MOULVI SERAJUDDIN AHMED Vs. IDRIS ALI

JUDGEMENT

(1.) This Rule has been issued at the instance of the plaintiff-petitioner under section 115 of the Code of Civil Procedure calling upon the opposite parties No. 1-7 to show cause as to why the order dated 20.7.85 passed by the learned Subordinate Judge Thakurgaon in Other Class Appeal No. 16 of 1984 should not be set aside and /or such other or further order or orders passed as to this Court may seem fit and proper.

(2.) Facts relevant for disposal of this rule, in abridge, is that, the disputed property was belonged to Moharaja Taraka Nath Chowdhury who left the country for India after partition of Pakistan in the year 1948 leaving the property uncared for. The plaintiff-petitioner entered into the possession of the suit land and possessing the same by cultivating paddy therein. Subseq-uently, the property was enlisted as evacuee property and recorded in the name of the Government under khas khatian. The plaintiff-petitioner being found in possession for more than 12 years Bangladesh Government by a registered deed dated 11.12.1974 settled a portion of the scheduled property covered by plot No. 2376 measuring .09 acre and 2378 measuring .21 acre of land to the plaintiff-petitioner. The defendant in suit by creating fraudulent document managed to get their names recorded in the khatian in connivance with the Government officials and on the basis of wrong khatian they tried to obstruct the plaintiff from cultivating the suit land as a result of which the plaintiff-petitioner constrained to file the suit for declaration of title and for declaration to the effect that the khatian stand recorded in the name of the defendants is illegal, void and without any basis. The defendant-opposite parties No. 1-6 appeared in the suit and filed written statement denying all the material allegations made in the plaint contending, inter alia, that the property in question was originally belonged to Moharaja Taraka Nath Chowdhury who died leaving 3 minor sons, namely, Korma Nath Chowdhury, Rudhra Nath Chowdhury and Seko Nath Chowdhury. The said heirs of Moharaja Taraka Nath Chowdhury being minor the property was managed and controlled by the Court of Wards. The Officers of the said Court of Wards made a settlement for .42 acres of land out of plot No. 2378 to the defendants No. 1,2 and 4 and on the basis of said settlement S.A. Khatian stand recorded in the name of the defendants. Thereafter on coming to know about obtaining settlement of .21 acres of land by the plaintiff, defendant No.1 filed an objection petition before the A.D.C. (Rev.) for cancellation of the lease/ settlement who upon hearing and considering facts and circumstances of the case cancelled the settlement for .12 acres of land covered by plot No. 2378 keeping .09 acre of land in the name of the plaintiff. The defendants having been possessing .42 acres of land out of .51 acres covered by plot No. 2378 , the plaintiff has/ had no title and possession beyond .09 acre of land covered by plot No. 2378 and prayed for dismissal of the suit.

(3.) The trial court upon contested hearing dismissed the suit by its judgment and decree dated 25.9.83. Thereafter the plaintiff preferred Other Class Appeal No. 16 of 1984 before the District Judge, Thakurgaon which was eventually heard by the learned Subordinate Judge, Thakurgaon who upon contested hearing allowed the appeal in part holding that the defendants admits the title and possession of the plaintiff to the extent of .09 acre of land covered by plot No. 2376 and .09 acre covered by plot No., 2378 and as such the plaintiff is entitled to get a decree in respect of .18 acre of land and decreed the suit in part by its judgment and decree dated 19.3.1985 instead of decreeing the suit for .60 acres of land. The Appellate Court further observed that the A.D.C. (Rev.) cannot cancel a registered documents making settlement of the suit property in favour of the plaintiff without intervention of the civil court. The plaintiff-petitioner being aggrieved by the judgment filed an application under section 152 of the Code of Civil Procedure praying for decreeing the suit for .39 acres of land instead of .18 acres. The Appellate Court heard the application and upon hearing rejected the same by impugned order dated 20.7.85 holding that the court found title and possession of the plaintiff-appellant in .18 acres of land only and accordingly decreed the same and for remaining quantum of land, the lower appellate court found no title and possession of the plaintiff as such the claim to the extent of .42 acres of land was refused and the lower appellate court also found that there was no clerical mistake in the judgment.