KULSUM BIBI Vs. DEPUTY COMMISSIONER, MAGURA

JUDGEMENT

(1.) This civil petition for leave to appeal has arisen out of judgment and order dated 15-4-2003 passed by the High Court Division in Civil Revision No. 330 of 1996 discharging the Rule which was obtained against the judgment and decree dated 19-7-1995 passed by the learned District Judge, Magura in Title Appeal No. 76 of 1993 reversing those dated 27-5-1993 passed by the learned Assistant Judge, Mohammadpur, Magura in Title Suit No. 35 of 1987 decreeing the suit.

(2.) Brief facts leading to the filing of this civil petition are that the petitioners, as plaintiffs, instituted the above suit seeking declaration that (a) the order dated 15-1-1987 passed by the Additional Deputy Commissioner (Revenue), Magura is illegal, void, without jurisdiction and not binding upon them (b) the suit land measuring 11.89 acres appertaining to DS Khatian No.1260, present Khatian Nos. 3025, 3032 and 3039, Plot No. 6752, is not at all Jalmohal (c) for declaration of their title in the suit land and also for confirmation of their possession in the suit land and also (d) for a decree for permanent injunction so that the Government cannot lease out the suit land to others and cannot interfere with their peaceful possession therein, stating, inter alia, that the suit land measuring 18.14 acres was recorded in the name of Endu Bhuson Bashu as rayot and possessor in the DS record and from him the father of plaintiff No.4 took settlement of 1.80 acres of land in the year 1302 BS and the father of plaintiff Nos.1 and 2 took settlement of 4.95 acres of land in the year 1330 BS and the father of the plaintiff Nos. 4 and 5 also took settlement of 11.89 acres of land on 28-3-1912 and they have been possessing the same amicably by paying rents to the ex-landlords and that during SA operation the suit land being wrongly recorded in the name of the Government the predecessors of the plaintiffs filed Title Suit No. 48 of 1965, Title Suit No. 18 of 1974 and Title Suit No. 567 of 1980 for correction of the record of rights and the said suits were decreed and in terms of said decree the predecessors of the plaintiffs mutated their names opening 3 Khatians in their names in the year 1966, 1975 and 1981 and had been paying rents to the Government and after the deaths of their predecessors the plaintiffs had been possessing the suit land by growing paddy and also by rearing fishes in 5 ponds excavated by their predecessors and the ADC (Revenue) by an Administrative Order dated 15-1-1987 cancelled the above mutation Khatians which were opened on the basis of the decrees of civil Court and thus cloud has been created on the title of the plaintiffs in the suit land and hence the suit. The Deputy Commissioner, Magura, the defendant No.1, contested the suit by filing a written statement contending, inter alia, that the suit land is Beel Class of land which vested to the Government under section 20(2) of the State Acquisition and Tenancy Act 1950, hereinafter referred to as the Act, and the plaintiffs by obtaining ex parte decree mutated their names in collusion with the officials of the government and so the suit land has been rightly recorded in the name of the Government and the Government had been possessing the suit land through the lessees since 1993. The defendant Nos. 5 and 6 contested the suit by filing joint written statement contending that as co-sharer they have title over 1.65 acres of the suit land. The defendant Nos. 7-10 also contested the suit by filing joint written statement contending that they are the lessees from the Government and have been possessing the suit land which is a fishery. The trial Court, after hearing, decreed the suit. Then the defendant No. 1 preferred Title Appeal No. 76 of 1993 and the defendant Nos. 5 and 6 also preferred Title Appeal No. 64 of 1993. The learned District Judge, Magura, after hearing, allowed both the appeals. Then the plaintiffs filed Civil Revision Nos.329 and 330 of 1996 and obtained Rules as well as orders of status quo order in respect of possession of the suit land. The High Court Division, after hearing, discharged both the Rules. As it appears during the pendency of the above revisions in the High Court Division the plaintiff/petitioners compromised the dispute with the defendant Nos. 5 and 6 and so the petitioners did not file any leave petition against the order dated 15-4-2003 passed by the High Court Division in Civil Revision No. 329 of 1996 in which the above defendant Nos. 5 and 6 were the opposite parties.

(3.) The learned Counsel for the plaintiff-petitioners submits that the predecessors of the plaintiffs took settlement of the suit land from the ex-landlord before State Acquisition and Tenancy Act, 1950 came into force and they paid rents to the ex-landlord and thereafter the suit land having been wrongly recorded in the name of the Government during SA operation, the said predecessors separately filed Title Suit No.48 of 1965, Title Suit No.18 of 1974 and Title Suit No. 567 of 1980 for correction of the wrong recording of rights and got decrees against the Government and then the Government, on the basis of said decrees, corrected the wrong recording of rights and mutated their names and they also paid rents and so the ADC (Revenue) had no authority to cancel the said corrected records by a mere Administrative Order dated 15-1-1987 without taking any steps for setting aside the aforesaid decrees; the issue, nature, cause of action and the parties in the three suits as stated above and the present suit i.e. Title Suit No. 35 of 1987 are completely different but yet the High Court Division wrongly found that the present suit is hit by section 11 of the Code of Civil Procedure; both the appellate Court and the High Court Division failed to consider that section 20(2)(a) of the SAT Act, 1950 is not applicable in the present case because the predecessors of the plaintiffs took settlement of the suit land from the owner of the suit land long before SA operation and when the SAT Act, 1950 came into force the suit land was the private land of the plaintiffs and not the khas land of the Zaminder and so the same cannot vest in the Government; the appellate Court as well as the High Court Division failed to consider that the plaintiffs by examining 5 witnesses and by adducing documentary evidence, Exhibits 1-39 in respect of which no objection was raised, proved their right title, interest and possession in the suit land for 100 years by growing paddy and by rearing fishes in the ponds excavated by them and, on the other hand, the government miserably failed to prove their case by adducing oral and/or documentary evidence and they filed the present suit when the Government leased out the suit land to others and then they obtained order of temporary injunction from the trial Court against the Government as well as the lessees and ultimately, got decree of permanent injunction in the trial court and the said decree was not stayed by the lower appellate Court and they also obtained status quo order from the High Court Division and, as such, always there was an injunction against the defendants till disposal of the civil revision and so the finding of the appellate Court as well as the High Court Division to the effect that the lessees were in possession of the suit land is highly illegal; the predecessors of the plaintiffs having been in possession of the suit land and the plaintiffs, as heirs, having been possessing the suit land, even if by invalid documents, for last 100 years, they acquired valid title in the suit land by adverse possession against the Government and the suit land cannot be snatched away after 100 years; the appellate Court as well as the High Court Division misread and misconstrued the oral and documentary evidences as adduced by the parties and moreover, none having ever raised any objection against the documentary evidence of the plaintiffs that is Exhibits 1-39, which prove 100 years' possession of the plaintiffs on the suit land, the adverse comment passed by the High Court Division over those documents are without jurisdiction; the schedule of the suit land along with sketch map and the Advocate Commissioner's report and the Mutation Khatians prove that the suit land is identical, specific and the plaintiffs have been able to prove the amicable partition of the suit land between the co-sharers and, as such, the finding of the appellate Court about schedule of the land and amicable partition is illegal.