Abdul Hai and Others vs Madhab and Others
Citation: 60 DLR (2008)
Jurisdiction : Bangladesh
Appellants: Abdul Hai and Others
Respondents: Madhab and Others
Facts :
This appeal under Section 92 of the Evidence Act 1872 challenges a judgment dated 24 October 1996 in Title Suit Number 1219 of 1985, which affirmed the plaintiff’s title and ordered recovery of khas possession. A piece of land which originally belonged to the Bhowal Raj Estate and was donated to the family deity Sri Sri Madhab, becoming debuttar property managed by the Court of Wards. Defendant Chand Mia took Adhi Barga settlement through a registered kabulyat for ten years starting from 1371 BS. The plaintiff earlier obtained decrees against Chand Mia in Title Suit Numbers 14 of 1976 and 12 of 1976, recovered khas possession through Execution Cases Number 2 of 1977 and Number 7 of 1977, and thereby maintained his title to the suit land. The defendants remained in possession beyond their short lease for 1386 BS and refused to vacate on 11 July 1979, which led to the present suit. In their defense, defendant Number 6 claimed purchase of 1 point 05 acres of plot Number 147 from Chand Mia based on SA Khatian Number 63 and denied the debuttar character of the land. The trial Court accepted the plaintiff’s documentary and oral evidence, rejected the defendants’ claim, and decreed the suit.
Issues :
1. Whether the plaintiff’s documentary evidence proved title to the suit land as debuttar property, and whether Sections 91 and 92 of the Evidence Act prevented the defendants from contradicting it.
2. Whether the defendants established any valid title through the alleged purchase from Chand Mia and whether the SA Khatian they relied upon was genuine.
3. Whether the defendants’ continued possession after expiry of the 1386 BS lease gave them any lawful claim despite the earlier decrees and execution against Chand Mia.
Arguments :
Appellant’s Arguments:
The appellants argued that the kabulyat relied on by the plaintiff was forged and therefore had no legal effect under Section 92 of the Evidence Act 1872, since a document proved to be fabricated cannot bar oral evidence. They submitted that SA Khatian Number 63 recorded Chand Mia and Bashiruddin as owners, and the trial Court failed to give proper evidentiary weight to this record. They also argued that the land described in the plaint did not match the plaintiff’s documents, making a decree for khas possession legally unsustainable. They further contended that under the Bengal Tenancy Act oral settlement was valid, and Chand Mia’s oral settlement from the original landlords created a lawful tenancy that the trial Court wrongly ignored. They relied on decisions reported in DLR 447, 7 DLR 61, and 12 DLR 246 to support this position. The appellants finally argued that the plaintiff failed to prove actual recovery of possession in the earlier execution proceedings, and therefore the decree was wrongly granted.
Respondent’s Arguments:
The respondent argued that SA and RS Khatians showed the suit land as debuttar property of Sri Sri Madhab under the Bhowal Raj Estate and that such documentary records could not be contradicted under Section 92 of the Evidence Act 1872. They maintained that Chand Mia was only an Adhi Bargadar under a registered kabulyat of 1371 BS and gained no title, nor did defendant Number 6 who claimed purchase without producing any deed. They further stated that the plaintiff had already obtained decrees in Title Suit Numbers 12 of 1976 and 14 of 1976 and recovered possession through execution, and therefore the defendants had no lawful right to remain on the land.
Decisions :
The Court held that the plaintiff’s title to the suit land as debuttar property was proved through valid documentary evidence, and under Section 92 of the Evidence Act 1872 the defendants could not contradict those documents without proving forgery, which they failed to do. The Court found the plaintiff’s SA and RS Khatians genuine, rejected the defendants’ SA Khatian as unreliable, and held that the earlier decrees and execution proceedings against Chand Mia were binding.
As the defendants had no lawful title or right of possession, the appeal was dismissed, and the judgment and decree dated 24 October 1996 were affirmed.
Relevant Laws :
- The Evidence Act,1872
- Section: 91, 92
- The Bengal Tenancy Act, 1885
Author :
1. Md. Fuad Hasan
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