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Petitioner: MD. GOLAM RASUL AND OTHERS-PLAINTIFF VS Respondent: MD. DABIRUDDIN AND OTHERS
P L D 1970 Dacca 750
P L D 1970 Dacca 750
Before A. B. Mahmud Husain and Ahsanuddin Choudhury, JJ
MD. GOLAM RASUL AND OTHERS‑Plaintiff Appellants
versus
MD. DABIRUDDIN AND OTHERS‑Respondents
Appeal from Original Decree No. 18 of 1964, decided on 23rd July 1969.
East Bengal State Acquisition and Tenancy Act, 1950 (XXYIII of 1951),
S. 75‑A read with S. 17(3)‑Land in khas possession settled by dakhilas after publication of notification under S. 17(3) Subletting, in circumstances, held, null and void and such dakhilas could not create tenancy right.
Ruhul Islam and Makbul Ahmed Chowdhury for Appellants.
Shah Azizur Rahman, S. S. Halder and Abu Taher Chowdhury for Respondents.
A. T. M. Eshaque for D. R.
Dates of hearing : 16th, 18th, 21st and 22nd July 1969.
JUDGMENT
MAHMUD HUSAIN, J.‑This appeal on behalf of the plaintiffs is directed against the judgment and decree passed by the learned Subordinate Judge in a suit for declaration of title and recovery of possession of the suit land by evicting the defendants therefrom.
Plaintiffs' case in brief is that the nine items of properties which are the suit lands belonged to pro forma‑defendant No. 25 Rashbehari Pal to the extent of 4 annas share, Debendra Nath Pal predecessor‑in‑interest of pro forma‑defendants Nos. 26 to 28 to the extent of 4 annas share, Brojendra Pal predecessor‑in interest of pro forma‑defendants Nos. 30 and 31 to the extent of 4 annas share and to Ramnarayan Pal to the extent of remaining 4 annas share. On the death of Ramnarayan Pal his‑4 annas share devolved upon his only heir, his brother's son pro forma defendant No, 25 Rashbehari Pal. On the death of Debendra Nath Pal his share devolved upon his heirs pro forma defendants Nos. 26 to 28 and on the death of Brojendra Pal his share devolved on his heirs pro forma‑defendants 29 to 31. The suit lands were the khas land of pro forma‑defendants 25 to 31 and they possessed it by letting out in barga to different persons. Pro forma‑defendants 26 to 28 lived in joint family of which pro forma‑defendant No. 28 Niranjan was the karta and pro forma defendants 29 to 31 also lived in. joint family of which pro forma defendant 29 Gopi Ballav Pal was the karta. Pro forma defendants proposed to dispose of their properties as they intended to leave Pakistan. Plaintiff No. 7 Hajid. Elahi Bux was the Gomosta of the Pals‑Pro,rorma‑defendants. Plain tiffs Nos. 1 to 10 who are relations proposed to take lease of the suit lands from Pals who leased out the same to , plaintiffs in nine separate jamas by nine amalnamas dated 16th Magh 1354 B. S. corresponding to 30th January 1948. Plaintiffs Nos. 1 to 8 took lease of items 1 to 8 of the properties as described in the schedule of the plaint and ; plaintiffs Nos. 9 and 10 took lease of item No. 9 of the properties. On the very date of the lease the plaintiffs paid rent of the respective jamas and got separate dakhilas from the landlords. These leases were granted by pro forma defendant No. 25 Rashbehari Pal and pro forma‑defendant No. 28 Niranjan Pal as karta of the joint family of pro forma‑defendants 26 to 28 and by pro forma‑defendant No. 29 Gopi Ballav as karta of the joint family of pro forma‑defendants Nos. 29 to 31. Thus the Pals landlords granted nine amalnamas and nine dakhilas on the date of the lease. The plaintiffs have been possessing the same since after taking lease of the suit lands through bargadars by realising barga crops from them. Defendant No. 1 Mohammad Dabiruddin got a power‑of -attorney from pro forma‑defendant No. 29 Gopi Ballav Pal and attempted to dispossess the plaintiffs from the suit lands in November 1956. So, plaintiff No. 1 Golam Rasul on behalf of the plaintiffs filed a case under section 144 of the Code of Criminal Procedure against defendant No. 1. This proceeding was ultimately converted into a proceeding case under section 145 of the Code of Criminal Procedure which was disposed of on 15‑5‑1958 with a finding that possession of the suit land was with defendant No. 1. Thereafter the plaintiffs attempted to institute a suit in respect of the suit lands and at that point of time there was talk of compromise between the plaintiffs and the defendant No. 1 and in pursuance of the compromise talk, defendant No. 1 on the basis of power‑of‑attorney from pro forma‑defendants 25, 29 and 31 recognised tenancy right of the plaintiffs in the suit lands and received arrear rent for the year 1962 B. S. on 20th Chaitra 1366 B. S. and granted nine dakhilas to the plaintiffs in his own handwriting with his signature. It was agreed in that compromise between parties that after the harvesting of Aus paddy of 1367 B. S. the defendant No. 1 would give up possession of the suit lands in favour of the plaintiffs. But the defendant failed to give up possession. Hence this suit was filed on the 4th November 1960.
There are four sets of written statements filed in the suit. Defendants Nos. 2 to 9 and 11 to 22 filed written statement but they did not contest the suit. Defendants 17 and 23 filed a separate written statement supporting the case of the plaintiffs. Defendant No. 1 filed a separate written statement and defendants Nos. 25, 27, 29, 30 and 31 filed a separate written statement and contested the suit. So the real contest is by defendants Nos. 1, 25, 27, 29, 30 and 31.
Defendant No. 1 contended that in Chaitra, 1356 B. S. the Pal landlords (pro formo defendants before leaving Pakistan required money and defendant No.. l paid Rs. 5,000 to pro forma defendant No. 25 and Rs. 2,000, to pro forma‑defendants 29 to 31 who accordingly gave the suit lands to the defendant No. 1 in am order to realise the said amount from the produces of the land in suit which were in their ownership and possession. They also instructed their bargadars in presence of defendant No. 1 to give barga shares to defendant No. 1. It is further stated that due to natural calamity defendant No. 1 did not get the produce from the suit lands for some years and he accordingly gave reminders to the said Pals for repayment of the money. Thereafter pro forma‑defendants Nos . 29 to 31 gave a power‑of‑attorney Exh. B dated 14th November 1956, in favour of defendant No. 1 and pro forma‑defendant No. 25 Rashbehari Pal also gave another power‑of‑attorney Exh. B (1) dated 9th Jannary 1957, in favour of defendant No. 1. Thus the defendant No. 1 began to possess the suit lands and remained in possession of the suit lands since 1357 B. S. and the plaintiffs had no possession of the suit lands. Defendant No. 1 denied that the Pals leased the suit lands to the plaintiffs and granted nine amalnamas and nine dakhilas in favour of the plaintiffs and he further contended that the said amalnamas and dakhilas are all forged and created by plaintiff No. 7 taking advantage of the custody of the check muries and other papers of the Pals as he was the Gomosta of the Pals. Defendant No. 1 further contended that the suit lands were in khas possession of the Pals up to the time they left Pakistan in Chaitra 1356 B. S. Defendant No. 1 further pleaded that the case of the plaintiffs is barred by special law of 'limitation stating that even if it be conceded for argument sake that the plaintiffs' story of lease is true, then also the plaintiffs' suit is barred as they were dispossessed by defendant No. 1 in the capacity of landlords and kept the plaintiffs out of possession for more than two years.
Pro forma‑defendants 25, 27 and 29 to 31 contended that the plaintiffs' story of lease is a concocted one, that none of the Pals landlords leased out the suit lands to the plaintiffs and that the amalnamas and dakhilas alleged to be granted by the Pal landlords are forged and fraudulent. It is further contended that the suit lands were in khas possession of the Pals landlords till they left Pakistan in 1356 B. S. and they gave the same to defendant No. 1 on receipt of Rs. 7,000, from defendant No. 1 and delivered possession to him and accordingly they executed a power‑of‑attorney in favour of defendant No. I in respect of the suit lands and defendant No. 1 remained in possession of the suit land all along since 1357 B. S. They denied that Biranjan was a karta or had any authority to give lease on behalf of pro forma‑defendants 26 and 27 or that Gopi Ballav was a karta to give lease on behalf of pro forma‑defendants 30 and 31. They also pleaded that the suit is barred by limitation.
The learned Subordinate Judge after hearing the parties dismissed the suit. As against that the present appeal has been preferred by the plaintiffs.
Mr. Ruhul Islam, the learned Advocate appearing for the plaintiffs‑appellants contended that the trial Court erred in law in holding that the dakhilas Exhs. 3(q) to 3 (y) granted by defendant No. 1 are not genuine and that the trial Court ought to have held that the Pals landlords granted lease to the plaintiffs by giving amalnamas Exh. 2 series and dakhllas Exhs. 3 to 3 (h) and he further contended that in view of the evidence and other materials on record the trial Court ought to have held that the plaintiffs succeeded in proving their possession in the suit lands from 1354 B. S. to 1366 B. S. and lastly contended that the trial Court erred in law in considering that the powers‑of -attorney in favour of defendant No. 1 cover 16 annas interest although those powers‑of‑attorney relate to only 12 annas share in the suit lands.
The share of the landlords is not disputed and the only question which requires determination in the present case is whether the amalnamas Exh. 2 series followed by dakhilas Exhs. 3 to 3 (h) were really granted by Pals landlords as asserted by the plaintiffs.
The plaintiffs are ten in number and it is only plaintiff No. 1 who examined himself in the present case. It is the assertion of the plaintiff No. I who is P. W. 2 that the plaintiffs took lease of the suit lands in nine separate jamas from the Pals on 16th Magh, 1354 B. S. and they got nine amalnamas but they could produce only six amalnamas as three amalnamas were lost. It was also asserted that on the very date of the lease the plaintiffs made payment of the rent relating to nine jamas and they received nine dakhilas Exhs. 3 to 3 (h). These amalnamas and dakhilas were written by Ansarul Huq, gomosta of the Pals landlords and he further asserted that these were written in his presence and that the plaintiffs were represented by himself and by his father plaintiff No. 7 Haji Md. Elahi Bux and the Pals landlords were represented by Rashbehari Pal, Gopi (3allav Pal and Niranjan Pal and their gomosta Ansarul Huq was also present. Plaintiff No. 7 aged about 85 years was on death bed when this P. W. 2 was deposing in Court. So for the purpose of proving amalnamas and dakhilas the only persons who could prove them are plaintiff No. 1 and Ansarul Huq and the Pals landlords who according to this witness were present. These Pals landlords who were present at the time of granting amalnamas and dakhilas did not depose in this case. So we are now left to consider the evidence of P. W. 2 and Ansarul Huq P. W. 3 for the proof of the amalnamas and dakhilas.
P. W. 3 Ansarul Huq is admittedly a relation of the plaintiffs. P. W. 2 asserted that Rashbehari Pal, Niranjan Pal and Gopi Ballav Pal executed these amalnamas and that they also, signed the nine dakhilas Exhs. 3 to 3 (h). P. W. 2 stated:
"We were co‑sharer landlords of the Pals besides other co‑sharers. My father realising rent from us of the suit jamas paid rent to the landlords of the Pals and these are the dakhilas of payment of rent to Pals landlords."
He further stated that his father granted 24 dakhilas to them and realising rent from them from the suit jamas. This witness stated chat they paid Rs. 3,500 on the date of the lease and again paid Rs. 500 later. But they did not take receipt for the amount paid.
P. W. 3 a gomosta of Rashbehari Pal stated that he wrote the amalnamas on the instruction of Rashbehari, Niranjan and Gopi Pal and that they signed the amalnamas in his presence and that nine dakhilas Exhs. 3 to 3 (h) were also written on the direction of the three Pals who signed them. In cross‑examination P. W. 3 admitted that he was the gomosta of Rashbehari Pal from 1348 B. S. to 1356 B. S. that is, up to the time of exodus when the Pals left Pakistan in 1356 B. S. P. W. 2 whom claimed to be present when these amalnamas and dakhilas were executed did not state how this talk of granting lease was finalised and in which place these documents were written and who were the persons present besides himself and father.
P. W. 3 the scribe stated that the talk of lease took place one month before the amalnamas were executed and he stated that the amalnamas were written in the house of Rashbehari and the other Pals were called there by Chand Mohammad who was present at the time of writing the amalnamas but this Chand Mohammad has not been examined. This P. W. 3 stated that he began writing the amalnamas at 8/9 a.m. and he finished the writing at 2 p.m. and he stated that on the date of lease Rs. 3,500 was paid and about two months thereafter Rs. 500, was paid as nazar. Whereas P. W. 2 stated that he paid Rs. 3,500, as nazar on the date of lease and after a month Rs. 500 was paid.
P. W. 4 stated that in Magh 1354 B. S. one day he was passing in front of the house of Rashbehari and saw assemblage of people in that house and he went there and saw writing of amalnamas and dakhilas and he stated that Elahi Raji paid Rs. 4,500 to Rashbehari as consideration. In cross‑examination P. W. 4 stated that he went there at 10 a.m. and writing of the amalnama began half an hour after and it took only 11 hours to write the amalnamas and he admitted that he could see P. W. 2 and his father for the first‑time on that day. So this witness raises the consideration money to Rs. 4,500 instead of Rs. 3,500 as asserted by P. Ws. 2 and 3 to have been paid to the Pal landlords.
P. W. 5 stated that he was present at the time of settle ment and he stated that he went to, the place of lease at 8 a.m. and that the writings of dakhilas and amalnamas were over at 10 a.m. and that Elahi Bux paid Rs. 3,500.
Now for the proof of the amalnamas Exh. 2 series and dakhilas Exhs. 3 to 3 (h) we are required to examine only the evidence of P. Ws. 2, 3 and 4. As earlier indicated P. W. 2 did neither state the place where these were written nor the persons who were present when the talk of lease was finalised P. W. 3 stated that it was written in the house of Rashbehari and that writing of amalnamas began at 8/9 a.m. whereas according to P. W. 4 it took only 1 hours to write the amalnamas and according to P. W. 5 these amalnamas and dakhilas were written within two hours. As earlier indicated P. W. 2 the plaintiff` No. 1 did not make any mention of the name of any person who were present at the time of executing the dakhilas Exhs. 3 to 3 (h). P. W. 3 stated that one Chand Mohammad was present at the time of writing the amalnamas and the said Chand Mohammad called the other Pal landlords in the house of Rashbehari. This Chand Mohammad has not been examined. Names of P. Ws. 4 and 5 were not mentioned either by P. W. 2 or P. W. 3 as they were present when the amalnamas and dakhilas were written and from the evidence of P. W. 4 it appears that he was a chance witness in the present case and furthermore he made a development of the case of the plaintiffs by saying that Rs. 4,500 was paid to Rashbehari as consideration, although the definite case of the plaintiffs was that Rs. 3,500 was paid on the date of lease. Furthermore according to P. W. 4 the writings were over by 1 hours, although P. W. 3 stated that it took about five hours for writings the amalnamas and dakhilas. So no reliance can be given on the evidence of P. W. 4.
P. W. 5 stated that the writings of amalnamas and dakhilas were completed within two hours and stated that the amalnamas were written seeing a paper, whereas P. W. 3 stated that the amalnamas were written on instruction of Rashbehari and others and he did not make any mention of any draft made for writing the amalnamas. So the statement made by this witness is not corroborated either by P. W. 2 or P. W. 3. In such circumstances we are not inclined to give any reliance on the evidence of P. W. 5 as well.
With regard to the amalnamas P. W. 2 asserted that there are nine amalnamas and the dakhilas were filed in R. C. O.'s office in June/July, 1960 and that after about one month he came to learn that three amalnamas were missing. It may be noted that the amalnamas were produced in a proceeding under section 145 of the Code of Criminal Procedure and this witness stated that he deposed in that proceeding on 22‑7‑57 and when he was confronted with the statement that only 6 amalnamas were produced in the criminal proceeding he simply replied "I do not remember if in that proceeding case I proved only six amalnamas. I do not remember that I could not and did not file three amalnamas." We find from his evidence given in the criminal proceeding case marked Exh. E that he stated "Sardar gomosta Ansar wrote the amalnamas in my presence Exhs. 1 to 6. "So the explanation given by this witness that the three amalnamas were lost in the office of the R. C. O. is incorrect. It will further appear from the evidence of P. W. 2 that his father as well as his grand‑father was the gomosta of ‑the Pals landlords and Ansarul Huq P. W. 3 who claims to be gomosta of the Pal landlords failed to produce any paper in proof of his appointment under the landlords and in view of the fact that this Ansarul Huq is a close relation of the plaintiffs and in view of the fact that the plaintiff No. 7 and plaintiff No. 1 were the gomosta under the Pals landlords, it may presumably be said that Exh. 2 series and Exhs. 3 to 3 (h) were created in collusion with P. W. 3. It will further appear that the criminal case which was initiated under section 144 of the Code of Criminal . Procedure on 25‑11‑56 was followed by rent suit and It appears from the 4eposition of P. W. 3 who stated "I do not remember to have filed some fictitious rent suits against the plaintiffs in the names of the Pals". The defendant No. 1 produced two power‑of‑attorneys dated 15‑11‑56 and 9‑1‑57 whereby the Pal landlords authorised this defendant No. 1 Dabiruddin Ahmed to manage the property as described in the power‑of‑attorney and it will appear from Exh. C dated 17th Kartick, 1363 B. S. which was written by Md. Golam Nabi for plaintiff No. 7 Haji Md. Elahi Bux that he was making request to one of the Pal landlords to come to Pakistan border for giving proper information to him so that the transaction may be made with him and that was not possible to discuss the matter on the Pakistan border as police makes harassment. So he requested one of the Pal landlords to come over to Kushtia so that the transaction might be completed and this is a letter in reply to the letter dated 26‑10‑56 addressed to him, wherein he made reference that he could not get the address of Bishnu Babu pro forma‑defendant No. 30. Although this letter does not indicate as to which Pal landlords was addresssed, but from the contents of the letter it is very much clear that there was no complete transaction then between the plaintiff and the Pal landlords. We get from Exh. C (1) dated 23‑11‑56 written by plaintiff No. 2 on behalf of plaintiff No. 7 addressed to one of the Pal landlord making certain statement which go to show that there was no settlement of the suit land with the plaintiffs at all. Plaintiff No. 2 made a statement in the said letter that some people went to the Pal landlords with money on 22‑11‑56 to Kazipur border for taking settlement of the property of Kushal baria Monza and in case such settlement is given, the plaintiffs will be left to the hands of the enemy and so he made prayer that their case may be considered taking a compassionate view of the fact that they and their predecessor were always obedient to the Pal landlords. And he made an assertion‑ therein that he could not get the address even writing to Rashbehari and Dayal and he also asserted that he paid Rs. 50 through Ansarul Huq as earnest money. There is an Exh. D (1) dated 29th June 1958, written by , Bishnu pro forma‑defendant No. 30 in favour of plaintiff No. 7 Haji Elahi Bux. This Bishnu Pada admitted that he received Rs. 50 as travelling allowance through Mr. Ansarul Huq for registering the kabala and this Exh. D (1) relates to the assertion made in Exh. C (1) to the effect that Rs. 50 was paid to his son and thus we can conclude that the letter Exh. C (1) was addressed to Bishnu Pal. In the letter Exh. C (1) we get a reference that the property was agreed to be sold at Rs. 1,100. In Exh. D we find a receipt granted by Dayal Krishna Pal on 7‑1‑62 in favour of Haji Elahi Bux of Akabpur on receipt of Rs. 1,020 through Md. Golam Rasul, son of Haji Elahi Bux. These Exhs. D, D(1) and C and C (1) were marked as exhibits on 21‑3‑63 by the Presiding Judge vide Order No. 67 dated 21‑3‑63. But these Exhibits have not been included in the paper book and similarly Exh. E (1) depositions before the criminal Court was not included in the paper book. From Exh. A(4) a letter addressed to Rashbehari Pal by Haji Md. Elahi Bux plaintiff No. 7 dated 24‑12‑56 that Rashbehari Pal was requested to remain present at 10 a. m. on 30‑12‑56 at Bogolbaria, that is, Pakistan border for finalisation of all works and discussions and he further made request that he should meet him for the last time. So this letter dated 24‑12‑56 was written during the pendency of the criminal proceeding under section 144 of the Code of Criminal Procedure. This letter as well as the contents of the other exhibits as discussed above will go to show that there was no complete transaction between the plaintiffs and the Pal landlords.
D. W. 1 Dayal Kirshna Pal pro forma‑defendant No. 27 asserted that pro forma‑defendant No. 28 was not the karta of the pro forma‑defendants Nos. 26 to 28 and that the pro orma defendants did not lease out the suit lands to the plaintiffs and it appears that there is no cross‑examination on this point by the plaintiffs. In these circumstances we are unable to agree with the learned Advocate for the plaintiff‑appellants that the learned Subordinate Judge arrived at an erroneous finding in respect of the amalnamas and dakhilas, rather we are quite in agreement with the finding of the learned Subordinate Judge in this behalf.
The learned Advocate appearing fur the appellants contended that the dakhilas Exhs. 3 (q) to 3 (y) are the genuine documents and the plaintiffs are entitled to get relief in pursuance of these exhibits as well. Plaintiffs' specific case is that the defendant No. 1 created disturbance from the last part of November 1956, and the plaintiffs were compelled to initiate a proceeding under section 144 of the Code of Criminal Procedure. Defendant No. 1 filed two power‑of‑attorneys Exhs. B and B (1) dated 15‑11‑56 and 9‑1‑57. By virtue of the two powers‑of‑attorney defendant No. 1 claimed possession of the suit lands and the proceeding under section 144 of the Code of Criminal Procedure which was ultimately converted under section 145 of the Code of Criminal Procedure was finally decided, on 15‑5‑58 vide Exh. E (2) whereby the defendants were declared to be in possession of suit lands and the plaintiffs were restrained from entering into the suit lands unless their right, title and interest are established by a competent civil Court.
It is asserted by the plaintiffs that after the disposal of the criminal proceeding they were making efforts to file a title suit, then a compromise was effected with defendant No. 1 on 20th Chaitra 1366‑ B. S. and in terms of the compromise defendant No. 1 recognised the plaintiffs as tenants and realised rent from them for the year 1362 B. S. and granted nine dakhilas Exhs. 3 (q) to 3 (y) which were written and signed by defendant No. 1 himself and it is the specific case of the plaintiffs that the defendants would give possession of the suit lands after harvesting the standing crops, that is, after Bhadra 1367 B. S. P. W. 2 did not make mention of any person who were present when the compromise was effected. P. W. 2 admitted that this compromise was not effected in writing, but he asserted that the dakhilas Exhs. 3 (q) to 3 (y) were given by defendant No. 1 himself.
P. W. 6 stated that these dakhilas were written and signed by defendant No. 1 in his presence. But he made out a case that there are some independent persons who were present at the time when these dakhilas were granted by defendant No. 1 and that In pursuance of such compromise Rs. 201 was paid, whereas P. W. 2, plaintiff No. 1 himself did not make any mention of such thing that some independent persons were present when these dakhilas were granted by defendant No. 1 or that a sum of Rs. 200 was paid at the…
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