JASHIMUDDIN KANCHAN (MD) Vs. MD. ALI ASHRAF

JUDGEMENT

(1.) These two appeals by special leave are directed against a common judgment and decree of a learned Single Judge of the High Court Division reversing in revision the concurrent decision of the trial Court and the appellate Court. The principal question involved is, whether the learned Single Judge acted within his jurisdiction in reversing the concurrent decision on a question of fact namely, whether the respondent's predecessor-in-interest impliedly surrendered his tenancy right by voluntary abandonment of the suit land.

(2.) Appellant (Jashimuddin Kanchan) and respondent (Ali Ashraf) both purchassed the same land at about the same time from two rival owners under registered kabalas and thereby entered into the litigation. The land in question measures .05 acre out of .37 acre in plot No. 460 of Khatian No. 127 of Mouza Misri, Laksham. The land originally belonged to one Badsha Mia, who by an Ijara kabuliyat dated 23 June 1926 leased it to Ram Prosad Muchi, a cobbler by profession, for a period of 5 years at a yearly rent of Tk. 4/-. Badsha Mia then exchanged his entire property including the suit land with Mohesh Chandra Saha by a registered deed of exchange dated 16 October 1936. At the time of the exchange Ram Prosad Muchi was continuing in possession of the suit land by holding over under the Ijara kabuliyat. Ram Prosad Muchi continued even after this exchange, but controversy arose since then.

(3.) Respondent claimed that Ram Prosad Muchi continued in possession as a Dar-rayati tenant under Mohesh Chandra Saha paying rent to him regularly till April 1956 when on whole-sale acquisition of all rent-receiving interests he became a tenant directly under the Government; on his death his sons, Narayan and Tetna Rabi Das, inherited and possessed the land and then they by a registered kabala dated 16 Baishak 1383 BS. corresponding to 30 March 1977 sold the land to him (respondent) and delivered its possession. He then made new constructions on the land; but in June of that year, he came to know that the appellant had obtained a fraudulent kabala dated 7 May 1977, registered on the following day, from Mohesh Chandra Saha's son Upendra Chandra Saha in respect of the suit land and on the strength of that kabala started to disturb his possession. He, therefore, filed Title Suit No. 223 of 1977 in the 4th Court of Munsif for a declaration that the appellant's kabala dated 7.5.77 (Ext. la) was false and fraudulent.