Your
Honour
Adverse
possession can be enforced against a person who does not prove a better
title
High
Court Division
(Civil Revisional Jurisdiction)
Civil Revision No. 813 of 1999
Janab Ali Mondal and others
V
Md. Anowar Hossain and others
Mr. Justice Mirza Hussain Haider
Date of Judgment : May 28, 2003
Result : Rule discharged
Background
Mirza Hussain Haider, J: The defendant-petitioners obtained this Rule
calling upon the plaintiff opposite party to show cause as to why the
impugned judgment and decree dated 11.2.1999, passed by the learned
Additional District Judge, 2nd Court, Jhenidah, in Title Appeal No.
78 of 1996 reversing those dated 23.4.1996 passed by the learned Subordinate
Judge (now Joint District Judge),1st Court, Jhenidah, in Title Suit
No. 58 of 1986 should not be set aside and/or pass such other of further
order or orders as may be deemed fit and proper.
The case of the
defendant-petitioners in short, is that on 29.12.1980 the opposite party
instituted Title Suit No. 1678 of 1980 for declaration of his title
in the Court of Subordinate Judge, Jessore, against the present opposite
party i.e. the heirs of Godai Molla. Thereafter when Jhenidah became
a new district the suit was transferred to the Court of Subordinate
Judge (now Joint District Judge), Jhenidah on 16.3.1986 and renumbered
as Title Suit No. 58 of 1986. The plaintiff alleged that the suit property
along with other properties originally belonged to one Kunjo Bihari
Ghose under the Superior land lord Raja Bhushan Dev Roy Bahadur. Kunjo
Bihair Ghose while possessing the suit land died leaving behind his
only son Rashik Lal Ghose who inherited the same and subsequently settled
7.08 acre of land, orally, with the plaintiff on 10th Ashar, 1350 BS
and since then the plaintiff has been possessing the same peacefully.
The plaintiff also stated in his plaint that he entrusted one Godai
Mollah to help him in recording his name in the SA record but the plaintiff
came to know on 20th Chaitra 1386 BS corresponding to 3.4.1980 that
instead of recording the plaintiff's name Godai Mollah got his own name
recorded in respect of the suit land in the SA Record.
Deliberation
The present petitioner appeared and contested the suit by filing written
statement denying all material allegations of the plaint contending
inter alia that admittedly the suit land originally belonged to Kunja
Bihari Ghose under Raja Promotha Bhushan Deb Roy Bahadur. But the said
defendant claims that Kunja Bihari Ghose, while possessing the suit
property settled the same in favour of Godai Molla by oral settlement.
Subsequently Kunja Bihari was chopped to death with dao, kodal and shavol,
ornaments were looted, Sheoli, wife of deceased Tapan and Anima were
gang raped. Even informant's minor daughter and elderly woman were not
spared and subjected to dragging for sexual harassment.
It appears that
Nari-O-Shishu Nirjatan Daman Ain, 2000 is a special law which has been
enacted to curb the crimes on repression of women and child with heavy
hand.
On his connection
it is to be noted that all offences under the Ain are non-bailable as
provided under section 19 (2). Thereafter Sub-section-3 (subject to
order provisions of the Ain) lays down certain condition and restriction
and clause (Ka), (Kha) and (Ga).
Clause "Ka"
to sub-section 3 provides that no person accused of any offence punishable
under this Ain will be released on bail unless the informant party is
given the opportunity of being heard. Cause (Kha) (Ga) enjoin that the
court is to be satisfied there is a reasonable cause to find the accused
guilty of the charge brought against of the accused him exists of in
case accused is woman or child being physically crippled, proper trial
will not be hampered for his release on bail as preconditions.
Section 25 of the
Ain provides that in the matter of lodging complaint of any offence,
investigation trial and disposal the provisions of the Code of Criminal
Procedure shall apply and the Tribunal constituted under the Ain shall
be deemed to be a Court of Sessions and it will exercise all the powers
of Court of Sessions in the trial of any offence under the Ain or any
other offence pursuant thereto. From the above it is apparent that though
the Tribunal and the High Court Division on appeal is empowered to grant
bail under the general provision of the Code the power is limited and
such power should be exercised subject to specific condition and restriction
mentioned in section 19. This restricted power of bail prevails notwithstanding
the general provision of section 25 of the Ain. No expressed provision
is made for granting bail to any person accused of any offence punishable
under this Ain only because bail has not been opposed by the informant
or the informant party consents to bail.
Judgement
We are, therefore, of opinion that application filed by the informant
praying for considering the bail of the accused is of no consequence
in law in granting or refusing the prayer for bail.
In view of the nature
of allegations we are not inclined to grant bail to the appellant.
In the result the
appeal is dismissed.
Mr.
Harendra Nath Nondy, Advocate, for the defendant-petitioners.
Mr. Nurul Amin, with Mrs. Sakila Rowshan, Advocates, for the opposite
party.
