LEX/BDHC/0286/2010

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

First Appeal Nos. 99, 182 and 183 of 1999

Decided On: 23.05.2010

Md. Waseq Ullah and Ors. Vs. Razia Khatun and Ors.

Hon'ble Judges/Coram:
Sharif Uddin Chakladar and Md. Shawkat Hossain, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: A.J. Mohammad Ali, Advocate

For Respondents/Defendant: Md. Lutfur Rahman Mondal, Advocate

Subject: Civil Procedure

Mentioned IN

Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order I Rule 9; Penal Code, 1860 - Section 147, Penal
Code, 1860 - Section 307, Penal Code, 1860 - Section 379, Penal Code, 1860 - Section 427,
Penal Code, 1860 - Section 447, Penal Code, 1860 - Section 66

Citing Reference:

Discussed: 6

Case Note:
Property - Declaration of title - Appeal filed against partly decree of suit for declaration of
title - Whether Respondent made out case for decree of declaration of title on basis of
adverse possession - Held, Trial Judge decreed suit in part - Suit was filed against
Government for declaration of title by adverse possession - Respondent did not make any
prayer against his original owner - Plaint case of oral purchase has not been proved - None
from and around suit property support case of Respondent - Limitation for getting title by
adverse possession against Government was 60 years uninterrupted possession -
Considering period of possession it appeared that Respondent did not acquired title by
adverse possession against Government - Respondent failed to prove his case - There was
finding of Trial Court that suit was barred by limitation - It was enough for dismissal of suit
- Appeal allowed. [13], [14],[15], [16],[17], [18]

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 JUDGMENT

Sharif Uddin Chakladar, J.

1. Appeal From Original Decree No. 99 of 1999 preferred by defendant-appellant, Appeal From
Original Decree No. 182 of 1999 preferred by plaintiffs and Appeal From Original Decree No. 183
of 1999 preferred by other defendants are directed against same judgment and decree dated
12.10.1998 passed by the learned Subordinate Judge, Artha Wrin Adalat, Noakhali decreeing Title
Suit No. 50 of 1990 in respect of 1.80 acres of land out of 2.93 acres of land of plot No. 510 by
adverse possession. The plaintiffs' case is that, the suit land originally belonged to Goura
Chandara Majumder, Harish Chandra Majumder, son of late Ramananda Majumder. Akhil
Chandra Majumder, son of late Ram Kanai Majumder, Upendra Kumar Majumder, son of late
Krishna Chandra Majumder. Raj Chandra Majumder, Girish Chandra Majumder and Sharat
Chandra Majumder, sons of late Bhoirab Chandra Majumder, Boikuntha Mohan Majumder,
Chandra Mohan Majumder, Shoshi Mohan Majumder, Proshanna Mohan Majumder, Boshanta
Mohan Majumder, Nogendra Mohan Majumder, Brojendra Mohan Majumder, sons of late Golak
Chandra Majumder and have been recorded 13 1/2 ana joma in previous khatian No. 75, by
registered kabuliyat dated 6th Srabon, 1267 B.S. the suit land along with other lands of previous
khatian No. 31 was given in possession of Goura Chandra i.e. 0.42 acres of land of dag No. 513
and 0.24 acres of land of dag No. 514, in total, 4.61 acres of land, i.e. the land of 'ka' schedule to
the suit land. In the plaint the land in west south corner 1.13 acres of land out of 2.93 acres of Plot
No. 510 was possessed by the defendant No. 4 forcefully which is kha schedule. The plaintiff joint
in the army and he participated in the second world war and after the war, he left from army and
came to his paternal homestead at Ullapara under Begumgonj police station where he resides.
Later on, he purchased some lands of Baroipara under Ramgonj police station and got pattan of
certain lands from Jaminder. The land of 'ka' schedule i.e. 4.61 acres of land were possessed by
the previous tenants and after their death, their heirs while in possession and during riot of 1948 it
was not possible for them to reside at Pakistan, they entered into an oral agreement with the
plaintiff for selling 'ga' schedule land at a consideration of Tk. 2,000/- and after receiving most of
the settled amount, in 1952 they gave possession of 'ga' schedule land in favour of the plaintiff
with under taking that they would register the saf kabala deed in favourable condition, during one
night they left Pakistan and went to India. The plaintiff after getting the land as aforesaid, done
some act showing that he is in possession of the aforesaid 'ga' schedule land and there by totally
denied the title of the previous owner. Plaintiffs such possession is actually, openly, notoriously,
continuously -for above than 12 years and thereby got actual and exclusive possession over the
suit land. By such invasion of the rights of the true owner's, gave them a cause of action for
recovery of khas possession at once. Plaintiffs in fact acquired title by adverse possession which
cannot be abolished or ruined. In that way plaintiff is in possession of 'ga' schedule land having
title thereto. Plaintiff left for Pakistan on way to London in 1966 -and his own persons, Goni Miah
Pandit and Joynal Abedin on his behalf, maintained the suit land by producing different kinds of
vegetables and also by cultivating in more portion of land. In dag Nos. 514 and 515 i.e. 'ga'

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schedule land plaintiff constructed homestead and planted different kinds of trees in 1952 and
maintained his possession. Plaintiff got connection of electricity line and also sunk tube well,
established cattle and poultry firm, rearing fishes in the pond and cultivated paddy in the land and
in this way, he openly possessed the suit land.

2. Defendant No. 4 being a very cunning person, wanted to grab the suit property and created
some false papers and documents in connivance with some other persons in respect of 'ga'
schedule land showing these papers, in Certificate Case No. 1960-61 in connection with Case No.
63/63-64, auction purchased the suit land which was confirmed on 27.3.1964. Defendant No. 4
thereafter, filed Certificate Miscellaneous Case No. 210/63-64 by his own man and said case was
dismissed and thereafter, Muslim Bhuiyan has been shown- as auction purchaser of the suit land.
All the papers relating to auction are only on papers as never Muslim Bhuiyan got possession of
the suit land. Defendant No. 4 got a nadabi deed from Muslim Bhuiyan on 25.2.1969 which was
registered in connivance with each other and this nadabi deed has been shown in schedule Uma.
Defendant No. 4 by registered saf kabala deed dated 10.1.1964 purchased some land of 'ga'
schedule from defendant No. 6 which is a paper transaction. Till promulgation of State Acquisition
and Tenancy Act the suit land was not demarcated and no land was recorded in the khatian, only
rent roll was prepared for collecting rent which does not show the actual position of the lands and
M.R. Khatian also not been prepared but the fact is plaintiff possessed the suit land from 1952.
Defendant No. 4 by his own man, instituted criminal case in Miscellaneous Case No. 6 of 1988
under section 147/447/379/307/427 of the Penal Code against the sons, relatives and cultivators
of the plaintiff and defendant No. 4 tried to grab the suit land mentioned in 'ga' schedule. In 'ga'
schedule land defendant Nos. 5 to 22 have no title, possession or interest and before
promulgation of Defense of Pakistan Rules, 1965, this lands had been in possession of plaintiff
and by this time plaintiff got title by adverse possession as he possessed the land for more than
12 years. Defendant Nos. 5 to 22 have no subsisting right, title and interest in the suit land and
also in the aforesaid 'ga' schedule land as vested as enemy property. But defendant No. 4 in
connivance with the employees of the vested cell includes 'ga' schedule land in V.P. Case No.
31/79-80 as enemy property. Plaintiff did not know about all these facts as he was not in
Bangladesh. While he came in Bangladesh from abroad, he was advised by the revenue
employee to file an application to the Sub divisional Officer (Sadar) Noakhali for getting lease of
3.48 acres of land i.e. 'ga' schedule land but in that application for lease some mistake as regard
dag Nos. had been taken place and also quantum of land was not properly mentioned, as such, he
later on, corrected the same, which is mentioned in 'Cha' schedule to the plaint. Over this
application, on 5.3.1979, tahshilder gave report to the Sub Divisional Officer, Sadar, Noakhali,
wherein it has been stated that original owners of the suit land, after delivering 'ga' schedule land
to the plaintiff, taking advantage of night, left Pakistan to India and V.P authority in 1973 realize
lease amount. Plaintiff took lease of the said property without getting any advise from his learned
Advocate but in fact by that lease, plaintiffs right, title and possession cannot be extinguished and
V.P. Case No. 31/79-80 is illegal, fraudulent, collusive and void.

3. Thereafter, plaintiff prayed amongst other, the following reliefs:

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4. Defendant No. 4 contested the suit by filing a written statement. It is his case that the suit land
originally belonged to Goura Chandra Majumder, Ombika Charan Paul and others. In district
settlement khatian No. 75 the suit land has been recorded in the name of Goura Chandra
Majumder and his brother, Harish Chandra Majumder but Harish Chandra Majumder by way of
delivery of possession, sold the land in respect of dag Nos. 513 and 514. The name of Goura
Chandra Majumder have been recorded in respect of 4.16 decimals of land in khatian No. 75.
During S.A. survey these lands recorded in the name of the heirs of the original owners M.R.R.
Khatian No. 95 has been correctly prepared and published. M.R.R. khatian No. 95 was prepared
in the names of the heirs of original owner and it has been admitted by all the parties to the suit.
Thereafter, the original owners died leaving brother, Ruhini Kumar, who inherited the property.
While Ruhini Kumar was in possession of the suit land, having title there to, died leaving Upendra
Kumar Majumder, Horendra Kumar Majumder, who inherited the property. Thereafter, the
recorded tenants of M.R.R. khatian, Romoni Mohan, Ramesh Chandra, Abani Mohan Majumder
died leaving their cousin, Kumudini Kanta Majumder, who inherited the property. In khatian No. 95,
in respect of 4.46 decimals of land the names of Ruhini Kumar Majumder, Surendra Nath
Majumder, Harendra Kumar Majumder, Kumudini Kanta Majumder and Jogadish Chandra
Majumder have been recorded as possessor. The said lands of district survey No. 75 and M.R.R.
No. 95, for arrear of rents, were put into auction in Certificate Case No. 15930/1960-61. Having
need of cash money, the original orders, by concealing the aforesaid fact, sold certain land of dag
Nos. 513 and 514 to this defendant after taking proper consideration money on 10.1.1964. Since
then, this defendant is in possession. This defendant having came to know of the aforesaid
certificate case, purchased the suit land in the name of Muslim Bhuiyan, his brother-in-law. That
auction has been confirmed. Thereafter, this defendant having in need of cash money, sold the

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suit land through Muslim Bhuiyan to Jaker Ullah and to his brother, Abdul Jalil. Thereafter,
Hashmat Ullah, the brother of Jaker ullah, died .01 decimals of land resold to this defendant. In the
land of dag Nos. 513 and 514 of M.R.R khatian No. 45, this defendant is in possession of 4.59
decimals of land and remaining .23 decimals of land is possessed by Jaker Ullah and others. In
respect of dag No. 513, the case of the defendant is that, original owner did not construct any
pucca houses but they lived in kancha houses and during cyclone of 1960, the dwelling huts of the
original owners were damaged. The original owners sold the suit land to this defendant. After
auction, they resides to their respective relatives' houses and during liberation, in the middle of
1971, while they left for India, on the way they were killed by Pakistani Army.

The "benamder dalil/deed" was executed on 25.2.1969 and it was registered on 15.3.1969 as
deed No. 3462 in favour of Muslim Bhuiyan and this is correct. During the middle part of 1964 in
dag No. 510 this defendant constructed a semi pucca house. V.P. Misc. Case No. 31/79-80 was
legally instituted and the plaintiff obtained lease from the Government, as such, he cannot demand
the suit property. Plaintiff filed V.P. Appeal No. 8 of 1987 but that was dismissed by the Additional
Deputy Commissioner (A.D.C) Revenue on 3.4.1989. This defendant prayed for dismissal of the
suit.

5. Learned Judge on the pleadings of the parties at first framed the following issues:

6. Learned Judge on consideration of the depositions of the witnesses, i.e. plaintiff examined six
witnesses and defendant also examined 5 witnesses, learned Judge thereafter, recast the issues
as hereunder:-

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1. Are both the T.S. No. 50/90 and Title Suit No. 46/94 maintainable in its present form?

2. Is T.S. No. 50/90-barred by principle of estoppels waiver and acquiescence?

3. Are both the suits barred by law of limitation?

4. Are both the suits had for defect of parties?

5. Whether original D.S. recorded tenant and some of their hairs transferred the 'Ga' schedule land
at Tk. 2000/- and the plaintiff put in to possession of the same taking almost earnest money of the
price?

6. Whether plaintiff erected homestead in the part of Ga schedule since 1952 A.D. and possession
Ga schedule land and it was under care and custody of Gani Miah and Joynal Abedine since 1966
in absence of the plaintiff?

7. Whether the title of defendant Nos. 5-22 extinguished or title of defendant Nos. 2-22 was
extinguished by the certificate case and sale for rent?

8. Is the plaintiff entitled to get a decree that suit is not vested property?

9. Is the proceeding of Certificate Case No. 15930/60-61 and sale case No. 63/63-64 null and void
and not binding upon the plaintiff?

10. Is the plaintiff entitled to get declaration that Uma scheduled Nadabi deed and kabala
described in Cha schedule null and void?

11. Is the plaintiff entitled to get declaration that all the proceedings of V.P. Misc. Case No. 31/79-
80 and lease order there by in favour of the plaintiff illegal?

12. Is the plaintiff entitled to get declaration of title by way of adverse possession?

13. Has the defendant No. 4 of T.S. No. 50/90 and plaintiff of T.S.46/94 right title and possession
in the land of T.S. No. 46/94 and entitled to get relief as prayed for?

14. Is the land of sister suit vague, indefinite and unspecified?

15. Is the plaintiff of the mother suit entitled to get relief as prayed for?

Learned Judge on consideration of the evidences both oral and documentary decreed the suit.

7. Mr. A.J. Mohammad Ali, learned Advocate, appearing for the appellants, submits that, the
issues framed by the learned Judge were decided against the plaintiff but the suit has been partly

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decreed on admission that this defendant admitted certain portion of the land possessed by the
defendant and plaintiff as such the impugned judgment suffers from misreading and non-
consideration of evidence on record as the learned Advocate submits that the suit was filed for
declaration of title by adverse possession against Government, not against defendant No. 4 and it
is settled principal of law that against Government, 60 years possession is required for having title
by adverse possession as such, the learned Judge at least dismissed the suit. Learned Advocate
further submits that, plaintiff cannot blow hot and cold at the same breathing as in the plaint he
admitted that he filed application for getting lease from the Government now he cannot turned
round to say the suit land is not Government property. Learned Advocate further submits that,
plaintiff did not produce any reliable evidence to show that there was any agreement for selling of
the suit land by so-called owner as there being no evidence on this score as such learned Judge
committed gross illegality in believing plaintiff case.

8. Mr. Md. Lutfor Rahman Mandal, learned Advocate, appearing for the respondents of F.A. No.
99 of 1999 and for the appellants of F.A. No. 182 of 1999 and F.A. No. 183 of 1999, submits that,
plaintiff through oral and documentary evidence has been able to prove that he purchased the suit
land from the original owners in, 1952 and since then he is in possession, as such he acquired title
by adverse possession particularly against defendant No. 4. Learned Advocate further submits
that, possession of the plaintiff having been proved from 1952 he acquired title against the
defendant which the learned judge failed to consider and had the learned Judge consider the case
properly then he would decreed the suit. Learned Advocate further submits that, on the ill advise of
the employees of the vested property cell plaintiff filed application for getting lease of the suit
property but for that reason, the right, title, interest, which plaintiff acquired by uninterrupted
possession cannot be washed away which is clearly seen from the application which he filed
mistakenly on the advise of the employees of the vested property cell. Learned advocate further
submits that, defendant No. 4 from beginning acted surreptitiously in grabbing the suit land as he
not only filed criminal case against plaintiff but also put the case land into auction illegally and also
purchased the same in the name of his brother-in-law, as such, it is clear that defendant No. 4 was
acted against the plaintiff for enjoyment of the suit land. Learned Advocate cited several decisions
in support of his submission. Mr. Md. Lutfor Rahman Mondal, learned Advocate relied on the case
of Saifur Rahman and others vs. Haider Shah and another, 19 DLR(SC)-433 wherein on the
question that when execution of a decree within 12 years was presented by resort to fraud upon
Court, Supreme Court of Pakistan held that fraud includes deceit and circumvention judgment
obtained by fraud is non-existent in eye of law. Learned Advocate next relied on the case of Jeka
Dula vs. Bai Jivi and others, A.I.R. 1938 (Bombay) 37, the case on Specific Performance of
Contract, where it has been held that, a grantor or a lessor cannot be allowed to dispute his own
title with either the grantee or the lessee. Learned Advocate then relied on the case of Arun Kumar
Pal and others vs. Assistant Custodian of Enemy Property (Land and Building) and A.D.C.(Rev.),
Dhaka and others, 1983 BCR-225, where it has been held that, mere prayer for lease of the
property from the Deputy, Custodian of Enemy Property does not stop a person from challenging
the enemy character of the suit property. There is no estoppel against statute. Then learned

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Advocate relied on the case of Md. Ashraf Ali and another vs. Fatique Chandra Saha and others,
1983 BLD (AD)-315, where on a case of adverse possession, Appellate Division held that the
plaintiffs' claim is against the real owner on the basis of bainapatra and they were possessing the
land for more than the statutory period adversely against him and have perfected their title by such
possession against him and not against the defendants. Plaintiffs have not derived title against the
defendants by adverse possession but against the real owner. The defendant cannot plead point
of limitation as the defendant was not in physical possession. Though the plaintiffs could not prove
their bainapatra, their physical possession had titled in their favour against the true owner and the
suit was therefore rightly, decreed.

9. Learned Advocate then relied on the case of Fazar All Tendal vs. Fazal Miah and others, 12
BLD(AD)-203, where it has been held that treatment of documents (i.e. nadabi patra, C.S. khatian
and report of the pleader commissioner) the Appellate Division held that these are not documents
of title. Those are considered as supportive evidence of the plaintiffs' claim of title through their
kabala. Learned Advocate next relied on the case of Nagendra Chandra Sarker vs. Aftabuddin
and others, 15 BLD(AD)-135, where it has been held that, the result, of a criminal case does not
affect a civil suit in any way. The civil Court is free to come to its own findings independent of the
result of the criminal case.

10. Learned Advocate then submits that, the judgment and decree passed by the learned Judge
have not been reflected the proper forum and factual aspect of the case, is not sustainable in law.

11. We have considered the submissions of the learned Advocates, the depositions of the
witnesses, the evidences on record and also the decisions cited by the learned Advocate for the
plaintiff-appellant.

12. Learned Judge on consideration of issue Nos. 1 and 2 held that, the suit is barred by principle
of estoppel, waiver and acquiescence as the plaintiff did not pray, for adverse possession against
the principle-defendants. The suit is barred by law of limitation. On issue No. 3, learned Judge
held that "therefore, in view of such testimony as to knowledge of auction purchase and suit
nadabi deed and suit kabala since 1979 and 1964 the mother suit is barred by law of limitation".
Learned Judge on issue No. 4 on reference to the decision of 47 DLR-524 and 13 DLR-865, held
that, 'but in this case 1st part of provision of order 1 rule 9 of the Code of Civil Procedure will come
in to play. On the contrary Title Suit No. 46/94 having been brought against the stranger to the suit
khatians need not be impleaded other lawful co-sharers as such this suit is bad for defect of
parties'. On consideration of issue No. 5 is whether original R.S. recorded tenant and their heirs
transferred the 'ga' schedule land at Tk. 2,000/- and plaintiff was put into possession, learned
Judge found that "none of the P.Ws. corroborated or said anything to this effect. Therefore,
plaintiff could not prove his possession since 1948 by virtue of alleged oral contract for sale and
payment of alleged consideration money. Learned Judge also found that plaintiff did not specify
the case of looting of original owners homestead nor the date of alleged contract for sale". On
consideration of issue No. 6 the learned Judge decided it against the plaintiff as P.W.3, Abdur

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Ruhim during cross-examination stated that "firstly they had a farm, then homestead admittedly
original plaintiff has got 70X35 cubic length wide two storied pucca building in the village Ulupara.
So, question arises why he would have erected another homestead inn the suit land measuring 15
decimals of land. Rather evidence on record convinces us that those are erected on the period
stated by the defence in his pleadings". Learned Judge also decided issue No. 7 against plaintiff
as so it appears that title of the original owner defendant Nos. 5-22 has been extinguished by
exhibit Kha, exhibit ga and gha ultimately in favour of defendant. None of them challenged auction
sale. It may noted that ostensible auction purchaser Muslim Bhuiyan, sister's husband of
defendant No. 4 did not challenge benami purchase of auction. In deciding issue No. 8 learned
judge found that "it may be noted that it is decided by the V.P. authority itself that the suit property
is not vested one and lease order passed in favour of the original plaintiff was duly cancelled at the
instance of the defendant on contest. So, it is redundant to pass any decision further to this effect
as both sides think that suit property was never vested and non-resident one." Learned Judge
decided issue No. 9 as "co-sharers of the suit M.R.R. Khatians challenged the proceedings but the
original plaintiff whose name is not available in any paper like R.O.R nor he paid any rent thereof,
during relevant period nor subsequent to the same. No appropriate authority challenged the
impugned certificate proceedings. Mere irregularity for non observance of any procedural law or
minor anomalies of facts do not render the proceeding null and void as a whole. Stranger like
plaintiff has no locus standi to challenge the same. With the certificate sale interest of the original
owners extinguished. Moreover, since plaintiff did not take any legal step against the said
proceeding within statutory period of limitation since his knowledge in 1979 AD, he has lost right of
challenging proceedings of certificate case in question." On issue No. 10, learned Judge inter alia
on reference to the several decisions of Indian jurisdiction held that "so, in view of above principle
the effect of section 66 is not to make benami transaction illegal and the instant suit is not in
between ostensible purchaser and the real purchaser but in between stranger and real purchaser.
Therefore, this sort of benami transaction cannot be treated as null and void and same case with
subsequent nadabi transaction in between defendant and ostensible purchaser Muslim Bhuiyan,
the brother-in-law of the defendant. Stranger like original plaintiff cannot question about the said
nadabi deed and kabala described in 'Sa" schedule land." In deciding issue No. 11, learned Judge
held that "in view of preceding discussion plaintiff has lost right to challenge proceedings of V.P.
Misc. Case No. 31/79-80 by which plaintiff brought lease of 3.08 acres of land out of suit land,
which is subsequently cancelled at the instance of defendant on contest." In deciding issue No.
12, learned Judge on consideration of deposition of P.W.2, Advocate Commissioner's cross
examination and also on consideration of deposition, of P.W.4, Mir Md. Abdul and P.W.5, is a
earth work labourer, held that, 'so, it may safely be presumed that original plaintiff has been
possessing 1.80 acres of land in plot No. 510 adversely before his filing of the application the
exhibit Uma openly notoriously for more than 12 years'. In deciding issue No. 13, learned judge on
consideration of some judgments and some reports decided in Indian jurisdiction held that "a
judgment in criminal case is admissible to show what order was made, who the party to the
dispute and what the land in dispute was and who was held entitled to possession." Learned
Judge decided issue No. 14 that 'the suit land is not suffered from unspecification and vagueness.

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And decided issue No. 15 as plaintiff by way of adverse possession is entitled in respect of 1.80
acres of land.

13. It appears that the learned Judge held that the suit is barred by limitation, bad for defect of
parties, plaintiff's predecessors title was extinguished, plaintiff cannot challenge the auction in
favour of defendant, plaintiffs witnesses did not support plaint case, the plaintiffs predecessors
names -have not been recorded in any khatians, no rent receipt is produced by plaintiff, plaintiff
being a stranger has no locus standi to challenge the benami transaction in between defendant
and his brother-in-law and after holding as such, the suit ought to be dismissed but the learned
Judge decreed the suit in part. Let us see how far the judgment is sustainable in law.

14. The suit was filed against defendant No. 1 i.e. Government of Bangladesh for declaration of
title by adverse possession. Let us see what the plaintiff wanted to prove. Plaintiff sought for
declaration that he got adverse possession in respect of 'ga' schedule land and ga schedule
relates to some dwelling viti, and pond with some planted trees. Plaintiff narrated the fact that
original owners of the suit land while left the country in 1952 orally sold the suit land to the plaintiff.
Let us quote from plaint as:

On, a reading of this portion of the plaint we are of the view that it is totally vague statement. Now
we see how he qualified statement in his deposition. In his examination-in-chief P.W. 1 stated that

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15. From the deposition, the case of, the plaintiff on adverse possession against Government
stands totally vague as one cannot see the head and tail of plaintiffs' claim which no one can he
gathered either from the plaint or from his deposition if we consider the plaintiffs entire case make
out in plaint and from his deposition then it stands as the Hindu community due to fear of their life
in Pakistan, transferred their land to the Muslim like plaintiff and delivered possession. Plaintiff
claimed title against the original owners as they transferred the land orally and by adverse
possession against the Government. Plaintiff did not make any prayer against his original owner
but plaintiff strict his claim of adverse possession, against Government. We have already seen the
plaint case of oral purchase has not been proved. There is total vagueness on ibis score. A person
cannot forget certain things and one of them is acquiring property, i.e. the date when the contract
is made, the date the money transacted, the date the deed registered. Here the case is of
purchasing the property orally and plaintiff such state of affairs should particular over the event of
transaction. But we find from the plaint and also from deposition of the plaintiff that everything of
the plaintiff regarding transfer of the suit land is so much in dark that it cannot be seen as it lost in
the darkness. The case of oral purchase stands as unbelievable.

16. Now, on adverse possession. Adverse possession must be actual, visible, exclusive, hostile,
notorious and confined during the time necessary to create a bar under a statute of limitations and
it must be adequate in continuity, publicity and extent. None from in and around the suit property
support the case of the plaintiff.

17. Now another factor is that plaintiff claim that he purchased the suit property orally as such he
cannot assert that he got title by adverse possession as title by adverse possession is to be
claimed by a person whose title is to be perfected other than by virtue of a title deed or a contract
to purchase. It is the case of the plaintiff that suit land was declared as enemy property. It is the
case of the plaintiff that he mistakenly filed application for getting lease of the property on the
advise of the employees of the vested property cell. The advise of the employees of the vested
property may be mistakenly but since application was filed, for getting lease, it proved that he
accepted the property as enemy property. Now he cannot turned round and sought declaration of
title by adverse possession Bangladesh. The limitation for getting title by adverse possession
against Government is 60 years uninterrupted possession. If it assumed the case of the plaintiff

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that he entered into possession in 1952 from the original owners, but the suit having filed in 1990,
as such he did not acquired title by adverse possession against principal defendant i.e.
Government of Bangladesh.

18. On a reading of the judgment it appears that the learned judge after holding that the suit is
barred by limitation, for defect of parties, plaintiffs predecessor's names were not recorded in any
of the Khatians, no rent receipt coming from the side of the plaintiff, plaintiff failed to prove his
case and so on committed gross illegality in decreeing the suit in part. When there is a finding that
suit is barred by limitation, it is enough for dismissal of the suit. We are of the view that learned
judge was totally on ignorance of law in passing the impugned judgment. We find substance in
F.A. No. 99 of 1999 and we find no substance in F.A. No. 182 and 183 of 1999 and are dismissed.

19. In the result F.A. No. 99 of 1999 is allowed. No costs.

20. The impugned judgment and decree dated 12.10.1998 passed by the learned Subordinate
Judge, Artha Rin Adalat, Noakhali decreeing the suit partly by declaring title of the plaintiff by
adverse possession in respect of 1.80 acres of land out of 2.93 acres of land of plot No. 510 in
Title Suit No. 50 of 1990 is set aside. Title Suit No. 50 of 1990 is dismissed. Send down the lower
Court records at once.

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2023-12-26 Source: www.bdlex.com Adv. Salahuddin Ahmed