P L D 1964 Dacca 300 (PLP)

HASAN, J.‑

This appeal which is now converted to a revision is at the instance of the heirs of the deceased defendant No. 5 and arises out of a suit for recovery of khas possession on declara tion of the plaintiffs' title thereto. The plaintiffs' case, in short, is as follows : Schedule L land is an occupancy holding and is held by the plaintiffs under defendant No.

1. Schedule i (ka) land also belongs to the plaintiffs on settlement from defendant No.

1. The title as well as possession of the plaintiffs has been recorded in the R. S. Khatian. Schedule 2 is an accretion to Schedule 1 (ka) and is the subject‑matter of the suit. The plaintiffs' case is that in 1942 during the bombing by the Japanese, the plaintiffs left for Calcutta leaving these lands belonging to them under the cultivation of defendants Nos. 3 and 4 as bargadars. On their return they asked defendants Nos. 3 and 4 to vacate the suit land but in collusion with defendants Nos. 1 and 2, they refused to vacate. Hence the suit.

2. The suit was contested by defendants Nos. 3 and 4 only. Of them defendant No. 4 is the son of defendant No.

3. Their main contention is that neither Schedule 1, nor 1 (ka) nor 2 belongs to the plaintiffs but they belong to defendant No. 1 from whom defendants Nos. 3 and 4 took settlement of Schedule 2 land and on the basis of the settlement, they have been possessing and cultivating it in their own right and not as bargadars under the plaintiffs. They also pleaded bar of limitation and defect of parties.

3. The learned Munsif, 1st Court, Patiya dismissed the suit holding that the plaintiffs totally failed to prove their title and possession within 12 years from the date of the institution of the suit. On appeal in the first instance, the judgment and decree of the trial Court were affirmed but the plaintiffs took second appeal to this Court and this Court sent the case back on remand after giving some direction. On receipt of the records back after remand, the lower appellate Court this time came to a different finding, namely, the lower appellate Court repelled all the reasonings and set aside the finding of the trial Court and decreed the suit. Hence the present appeal. Mr. Ahmad Sobhan, the learned Advocate for the petitioners, has pressed only four grounds before us, namely, (1) that Exh. 3, a patta, on which the decision by the learned Subordinate Judge has been mainly based is not admissible in evidence ; (2) that the suit is barred by limitation ; (3) that the suit is bad for defect of parties i.e., non‑joinder of subsequent transferee of defendant No. 8, namely, 2 other sons of defendant No. 3 who created a subordinate interest in favour of his two sons and (4) that the plaintiffs' title to Schedule 1 (kha) has not been proved, rather the said finding of the learned Subordinate Judge is based on surmises.

4. We propose to discuss ground No. 4 first, namely, whether the plaintiffs have been able to establish their title to Schedule 1(ka) as described in the Schedule. From the records it appears the plaintiffs' title in Schedule 1 was not challenged at the trial though defendants Nos. 3 and 4 in a way challenged the title of the plaintiffs to all the Schedules of the plaint in their pleading. It also further appear that both Schedules 1 and 1 (ka) have been recorded in the names of the plaintiffs. We do not find any specific allegation attacking the correctness of the entries in the records of rights in the written statement though there is an assertion that the plaintiffs have no title to any of the Schedules described in the plaint. The trial Court taking into considera tion the entries in the records of rights held that prima facie title of the plaintiffs was proved by the entries in the record of rights and the initial onus was shifted on the defendants to prove that the plaintiffs have no title to Schedule 1 (ka) land. After dis cussion of the evidence adduced by the parties, the trial Court held that the presumption arising out of the entries in the record of rights in favour of the plaintiffs had been rebutted but the lower appellate Court after discussion of the same evidence came to a different finding to wit that the presumption arising out of the entries in the record of rights in favour of the plaintiff had not been rebutted. The question whether the presumption has been rebutted or not is a question of fact which has not been disputed by the learned Advocate for the petitioners but he has attacked the finding of the learned Subordinate Judge on the ground that his decision is not based on any evidence on the record but on mere surmises and partly it is also contrary to the evidence. The view taken by the learned Subordinate Judge that the plaintiffs have been able to prove that Schedule 1 (ka) belongs to the plaintiffs is mainly based on the finding that the presumption arising out of the records of rights in favour of the plaintiffs has not been rebutted. We may point out that the findings of the learned Subordinate Judge that the presumption has not been rebutted is based on evidence and cogent reasons. The defend ants, according to the learned Subordinate Judge, have totally failed to prove, that the entries in the record of rights are not correct. Some other reasons have also been given by the learned Subordinate Judge in order to come to the aforesaid findings. Those are that Schedule 1 land admittedly belongs to the plaintiffs and that though an assertion was made in the plaint that Schedule 1 and 1 (ka) land belong to the plaintiffs on settlement from defendant No. 1, defendant No. 1 did neither appear nor contest the suit challenging the said averment made by the plaintiffs in their plaint, a copy of which was served on defendant No. 1 according to law. Another ground is that as it has been admitted at the trial that Schedule 1 land belongs to the plaintiffs, Schedule 1 (ka) land being an accretion being admitted in the written statement the said land cannot but belong to the plaintiffs, the plaintiffs being the owners of Schedule 1 land. In addition to that, the learned Advocate for the plaintiffs‑opposite‑parties has contended that no documentary or oral evidence has been produced to show that defendant No. 1 settled Schedule 1 (ka) land with any other person or the same was not settled with the plaintiffs. After going through the judgments and the reasonings given by the learned Subordinate Judge, we are in full agreement with him that the plaintiffs have been able to prove their title satisfactorily in Schedule 1 (ka) land of the plaint. In this con nection Mr. Ahmad Sobhan has contended that much reliance was placed by the learned Subordinate Judge on Exh. 3, a certified copy of a certain patta, alleged to have been executed by defendant No. 1 in favour of defendant No. 4 which is not admissible in accordance with law. From Exh. 3 it appears that Schedule, 2 land was settled by defendant No. 1 with defendants Nos. 3 and

4. It appears from this document that there is a statement made by defendant No. 1 to the effect that the land lying to the west of the demised land belongs to the plaintiff] namely, the land described in Schedule 1 (ka). It does not appear that the original records were called for from defendant No. 1 or from defendants Nos. 3 and 4 but this copy was filed in the trial Court after the delivery of the judgment as contended by Mr. Ahmad Sobhan. It seems that this contention of Mr. Ahmad Sobhan is correct. It further appears that when the first appeal was being heard, an application was filed before the appellate Court for acceptance of Exh. 3 as additional evidence but the learned Subordinate Judge after hearing the arguments of the parties directed that Exh. 3 be kept with the records. We do not find that a similar prayer was made before the High Court but after remand, another prayer was made before the lower appellate Court for admission of Exh.

3. The learned Subordinate Judge after giving certain reasons admitted this document.

5. As to the contention of Mr. Sobhan that Exh. 3 is not admissible in evidence, Mr. Asaduzzaman Khan has contended that in view of the pleadings that defendant No. 1 settled with defendants 3 and 4 by virtue of a registered document, the lands covered by the Exh. 3 no formal proof of the document is neces sary and mere production is enough. He has further contended that in order to prove the terms of a document, no oral evidence is admissible. To this can be pointed out that though no oral evidence is admissible so as to contradict or vary the terms of the agreement, oral evidence can be led in order to show that the statement that the land lying to the west of the demised land belongs to the plaintiffs is or is not correct. So In our opinion, opportunity ought to have been given to the defendants to meet the statement made in Exh.

3. Being faced with this, Mr. Asaduz zaman Khan has contended that even if Exh. 3 is excluded from evidence, there will still remain sufficient evidence on record to support the finding of the learned Subordinate Judge to the effect that Schedule I (ka) land belongs to the plaintiffs. After going through the judgment we find that this contention of the learned Advocate for the opposite‑party has got substance, namely, after excluding Exh. 3 from evidence the other materials on record are sufficient to support the finding of the learned Subordinate Judge that the plaintiffs have been able to prove their title to Schedule I (ka). This view of ours also disposes of ground No. 1 of Mr. Ahmad Sobhan.

6. As to limitation, the trial Court held that the suit was barred by limitation as the plaintiffs were not in possession without 12 years from the date of institution of the suit; while on the other hand, a different view was taken by the learned Subordinate Judge, according to him defendants 3 and 4 could not have entered into suit land on the basis of the settlement before 2nd March 1944, as according to the defence case, defendant No. 1 settled the suit land with defendants 3 and 4 on that date. Even assuming the defence case of settlement to be true, it also appears from paragraphs 9 and 10 of the written statement that defendant No. 1 took settlement of Schedule 2 land from the Government on 20th March 1944, later than the settlement by defendant No. 1 with defendants 3 and

4. In addition to it, it has been found by the learned Subordinate Judge that the suit land appeared above the water shortly and not long before 20th March 1944, the date of settlement. The suit was instituted on 17th January 1951, within 12 years of the aforesaid settlement. It has been further found by the learned Subordinate Judge that defendants Nos. 3 and 4 were in possession of the suit land as bargadars under the plaintiffs and not by virtue of their title. Hence in any view of the matter, the suit cannot be held to be barred by limitation.

7. Mr. Ahmad Sobhan has challenged the finding of posses sion arrived at by the learned Subordinate Judge contending inter alia that the said finding is based on surmises which appear from pages 46 to

51. After going through the judgment as a whole we find that the learned Subordinate Judge took into consideration the oral evidence adduced by the parties and after giving some reasons, he rejected the evidence coming from the side of the defendants and accepted that coming from the plaintiffs. It has been contended by the learned Advocate for the petitioners that the finding of the trial Court in this connection should not have been lightly disturbed by the learned Subordinate Judge but we find from the judgment of the trial Court that its judgment was more or less based on the position of Khatian and also the oral evidence was disposed of in lump. The learned Subordinate Judge took into consideration the position of the Khatian also the oral evidence of the witnesses individually and after giving some reasons he rejected the evidence of the defence witnesses and accepted that of the plaintiffs. This being the case, we do not think it justified to interfere with a finding of fact based on evidence and supported by reasons. So the finding being that the suit has been instituted within 12 years, the suit cannot be held to be barred by limitation.

8. As to the last ground, namely, the suit is bad for defect of parties for not joining the subsequent lessees from defendant No. 3, it may be pointed out that those persons have not been alleged to be in possession adverse to that of the plaintiff. At present the only question is whether the plaintiffs have title and whether the defendants are entitled to defeat the plaintiff's' claim. The decision on this point being in favour of the plaintiffs, we do not find that the suit is in any way bad for defect of parties as all the defendants who are necessary parties to the suit have been impleaded as parties. In the result, the appeal which is converted to a revision is dismissed but in the circumstances of the case, we make no order as to costs. SIKANDAR ALI, J.‑I agree. S. Q./K. B. A. Petition dismissed.