Present:

Mr. Justice A.K.M. Asaduzzaman Civil Revision No. 3252 of 2004

Edu Ram Barman and others

……………Petitioners.

-Versus-

Jitendra Nath Roy and others

……….Opposite parties.

Mr. Sherder Abul Hossain, Advocate ……….For the petitioners.

None appears

.........For the opposite parties.

Heard and judgment on 20th March, 2024. A.K.M.Asaduzzaman,J.

This rule was issued calling upon the opposite party to show

cause as to why the impugned judgment and decree dated 06.07.2004 in Other Appeal No. 104 of 2002 passed by the Additional District Judge, Nilphamari affirming those dated 03.08.2002 in Other Class Suit No.6 of 2000 passed by the Joint

District Judge, 1st Court, Nilphamari dismissing the suit should not be set aside.

Since the S.A. khatian was wrong, petitioner filed the suit for declaration of title with the contention that Dharakanta Barman was the owner on the basis of Korpha right of 4.13 acres of land, of plot No.1 appertaining to C.S. khatian No.14, of 6 mouza Satjan under Police Station Dimla under jotder Avoykant and Bhagaban Chandra. Dharahanta died leaving behind Bichchhed Barman. Bichched Barman died leaving 3 sons, plaintiff petitioner Nos. 1-3. Garib Barman was the owner on the basis of Korpha right of lot No.2 of the schedule of the plaint appertaining to C.S. khatian No.13 under same Jotedhar. Gorib Barman died leaving behind one son, Domasu Barman. Damosa Barman died leaving behind one son, Nirasha Barman. Narisha Barman died leaving behind one son the present plaintiff No.4. The plaintiffs as heirs of Bichchhed Barman and Nirasha Barman have become owner and possessor of the suit land. The defendant No.1 or any other person have no right or possession to schedule Ka property of the suit land. In the first part of Baisakh 1407 B.S. defendant No.1 claimed the crops of the suit land disclosing that the S.A. khatian of the suit land is in his name. Thereafter plaintiffs went to the local office and came to know that S.A. khatian of suit land has been recorded in the name of the defendant. This S.A. khatian is wrong and title of defendant No.1 has not been established to the suit land on the basis of the record of rights.

Opposite party as defendant contested the suit by filing written statement denying the plaint cast, alleging, inter alia, that Abaikatna Roy, father of defendant No.1 was twelve annas owner and Sarnamoyee was 4 annas owner and they were the Jotdar of C.S. Suit khatian No.13 and 14. khatian No.11 was published in the name of the Jotedar. Avaykatna purchased 4 annas Jotdari right of Sarnamoyee in the benami of his son Vagaban Chandra. Garib Barman was the Korfatenent in 4.55 acres of land of C.S. khatian No.13. Dharakanta Barman was Korfatenent in 4.40 acres of land of khatian No.14.

By the judgment and decree dated 03.08.2002, the Joint District Judge, 1st Court, Nilphamari dismissed the suit on contest.

Challenging the said judgment and decree, petitioner preferred Other Appeal No. 104 of 2002 before the Court of District Judge, Nilphamari, which was heard on transfer by the District Judge, Nilphamari, who by the impugned judgment and decree dated 06.07.2004 dismissed the appeal and affirmed the judgment of the trial court.

Challenging the said judgment and decree, petitioner obtained the instant rule.

Mr. Sherder Abul Hossain, the learned advocate appearing for the petitioner submits that court below while dismissing the suit although did not consider the evidences properly but arbitrarily held that plaintiff could not succeed to prove its case by submitting his title deed properly in court. He further drawing my attention to the paragraph No. 4 and 5 of the application for additional evidence, wherein it has been stated as follows:-

" 4. The documents Chit Pattan were not available at the time of trial or appeal as those were not in their hand. That at the time of liberation war, the whole family shifted to India and the old documents of the family property was also taken with them. Th