IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO. 4555 OF 2017

In the matter of:

An application under Section 25 of the Small Cause Courts Act.

And

Dr. Khan Mostafa Kamal

... Petitioner

-Versus-

Md. Awal Sheikh and others

... Opposite parties

Mr. Surojit Bhattacharjee, Advocate

.... For the petitioner.

Mr. Chanchal Kumar Biswas, Advocate

…. For the opposite party No.1. Heard and Judgment on 02.09.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the judgment and decree dated 17.08.2017 passed by the learned Senior Assistant Judge, Sadar, Bagerhat exercising jurisdiction under Small Cause Courts Act in Small Cause Court Suit No.2 of 2012 dismissing the suit should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that petitioner as plaintiff instituted above Small Cause Court Suit No.2 of 2012 for eviction of the monthly tenant

defendants from the disputed premises as described in the schedule to the plaint.

It has been alleged that 4 decimals land appertaining to S.A. Khatian Nos.472, 42 and 59 and plot Nos.10, 12 and 13 were acquired by the plaintiff and his brothers and they were in possession in above land by constructing semi pacca three huts. Above huts were rented to defendant No.1 by the father of the plaintiff on 02.02.2003 at a monthly rental of Tk.200/-. Above defendant paid rent regularly for a few days and thereafter stopped paying rent. The plaintiff has served a notice under Section 106 of the Transfer of Property Act terminating above tenancy and filed this suit for eviction.

Defendant No.1 contested the suit by filing a written statement wherein he has denied all material claims and allegations made in the plain and stated that the father of the plaintiff namely Md. Saidur Rahman Khan was a man of good heart who gave permission to the plaintiff who is a landless peasant to erect his dwelling huts in the disputed land and subsequently he gifted above land to the defendant. The defendant is living in the above huts alongwith the members of the his family and running a tea stall in another ghar. Plaintiff was not his landlord nor he was a tenant for the disputed premises.

At trial plaintiff examined 4 witnesses and defendants examined two. Documents produced and proved by the plaintiff were marked as Exhibit Nos.1-5 but did not produce any documents.

On consideration of facts and circumstances of the case and evidence on record the learned Judge of the Small Cause Court dismissed the suit.

Being aggrieved by above judgment and decree plaintiff as petitioner moved to this Court and obtained this Rule.

Mr. Surojit Bhattacharjee, learned Advocate for the petitioner submits that the plaintiff and his brothers acquired disputed 4 decimal land by registered kabala deed and deed of exchange. But the defendants did not have any rightful claim over above land. The disputed premise was rented to the defendant by the father of the plaintiff and above rental agreement was produced and proved at trial. The defendant could not produce and iota of evidence in support of his so-called oral gift from the father of the plaintiff. The learned Judge of the Small Cause Court miserably failed to appreciate the evidence on record properly and most illegally dismissed the suit which is not maintainable.

On the other hand Mr. Chanchal Kumar Biswas, learned Advocate for the opposite party No.1 submits that the plaintiff has claimed title in disputed 4 decimals land by a deed of exchange dated 24.06.2007 but claimed that above premises was rented to the defendant on 02.02.2003. Admittedly the disputed premises was not rented to the defendant by the plaintiff. Plaintiff claims that the same was rented out