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. 153/2021
Mr. Md.
Mortuza Reja (Plaintiff) Versus Mr. Kajem
(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.
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. 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. 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. 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 examination-in-chief of the PW-01 is considered together, it plainly appears that apart from a permanent injunction, 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. 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.
However, the 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].
As such, the PW-01 in examination-in-chief vividly asserts “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.
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:
These issues are taken together for concision, convenience, and interrelation. No skepticism, it becomes high time to see through the plaintiffs’ title to the suit land envisaged in the schedule. In proof 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.: Ka (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.
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 also 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. Moreover, in cross-examination, the PW-01 admitted 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 materials available on record suggest that the plaintiffs' possession of the suit land is critically challenged by the defendants [vide Cross-examination of DW-01]. As a result, now consider another critical aspect of the issues relating to the current possession of the suit lands. 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.
As a result, first things first: the state of the current possession in the suit lands requires being decided first. In pleading and evidence, the plaintiffs claim that they are now in exclusive possession of the suit land, and 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 in evidence, even in addition to the fact that no defendant has any possession therein. However, surprisingly, the plaintiff's pleading is totally silent about how they are in possession of the suit lands comprised in RS plot No. 2911 and 2915 of RS Khatian No. 286. While deposing as PW-01, the plaintiff-side also shed no light on how they currently possess the suit lands.
In cross-examination, the PW-01 also attempted to underscore the fact of his possession but could not mention how many plots are in the suit khatian before the court. Furthermore, no other witnesses (PWs 02-03) are found to be in agreement with that fact. For example, PW-02 Foyej Uddin claims himself to be cultivating the suit lands on borga agreement for 22/23 years. He again turned up new storytelling that he has got the suit lands by way of declaration. So, having taken such precarious evidence together to decipher, it seems to the court that his borga agreement was declared in written form. But, in cross-examination, he again procreates a transfer via deeds. So, PW-02 is indubitably self-contradictory.
Again, although PW-03 mentioned the fact of the plaintiffs’ possession through PW-02’s borga cultivation, he was unable to clarify on what lands or plots of lands he was giving testimony before the court. Even, the PW-03 expresses his unfitness to assert the number of plots and quantity of the suit lands. Consequently, 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. Thus, it transpires in evidence that the plaintiffs could not come before the court with convincing and dependable evidence regarding the suit lands.
08. 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 02-03 supported him by saying that the plaintiffs are not in possession of the suit lands. The DW-02 also deposed on the defendants’ behalf by mentioning the plot numbers as well as their sizes. The DW-03 is here found to be agreeing with them on the point of suit land identification and boundary affirmation. Therefore, it is quite reasonable to hold that the pieces of evidence concerning 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.
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 right to use that 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