IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)
First Appeal No. 362 of 2018

In the matter of:

Divisional Forest Officer, Dhaka
and others.
Present ....Appellants.
Mr. Justice Mamnoon Rahman -Vs-
And Md. Imran Ahmed and others.
Mr. Justice Khizir Hayat ...Respondents.

Mr. Mohammad Taifoor Kabir, DAG

…For the appellants.
Ms. Fatema S. Chowdhury, Adv.
…For the respondents.

Heard &Judgment on: The 3rd February, 2020

Mamnoon Rahman,J:

This appeal is directed against the judgment and decree dated

15.01.2015 passed by the Joint District Judge, 1st Court, Gazipur in Title

Suit No. 60 of 2005.

The short facts relevant for the disposal of this appeal, is that, the

appellant as plaintiffs filed the suit for declaration of title alleging inter-

alia that Jamidar of Muktagacha estate was the owner of 73.43 acres of

land relates to C.S. Plot No. 33 under the Sreepur Police Station, Gazipur.

The C.S. record was in the name of the said Jamidar. Subsequently, in the

year 1951 by gezate notification the land was vested as forest land. By

operation of the East Bengal State Acquisition and Tenancy Act 1950 all

the properties of the Jamidars under the District Dhaka in Gazipur were

acquired and vested with the government. Subsequently, S.A. record was
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prepared in the name of the forest and the R.S. record was also and they

are in the possession. Thereafter, on 31.03.1985 the said land was

declared as reserved forest. After the publication of the L.R. in the year

1956 the Jamidars as well as private persons lost all rights over the said

properties. At the time of preparation of R.S. record the C.S. was divided

into 27 R.S. out of which 12 were recorded in the name of forest but 42.51

acres in separate R.S. records were recorded in the name of the defendants

and their predecessors in interest. Subsequently, on 29.04.2005 the

plaintiffs came to know that the defendants are erecting pillar and on

query it reveals that they are the R.S. recorded tenant of the suit properties

and subsequently obtaining the certified copy and filed the suit.

The respondent defendant Nos. 1-3, 17-25, 58, 26-28, 52, 53, 55,

56, 4-16, 31-33, 62 and 63 contested the suit by filing separate written

statement denying all the materials allegation made in the plaint. The case

of the defendant Nos. 1-3, 17-25, 58 are that the original owner of the suit

property was Jubedali Molla and two others. On 15.12.1964 sold 2.45

acres land to Abdul Kader and Abdul Barek vide registered deed. Son of

Jubedali Abdul Hekim on 11.03.1967 sold 70 decimals of land to Abdul

Hamid and Kitabjan. Subsequently, Abdul Hamid, Abdur Rashid,

Momtajuddin, Kitab Jan and Raimon Bewa on 07.4.1983 sold 2.21 acres

of land to the defendant No. 3 and his brothers. Defendant No. 3 and

others on 06.10.2004 sold 10.5 and half acres of land to defendant Nos. 1

and 2 relates to Plot No. 33. The defendant Nos. 1 and 2 being the owner
 3

of the property enjoying the same by mutation and paying rent and also

erected factory and by specific boundary wall.

The case of the defendant Nos. 26-28 and 52-56 are that the land

belongs to the Jamidar of Muktagacha and the said Jamidar gave Pattan to

Yakub Ali and Abdul Khaleque amounting to 8.54 acres of land and they

are enjoying the same by Hukumnama also the father of the defendant

Nos. 26 and 27 obtained a hukumnama in the year 1344 relates to 12 acres

of land. The case of the defendant Nos. 4-16 and 31-33 are that the owner

of the Muktagacha Jamidar and on the application of Jobed Ali for pattan

the same was granted so far it relates to 20.24 and 4.78 acres of land.

That the heirs of Jobed Ali Mollah namely Abdul Hakim enjoying the

property relates to 16.79 acres of land. The case of the defendant Nos. 62

and 63 are that Nayeb Ali, Jobed Ali and Mozaffar Ali got the property by

way of pattan in the year 1919 and they have separate khatians and also

the C.S. Record 118/20 and 118/35 was recorded correctly. Also the R.S.

record was prepared correctly and subsequently Abdul Hekim heirs of

Jobed Ali sold property to the tune of 245 decimals to Abdul Kader and

others. Also in the year 1967 transferred 70 decimals of land to Kitabjan.

Abdur Razzak in the year 1970 sold 70 decimals of land to Hossen Ali

and others and subsequently all the properties were transferred time to

time and all the records stands in the name of the defendants vide

different deeds and records and they erected house and other

establishment and enjoying the same peacefully for long.

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The trial court proceeded with the suit and framed as many as five

issues. During trial the plaintiffs adduced one witness and the defendants

adduced seven witnesses. The plaintiffs also adduced documentary

evidence which were marked as Exhibits 1-4(series) while the defendants

also adduced series of documents which were marked as exhibits A-K

(series). The trial court after hearing the parties and considering the facts

and circumstances, evidence both oral and documentary and thereby vide

the judgment and decree dismissed the suit. Being aggrieved, the

appellants moved before this court by way of instant appeal.

Mr. Mohammad Taifoor Kabir, the learned Deputy Attorney

General appearing on behalf of the appellants submitted that the court

below without applying its judicial mind and without considering the facts

and circumstances, evidences both oral and documentary and in an

arbitrary manner passed the impugned judgment and decree which

requires interference by this court. The learned counsel placed the

impugned judgment and decree passed by the trial court as well as the

relevant portions from the LC Records which includes the oral and

documentary evidence and submits that the trial court misread and thereby

misdirected itself arriving into an erroneous finding of dismissal in the

present case in h and. He submits that the P.W. 1 categorically proved the

L.R. Nos. 4836 and 4849 and also the notification as well as the gazette

and subsequent certified copy of the R.S. record which were duly marked

as exhibits but failed to consider the same for the purpose of declaration

of title in favour of the plaintiffs. He further submits that admittedly the

 5

property was acquired by the government by operation of the State

Acquisition and Tenancy Act 1950 and subsequently the property was

declared as reserved forest by subsequent notification and mere record in

the name of the defendants in R.S. and S.A. does not entitle the right and

title of the petitioner-plaintiffs in the property in question. He further

submits that these are the properties owned by the Government and

recognized as forest land and subsequently reserved forest and as such the

court below ought to have disbelieved the case of the defendants and

decreed the suit in favour of the plaintiffs.

Ms. Fatema S. Chowdhury, the learned counsel appearing on

behalf of the respondents vehemently opposes the appeal. She submits

that in the present case in hand the court below on proper appreciation of

the facts and circumstances evidence both oral and documentary

dismissed the suit which requires no interference by this court. She further

submits that in the present case in hand the defendants placed not only

sufficient oral evidence but series of documents to show their chain in the

suit property from the C.S. recorded tenant and also proved their

continuing and unimpeachable and exclusive possession in the suit

property which clearly shows that the defendants are the owner and

possessor of the property in question by way of inheritance, Pattan,

Hukumnama subsequently series of registered deed of sale as much as

right of records in the names of the defendants including S.A and R.S.

Khatian. She further submits that the suit itself is not competent in the

absence of certain prayers and the trial court on proper appreciation of the
 6

evidence both oral and documentary dismissed the suit which requires no

interference by this court.

We have perused the impugned judgment and decree,

Memorandum of appeal, grounds taken thereon, LC Records, as well as

necessary papers and documents annexed herewith and heard the learned

counsels for the contesting parties.

On perusal of the same, it transpires that the plaintiffs filed the suit

impleading the respondents as defendants for declaration of title as well as

further declaration that the R.S. record of the suit property is erroneous,

collusive and not binding upon the plaintiffs. The main contention as

raised by the plaintiffs in the suit is that by operation of certain gazette

notification in the year 1951 the property was vested as forest land and

ultimately by operation of the East Bengal State Acquisition and Tenancy

Act 1950 all properties belonging to the Jamidars of Dhaka and Gazipur

vested with the Government by gazette notification dated 2nd April, 1956

also the property was recorded in the name of the plaintiffs in the S.A. and

R.S. records and they came to know in the year 2005 that the defendants

are trying to erect Pillar in the said property corresponding the C.S. Plot

No. 33.

It further transpires that during trial the plaintiffs adduced one oral

witness while the defendants adduced seven persons to depose in their

favour. It also transpires that the plaintiffs adduced documents which

were duly marked as exhibits as well as the defendants also adduced

series of documents which were also duly marked as exhibits. It transpires

 7

that the trial court framed as many as five issues and proceeded with the

suit.

On perusal of the papers and documents, it transpires that the suit is

maintainable as well as there is no defect of parties. The main issue is

whether the suit is barred by limitation as well as the plaintiffs have right

title over the suit property. It transpires that the plaintiffs after the

occurrence in the year 2005 came to know about the R.S. and S.A. record

and filed the suit. But on perusal of the papers and documents it clearly

transpires that there was objection case in the year 1958 and 1968 as well

as in the year 1969-70 under section 30 of the East Bengal State

Acquisition and Tenancy Rules 1955 which were filed by the defendants

regarding the suit property. So, it transpires from the said papers and

documents the trial court came to a conclusion which runs as follows;

বাদীপ নািলশী আর,এস খিতয়ান স েক Objection under

Section 30 of E.B.T. Rules, 1955 অনুযায়ী ১২/২/৫৮ ইং
তািরেখ ২৪০ এবং ১৫/২/৬৮ ইং তািরেখ ৩৫৪ ও ৩৫৫ নং
আপি$ %কস এবং আপীল %কস নং- ৫১২৯/৬৯-৭০
%মাক*মা দােয়র কেরন। উ- %কস সমুহ িববাদী প
দািখল কেরেছন। উ- %কস সমুহ জুিডিসয়াল %না2টশ িনেয়
%দখা যায় %য, বাদীপ িবগত ১২/২/৫৮ ও ১৫/২/৬৮ ইং
তািরখ %থেকই নািলশী আর,এস %রকড স েক জানেতা।
নািলশী আর,এস %রকড স েক অ8 %মাক*মা দােয়েরর
পূেব ব: বছর আেগ %থেকই জানেতা। তাছাড়া নািলশী
স ি$ কতক িববাদীপে র নােম এস, এ %রকড হওয়ায়
 8

উহা সংেশাধন না %চেয় নািলশী আর,এস %রকড সংেশাধন

চাওয়া সমীচীন নেহ।
So, it transpires that the plaintiffs are well aware of the records of

rights stands in the name of the defendants much earlier as much as there

is a clear finding from the trial court that the plaintiffs did not pray for any

declaration so far it relates to the subsequent S.A. Records stands in the

names of the defendants. It clearly transpires from the aforementioned of

the Objection cases that the records in the names of the defendants are

very much within the knowledge of the plaintiffs.

On meticulous perusal of the papers and documents, it transpires

that especially from the deposition of D.W. 3 that the defendants filed

objection case under section 30 of the East Bengal Tenancy Rules, 1955

so far it relates to R.S. khatian and they got judgment in their favour

though the same was available in the same was available in the papers and

documents but P.W. 1 categorically stated that the plaintiffs does not

know about such record or proceeding under section 30 of the East Bengal

Tenancy Rules, 1955 or whether there is any appeal by them and also it

transpires that after availing all the formalities the record of right was

prepared in favour of the defendants. It also transpires that the defendants

claimed the suit property as heirs and purchasers from the S.A. and R.S.

recorded tenants and also on perusal of the evidence filed by the

defendants it clearly transpires that after such purchase as well as

obtaining the property by inheritance they mutated their names and paying

rent up to date as well as exhibit-B series it clearly shows the mutation,

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DCR as well as rent receipt which shows prima-facie title and possession

over the suit property. It further transpires that the trial court also

considered that the suit property was recorded in the name of the

predecessor in interest of the defendants in CS/SA and R.S. Khatians and

also since the defendants obtained mutation and paying rent the clear

findings relates to possession support the case of the defendants. It

transpires that while the trial court also considered that though the

plaintiffs claimed that the property was recorded in the R.S. and S.A

Khatians but the defendants did not produce any certified copy of the said

record of right. Though it has been claimed on behalf of the plaintiffs that

the property was vested with the Government exercising the power

conferred under section 7 of the East Bengal Private Forest Act, 1949 but

the trial court on meticulous perusal of the said documents came to a

conclusion that the suit property or the specification was not mentioned in

the said gazette. Though it has been claimed that the property was

declared as reserved forest under section 4 of the relevant law but since

the property stands in the names of the private persons since C.S. R.S.

S.A. and subsequent mutation rent receipt there is no scope to declare

reserve forest of such private property without relevant provisions of law.

In the cross-examination P.W. 1 categorically stated that that the

defendants enjoying the suit property peacefully by erecting boundary

wall as much as apart from P.W. 1 no one deposed in favour of the

plaintiffs. It further transpires that the defendants in support of their claim

submitted Pattannama rent receipt paid to the Jomidar certified copy of

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CS and RS records mutation, rent receipt, registered sale deed which were

duly marked as exhibits A-K and also supported the documentary

evidence by the deposition of seven witnesses. It transpires that the

predecessor in interest of the defendants obtained the land from the

Jomidar by way of Pattan/Settlement and subsequent chain which clearly

shows that the unbroken title and ownership of the suit property as well as

exclusive possession. On meticulous perusal of the deposition of P.W. 1 it

clearly transpires that if failed to assert all the dags situated in Plot No. 33

and also he is not aware of any previous proceeding relates to the suit

property. So, on perusal of the papers and documents, it transpires that the

trial court in the case hand committed no error regarding its finding relates

to limitation, title and possession of the suit property which requires

interference by this court.

Accordingly, the instant appeal is dismissed without any order as to

cost. The judgment and decree passed by the court below is hereby

affirmed.

Send down the lower courts record with a copy of the judgment to

the concerned court below, at once.

(Mamnoon Rahman,J:)

I agree.
(Khizir Hayat,J:)

Emdad. B.O.