High Court Division · Civil Revisional Jurisdiction
Madhov Kumar Das @ Khokan v Government of Bangladesh and others
Civil Revision 940/2020 · Decided 19 July 2026
The petitioner sued for a declaration of title to 100 decimals, claiming to have inherited it from his uncle, the S.A. recorded tenant, and alleging that the R.S. record wrongly showed it as vested and non-resident property and that an exchange deed in favour of other defendants was fraudulent. The Government said the recorded tenant had migrated to India around 1965 and the land was vested property. Defendants 3 to 6 relied on a different genealogy and an exchange validated by the Deputy Commissioner resulting in a registered deed of 1993 in favour of nineteen persons. The Assistant Judge, Jibonnagar dismissed the suit and the District Judge, Chuadanga dismissed the appeal. The High Court Division held that a plaintiff seeking declaration of title must succeed on the strength of his own case. Both courts concurrently found that he failed to prove his genealogy, the identity of the land and possession, and he had not challenged the vested property listing despite knowing of it since 1971. The Rule was discharged.
- Q1
Whether a plaintiff claiming title by inheritance to land recorded in the R.S. khatian as vested property could succeed where he failed to prove his genealogy, the identity of the land and possession.
- Q2
When the burden of proof shifts to a defendant who sets up a rival title.
- A plaintiff seeking a declaration of title must succeed on the strength of his own case, not on the weakness of the defence.
- The plaintiff must prove lawful title, the identity of the property and actual possession by reliable evidence; a declaratory decree is not granted merely because the defendants fail to prove every part of their defence.
- Only after the plaintiff discharges the burden under section 101 of the Evidence Act, 1872 by proving an unbroken chain of title with possession does the burden shift under section 103 to a defendant asserting a contrary title.
- A plaintiff who knew of the enlistment of the land as vested property after 1971 but took no step to have it released or to show possession, such as through a lease, could not rely on the principle that a wrong record alone does not start limitation.
- Concurrent findings of fact are not disturbed in revision under section 115 absent jurisdictional error, perversity or misreading or non-consideration of material evidence.
It is a well-settled principle of law that a plaintiff seeking a declaration of title must succeed on the strength of his own case and not on the weakness of the defence.
In the court’s own words.
Civil Revision 940/2020, as published by the Supreme Court of Bangladesh. 23 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION
3(CIVIL REVISIONAL JURISDICTION)
Present:
4Mr Justice Abdur Rahman
5Civil Revision No. 940 of 2020
6In the matter of:
7Madhov Kumar Das @ Khokan
……Plaintiff-Appellant
Petitioner
-Versus-
8Government of Bangladesh, represented by the
9Deputy Commissioner, Chuadanga and others
…Defendants- Respondents
Opposite parties
10Mr Shasti Sarker, with
11Ms Lily Rani Saha, Advocate
……..For the Petitioner
12Mr Md. Zahirul Islam, Deputy Attorney General,
13with
14Mr Md. Ferdouse Sarker, Assistant Attorney
15General
…for the opposite parties.
16Date of Hearing: 25.06.2026, 13.07.2026, and
14.07.2026 A.D.
17Date of Judgment: 19.07.2026 A.D., Sunday,
04 Shrabon, 1433 B.S.
JUDGMENT:
18Abdur Rahman, J:
19This revisional application, at the instance of the petitioner, has been filed under section 115(1) of the Code of Civil Procedure, 1908. At the time of issuance of the Rule, the following order was passed:
20"Let a Rule be issued calling upon the opposite party Nos. 1
21to 4, 5(Ka) to 5(Neo), and 6 to show cause as to why the
22Judgment and Decree dated 28.11.2019 passed by learned
23District Judge, Chuadanga in Title Appeal No. 87 of 2015
24disallowing the appeal and affirming the Judgment and
25Decree dated 20.08.2015 passed by the learned Assistant
26Judge, Jibonnagar, Chuadanga in Title Suit No. 189 of 2014
27dismissing the suit should not be set aside, and/or why such
28other or further order or orders should not be passed as to
29this Court may seem fit and proper."
30At the time of issuance of the Rule, this Court was also
31pleased to direct the parties to maintain status quo with
32respect to possession of the suit land for a period of 06 (six)
33months. Subsequently, the said order of status quo was no
34longer extended.
35Facts:
36The facts, shorn of unnecessary details but sufficient for the disposal of the Rule, are that the petitioner, as plaintiff, instituted Title Suit No. 189 of 2014 before the Court of the learned Assistant Judge, Jibonnagar, Chuadanga, seeking a declaration of title in respect of 100 decimals of land more fully described in the schedule to the plaint, together with ancillary reliefs.
37The plaintiff's case, in substance, is that C.S. Khatian No. 99 of Mouza Badanpur, under the District of Chuadanga, originally comprised 1.00 acre of land belonging to one Shasadhor Ghose, while the tenancy thereof was held by the plaintiff's paternal uncle, Nilmoni Das. During the S.A. operation, the tenancy was duly recorded in the name of Nilmoni Das. Upon his death without leaving any issue, he was allegedly succeeded by his three brothers, namely Benari Das, Kedar Das and Nandalal Das. Subsequently, Benari Das died issueless and, according to the plaintiff, his share devolved upon Kedar Das. Nandalal Das also died leaving behind his only son, namely the present plaintiff, who claims to have inherited the suit property through succession.
38The plaintiff further asserted that he and his mother had long been under the bona fide impression that the R.S. record had
also been correctly prepared in their name. However, on 07.02.2006, upon verification of the finally published R.S. record, he allegedly discovered that the suit land had erroneously been recorded in the name of the Government as vested and nonresident property. According to the plaintiff, such recording was wholly illegal, without any lawful basis and contrary to the true state of affairs, inasmuch as the suit property had never vested in the Government. It was further pleaded that the Government acquired neither title to nor possession of the suit property, and that the R.S. entry was liable to be declared as a wrong record.
39The plaintiff further alleged that defendants 1 & 2 were asserting an unfounded claim over the suit land and that defendant Nos. 3 to 6, in collusion with others, had fraudulently created a registered deed of exchange on the strength of forged and fabricated documents without the knowledge or consent of the plaintiff. Since the alleged transferors had no valid right, title or interest in the suit property, the exchange deed was asserted to be void, fraudulent, inoperative and not binding upon the plaintiff. Hence, the suit was instituted seeking a declaration of title and appropriate consequential relief.
40The contesting defendants entered an appearance and filed separate written statements denying all material allegations made
in the plaint. Their common defense was that the suit was false, frivolous, speculative, devoid of any cause of action, barred by law and facts, and liable to be dismissed.
41Defendant Nos. 1 and 2, representing the Government, specifically contended that the recorded S.A. tenant had migrated to India in or about the year 1965, whereupon the suit property lawfully came under the custody and management of the Government as vested property. Thereafter, the land was correctly recorded in R.S. Khatian in favour of the Government. According to them, the plaintiff had neither inherited nor acquired any right, title, interest, or possession in the suit property and was therefore not entitled to have any declaration.
42Defendant Nos. 3 to 6 contested the suit on an altogether different factual foundation. According to them, although the suit land originally stood recorded in the name of Nilmoni Das under C.S. Khatian No. 99, Nilmoni Das was survived not by the persons claimed by the plaintiff but by his two brothers, namely Sheetal Das and Fakir Das. Thereafter, Sheetal Das died, leaving behind three sons, namely Balaram, Kanai and Jagannath, while Fakir Das died, leaving behind his son Rakhal, prior to the partition of the Subcontinent. It was their further case that the predecessors of defendant Nos. 3 to 6 had orally exchanged the suit land with one
Engil Hossain Biswas, who had migrated to India, and subsequently executed a power of attorney in his favour. The said exchange was later regularized through Exchange Case No. 893(C)/70-71 and validated by the Government through the Deputy Commissioner, Chuadanga, culminating in the execution and registration of Deed No. 392 of 1993 in favour of nineteen persons. They further asserted that although the S.A. record had remained in the name of Nilmoni Das and his heirs, those heirs had already lost whatever title they once possessed. The defendants claimed continuous possession over the suit land as co-sharers and further pleaded that the plaintiff had earlier unsuccessfully filed Title Suit No. 1 of 2001 and Title Appeal No. 90 of 2002 relating to the same property. Accordingly, they prayed for dismissal of the suit.
43Upon consideration of the oral and documentary evidence adduced by both sides, the learned Assistant Judge, Jibonnagar, Chuadanga, by its judgment and decree dated 20.08.2015, the decree having been drawn up and signed on 25.08.2015, dismissed the suit on contest.
44Being aggrieved thereby, the plaintiff preferred Title Appeal 87 of 2015 before the learned District Judge, Chuadanga. Upon reappraisal of the evidence and hearing the learned Advocates appearing for the parties, the learned Appellate Court, by its
judgment and decree dated 28.11.2019, the decree having been drawn up and signed on 06.01.2020, dismissed the appeal and affirmed the judgment and decree passed by the trial Court.
45Feeling dissatisfied with the concurrent findings and decisions of the Courts below, the plaintiff has invoked the revisional jurisdiction of this Court under section 115(1) of the Code of Civil Procedure, 1908. Submissions:
46Mr Shasti Sarker, the learned Senior Advocate appearing on behalf of the petitioner, submitted that both the Courts below failed to appreciate the oral and documentary evidence in their proper legal perspective and consequently arrived at erroneous findings of fact, occasioning a grave failure of justice. He also contended that the Appellate Court failed to discharge its statutory obligation under Order XLI Rule 31 of the Code of Civil Procedure by omitting to formulate the points for determination and by affirming the trial Court's judgment without independently appraising the evidence.
47He further submitted that the plaintiff successfully established his title by way of inheritance through cogent oral and documentary evidence, including the succession documents
relating to Nilmoni Das, but both the Courts below completely overlooked those materials. According to the learned Senior Advocate, the findings recorded by the Courts below are the result of misreading, non-reading and misappreciation of material evidence.
48Mr Sarker further argued that the Courts below wrongly inferred the absence of possession merely because the plaintiff's address in the plaint was mentioned as Islampur, Chuadanga, whereas the suit land is situated at Mouza Badanpur. Referring to the evidence of P.W.1 and P.W.2, he submitted that both witnesses consistently deposed regarding the plaintiff's possession, but the Courts below wholly ignored such evidence.
49He next contended that although defendant Nos. 3 to 6 claimed title on the basis of an alleged exchange deed validated by the Deputy Commissioner, but they failed to prove either the exchange proceedings or the registered documents in accordance with law. On the contrary, Exhibits Ka and Ka-1, if properly appreciated, clearly demonstrate that the documents relied upon by the defendants are fabricated and unreliable.
50Mr Sarker further submitted that the Appellate Court erroneously relied upon the depositions of the defence witnesses
while ignoring material contradictions appearing therein, thereby arriving at findings based upon misreading and non-consideration of evidence. He also argued that the additional evidence of P.W.4 and P.W.5 recorded before the Appellate Court was not considered in its true perspective.
51Finally, he submitted that the Government completely failed to establish that the suit property had ever lawfully vested in the State and that the plaintiff's claim, being founded upon inheritance, could not have been rejected merely because of an erroneous R.S. entry. Accordingly, he prayed for setting aside the impugned judgments and decrees.
52In support of his submissions, the learned Senior Advocate has placed reliance upon the decisions reported in 16 BLD (1996) 519, relating to the burden of proof, and 56 DLR (AD) 73, concerning the legal effect of the repeal of Ordinance No. I of 1969, further referred to the decision as contained in 6 MLR (AD) 49 in respect of the starting point of limitation in the suit for declaration of title due to cloud by wrong record of entry.
53Conversely, Mr Md. Jahirul Islam, the learned Deputy Attorney General, assisted by Mr Md. Ferdouse Sarker, the learned Assistant Attorney General, appearing on behalf of opposite party
Nos. 1 and 2, supported the concurrent judgments and decrees passed by the Courts below.
54The learned Deputy Attorney General submitted that both the Courts below, upon comprehensive evaluation of the entire evidence on record, concurrently found that the plaintiff utterly failed to establish either his title or his actual possession over the suit property.
55He further submitted that the plaintiff's witnesses could not even identify the precise location and boundaries of the disputed land. While P.W.1 claimed that roads existed on both the eastern and western sides of the property, such evidence was not corroborated by the other prosecution witnesses. Moreover, the plaintiff admittedly paid no rent after the property was vested and failed to seek a local investigation through a Survey Commissioner to identify the land; accordingly, the suit is barred by limitation and also under Section 42 of the Specific Relief Act, 1877.
56Learned Deputy Attorney General further submitted that the plaintiff had previously instituted Title Suit No. 1 of 2001 and pursued Title Appeal No. 90 of 2002 on the basis of an entirely different genealogy, thereby seriously undermining the credibility of his present claim. He also contended that the suit suffers from
non-joinder of necessary parties insofar as it relates to the parties to the challenged exchange deed 392 of 1993, and from the absence of any genuine cause of action.
57Finally, the learned DAG posited that the concurrent findings recorded by the Courts below are based on a proper appreciation of the evidence and disclose neither any illegality nor any jurisdictional error warranting interference under revisional jurisdiction. He, therefore, prayed that the Rule be discharged. Consideration:
58I have heard the learned counsels appearing for the respective parties at length, carefully perused the impugned judgments and decrees of both the Subordinate Courts, examined the pleadings, oral and documentary evidence available on the record and considered the submissions advanced at the Bar.
59On perusal of the judgment of the learned trial Court, it is found that it was observed in the following way:
60“PW-1 তার জবানব েত বেলন য, নীলমিন দাস িনঃস ান অব ায় মারা যান। তার
61অংেশর জিম তার িতন ভাই ওয়ািরশ িহেসেব া হন। বাদীপ! তার ব"েব#র
62সমথেন
63% কান সা!# দান কেরন নাই। অপরিদেক PW-1 তার জরায় বেলন য,
64নীলমিন মারা যাওয়ার সময় তার িতন ভাই িছেলন যা মইনু )ন জােনন। অ*
65মাক)মায় মইনু )ন জােনন। অ* মাক)মায় মইনু )ন সা!# দান কেরন নাই।
এছাড়াও PW-2 তার জবানব েত িতন ভাইেয়র মেধ# নেরন দাস জীিবত থােক উে/খ
66করেলও ন লাল দাস ব#তীত অন# িতন ভাইেয়র কান ওয়ািরশ িছল না বা ন লাল
67দাস ওয়ািরশ িহেসেব নািলশী জিম া হয় তদমেম % কান সা!# দান ক রন নাই।
68এমতাব ায় বাদীর পূবািধকারী
% ন লাল বা ন রাম দাস নািলশী জিমেত
69উ2রািধকারসূে* 34 অজ%ন কেরিছল তা বাদীপ! মান করেত ব#থ % হেয়েছ। িক5
70বাদীর দাবী বাদীেকই মান করেত হেব। অন#িদেক PW-1 তার জরায় বেলন য,
71নািলশী জিম 6য়কৃত স8ি2। সুতরাং নািলশী জিমেত বাদীপে!র 34 অজ%ন মান
72হয় নাই মেম % তীয়মান হয়।“
73From the above observations and evidence on the face of the record, it can be presumed that the plaintiff failed to establish his successorship connection with the original owner of the suit property.
However, the learned trial Court also noticed at the
74time of delivering judgment that,
75“PW-1 তার জবানব ীেত নািলশী জিম বাদী দখল কের দাবী করেলও জরায়
76িববাদীরা সাহাম মেত ২৫ শতক জিম পেয় ভাগ দখল কের িকনা = করা হেল িতিন
77নীরব থােকন।
78PW-2 তার জরায় বেলন য, বত%মােন নািলশী জিমেক দখল কের তা আিম জািননা।
79PW3- তার জরায় বেলন য, আিম মাধবেক (বাদী) নািলশী জিমেত কাজ করেত দিখ
80নাই।
81প!া ের DW-1 তার জবানব েত বেলন য, আিম নািলশী জিম সবদি!েন
% দখল
82কির।
DW-2, আঃ ওহাব, তার জবানব েত বেলন য, বাদী মাধব কুমার কান িদন জিম
83দখল কের না। আিম িববাদীেদর নািলশী জিম ৩০ বছেরর বিশ সময় দখল করেত
84দখিছ।
85উপযু"
86% ব"ব# পযােলাচনায়
% ইহা তীয়মান হয় য, বাদীপ! নািলশী জিমেত
87বাদীপে!র দখল মান করেত ব#থ হেয়েছন।
% “
88Concomitantly, on perusal of the judgment of the learned Appellate Court, observed that:
89“বাদী িপ.ড িCউ- ১ তাহার জরার একপযােয়
% বেলন আমেমা"ার সূে* য দিলল ৩-৬
90নং িববাদীর নােম হেয়েছ তা আিম দািখল কির নাই। িপ.ড িCউ- ১ তাহার জরার এক
91পযােয়
92% আরও বেলন নািলশী জিম 6য়কৃত স8ি2। িপ.ড িCউ- ১ তাহার জরার
93একপযােয়
94% আরও বেলন দশ 3াধীেনর পর নািলশী জিম অিপত% স8ি2েত পিরণত
95হওয়ায় খাজনা দওয়া সGব হয়িন। বাদীপ! নািলশী জিম সং6াে খাজনা দােনর
96কান দািখলা দািখল কেরন নাই। বাদী িপ.ড িCউ- ১ এর পূববিণ
% ত% ঐ ব"ব# হইেত
97িনধারণ
98% করা যায় য, বাদী দশ 3াধীন অথাৎ
% ১৯৭১ এর পরপর নািলশী জিম অিপত%
99স8ি2 তািলকাভূ " হয় িবষয় অবিহত িছেলন, ঐ সময় বাদী নািলশী জিম অিপত%
100স8ি2 তািলকা হইেত অবমু" কিরবার বা তািলকা ভM "র িবNেO িতকার াথনা
%
101কেরন নাই, কৃত দখলদার থািকেল েয়াজেন বাধ# হইয়া অিপত% স8ি2 কতৃপ
% !
102হইেত লীজ লইয়া দখল অব#হত রািখয়া দখল পূববতPেত
% আমল হইেত অব#হত আেছ
103মেম আদালতেক
104% দখাইেত পােরন নাই।“
105Learned Appellate Court further observed that,
106‘’বাদীপ! য দিলল িবষেয় িতকার াথনা
% কিরয়ােছ ঐ দিলেলর জােবদা নকল বাদী
107দািখল কেরন নাই। িববাদীপ! তাহা দািখল কিরেলও দশণী
% িচিTত কেরন নাই। ঐ
108দিলল নিথেত আেছ বেট, সখােন অন#ান# মাট ৫৪.২৫ একর জমাজিম মাট ১৯ জন
109ব# " িবিনময় সূে* পায়, সরকাির তদে তাহােদর সখােন িবিনমেয় দখেল পাওয়া
যায় কথা বলা আেছ। ঐ জিম িনিদ%ষ্ট জিম িনিদ%Xজন দখল কের বলা নাই। বাদী
110তাহার মাক)মায় ঐ দিলেলর সমূদয় ১৯ জন Yহীতােক এই মাক)মায় প!ভূ "
111কেরন নাই। বিণত% যু "েত মাক)মাZট তামািদ বািরত ও প!েদােষ দুXও বেট।
112উপেরর আেলাচনার আেলােক বাদীপ! সােবক জােদর ওয়ািরশ সা জয়া িবিভ[
113সমেয় িবিভ[ জিম দাবী কিরেত থািকবার একZট িনর র চXার অংশ িহসােব এই
114নািলশী জিম া হইবারও আশায় পরী!ামূলক মাক)মা কিরয়ােছন িনধারণ
% করা
115যায়। নািলশী জিমেত বাদীপে!র 34 দখল নাই, তাহােত প!ভূ " িববাদীগেণর 34
116দখল আেছ িনধারণ
% করা যায়।“
117However, it is evident that the learned trial Court, upon a detailed analysis of the evidence, found that the plaintiff failed to establish the alleged chain of inheritance from Nilmoni Das, failed to prove lawful possession over the suit property and failed to substantiate the very foundation of his claim.
118The learned Appellate Court, upon independent reappraisal of the evidence, concurred with those findings and further observed that the plaintiff neither challenged the enlistment of the property as vested property at the appropriate time nor produced reliable evidence demonstrating continuous possession. The Appellate Court also noticed material deficiencies regarding the genealogy, the exchange deed, the non-joinder of necessary parties and the maintainability of the suit.
119Having independently scrutinized the record, I find that the concurrent findings recorded by both the Courts below are
founded upon proper appreciation of the oral and documentary evidence and cannot be characterized as perverse, arbitrary or unsupported by the evidence on record.
120The principal contention advanced on behalf of the petitioner is that the plaintiff inherited the suit property from his predecessor Nilmoni Das and the Government failed to establish its claim to the property. Attractive though the argument may appear at first blush, it does not survive close judicial scrutiny.
121It is a well-settled principle of law that a plaintiff seeking a declaration of title must succeed on the strength of his own case and not on the weakness of the defence. The burden squarely rests upon the plaintiff to establish his lawful title, identity of the property and actual possession by reliable and convincing evidence. A declaratory decree cannot be granted merely because the defendants have failed to prove every aspect of their defense.
122At this juncture, I need to discuss the referred-to decisions as contained in 16 BLD (1996) 519, in the case of Sreejukta Haladhar Karmakar and others Vs Bangladesh and others, His Lordship Mr Justice Md. Hamidul Haque, in explanation of the provisions of Section 103 of the Evidence Act, 1872, held that –
“A statement in the plaint or in the written statement is no
123evidence in the eye of law unless it is proved by examining a
124witness on oath. In the instant suit, the defendant claimed
125that the original owners had left this country before 1965
126and the suit property became enemy property by operation
127of law. The onus was upon the defendant to prove that fact
128either by examining any witness or by producing any reliable
129documentary evidence establishing that the real owners had
130left this country before 1965. In the absence of such
131evidence, the property in question cannot be treated as
132enemy property or vested property. (Para-8)"
133Upon a perusal of the above decision referred to, the judgment found that the facts of the said case were that the plaintiffs had been in possession of the suit land in ejmali. While they were in possession, it was learnt that the property had been declared enemy property. The plaintiffs then filed a suit for permanent injunction against the defendants, and the suit was decreed on contest, where there was no question as to the possession. Thus, in the case at hand, the plaintiff has not been able to prove his bona fide genealogy and possession by adducing credible evidence. The settled principle of law is that where the plaintiff successfully discharges the initial burden cast upon him
under section 101 of the Evidence Act, 1872 by establishing, through cogent and reliable evidence, an unbroken chain of title together with lawful possession over the disputed property, the evidential burden thereafter shifts to the defendant under section 103 of the Act. In such circumstances, if the defendant sets up a rival title, denies the plaintiff's ownership or possession, or asserts any fact inconsistent with the plaintiff's case, the onus lies upon the defendant to substantiate such affirmative defense by credible and convincing evidence. Mere denial of the plaintiff's claim, without proof of the facts specifically asserted by the defendant, is insufficient in law to displace the case established by the plaintiff. So, the aforesaid important decision referred to by the petitioner does not help the instant particular facts of the plaintiff.
134In this context, I am also in firm conviction that, once the plaintiff has discharged the burden imposed by section 101 of the Evidence Act, 1872 by proving a complete and uninterrupted chain of title coupled with possession, the burden of proof shifts under section 103 of the Act to the defendant who asserts a contrary title or any fact inconsistent with the plaintiff's case. Such assertion must be affirmatively established by the defendant through legally admissible evidence, and cannot rest upon a mere denial of the plaintiff's claim.
135However, the petitioner referred to another decision as contained in 56 DLR (AD) 73, in the case Aroti Rani Paul Vs Sudarshan Kumar Paul and others, where their Lordships were pleased to hold that,
136"Since the law of enemy property itself died with the repeal
137of Ordinance No. 1 of 1969 on 23-3-1974, no further Vested
138Property case can be started thereafter on the basis of the
139law which is already dead. —(17)"
140The facts of the instant case are quite distinguishable from the cited case, as the defendants 1 & 2 did not provide any credible information in respect of enemy or vested property. More particularly, the defendants 3-6 introduced a different case, i.e., Exchange Case No. 893(C)/70-71, which was validated by the Government through the Deputy Commissioner, Chuadanga, culminating in the execution and registration of Deed No. 392 of 1993 in favour of nineteen persons. But these 19 persons were not made parties to the suit.
141Finally, the petitioner referred to another decision as contained in 6 MLR (AD) 49, in the case Government of Bangladesh, represented by Additional Deputy Commissioner,
Bogra Vs Md. Mahirudding Sarker and others, where their Lordships were pleased to hold that,
142"Both the trial court and appellate court concurrently found
143the plaintiff to have title and possession in the suit land. But
144the trial court dismissed the suit on ground of limitation
145which the appellate court reversed with the finding that
146there was no question of limitation so long the plaintiffs title
147and possession was not disputed or disturbed. So long any
148dispute as to title and possession is not raised, there was no
149reason to institute suit. Mere wrong record of right by itself
150does not constitute ground of limitation. The trial court on
151consideration of the materials on record dismissed the suit
152only on the ground of limitation and against that the plaintiff
153preferred Other Class Appeal No.18 of 1985 and the
154appellate court decreed the suit holding that the suit is not
155barred by limitation. It appears from the judgment of the
156trial court that the plaintiff's right, title and possession on
157the basis of Pattan from Jatindra Nath Majumder was found
158by the trial court but dismissed the suit only on the ground of
159limitation. The appellate court it appears concurred M. with
160the finding of the trial court on the right, title and possession
161of the plaintiff over the suit land but held that the suit is not
barred by limitation as wrong recording in the name of the
162original owner has not created any obstruction in the right,
163title and possession of the plaintiff. The appellate court also
164found that when the plaintiff is in possession and when
165nobody earlier raised any objection or created problem in the
166enjoyment of the suit property, the plaintiff had no reason to
167file a suit but when the present petitioner tried to disturb the
168plaintiff the suit was instituted. So question of limitation
169does not arise in such circumstances. —(Para-4)"
170From a plain reading of the aforesaid decision, it is manifest that both the trial court and appellate court concurrently found the plaintiff had title and possession in the suit land. But the trial court dismissed the suit on the ground of limitation. In the case at hand, the concurrent decisions of the Trial Court and the Appellate Court is that the plaintiff hopelessly failed to assert his title and possession over the suit land. More so, the learned Appellate Court specifically endorsed that P.W.1, during the course of his crossexamination, stated that after the independence of the country, the suit property became vested property, and consequently it was not possible to pay rent (land revenue) in respect thereof. The plaintiff did not produce any rent receipts (dakhilas) evidencing payment of rent for the suit land. From the aforesaid admission of
P.W.1, it is evident that the plaintiff was aware that the suit land had been enlisted as vested property immediately after the independence of the country in 1971. Despite such knowledge, the plaintiff did not take any steps at the relevant time either to secure the release of the suit land from the vested property list or to challenge its enlistment therein before the competent authority. Furthermore, had the plaintiff been in actual possession of the suit land, he could, if necessary, have obtained a lease from the Vested Property Authority to continue his possession and thereby demonstrate before the Court that his possession had remained uninterrupted since the earlier period. However, no such evidence has been adduced. So, I do not find any relief as to limitation from the aforementioned potential decision referred to by the petitioner; rather, it helps the opposite parties.
171In the present case, both the Courts below concurrently found that the plaintiff failed to establish the genealogy pleaded in the plaint, failed to prove inheritable right, failed to identify the suit property with certainty, and failed to prove actual possession. Such findings are essentially findings of fact based on an appreciation of the evidence.
172The authorities relied upon by the learned Senior Advocate are distinguishable on facts. While they correctly state the
principles governing the burden of proof and the legal consequences of the repeal of statutory provisions, those principles do not assist the petitioner in view of the concurrent factual findings recorded and legal proposition against him.
173This Court, while exercising revisional jurisdiction under section 115 of the Code of Civil Procedure, does not function as a second Court of appeal. Unless the concurrent findings suffer from jurisdictional error, material illegality, perversity, misreading or non-consideration of material evidence resulting in failure of justice, interference is not warranted.
174Having examined the entire record, I find no such infirmity. The findings recorded by the Subordinate Courts are based on evidence supported by reasons and do not disclose any jurisdictional error or material irregularity warranting interference under revisional jurisdiction.
175I am, therefore, of the considered opinion that both the Subordinate Courts rightly dismissed the suit upon proper appreciation of the evidence and correct application of the governing principles of law. The impugned judgments and decrees call for no interference by this Court.
176Result:
177As a result, the Rule is discharged.
178There shall, however, be no order as to costs.
179The order of status quo granted earlier by this Court is hereby recalled and vacated.
180Let the Subordinate Courts' Records (SCR) be transmitted to the Courts concerned forthwith together with a copy of this judgment.
(Abdur Rahman, J.)
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