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Petitioner: ABDUL MUNAF ALIAS MUHARAM ALI AND OTHERS VS Respondent: SMT. GOLAP PUSPA SEN AND OTHERS
P L D 1970 Dacca 668
P L D 1970 Dacca 668
Before A. B. Mahmud Husain and Habibur Rahman, JJ
ABDUL MUNAF alias MUHARAM ALI AND OTHERS‑Appellants
versus
Smt. GOLAP PUSPA SEN AND OTHERS Respondents
Appeal from Original Decree No. 222 of 1960, decided on 15th July 1969.
(a) Possession‑Possession, proof of‑Oral evidence adduced, discrepant and contradictory‑Lower Court, held, justified in not accepting such evidence as proof of possession.
(b) Court‑fee‑Trial Court, after concluding hearing and delivering judgment, finding plaintiff to have paid deficit court fee, and on direction of Court plaintiff paying same‑Plaintiff, not moving higher Court against such order‑Order to pay deficit court fee cannot, in circumstances, be agitated at appellate stage.
Ahmad Sobhan and Abu Taher Chowdhury for Appellants. S. K. Sen and B. K. Das for Respondent No. 1.
Dates of hearing : 20th, 21st, 25th, 26th and 31st March, 1st and 15th April 1969.
JUDGMENT
MAHMUD HUSAIN, J.‑This appeal is directed against the judgment and decree passed by the learned Subordinate Judge in a suit for partition. Plaintiffs filed the suit on 3rd September 1955, alleging that the suit property originally belonged to raiyati of Bande Ali Khan, son of late Hasan Ali Khan. Bande Ali Khan acquired that property on the basis of a patta dated 28‑3‑85 A. D. from the landlord Debaddin Hazari and that the name of Bande Ali was recorded in the C. S. Khatian. There after Bande Ali died leaving behind his widow Badiunnessa, brother Fate Ali Khan and accordingly they inherited the shares being 4 annas and 12 annas respectively. While they were in possession Fate Ali died before C. S. operation leaving Majarullah his son as the only heir and that Majarullah thereafter died before the R. S. operation and it has been asserted in the plaint that the property inherited from Bande Ali remained in ejmali possession without any formal partition and Fate Ali and after him Majarullah remained in ejmali possession. That the said Majarullah was survived by two sons, defendant No. 2 Md. Ibrahim and plaintiff No. 1 Abdul Munaf alias Muharam Ali and a daughter plaintiff No. 2 Bhelua Sundari and a widow plaintiff No. 3 Fatema Khatun. Plaintiffs 1 and 2 were minors at the time of their father's death and all the heirs of Majarullah were under the care and management of Badiunnessa. It is alleged that taking advantage of the minority of the plaintiffs 1 and 2, the Offcers and the party men under Badiunnessa either collusively or through mistake got the name of Badiunnessa alone recorded in the R. S. record, but in spite of such record the plaintiffs and defendant 2 remained in joint possession of the suit property. And it has been further alleged that defendant No. 2, the elder brother of plaintiffs 1 and 2 although acted against the interest of the plaintiffs and thus created the municipal holding fraudulently in the name of his wife defendant No. 3. Defendant No. 2 created some fictitious documents covering the suit land in the name of his wife. The plaintiffs are in possession of the property which is their homestead, buy recently the defendant No. 1 threatened to dispossess them from the suit land on the basis of Title Suit No. 36 of 1949 of is Court of Subordinate Judge, Chittagong. The plaintiffs therefore filed this suit for partition on the base s of their share. It has bee alleged in the plaint that Title Suit No. 36 of 1949 brought be defendant No. 1 against defendant No. 2 was a collusive and that defendant No. 1 brought the suit against defendant No. 2 alone knowing fully well that the plaintiffs have got title and interest and possession in the suit land, obtained decree for khas possession in the suit land without impleading the present plaintiffs in the said suit. The plaintiffs are in no way bound by the decision of the said suit. The plaintiffs claimed a share of 141 gandas in the suit land.
Defendant No. 2 filed a written statement admitting the share of the plaintiffs.
Defendant No. 1 filed a written statement and contested the suit. He denied all the allegations made in the plaint and asserted that the statement made by the plaintiffs that defendant No. 2 acted adversely to the interest of the plaintiffs is entirely imaginary and the defendant No. 2 is a fraudulent type of man who, made unsuccessful attempts to grab the suit land by making false claim. Defendant No. 1 further asserted that Badiunnessa is the only heir of late Bande Ali and her name was duly recorded in the R. S. Khatian and thereafter the said Badiunnessa remained in possession and created dar‑ralyati leases‑one in favour of Maya Bibi and another in favour of Abdul Gofur. She also sold her raiyati interest to Duryadhan Barua and Raj Kamal Barua who obtained possession. Duryadhan sold part of the land to Mahendra Lal Barua and the remaining part was sold in auction in money execution and was purchased by Raj Kamal and Mrs. Fernandas. While Mahendra was in possession he sold his share to Rabindra Lal Mitra and then defendant No. 1 Golap Pushpa purchashed the share from Rabindra Mitra. She also purchased the share from Rajkamal and Mrs. Fernandas. Thus the entire raiyati came to defendant No. 1 and she also purchased the dar raiyati of Maya Bibi. The said Abdul Gofur transferred his dar rafyati to Nasima Khatun who sold it to Prafulla Kumari and defendant No. 1 purchased this dar‑raiyati from her. Thus the entire property of raiyati and dar‑rafyati came to defendant No. 1 who remained in possession by putting fencing around the land and opening a hydrant. Thereafter India was partitioned and her husband Benoy Krishna Sen, who was an Engineer in East Bengal Railway Administration opted for India and she along with her husband went to India leaving the management of the property with D. W. 1 Bejoy Krishna Sen her husband's brother. During the temporary absence of D. W. 1, Ibrahim defendant No. 2 cut earth and was trying to construct a house. At this defendant No. 1 instituted Title Suit No. 36 of 1949, for recovery of possession. The suit was ultimately contested by defendant No. 2 Ibrahim but the suit was decreed and this defendant put the decree into execution for recovery of khas possession and thereafter the present suit has been instituted. They alleged that the plaintiffs are practically fictitious persons and it is defendant No. 2 Ibrahim who has brought this suit in the name of the plaintiffs.
The learned Subordinate Judge after hearing the parties dismissed the suit on contest. As against this the plaintiffs. preferred this appeal.
Mr. Ahmad Sobhan, the learned Advocate appearing for the plaintiff appellants contended that upon the evidence on record the Court below erred in not holding that Fate Ali was full brother of Bande Ali and Majarullah was the son of Fate Ali and that the Court below was wrong in rejecting the Kabinnama Exhs. 4(s) and 4(b) and he further contended that the Court below most illegally decided the question of possession and that from the evidence on record it ought to have held that the plaintiffs have been possessing the land since after the death of Bande Ali and lastly contended.
"That the Court below erred in realising ad velorem court-fee at the latest stage of the suit which is for partition inas much as the plaintiffs possession was found by the Court below during the pendency of the suit at the time of final disposal and accepting the plaintiffs possession ad interim injunction was granted till the disposal of the suit."
Plaintiffs examined six witnesses in support of their case. There are three plaintiffs in the present suit. It appears that Abdul Munaf, plaintiff No. 1 has not examined in this suit while the case was taken up for final hearing in May 1959 and it is one Md. Anwar examined himself on behalf of plaintiff No. 1 on the authority of a power‑of‑attorney. It may be noted that this Abdul Munaf and Md. Anwar were examined by pleader commissioner who was appointed by the Court at the instance of the plaintiffs for local investigation. And the pleader‑commis sioner was appointed only to investigate "whether there is any municipal holding in the disputed property." This Abdul Munaf, plaintiff No. 1 was first examined on 1st of May 1959 and again on 22nd May 1959 and Mr. Anwar was also examined on 22nd May 1959, by the pleader‑commissioner. Plaintiff No. 1 was examined by the pleader‑commissioner on the point as earlier indicated, but this plaintiff No. 1 did not examine himself during the final hearing of the suit.
P. W. 1 Md. Anwar who it appears was examined by the pleader‑commissioner on the point as earlier indicated on behalf of plaintiff No. 1 on the basis of a power‑of‑attorney executed by plaintiff No. 1 P. W. 1 stated that the plaintiffs are the heirs of Fate Ali who inherited the properties as brother of Bande Ali and that plaintiffs are in possession and the defendant No. 1 had no possession at any time and that Ibrahim defendant No. 2 is the eldest son of Majharullah who lives at Chawk Bazar with his family and that Rabeya Khatun defendant No. 3 is the first wife of Ibrahim and that she lives with her mother‑in‑law, Fatema plaintiff No. 3. This witness stated that the property was acquired by Bande Ali in 1885 and that holding No. 177 stood in the name of Majharullah and this holding number was changed to 285 in the name of plaintiff No. 3 wife of Majharullah. That there was subsequent change in the number of holding and that was 448‑A and 448‑B in the name of Rabeya Khatun and it was again changed to 591 and 592 and the present holding number is 699 and 700 in the name of Rabeya Khatun and that this Rabeya Khatun had no title but Ibrahim defendant No. 2 got the name of his wife mutated against the interest of the plaintiffs and that the suit between defendant No. 1 and defendant No. 2 was a fictitious one which was designed "to affect the title of the plaintiffs". This witness denied that the defendant No. 2 set up the present plaintiffs and instituted this suit. It is stated that there was no previous partition of the suit property by metes and bounds and that the plaintiffs share in the suit land is 12 annas, that the R. S. record in the name of Badiunnessa is a mistake and that Ibrahim, Golap Pushpa, that is, defendant Nos. 2 and 1 threatened to dispossess the plaintiffs in the last part of 1954. Thereafter the suit for partition was filed as eimalf possession was creating troubles. It is asserted by this witness that Durjadhan and Raj Kamal had no possession at any time in the suit land and the documents set up by the defendants is fictitious and plaiatiffs did not dispossess Golap Pushpa and her husband's brother Bejoy during War and that the said suit was false that there was no dar‑raiyati of Gofur. Maya Bibi had no title or possession.
In his cross‑examination he stated that his house is at Hathazari at a distance of 12 miles from Fate Ali's house and he stated that his profession is to conduct cases in lower Courts for some firms since 1947. He has given his age as 26 years on 18‑5‑60. So, according to his own statement he entered into the profession to conduct cases in lower Courts at the age of 13 years. And he stated that he knew Badiunnessa who died 19 years back. According to his own statement it appears that he was born in 1934 and when he stated that he has no relationship with the plaintiffs and his house is at a distance of 12 miles, there was no reason for him to know Badiunnessa, as according to him she died in 1941 while he was aged about 7 years. He admitted that he had no knowledge of the suit between defendant No. 2 and defendant No. 1 and that he had no records of the copies of that suit and he also admitted that he was not present when Ibrahim threatened to dispossess the plaintiffs on the authority of the suit. He admitted that he was present when Fatema plaintiff No. 3 was examined on commission in November 1959. He further stated that he knew the suit land from 1943 and it goes to show that he could know this land while he was aged about 9 years. Although he asserted that he was a bharatia under Munaf plaintiff No. 1 in the suit land yet he could not produce anything in support of the alleged tenancy under plaintiff No. 1. This witness stated that Badiunnessa died 19 years back, and again he said that he has no knowledge when Badiunnessa died. He stated that plaintiff No. 2 Bhelua Sundari is aged about 37 years and that her husband is Nijamat Ali of Bashirhat. And he further stated:‑
"I was not shown any document of their ancestry."
He stated that Bande Ali died first. Then again stated that he had no knowledge when Bande Ali died or married. This witness said that Bande Ali is the son of Hasan Khan. He stated "I do not know the whereabout of Monaf. He has flying business. He was not present when Fatema was examined. Plaintiffs 1 and 2 could not examine" and he also stated that plaintiff Monaf is a hawker who sells goods in other places. He denied that Ibrahim set up the plaintiffs after he became unsuccessful in Title Suit No. 36 of 1949 and that he is conducting the suit. He made an assertion that the plaintiffs made a claim of shares of 12 annas and that Ibrahim had no possession and that the plaintiffs do not possess the entire land but they possess according to their share. But none of the defendants have any possession and the remaining share of the suit land is vacant and is under nobody's possession.
Fatema Khatun, plaintiff No. 3 examined herself on commis sion. She stated "I have been looking after the suit through the Munshi who is standing here. I do not know his name. I pay daily wages to the Munshi". She said that she had been bearing the cost of the suit and defendant No. 2 does not bear the cost for her maintenance and that they had no good terms. She stated that Bande Ali was her father‑in‑law and that at the time of the death of Bande Ali his widow Badiunnessa and his brother Fate Ali were alive. Fate Ali died after Bande Ali. She stated that the property was not partitioned among Majarullah, Fate Ali and Bande Ali and that after the death of Majarullah her mother‑in‑law Badiunnessa used to manage the family affairs. She stated that during R. S. Operation Badiunnessa got the suit property recorded in her name. She pleaded her ignorance about the suit filed by defendant No. 1 Golap Pushpa in respect of the suit property. But at the same time she stated that Ibrahim wanted to evict her by that suit and sell away the property and then she stated that when she came to know that Golap Pushpa and Ibrahim, that is, defendants 1 and 2 would jointly take possession of the property then she filed the present suit. She denied that Ibrahim brought any suit against Golap Pushpa. She pleaded her ignorance about the sale by Badiunnessa in favour of Raj Kamal Barua or that Raj Kamal sold to Duryadhan and Mahendra sold to Rabindra Mitra and Rabindra Mitra to Golap Pushpa. She denied that the alleged transferees of the suit land ever possessed it.
In cross‑examination she stated that Bhelua her daughter was married 20‑21 years ago and that Bhelua was born while she was 60 years old. The kabinnama of Bhelua Exh. 4(b) is dated 13th May 1935. She stated that the papers to show that Majaharullah is the son of Fate Ali are lying with Munshi and that "Munshi comes from Hathazari" and we find from cross‑examination of P. W. 1 Md. Anwar that he comes from Hathazari. She admitted that Abdul Munaf was not present when she was deposing and she further stated that Abdul Munaf did not know that the commission would sit for taking her deposition. She admitted that she had knowledge that she would be examined on commission on the date, that is, on 16‑11‑59 when she was examined. Examination of Fatema Khatun could not be completed on the 16th November 1959 as she felt uncomfortable and that she was examined on the following day. She stated that Badiunnessa died about 20 years ago. She also stated that at the time of Badiunnessa there were one or two houses and that she erected the remaining houses. She denied that Ibrahim was conducting the suit through her.
P. W. 2 Bacha Mia stated that Bande Ali died leaving widow Badiunnessa and a full brother Fate Ali who died leaving a son Mazarullah and "Bande Ali died over 60 years and Fate Ali died 50 years back." This witness stated that Mazarullah died 40 years back, whereas Fatema wife of Mazarullah stated that her husband died 30 years back. This witness stated that Munaf plaintiff No. 1 is at home, whereas P. W. 1 Md. Anwar stated that he could not know the whereabout of Munaf and we find from the evidence of Fatema also that Munaf took no interest in the case and he was not present when she was examined and that Munaf also did not examine himself on the date of final hearing.
P. W. 3 Saleh Alam stated that Bhelua is aged about 22 years and Fatema stated that at the time of Mazarulla's death Bhelua was a baby on arms. So, according to Fatema Mazarullah died in 1914 or 1915. So, Bhelua was aged about 45‑46 years in 1960.
P. W. 4 Amir Ahmed stated that he attended the marriage of Bhelua about 20 years ago and that Mazarullah, father of Bhelua called him to his residence at Enayat Bazar. The kabinnama of Bhelua as earlier stated is of 1939.
P. W. 5, Matior Rahman stated that he knew the suit land from his infancy. He stated that he retired in the year 1950 at 55. So he was aged 65 years in 1960 while he was deposing, and he was only 5 years old in 1900 when Bande Ali died. So the statement that he was 16 years at the time of Bande Ali's death is incorrect. And he stated "I am not seeing Ibrahim for last 12 years". But it appears from the deposition of P. W. 1 Md. Anwar that Ibrahim was in Court on that date when P. W. 5 was deposing. So, this witness cannot be relied.
P. W. 6, Mazharul Haque stated that Badiunnessa died 16 years back. Whereas P. W. 1 Md. Anwar said that Badiunnessa died 19 years back and this witness further stated that Mazarulla died 38 years back. So according to him it comes to 1922, whereas according to the evidence of Fatema, Mazarullah died between 1914‑15. From his evidence we find that the Karja Karak of the plaintiffs is P. W. 1.
It may be noted that there is no dispute about the fact that the properties originally appertained to raiyati of Bande Ali. The whole question was as to correctness of R. S. Khatian which shows that raiyaei has been recorded in the name of Badiunnessa, widow of Bande Ali and possession has been shown as per Exh. J(2) with Mahendra Lai Barua and Durjadhan Barua as purchasers. And the two dar‑raiyaties in the name of Maya Bibi and Abdul Gafur have been recorded in the R. S. Khatian under Badiunnessa as per Exhs. J(3) and J(4). In order to substantiate the case of the plaintiffs to the effect that the R.S. Khatian is wrong we are to examine the evidence of plaintiff No. 3. The evidence of plaintiff No. 3 Fatema who was examined on commission was accepted as having been duly tendered. She pleaded her ignorance about the suit between Golap Pushpa, defendant No. 1 and her son Md. Ibrahim defendant No. 2 and she further stated that she had no good relationship with her son who did not maintain her. She further stated that there is a holding in the municipality in her name and she has been paying taxes. According to her evidence, her husband died 16 years before the R. S. operation and the age of plaintiff No. 1 is stated to be 30 years. She claims to have seen Bande Ali but could not say when he died and even she could not say after how many years after her marriage Bande Ali died. As earlier discussed she has been conducting the suit through her Munshi but she could not give the name of that Munshi. From the evidence of P. W. 6 we find that Munshi is none but P. W. 1 Md. Anwar. She pleaded her ignorance about the nature of the documents, filed on their behalf.
P. W. 1 Md. Anwar produced some documents including some rent receipts. This P. W. 1 could not say the name of the officer of the landlord who granted rent receipts and according to his evidence the landlords and their Karmachari's were not traceable after the partition of India. He produced certain Kabin nama and according to him he received it from plaintiff No. 3. P. W. 1 stated that the Kabinnama was found along with the rent receipts in box left by Fate Ali. The Kabinnama was not expected to be in possession of Fate Ali because this is a document which must be with the relation of his wife and it is not explained in what circumstances this document came into the possession of Fate Ali. This is an unregistered document written on a cartridge paper and the learned Subordinate Judge, in my view, rightly described it as spurious document manufactur ed for the purpose of this suit. He further held on examination of the Firisti that this document was included later and was not filed along with the rent receipts on the 29th September 1955. No witness has been examined to prove this document. This document does not bear the filing seal of the Court. Moreover inclusion of this document in the Firisti shows that it was subse quently included. The inclusion in the Firisti of this document is by a different ink and no serial number has been given in the left hand column and the total number of document been shown in the third column shows that it was originally for one document and subsequently there was one addition and that one anna is written in different ink and the total thereafter shown as 2 annas and the filing date shown in the third column has been penned through and the scribe who wrote the document signed in one ink and the inclusion of this document is by a different ink and on the right hand side of the Firisti (which will appear in C File Serial No. 14) there is the signature of Abdul Monaf. But it appears from the vokalatnama filed in the trial Court that Monaf gave a thumb‑impression and in the plaint also gave his thumb‑impression and similarly in the High Court as well, he gave his thumb‑impression in the vokalatnama. Furthermore in filing documents the normal practice is that the Firisti is signed by the learned Pleader/Advocate by writing the names of the party for whom the documents are filed but in this Firisti we find there is the initial of the filing Advocate who wrote the name of Abdul Monaf, and again there is a signature of Abdul Monaf followed by an initial of a lawyer. But there is one ink by which the whole Firisti is written, whereas the inclusion of this particular document and the signature by Abdul Munaf is by different ink. We find another signature on the right hand top of this Firisti which is supposed to be a signature of the lawyer, but we do not find any justification for such signature when it was already signed by another lawyer and this signature also appears to us to be of different from that of the two inks already used. Some writings of the document Exh. 4 are blurred and it appears to us that the document is not as old as over 60 years. This Kabin nama was introduced to show that Fate Ali was the son of Hasan Khan who was the father of Bande Ali. So on a consideration of the whole case we do not find any cogent reason to differ from the finding of the learned Subordinate Judge when he concluded by saying that no reliance can be given to establish relationship between Bande Ali and Fate Ali.
Fatema plaintiff No. 3, wife of Mazharullah stated that she was married while she was 10‑12 years old and she gave her age as 80 years on 17‑11‑59. So, according to her she was born in 1879, whereas Exh. 4 Kabinnama shows that Fate Ali father of Mazharullah married on 26‑2‑1898. So, Mazharullah, husband of Fatema was not born then. Now even if about 15 years' concession is given to the evidence of Fatema as to the date she mentioned for her old age even then it would be impossible to believe that Mazharullah could marry at the age of 12 years. Fatema stated
"15/16 years before the R. S. operation my husband died."
From the evidence of Fatema it will appear that her husband died near about 1929 when the R. S. operation was in the year 1930. Exh. 4(b) the Kabinnama of plaintiff No. 2 is dated 1935 and according to Fatema her son plaintiff No. 1 is aged about 30 years. So, on a consideration of the evidence of all the P. Ws. we are in agreement with the finding of the learned Subordinate Judge that such evidences are not reliable and cannot be accepted for the proof that Fate Ali was brother of Bande Ali and Mazarrullah is the son of Fateh Ali. We are also in agreement with the findings of the learned Subordinate Judge that "the evidence on record does not justify a finding that plaintiffs 1 and 2 are son and daughter of Majarullah". As earlier discussed plaintiff No. 1 does not examine himself in Court and shows no interest in the result of the suit. We find it is only P. W. 1 Md. Anwar who appeared in the suit as Tadbirkar by virtue…
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