সতর্কীকরণ! বিডি কানুনে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে বিডি কানুন কোন নিশ্চয়তা প্রদান করে না। বিডি কানুনে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Declaration of Title
[2022] 25 ALR (AD) 40
Submissions on Behalf of the Appellant
Mr. Nurul Amin, learned Senior Advocat appearing on behalf of the appellants mad submissions in line with the grounds upon which leave was granted. He also submitted that the Patt dated 04.03.1947 was produced from the custody of the plaintiffs and the endorsement on the back of the Patta showing that the Patta was returned on receip of the money, and the fact that it was torn at the top indicates that the transaction was a mortgage and no a sale or settlement. In support of his submission, he referred to the decision in the case of Bonamali Sardar and others vs. Jyotish Ranjan Adhikari (Minors) and ors, 19 DLR 782. He submitted that this is a custom and practice in the greater district of Khulna and comes within the proviso to section 92 of the Evidence Act.
Mr Nurul Amin went on to submit that the High Court Division misread the evidence of P.W.S in finding that the witness admitted possession of the defendants in the suit land. He pointed out that the witness was in fact talking about the fish gher which is possessed by the plaintiffs and defendant Shahnaz Siraj (viz.Shahneaz Siraj-defendant No. 9 who deposed as D.W.1) that is outside the boundary of the suit land adjacent to the west.
Mr Nurul Amin next submitted that the trial Court observed in the judgement that the plainti found out about the wrong recording of the names of the defendants in the record of rights five years before the death of his father and thus on calculation found the suit as barred by limitation. However, tha was patent misreading of the evidence. P.W.1 stated in his cross examination that he found out about the wrong recording the record of rights five years after the death of his father. Therefore, the suit was not barred by limitation as found by the appellate Court.
Submissions on Behalf of the Respondent
Mr. Sasti Sarker, learned Advocate appearing for respondent No.1 made submissions in support of the impugned judgement and order of the High Court Division. He also submitted that in the body of the Patta dated 04.03.1947 there is no statement about mortgage and no other witness was adduced in support of mortgage and the endorsement for returning the property. He submitted that it is the contents of the document which is relevant and that cannot be made nugatory by oral evidence, and as such the appeal is liable to be dismissed. He submitted that the appellate Court misread and misconstrued the material evidence or record and as such the High Court Division rightly made the Rule absolute.
He further submitted that the endorsement on the reverse of the Patta has not been proved and it does not say that the land was returned. He also submitted that the plaintiffs miserably failed to prove their exclusive possession in the suit land and as such the suit was rightly dismissed by the trial Court. He lastly submitted that the land was not specifically described in the schedule to the plaint, and as such the prayer of the plaintiffs cannot succeed in view of the requirement of order VII rule 3 of the Code of Civil Procedure.
Declaration of Title
[2022] 25 ALR (AD) 45
Submissions on Behalf of the Appellant
Mr. Farid Ahmed, learned Counsel, appearing on behalf of the appellants, submits that the trial Court was wrong in holding that the plaintiff appellants could not prove by evidence the transfer of the suit land from Matangini Baisnabi to Routmal and subsequent transfers although the plaintiff appellants proved the case by Exhibit:1-CS Khatian No. 553 dated 14.09.2003 (certified copy), Exhibit:1 (Ka)-SA Khatian No. 946 dated 14.09.2003(certified copy), Exhibit:2-Patta Deed No. 5089 dated 07.10.1948, Vendee-Abdul Karim, Vendor-Routmal (certified copy), 06 (six) decimals of land, Exhibit:3 Hiba-bil-Ewaz deed No. 4056 dated 19.07.1966 Donee-Mofizuddin and Donor-Amiron Bibi (certified copy), 53% decimals of land, Exhibit:4 Kabala Deed No. 6212 dated 14.12.1967, Vendee Md. Nur Jamal Mia, Vendor-Mofizuddin (certified copy), 03 (three) decimals land, Exhibit:4Ka-Kabala Deed No. 5847 dated 19.09.2007, Vendee-Golam Mostafa and Vendor-Md. Nur Jamal Mia(certified copy), 03 (three) decimals of land, Exhibit: 4Kha Kabala Deed No. 33075 dated 03.09.1969, Vendee Golam Mostafa and Vendor-Abdul Karim(certified copy), 03(three) decimals of land, Exhibit:4 Ga Kabala Deed No. 15779 dated 19.05.1973, Vendee Md. Nur Jamal Mia and Vendor-Golam Mostafa (certified copy), 06 (six) decimals suit land, Exhibit: 5-5Za- land revenue receipt Nos. 6901832, 786048, 812365, 256178, 484963, 784325, 987301, 790105, 790106 total 9; and not exhibited latest land survey receipts, and as such, the judgment of the High Court Division affirming the judgment of the learned trial Court and reversing the judgment of the Appellate Court is not sustainable and appeal should be allowed.
He further submits that the plaintiff-appellant has uninterrupted possession of the suit land for the last 36 years which is an equal incidence of property like ownership in the Jurisprudence and Transfer of Property Act, and non consideration of possession of the High Court Division has resulted in miscarriage of justice. He further submits that the High Court Division has not applied its judicial mind by making the Rule absolute and in considering that section 79 of the Evidence Act raises genuineness of certified copy under clause (f) under section 65C, certified copies being admissible when the originals are lost; the burden of proof was on the defendant-respondents to i disprove the genuineness of the certified copies files by the plaintiff-appellants.
He further submits that the trial Court and the High Court Division committed error of law and fact occasioning miscarriage of justice inasmuch as by registered Kabala No. 15779 dated 19.05.1973 (Exhibit:4Ga), the plaintiff-appellants became the owner of the suit land under sections 58, 59 and 60 of the Registration Act. He further submits that the High Court Division committed gross miscarriage of justice in holding that the burden of proof is not upon the defendants respondents to disprove the genuineness of the certified copies of the registered instruments filed by the plaintiff-appellants, which is not sustainable in light of section 79, where it is stated that the Court shall presume every document purporting to be a certified copy, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified to be genuine and as such the judgment of the High Court Division is bad in law.
He further submits that the High Court Division committed an error of law and facts by relying upon 7 cited decisions, namely, (1) IBLC 1022) SMLR 374(3) 17BLD (AD) 199(4) 158LD (AD) 237(5)19 BLDAD) 157(6) 3BLD (AD) $37) 39 DLR (AD) 237 although the facts were distinguishable from the present case and not relevant and not applicable and thereby committed an error of law and facts. He further submits that the High Court Division failed to consider the facts that there was a commission who investigated the suit land and examined the papers and documents and the learned Commissioner found title and possession in favour of the plaintiff-appellants. He further submits that the Appellate Court being the last and final Court of fact considered the evidence on record, the documents in question and all the facts and circumstances of the case and the judgment of the learned trial Court.
He further submits that when the case of the plaintiff-appellants is juxtaposed with that of the defendants-respondents, evidence both oral and documentary are considered together, the Rule ought to have been discharged inasmuch as the High Court Division on misconception of law and facts made the Rule absolute.
He further submits that the considering the facts and circumstances, pleadings and law applicable in this case, the Rule should have been discharged by the High Court Division. He also submits that there is a complete misreading and non-reading of evidence and inclusion of evidence and inclusion of evidence not duly proved causing a serious miscarriage of justice threatening the ownership and uninterrupted 36 years possession of the plaintiff-appellants in his living abode.
Submissions on Behalf of the Respondent
Mr. Nazrul Islam Chowdhury, learned Advocate, appearing for respondent Nos. 1-2 made submissions in support of the impugned judgment and order of the High Court Division. He contended that the appellate Court committed errors both in law and fact and without considering the materials on record and sifting the statements of the witnesses and reversed the observation of the trial Court and allowed the appeal though the definite case of plaintiff-appellant No. 1 as stated in the plaint is that Routmal got the suit land by way of pattan from Matongini Baisnobi, but plaintiff-appellant No. I could not produce any scrap of papers in respect of pattan allegedly given by Matongini Baisnabi in favour of Routmal and as such, the impugned judgment and decree passed by the learned appellate Court in view of above facts and circumstances, the appeal is liable to be dismissed.
He further contends that the names of Abdul Karim and Amiron Bibi were recorded in SA Khatian No. 946, but the plaintiff could not show any basis of recording their names in the S.A. Khatian by adducing reliable and satisfactory evidence before the Court in support recording their names in the SA Khatian and it is a of settled principle of law that the S.A. Khatian is not the evidence of title and the record of right does not confer and title on the suit land. He further contends that the appellate Court purposely without understanding the facts and laws shifted the burden of proof on the defendant-petitioners discarding the settled principle of law that the plaintiff has to prove his case but in the instant case, the appellate Court without considering and appreciating the evidence of PW1 and PW2 and without extracting the substance of the same passed the impugned judgment and decree totally on misreading the evidence of PW1 and PW2 and other evidence on record in proper perspective and as such, the appeal is liable to be dismissed. He also argued that the appellate Court purposely failed to consider the possession of the defendant-respondents as Bharatia with payment of rent and separate Khatians mutating their names and got D.C.R. and thus, the appeal is liable to be dismissed.
আপনার কাঙ্খিত নজীরটি খুঁজে পাননি! এ বিষয়ে আরও নজীর পেতে নিচের বাটনে ক্লিক করুন।
