BANGLADESH Vs. MD. ABDUL HAQUE

JUDGEMENT

(1.) This rule has been issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 29.11.2001 passed by the learned Joint District Judge, 3rd Court, Mymensingh, in Title Appeal No. 76 of 2000 allowing the appeal and thereby reversing the judgment and decree dated 09.03.2000 passed by the learned Assistant Judge, Muktagacha, Mymensingh, in 0ther Class Suit No.30 of 1993 dismissing the suit, should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper. Facts relevant for disposal of the rule are that the opposite party herein as plaintiff instituted Other Class Suit No.30 of 1999 in the Court of learned Assistant Judge, Muktagacha, Mymensingh, for declaration of title contending interalia that the suit land originally belonged to Zemindar Shashi kanta acharja chowdhury; Plaintiffs father took settlement of the suit land on 7th Jaista 1344 B. S. from Zemindary Sheresta on payment of taka 100/- as Salami and since then possessed the suit land by erecting homestead and digging pond therein; After his expiry, plaintiff has been living therein with his family; Plaintiffs father paid rent to the Zemindary Sheresta and subsequently paid rents to the Government exchequer; Plaintiffs father possessed the suit land uninterruptedly for more than 12 years and thus acquired a valid title by way of adverse possession; though the defendants have no manner of title and possession but the suit land wrongly recorded as khas land in the R.S. Khatian; Plaintiff came to know about the wrong recording on 12.09.1999 from Tahsil 0ffice and constrained to file this suit. Defendant no.2 contested the suit by filing a written statement contending interalia that the suit is barred by the principles of waiver, estoppel and acquiscence; not maintainable in its present form. Case of the defendant is that after abolition of Zemindari system, suit land has been vested to the government by operation of law and since then government has been possessing the suit land; R. S. khatian rightly prepared in the name of Government.

(2.) After hearing the parties, learned Assistant Judge dismissed the suit by his judgment and decree dated 09.03.2000 and 20.03.2000 respectively.

(3.) Having aggrieved by and dissatisfied with the judgment and decree, the defendant-respondents as petitioners preferred this application under Section 115(1) of the Code of Civil Procedure and obtained the present rule. Mr. Md. Khalilur Rahman, learned Assistant Attorney General, appearing for the petitioners submits that the trial court after assessing the evidence on record arrived at a finding that the Hukumnama dated 7th Jaishta 1944 B. S. is forged one and created only to grab the suit land, though appellate Court below affirmed the finding but erroneously allowed the appeal on a finding that the plaintiff-opposite party has been possessing the suit land since his predecessor for more than 60 years and thus acquired title by way of adverse possession without considering the legal aspect that a person is not entitled to declaration of title through adverse possession when claiming title through rayoti settlement. In support of his submission, learned advocate referred to the case of Salma Khatun and others -Vs- Zilla Parishad, Chittagong, represented by its Secretary and another, reported in 51 DLR (AD) 257.