: 01-02] scheduled to the plaint. The measurement of land comprised in
this khatian is of 1.60 acres. It is now well settled that ‘in a suit for
permanent injunction, the court need not enter into disputed title except to
the extent that it would help the court in finding which of the parties have
prima facei title and exclusive possession’ (vide 56 DLR Ad 22). In essence,
‘title’ is a legal term that refers to interest and ownership of something. In
a jurisprudential sense, title to the property also refers to ‘ownership of the
property", meaning that you have ‘the rights to use’ that property.
Particularly, the concept of ownership flows from that of ‘possession’[vide A
Textbook of Jurisprudence, G. W. Paton, (1973) OUP, p. 539, 546]. So, it is
apparent that an investigation into the parties’ entitlement to the suit lands
is clearly a matter of deep analysis and intense examination, which is fairly
beyond the simpliciter suit’s
preview. However, it could cogently be opined that there arises some good
standing that demonstrates the plaintiffs’ prima
facie title to the suit land, and thus, it is decided that the plaintiffs
have successfully established their prima
facie title to the suit landed property. Hence, it is decided that
this issue is decided in the plaintiff’s favor.
Issue No. 03:
In pleading and evidence, the plaintiffs claim that they are now in exclusive possession of the suit land, and the PW-01 has deposed that they have eight old mango trees, 16 new mango trees, and a house built by the mother of plaintiff No. 01. The PW-01 claims that all plaintiffs are in exclusive possession in lands measuring 1.60 acres. It is the plaintiff’s case that despite having no title to the suit land, the defendants made threats to the plaintiffs for dispossession from the suit lands. The Plaintiffs thus claimed that since the suit land belongs to them and is now under their possession, they are entitled to get relief as prayed for.
09. Now consider the adduced evidence in this respect. The PW-02 also stated that only plaintiff No. 01 Hameda is in possession of the suit. But the PW-03 stated in his examination-in-chief that only plaintiff Hamida is in possession; but in his cross-examination, he again said that plaintiff Hamida and Plaintiff Jobeda possess the lands in question. Both PWs 02-03 are found to be contradictory to each other, although they claim themselves to be adjacent to the suit lands. Furthermore, the PW-04 claims himself to be a cultivator on the suit lands, but he was unable to specify how much of lands he cultivates on behalf of plaintiff Hamida. More particularly, the PW-01 stated in his cross-examination that one Fozlu and Khorshed worked for them on the suit lands at the time of paddy harvest, but these two persons are not examined before the court. Consequently, in considering the discussion made hereinbefore, it also occurs that such contradictory assertions by the plaintiff’s witnesses fade away from their credibility, and thus, they are not found in harmony with the same sense and manner. Accordingly, the plaintiff cannot claim any support from them.
10. On the contrary, to substantiate the defendants’ possession, the DW-01 also asserted a similar proposition in evidence, even in addition to fact that defendant No. 01 and defendant No. 4-7 have also possession in the lands measuring 95 decimal out of the suit property. In cross-examination, the PW-01 also attempted to underscore the fact of his possession as such. The DW-02 also stated that he purchased 02 decimal lands, comprised in RS Plot No. 1953, from defendant No. 01 and now, has been in possession of that land. The DW-03 is also found to be walking in the shoe of the DW02. These witnesses are examined in cross-examination but nothing contradictory was unearthed by the plaintiff's side.
11. However, apart from oral testimony regarding de facto possessory evidence, there is also documentary evidence that talks about de jure possession of the parties. In cross-examination, the PW-01 admitted that he paid land tax in 2015 for 67 decimal lands, but he claims their possession in lands measuring 1.60 acres. She (PW-01) also asserted that they have also paid taxes but did not provide the same to the court for inspection. On the other hand, the defendant's side places some tax receipt and prostabito khatian looking forward to proving de jure possession of the suit lands [ext.: Tha-Da]. No doubt, the record of rights is evidence of present possession, meaning a record of physical possession at the time when it is prepared (vide 59 DLR 207; 07 ADC 945). In this way, it is cogent to opine that such a mutation also gives rise to a presumption that the defendants are also in possession of the suit land. And the fact thus follows that the plaintiffs have not been able to rebut such a presumption.
12. Moreover, the plaintiff-side also underscores an order passed by the court of Addl. District Magistrate (Rajshahi) under section 144 (but the content of the case suggests it would be under section 145) of the Code of Criminal Procedure. But the defendant side made robust objections to the admissibility of a criminal court’s judgment in a civil proceeding. In rejoinder, the plaintiff-side pleaded that the court of Addl. District Magistrate exercising jurisdictions under section 144 or 145 is a quasi-civil court. In fact, the general legal position is that “a criminal court’s finding of possession is not admissible in evidence in a civil suit” [vide 40 DLR 1988 271]. And the issue of inter-admissibility of judgments arising from different proceedings is governed by the 1872 Evidence Act. As per section 43 of the Act, judgment, order or decree are irrelevant other than those mentioned in sections 40, 41, and 42, unless the existence of such judgment, order, or decree is a fact in issue, or is relevant under some other provision of this Act. A test is whether the concept of res judicata would result as an outcome of the given proceeding, largely based upon the same premises. The dichotomy of legal systems indicates that an order of the aforesaid court exercising jurisdiction under the Code of Criminal Procedure may not result in a decree (if the case is successful) or operate as res judicata for a proceeding under the Code of Civil Procedure, this court is not prone to swim with the tide led by the plaintiff-side.
13. Apart from the fact that the defendant-side places some
latest documentary pieces of evidence, including prostabito khatian and tax
receipts in proof of their possession in the suit land, as well as convincing
oral testimony regarding their current possession, the defendant's side also
placed some registered deeds in favor of their claims that they have good
property deeds and documentation concerning the suit lands. On perusal of the
documentary evidence marked exhibit stated above, it vividly transpires to the
court that the defendant side produced more convincing and dependable
materials than the plaintiff side. Therefore, the court holds that the
pieces of evidence concerning the plaintiffs' possession in the suit lands lack
practical certainty and reasonable propriety. In addition, it conspicuously admitted
that the suit lands are admitted not yet to be allotted among the sharers by
meets and bounds on partition [vide
PW-01]. Hence, it is decided that the balance of preponderance towards the
suit lands ‘possession goes against the plaintiffs so far.
14. 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. So, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that although the plaintiffs have been successful in establishing their prima facie title to the suit lands, they have failed to prove their exclusive possession therein. So, the issue at hand is not settled in favor of the plaintiffs.
Issues No. 01
& 04:
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.
16. However, in the light of the discussion made hereinbefore, it becomes lucid that the plaintiffs have not been able to prove their exclusive possession in the specified lands scheduled to the plaint; instead, the defendants’ possession is also proven to be in the suit lands. In a suit for permanent injunction, the plaintiffs shall have to prove their exclusive possession of the suit land in order to get a decree [vide 7 BLC HCD 2002]. In our case, the plaintiffs have failed to prove their exclusive possession out of a vast plot, and that cannot be ascertained unless the suit lands are sufficiently specified and ascertained. Since the plaintiff has failed to comply with the mandatory requirement of law, they are not entitled to any decree even if they have some merits in the suit. Yet, this is not a suit for partition, where all sorts of legal questions regarding the suit lands could be resolved.
17. 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 defence case does not entitle the plaintiff to get a decree [vide 06 BLC AD 2001]. It would also 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). Pertinently, an injunction cannot be granted in a case where the defendant has legal character as to title and possession in the suit property.
Therefore, 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 entirely prove their exclusive possession in the suit lands, the plaintiffs have not sufficiently been able to prove their exclusive possession in the entire suit lands and a complicated question of title and possession is involved in the suit. It is decisive to the court that the suit is maintainable in its current form and manner. Accordingly, 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 the contest against defendants without costs.
Composed and corrected by