IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.4614 of 2023

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Md. Gour Ali

.... Petitioner

-Versus-

Md. Jahangir Miah and others

.... Opposite parties

Mr. Baki Md. Murtoza with

Mr. Md. Shaikhul Islam, Advocates

.... For the petitioner.

None appears

.... For the opposite parties.

Heard on 15.12.2024 and Judgment on 17.12.2024.

On an application under Section 115(1) of the Code of Civil Procedure this Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 04.07.2018 passed by the learned Additional District Judge, Hobitonj in Title Appeal No.35 of 2014 allowing the appeal and thereby reversing the judgment and decree dated 19.03.2014 passed by the learned Senior Assistant Judge, Hobitonj in Title Suit No.29 of 2003 dismissing the suit should not be set aside and/or pass such other or further order or as to this Court may seem fit and proper.

Facts in short are that the opposite parties as plaintiffs instituted

1 above suit for declaration of title and recovery of possession for 172

decimal land alleging that above property belonged to Akram Hossain who died leaving the plaintiffs as his heirs and the plaintiffs were in possession in above land by cultivation. On 1st Boishakh 1399 B.S. defendant No.1 became a borgader of above land but in 1408 B.S. defendant No.1 stopped giving share of the crops and on 9th Falgun 1409 B.S. raised an unlawful claim of title for above land.

Defendant No.1 contested the suit by filing a written statement where he has denied all claims and allegations made in the plaint and stated that above land belonged to Akram Hossain predecessor of the plaintiffs who declared to sale above land and defendant No.2 agreed to purchase the same for Taka 1700/- and on receipt of above full consideration Akram Hossain delivered possession to defendant No.2 but due to want of money no sale deed was executed and registered. Defendant No.1 sold above land to defendant No.2 for Taka 16,000/- after three years of above purchase. Defendant No.1 is in possession in above land from above date as the owner of the same and he was never a borgader of the plaintiffs for above land.

At trial plaintiffs examined 4 witnesses and out of them PW1 remained not cross examined by the defendant. Documents of the plaintiffs were marked as Exhibit Nos.1 and 2 series. On the other hand the defendant examined 6 witnesses but did not produce any document at trial.

On consideration of facts and circumstances of the case and evidence on record the learned Senior Assistant Judge dismissed the suit.

Being aggrieved by above judgment and decree of the trial Court above plaintiffs as appellants preferred Title Appeal No.35 of 2014 to the District Judge, Hobigonj which was heard by the learned Additional District Judge who allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit.

Being aggrieved by and dissatisfied with above judgment and decree of the Court of Appeal below above respondents as appellants moved to this Court with an application under Section 115(1) of the Code of Civil Procedure and obtained this Rule.

Mr. Baki Md. Murtoza, learned Advocate for the petitioner submits that the plaintiffs could not prove by legal evidence that defendant No.1 was their borgader or defendant No.1 ever gave share

of the crops to the plaintiffs. The possession of defendant No.1 in

disputed 1712 decimal land is admitted by the plaintiffs. The plaintiffs were required to prove their previous possession in above land and

their dispossession from the same by the defendant without their consent. But the plaintiffs could not prove their alleged dispossession from the disputed land by the defendants nor they have succeeded to prove that this sui