Appellate Division
Md. Abdul Hanif @ Abu Hanif and others v Bhupen Nath and others
Civil Appeal 138/2009 · Decided 25 April 2024
The plaintiffs, heirs of the original tenant's son, sued in the Court of the Assistant Judge, Sathia, Pabna for declaration of title and confirmation of possession, alleging that the SA record in the name of the defendants' predecessor was wrong. The defendants claimed through a 1928 mortgage, an auction purchase and later transfers, and relied on a compromise in a 1941 case. The trial court decreed the suit, but the Subordinate Judge, 1st Court, Pabna reversed it and the High Court Division discharged the Rule in revision. The Appellate Division held that the compromise (Exhibit C1) was not in the defendants' pleadings and could not be considered under Order VI rule 7 of the Code of Civil Procedure. Both courts below had accepted that the RS khatian was prepared in the plaintiffs' names, and the defendants had not rebutted its presumption of correctness under section 144A. The plaintiffs' witnesses, supported by a defence witness, proved possession. The appeal was allowed and the trial court's decree restored.
- Q1
Whether the lower appellate court could rely on a 1942 compromise (Exhibit C1) that was not pleaded in the defendants' written statement.
- Q2
Whether the presumption of correctness of the RS record of rights in the plaintiffs' names under section 144A of the State Acquisition and Tenancy Act had been rebutted.
- A new ground absent from the pleadings cannot be raised without amendment under Order VI rule 7 of the Code of Civil Procedure, so a compromise not pleaded in the written statement could not be considered.
- Every entry in a record of rights prepared or revised under section 144 of the State Acquisition and Tenancy Act is presumed correct until proved by evidence to be incorrect, and this presumption is rebuttable.
- Where both courts below accepted that the RS khatian was prepared in the plaintiffs' names and the defendants did not rebut it, the plaintiffs' entry stands correct.
- A court must first examine how the plaintiff proved its case rather than concentrating on how the defendants proved theirs.
- As the matter was decided on these grounds, the question whether the compromise required registration became redundant, and the limitation objection had no substance.
in the realm of judicial proceedings related to land rights, where the plaintiff bears the weight of proof, the sanctity of RS records serves as an unwavering beacon of truth as cemented by the section 144A of the State Acquisition and Tenancy Act.
In the court’s own words.
Civil Appeal 138/2009, as published by the Supreme Court of Bangladesh. 16 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 138 OF 2009
(Arising out of C.P No. 819 of 2007)
2Md. Abdul Hanif @ Abu Hanif and others …. Appellants
-Versus-
3Bhupen Nath and others ….Respondents For the Appellants : Mr. Md. Nurul Amin, Senior
Advocate instructed by Mr.
Mohammad Ali Azam, Advocate-
on-record
4For Respondent Nos. 3, 4, : Mr. Md. Firoz Shah, 5(a), 5(b)(i)-5(b)(iii), Advocate-on-record 5(c) and 5(d) For Respondent Nos. 1-2, : Not represented 5(b) and 6-8 Date of Hearing : 23.04.2024 and 24.04.2024 Date of Judgment : 25.04.2024
JUDGMENT
5Md. Ashfaqul Islam, J: This appeal is directed against the judgment and order dated 20.03.2007 passed by the High Court Division in Civil Revision No. 4076 of 2000 discharging the Rule affirming the judgment and decree dated 29.06.2000 passed by the then Subordinate Judge, 1st Court, Pabna in Title Appeal No.28 of 1992 reversing those dated 05.10.1991 passed by the Assistant Judge, Sathia, Pabna in Other Suit No.40 of 1990 decreeing the suit.
6The present appellants, the petitioners in civil revision were impleaded as parties in the lower appellate Court.
7The aforesaid suit was filed for declaration of title and confirmation of possession over the suit land.
8The case of the plaintiffs, in short, is that the land in CS Khatian No. 300 belonged to Bhim Sarder, who died leaving son Padda Sarder. Due to arrear of rents the landlord Binode Bihari Shaha and others filed rent suit in the Court of the then Munsif, Pabna against Padda Sarder for realization of rent for the years 1360-62 B.S. and subsequently he paid rent to the Landlord and got "Dakhila". At the time of preparation of S.A. record Padda Sarder became blind and his 3 sons i.e the plaintiffs were minor. As a result the suit land was recorded in the name of Shorot Shundori. That record was wrong. The plaintiffs have been possessing the suit land and the defendants have no right, title and possession in the suit land. The plaintiff No. 1 went to Ataikula Tahsil Office in the 1st part of Poush 1383 B.S. for payment of rent and came to learn that the suit land was
not recorded in their name, and the defendants claimed the suit land. Hence the suit was filed.
9The defendant Nos. 2 and 3 contested the suit by filing written statement wherein they admitted the right, title, interest and possession of the suit land by Bhim Sarder.
10The defendants, in their written statement, acknowledged Bhim Sarder's possession and Padda Sarder's subsequent ownership. They also mentioned that Padda had mortgaged the property in the year 1928 to one Irad Ali Matbar and took Taka 100/-. Irad Ali Matbar later acquired possession of the land through auction since Padda defaulted on repayment. After obtaining possession, Irad Ali Matbar transferred the property to Shorot Shundori. Shorot Shundori, who designated the property as her Stridhan, subsequently passed away, leaving her son, Shatin Chandra, as the heir. During her exclusive possession, Shorot Shundori transferred the land to her daughter, Sushila Bala's three sons: Dulal, Bhupen, and Paritosh on 13.05.1970 and delivered possession. They started possessing the suit lands. Dulal died leaving his
mother Sushila Bala and two brothers Bhupen and Paritosh who continued to possess the suit land since then.
11The trial Court decreed the suit, leading to an appeal being Title Appeal No. 28 of 1992. The lower appellate Court reversed the decision, prompting the respondents to seek recourse in a civil revision before the High Court Division. The High Court Division upheld the lower appellate Court's decision, leading to the present appeal.
12Mr. Md. Nurul Amin, the learned Senior Advocate for the appellants argues that Padda Sarder filed Miscellaneous Case No.36 of 1941 for setting aside auction followed by a compromise as evident by exhibit C1 but the Court of Appeal below and the High Court Division made out a third case that Padda Sarder made a compromise with Irad Ali admitting the auction and thereby erred in law in discharging the Rule.
13He further argues that the Court of Appeal below committed an error of law for taking into consideration Exhibit-C1 without noticing that no amendment was made in the pleading in respect of the same in violation of
provisions of Order 6 Rule 7 of the Code of Civil Procedure.
14Next he submits that the plaintiffs' witnesses PW-1 to PW-6 proved the plaintiffs' case. Moreover, defence witness DW-2 also in his examination-in-chief stated
" and in cross-examination deposed that
". But the High Court Division did not
15at all consider this vital evidence and also violated the mandatory provisions of law without discussing any evidence.
16Lastly, he submits that even the case of the defendants is taken to be true in its entirety; the compromise decree in Miscellaneous Case No. 36 of 1941 is not admissible in evidence as because the same is not registered under Section 17(2)(VI) of the Registration Act.
17On the other hand, Mr. Md. Firoz Shah, the learned Advocate-on-record appearing for the respondents made his submissions supporting the decision of the High Court Division. He contends that the continuous possession by the plaintiffs as the heirs of Padda Sarder was not proved. He further submits that the plaintiffs produced
rent receipts of the year of 1385 and 1387 BS but they failed to produce rent receipts ranging from the year of 1362-1385 BS. Moreover, the plaintiffs did not produce the nephew of Padda, Rupendranath whose testimony was very much important as he was in possession of the suit land on behalf of Padda Sarder well before the advent of the plaintiffs in the scenario as the heirs of Padda Sarder.
18He further submits that there is an anomaly in as much as the plaintiffs claim that they paid the rent for the suit land as aforesaid but they came to know about the so-called wrong SA khatian later in 1383 BS. Therefore, the suit is barred by limitation as not being filed in due time.
19He also submits that SA khatian was rightly recorded in the name of Shorot Shundori as Padda Lal Sarder waived the claim of the suit land through clause 3 of the solenama submitted in the Mortgage Suit No. 36/41 filed in first Munsif Court of Pabna acknowledging the possession of Irad Ali.(Exhibit C1). After the compromise decree dated 24.4.42 the claim of Padda Lal Sarder does not exist on the suit land as the same was waived and
duly recorded in the name of Shorot Shundori, the mother of the defendants.
20We have heard the learned Advocates of both sides and gone through the judgments of the Courts below. We have also perused the evidence on record.
21PWs 1-6 deposed confirming the title and possession of the plaintiffs. Moreover, DW-2 also stated in his examination-in-chief that " and in cross-examination stated that ". This vital aspect of the evidence of PWs which was also supported by the defence witness No. 2 has a positive evidential value on the question of possession of the plaintiffs in the suit land which escaped notice of the High Court Division.
22The defendants’ endeavor to put forward exhibit C1 on record was erroneous since the same was not in their pleadings as opposed to Order 6 Rule 7 of the Code of Civil Procedure.
23In the case of 5 BLC AD 108 this Division observed:
24“Neither from the averments made in the plaint that the plaintiff claimed the property in suit as a vested property nor the learned Subordinate Judge held that the
property was a vested property but in spite of absence of such averments and finding the learned Judges of the High Court Division have made out a third case in holding that the property is a vested property which is wrong.” As already we have mentioned that the consideration of exhibit C1 by the lower appellate Court was not in the written statement of the defendants. Hence, it offends the provision of Order 6 Rule 7 of the Code of Civil Procedure which enjoins that the new grounds of claim those are absent in pleadings should not be allowed to raise without amendment of pleadings. This statutory provision of law has been designed as a safeguard so that one cannot be taken by surprise by the other side at the time of trial.
25The most significant issue of the instant case is that the trial Court as well as the lower appellate Court both had recognized that the RS Khatian have been rightly prepared in the name of the plaintiffs. It is written in the judgment of the trial Court:
26“
”
27On the other hand lower appellate Court also found:
28“
”
29The presumption of correctness as to CS record of rights is not certainly available with regards to the state acquisition Khatians in pursuance of the provisions under Section 103(B) of the Bengal Tenancy Act but subsequently by an amendment in the year 1967, section 144A was incorporated in the State Acquisition and Tenancy Act. It is reproduced below:
30“Every entry in a record-of-rights prepared or revised under section 144 shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect.”
31Notably, both the provisions as contemplated in Section 103(B) of the Bengal Tenancy Act (in respect of CS Khatian) and Section 144A of the State Acquisition and Tenancy Act (in respect of RS Khatian) are rebuttable,
that is to say, every entry in the Khatians, as the case may be, shall be presumed to be correct until it is proved by evidence to be incorrect.
32The thrust and the gravamen of the instant case invariably relates to the question of the entry of the plaintiffs’ names in the RS Khatian.
33In the instant case admittedly RS Khatian was prepared in the name of plaintiffs. The trial Court as well as the Appellate Court below clearly mentioned and admitted regarding the same. We don’t find any positive steps that have been taken to dislodge the said presumption of correctness from the record, only a feeble attempt was made by the Court to that effect in its observations which is as under:
34“ ”
35Therefore, the plaintiffs’ names in the RS Khatian stand correct. Certainly this piece of evidence though rebuttable could not be rebutted by the defendants in due course.
36Let us now glean some relevant authorities on the point:
37In the case of Halima Begum vs. Syed Ahmed 21 DLR 854 his lordship Nurul Islam, J observed:
38“It is true that record of right indicates
39certain right of certain parties but that right
40is certainly dependent on some material
41evidence, oral and documentary so as to
42establish title in favour of persons who claim
43under the said record of right. The presumption
44of correctness as to CS record of right is not
45certainly available with regard to the State
46Acquisition Khatians. There is no presumption of
47correctness in respect of the State Acquisition
48Khatians as it is to be found in case of CS
49khatians in pursuance of the provision under
50section 103-B of the Bengal Tenancy Act.” In the case of Government of Bangladesh vs. Tenu Miah Tofadar 14 LM AD 30 it was observed:
51“If we glean the said provision it transpires
52that a finally published record of rights
53revised under Section 144(A) of the State
54Acquisition and Tenancy Act has a presumption of
55correctness and that presumption continues till
56it is otherwise rebutted by a reliable evidence.
57This proposition of law is well settled. The
58oldest record of rights being the cadastral
survey prepared under section 103(B)(5) of the
59Bengal Tenancy Act (Act No. VIII of 1885) also
60got a high presumptive value as to correctness
61of entries therein as it has also been enjoined
62under section 144(A) of the State Acquisition
63and Tenancy Act. Of course this is a rebuttable
64peace of presumption, if it has been so rebutted
65by evidence. Since the entry of the land in
66question as per the State Acquisition and
67Tenancy Act recorded in the name of the
68government as land, in the absence of any
69positive evidence oral and documentary onus was
70upon the plaintiff to discharge the presumption
71proving the same to be wrongly recorded in the
72record of rights bereft of which title and
73interest cannot vest upon the plaintiff. The
74case of Government of Bangladesh vs. A.K.M Abdul
75Hye 56 DLR AD 53 is an authority on this issue.
76The decision of High Court Division is totally
77devoid of consideration of all these settled
78principles of law adversely reversing the lower
79appellate Court's judgment committing a palpable
80wrong which required to be intervened by this
81Division.” In the case of Md. Hossain vs. Dilder Begum 9 MLR AD 361 it was observed:
82“Being aggrieved the petitioners moved the High
83Court Division in its revisional jurisdiction in
Civil Revision No. 176 of 1990 and obtained a
84rule which was discharged and the learned Single
85Judge of the High Court Division by his judgment
86and order dated 23.05.1999 rejected the
87application on the finding that the RS khatian,
88exhibit-1, has been prepared in the name of the
89predecessors of the plaintiffs to the extent of
901/3rd share and the name of the predecessors of
91the defendant petitioners to the extent of 2/3rd
92shares. The learned single judge observed that
93though there is conflict between the CS and RS
94khatians the RS khatian will prevail over the
95former.” The case of the Chief Engineer, Roads and Highway Directorate vs. Asaduzzaman Siddique 69 DLR AD 440 also echoed accordingly on the point.
96The decision also highlighted:
97“Referring the explanation of the Judicial
98Committee of Privy Council on the nature of an
99entry in a record of right in the ensuing words-
100"A record of rights has been described by Sir
101Henry Maine as a detailed statement of all
102rights in land drawn up periodically by the
103functionaries employed in setting the claims of
104the Government to its shares of the
105rental…….. Though it does not create a
title, it gives rise to a presumption in its
support, which prevails until its correctness is
successfully impugned."
106To sum up, we have found that the Court of Appeal below put special emphasize as to how the defendants proved their case ignoring the plaintiffs’ steps of proving the same on evidence. The law enjoins it is the bounden duty of the Court to discuss first how the plaintiff proved its case to the hilt. In a judicial proceeding, where all souls solicit justice equally and are entitled to the same, the plaintiff usually has to prove its case. In this situation, the plaintiffs’ ownership of the land is backed by official records more specifically the RS record of rights. But when the case went to the lower appellate Court in the appeal, it didn't give enough importance to these records. Even though the lower appellate Court acknowledged the plaintiffs’ rights supported by the unchallenged RS record of rights, it didn't impartially and objectively handle the proceedings to rectify the true ownership of the suit land. We acknowledge that in the realm of
judicial proceedings related to land rights, where the plaintiff bears the weight of proof, the sanctity of RS records serves as an unwavering beacon of truth as cemented by the section 144A of the State Acquisition and Tenancy Act. We also record, since the matter has been decided to the hilt as aforesaid, question of registration of solenama (exhibit C1) has become redundant.
107Another point is the question of limitation as raised. The question of limitation is a mixed question of fact and law. The submissions of the learned counsel for the respondents on the question of limitation have no legs to stand. The lower appellate Court, in this regard remained oblivious and for that reason we are of the view that no deliberation is required to address the point.
108The High Court Division absolutely treading on a wrong premise overlooked all these aspects holding the decisions of the lower appellate Court to be correct.
109Accordingly, this appeal is allowed. The judgment and order passed by the High Court Division and the lower
appellate Court is set aside. The judgment of the trial Court is restored.
J.
J.
J.
J.
110The 25th April, 2024 /Ismail,B.O./*2836*
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