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Appeal from Original Decree No. 157 of 1960, decided on 17th February 1967.
Art. 144‑Adverse possession cannot be established by mere word of mouth.
Trial Court making a case outside the records‑Decree based on such case set aside in appeal.
Md. Fazal ul Karim for Appellants.
Abu Hussain Sarkar for Respondents.
Naimuddin Ahmed for D. R.
The plaintiffs are the appellants before us. The suit for declaration of title and recovery of possession and for mesne profits was dismissed by the learned Subordinate Judge, Bogra.
The plaintiff's' case in short was that within the District of Bogra, Mouza No. 106, Khatiamari Radhakantapur was owned by one Saradindu Narayan Roy. Saradindu Naravan Roy died leaving behind his daughter Indu Nalini Devi as his heir. Thereafter the suit property was damaged, by the Court of Wards. The said property was acquired by the Government of East Pakistan under East Pakistan. State Acquisition and Tenancy Act. During the Cadestral Survey operation an area of 40.50 acres of land m plot No. 104(ka) was recorded as char within the said mouza but outside the record of Mouza Telegori No. 119. The said land in plot No. 104(ka) was reformed out of river Daokopa. After appearance of this char the said landlord Saradindu Narayan Roy kept the land in khas posses sion for a number of years and when it became fit for cultivation the landlord got the said land measuring 40.50 acres surveyed and divided into 52 sub‑plots and a map was also prepared. After completion of survey and preparation of the map (Exh. 2) Saradindu Narayan Roy settled these sub‑plots to different tenants including the present appellants sometime in 1345 B. S. which corresponds to January 1939. These settlements accord ing to plaintiffs‑appellants are evidenced by the registered kabuliyats executed by the appellants on 7‑1‑1939, in favour of the landlord Saradindu Narayan Roy. Immediately after execution of these kabullyats the appellants were put into possession of their respective plots by Saradindu Narayan Roy. The appellants are now in possession of these suit lands. They have been paying rents to the landlord until the Estate was acquired by the Province and thereafter to the Province of East Pakistan. These kabuliyats were executed for a period of 15 years beginning from 1939, and for the period the appellants claim to have possessed the land by growing various crops thereon. Further case of the appellant was that the defendants‑respondents had no title and/possession in the disputed land. With an ulterior motive the defendants started to create troubles in the possession of the plaintiffs‑appellants from the middle of the month of Magh 1357 B. S. which corres ponds to 1950, and their interference caused apprehension of breach of peace. The appellants informed the Police about it and the police after making enquiry reported to the Magistrate for drawing up proceedings under section 145 of the Code of Criminal Procedure and that proceeding was, in fact, started by a competent Magistrate in Chaitra, 1357 B. S. but the plaintiffs in their respective lands grew Aus and Aman paddy and after wards they reaped Aus paddy in the month of Asar. They were waiting to reap the Aman paddy sometime in winter as the same was not then fit for harvesting. Proceedings under section 145, Criminal Procedure Code were in the meantime dropped by the Magistrate on the ground of vagueness. The defendants‑respondents again began to disturb their possession and forcibly entered into the suit land and damaged stand ing crops. This caused considerable loss to the plaintiffs. This necessitated the filing of O. C. Suit No. 137 of 1951 of the Court Munsif, 1st Court, Bogra by the plaintiffs against the defendants‑respondents in which they prayed for permanent injunction as well as temporary injunction pending the hearing of the suit and ad interim injunction was granted by the Munsif against the defendants from interfering with the plaintiff's possession In that suit defendants Nos. 1 and 29 admitted that they (defendants Nos. 1 and 29) had no title to or possession in the suit land and also admitted the plaintiff's title and possession in the same and thus they refrained from contesting the said suit. Some of the defendants contested the suit alleging that they were tenants under defendants Nos. 1 and 29. After the depositions of the witnesses were taken down in the suit the learned Munsiff, according to the appellants, upon an erroneous view of the law dismissed the suit without granting permanent injunction in favour of the appellants. The appeal was taken being O. C. Appeal No. 13 of 1956, to the Court of District Judge, Bogra and the said Appellate Court found that the defendants‑respondents had no title or possession in the suit lands and the plaintiffs had title and possession therein, but held that since the defendants dispossessed the plaintiffs and some of the pro forma‑defendants from the suit land after 1‑9‑1951, the plaintiffs‑appellants should bring a suit for recovery of khas possession and, therefore, the appellate Court did not pass a decree for injunction in the said appeal and disposed of the appeal on 15‑9‑1956. After the disposal of this appeal the plaintiffs were forced to file the present suit for declaration of title and recovery of possession and mesne profits against the defendants‑respondents and in this suit their further contention was that since after the disposal of the appeal in 1951, some of the defendants have constructed certain huts on a portion of the disputed land. Out of 35 defendants in this suit, only 3 filed written statement and out of them defendant No. 9 filed compromise petition in the suit admitting the title and possession of the plaintiffs‑appellants in the suit land. Defen dant No. 7 did not contest the suit after the filing of the written statement and only defendant No. 32 contested the suit.
The defence taken up by the contesting defendant No. 32 was that the suit was not maintainable for the defect of mis-joinder and non‑joinder of parties and some of the defendants who were not in possession were made parties only to establish the case of the plaintiffs against the defendants. The suit was not maintainable on the ground of not impleading the heirs of late Rash Behari Burmon and the heirs of Shaharuddin Pramanik who hid title to the suit land. They also alleged mis-joinder of causes of action and also the defect of multifariousness.
The defendants' further case was that the char was not in existence during the cadastral survey operation of 1922‑23. It appeared after the cadastral survey was completed. They also denied the khas possession of the landlord Saradindu Narayan Roy and also his having settled this suit land with the plaintiffs‑appellants by taking registered kabuliyat. They also denied Saradindu Narayan Roy having surveyed the disputed char land or to have a map prepared by Amin. These are nothing but fraudulent documents created for the purpose of the suit to defeat the claim of the defendants. They also challenged the genuineness of the registered kabuliyats executed by the plaintiffs‑appellants. They have also denied the possession of the plaintiffs from 1939‑51. The defendant asserted his possession of the suit lands along with other defen dants by virtue of settlement taken from one Beni Madhab Barman and others. Further they denied that in the said char land Zamindar Saradindu Narayan Roy had any right, title and interest at all. Their positive case was that Plot No. 1415 of Mouza Khatiameri Radhakantapur was included in the rayati jote of the said Raj Behari Berman. Raj Behari Berman took khas possession of the suit land and continued to possess the same with its accretion of char land (C. S. Plot 194‑(K)) which had appeared contiguous to the east of the said Plot Number. He settled the same land to different tenants and in this way the defendants came to possess the char land. Their further defence was that neither the char belonged to Saradindu Narayan Roy nor he had it in his khas possession nor there had been any survey by Saradindu Narayan Roy nor be did settle the same with the plaintiffs. On the contrary the land belongs to khas of Beni Madhab Berman who is the jotder of Mouza Khetiamari Badhakantapur and this char was in possession of Beni Madhab Berman and others who settled the land to differ ent defendants as korfa tenants.
The plaintiffs have examined as many as 9 witnesses includ ing the Tahsildar of Hatsherpur Tahsil of Saradindu Narayan Roy. P. W. 1 stated that Saradindu Narayan Roy was the landlord. He produced Karacha books of Roy Saahib Saradindu Narayan Roy's Estate. These Karcha books were marked Exh. 1 series and in the said Karacha books the names of the plaintiffs have been shown as defendant. P. W. 2 a man aged 50 years has deposed to the effect that the char belonged to Saradindu Narayan Roy and the said char was surveyed by the landlord with the help of an Amin and this witness was present when the survey was made and map prepared. In cross‑examination he said that he was a Chairman of the Amin when the char was surveyed. P. W. 3 is the plaintiff No. 2. He has given short history of the char and the story of possession or Saradindu Narayan Roy as well as their execution of the kabuliyat in favour of Saradindu Narayan Roy and possession of the suit land since 1939. He has given details of the different proceedings in the Court as well as the suit filed by the plaintiffs and compromise entered into between defendants Nos. 1 and 29. He has admitted that the defendants have lands in Mouza Khatiamari Radhakantapur. This man is aged 65 years. In the evidence of this man we found nothing which can be said to be adverse to the interest of the plaintiffs or in any way conceding the claim of the defendants. The next witness P. W. 4 who is a man of 65 years is the plaintiff No. 1. Hz has also given the story of taking settlement by them from Saradindu Narayan Roy by executing registered kabuliyats. He has further spoken that they have been dispossessed by the defen dants about 3 years back prior to the filing of the present suit in February 1960. The next man P. W. 5 who is owner and possessor of the neighbouring land has given evidence that the plaintiffs possess the land for 20 or 21 years by growing paddy jute and kavan and the defendants have been possessing the suit land for the last 3 or 4 years and before that they never possessed this suit land. P. W. 6 also spoke in the same line. P. W. 7 is a person who owns the land near the land of the plaintiffs and he has also spoken about the possession of the plaintiffs prior to the acquisition. He has further in his cross -examination spoken about the char appearing 2 or 3 years before the cadastral survey operation. P. W. 8 is also an owner of neighbouring land. He speaks about the possession of the plaintiff No. 1 for 12 or 13 years. The last witness for the plaintiff was the plaintiff No. 4. He has stated about the land belonging to Zaminder Saradindu Narayan Roy and his having surveyed the land by an Amin and settling the same with the plaintiffs in Poush 1345 B. S. He also said that the plaintiffs grew paddy, jute and kavan. He also stated that they have been dispossessed for 6 or 7 years. In his cross‑examina tion he made statement that the lands covered by huts of certain unauthorised occupiers were also surveyed. The evidence of this witness has been strongly criticised by Mr. Sarkar the learned Advocate for the respondents saying that this witness is not giving the whole truth because it could not be possible for him or for the plaintiffs to measure the land of the defendants on the char as they would not permit the plaintiffs to do so. In this connection Mr. Sarkar stated that his clients were on the char for a long time by constructing huts and the plaintiffs were trying to establish a false case.
Only 3 witnesses have been examined by the defendants. 1st one is the contesting defendant No. 32. He has not supported the case made out by him in his written statement, but in his cross‑examination he has denied the title and possession of Saradindu Narayan Roy to the char land. But later in cross -examination he has admitted in clear terms that Saradindu Narayan Roy was the landlord of the disputed char. Suggestions were given to him that Raj Behari and others' interest were not auction‑purchased by the zamindar, but he had denied it. Further down in his cross‑examination but he was specifically questioned about the defendants' title and possession and about their taking settlement. But unfortunately he admitted that he could not say how much land was taken by each of these 9 persons from Deben, although he stated that he was present when the settlement was made to him and others by Deben. He also admitted that he measured the land when this settlement was taken by other 9 defendants and again he stated that he did not measure the land. Although he is the only contesting defendant and he had contested the O. C. Suit No. 137 of 1951, yet he could not say whether Debendra and Sabed Ali withdrew from the contest in that suit after filing solenama admitting the title of the plaintiffs. From the evidence of the only contesting defendant we are left with the impression that this man was suppressing the facts. The next witness for the defendants is one Isaruddin Akanda. He claims to have taken settlement of the disputed land from Debendra and Sabed about 23 years ago. He was deposing on 29‑2‑60 which corresponds to 1366‑67. According to his evidence he was born in 1336 B. S. exactly 30 years prior to his deposing in Court. Accordingly, therefore, it is found that he was aged 7/8 years when he says he took settlement. His story of taking settlement of the suit land, therefore, seems to us to be absurd. Apart from that be claims the title from Debendra and Sabed Ali who is the O. C. Suit No. 137/51, admitted the title and possession of the plaintiffs to the suit land. Witness No. 3 for the defendants also claims certain portion of the disputed land. He took settlement from Debendra and Sabed Ali 20 to 21 years ago but in cross‑exami nation he has stated that he did not know the plaintiff's claim of this land, although he bad deposed in the injunction suit about 4 years ago. He does not, therefore, seem to us to be speaking the truth and as such is unreliable. Comparing the two sets of oral evidence, we have no hesitation to say that the evidence adduced by the plaintiffs‑appellants is certainly of better quality and more reliable than that adduced by the defence. We may unhesitatingly say that the oral evidence adduced by the defence is tainted and cannot be relied on.
Documentary evidence adduced by the plaintiffs in this case are a map prepared by Abdul Majid Bhuiyan, surveyor in 1345 B. S. in the month of Poush which corresponds to January 1939, the registered Kabuliyals Exh. 3 series, Dakhilas Exh. 4 series, Karcha book Exh. 1 series and Jute licence Exhs. 5 and 6 series. On the other hand documents produced by the defen dants are certified copies of C. S. records Exhs. A and A(1). These two documents clearly show the name of Rai Bahadur Radha Gobinda of Dinajpur who is said to be the predecessor‑in- interest of Saradindu Narayan Roy. They appear to be owner of the char land. Exh. A(l) relates to Touzi No. 184 of Pargana Poladashi of Khatiamari Hadhakantapur. In this exhibit it is found that two plots are in possession of Kshetranath ral and Satyendra Nath Pal of Murshidabad and Calcutta. Therefore it was attempted to be argued by Mr. Sarkar the learned Advo cate for the respondents that this property belongs to Kshetra nath Pal and Satyendra Nath Pal and not to Saradindu Narayan Roy and, therefore, the claim of the plaintiffs that they have taken settlement from Saradindu Narayan Roy cannot be sustained Exh. A shows that the Mouza Khatiarmari Radha kantapur to be the Zamindary of Ray Bahadur Radha Gobinda of Dinajpur. It relates to the certified copy of the Settlement Khatian No. 43, J. L. No. 106.
Contesting defendant No. 32's case was that he and other defendants had taken settlement of the suit land from Debendra and Sabed Ali who had granted dakhilas. But these two exhibits do not support this claim of the defendants.
Mr. Sarkar the learned Advocate for the respondents conceded that on the basis of these two exhibits Exhs. A and A (1) he could not substantiate the case of the defendants that the land belonged to Deben and Sabed Ali from whom his clients could have taken settlement. So far as the ownership of the char is concerned it is clear from the records including the admission of the defence in evidence that Saradindu Narayan Roy of Dinajpur was the zamindar and the char land belonged to him. Not an iota of evidence has been brought on record to show that the Exh. (2) was not prepared under the orders of Saradindu Narayan Roy on the basis of which the lands were settled by Saradindu Narayan Roy to the plaintiff for which they have executed registered kabuliyat Exh. 3 series or that these were fictitious documents. On the other hand the defendants' witness No. 1 who is contesting defendant No. 32 in our opinion, has supported the case of the plaintiffs with regard to title and taking of settlement from the title‑holder namely Saradindu Narayan Roy. We find from the evidence, which we have discussed earlier that the plaintiffs took settlement from Saradindhu Narayan Roy in 1939. They have possessed the suit lands from 1939 to 1950, when the defendants for the first time started to create troubles in their possession and then by 1956, the defendants succeeded in wholly dispossessing the plaintiffs. The present suit was filed on 31‑3‑1957, and as such there is no question of limitation. By mere word of mouth Mr. Sarkar wants us to hold that the defendants got into possession of the suit land 22‑23 years ago and since then have f been in possession thereof and neither the landlord nor the plaintiffs had the possession of the suit lands even after the landlord had accepted the kabuliyats from the plaintiffs.
The plaintiffs having not got into possession of the suit land ever, their suit for recovery of possession cannot be sustained.
The learned Subordinate Judge dismissed the suit of the plaintiffs on the ground of mis-joinder and non joinder of parties, on the grounds of possession as well as on the ground of limitation. From analysis of evidence on record we do not find any support for any of the reasons given by the learned Subor dinate Judge for dismissing the suit of the plaintiffs. On the contrary, the evidence on record both oral and documentary support the case of the plaintiffs establishing title in their favour. The other point that the learned Subordinate Judge considered in dismissing the plaintiffs' suit was the char land that had come out from the bed of the navigable river could not belong to the landlord but must have belonged to the Government, and therefore, the plaintiffs could not have any possession to it. But unfortunately the learned Subordinate Judge missed the point that the title prior to the suit whether vested with the Government or the landlord was not the point at issue in this suit. If it was necessary for the purpose of the present suit then there is ample evidence that Saradindu Narayan Roy was the recorded landlord of this mouza from whom the plaintiffs are claiming title to the same. Saradindu Narayan Roy possessed the char for long and settled the same with the plaintiff. As such the plaintiffs' title cannot be affected due to any defect in Roy's title if there be any. But there seems to be none. The plaintiffs' case could not be dismissed on the ground that the land actually belonged to the Province of East Pakistan which is nobody's case. This was undoubtedly a case made outside the records by the learned trial Court.
For the reasons stated above we are satisfied that the plain tiffs have established their case for title and possession for more than 12 years and are, therefore, entitled to the decree in their favour.
We, accordingly, allow the appeal with costs against the respondents other than minors and set aside the judgment and decree pronounced by the learned Subordinate Judge dismissing the suit of the plaintiffs and decree the suit of the plaintiffs.
‑--I agree.
A. H. Appeal allowed.
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