Tuesday, July 25, 2017 | ePaper

Enormous number of suits piled up before 'the Land Survey Tribunal'

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Md. Mukhlasur Rahman :
Background of the critique: We know that recently a special kind of court, namely "the Land Survey Tribunals" has been constituted by innovation in our country u/s. 145A(1) of the State Acquisition and Tenancy Act; which is specially created for the purpose of determination of the disputes arising out of the final publication of the last revised record-of-rights prepared u/s. 144 of SAT Act. I beg pardon to mention that I have published a book on this issue namely "Law and Procedure of the Land Survey Tribunal" and thereby I had a little study on this topic. Upon such study as well as something horny experience about it we have observed that for want of much cautiousness, lots of suits have been filed before it upon which this Tribunal has no cognizance at all.
Jurisdiction of the Land Survey Tribunal: From the provisions of I 45A(1) it is clear that the Land Survey Tribunal is to be established to correct only the last revised record-of-rights, i.e. only the BS or in the name of BRS or RS record. Therefore, such Tribunals will have jurisdiction only to correct this last BRS record; not to see anything beyond this last record.
Moreover, in this respect Sec. 145A(4) of SAT Act may be reproduced here:-"No suit other than the suits arising out of the final publication of the last revised record of rights prepared under Section 144 shall lie in the Land Survey Tribunal." This Sub-sec. (4) of Sec. 145A speaks that the Tribunal shall have jurisdiction upon those suits only which have been arisen out of final publication of the 'last revised record of rights', i.e. BS/ BRS/RS Khatian. Therefore, in Land Survey Tribunal suit can be filed for correction of only the last record-of-rights.
We also know that without correcting the SA record in the plaintiff's or his predecessors' name the mere last (BRS) record cannot be corrected. Reference may be relied upon in this respect that "Without correcting the SA Khatian and RS Khatian as prepared in respect of the case lands in accordance with law earlier, the petitioner cannot get its name entered in the recent record-of-rights prepared during Mohanagar Survey allegedly only on the basis of CS Khatian. The petitioner had no locus standi to challenge the draft Mohanagar Survey Khatian as prepared in the names of the respective writ-petitioners, at least after publication of the gazette notifications dated 24-3-1952 and 29-2-1956", 15 BLC (AD) 115.
Reading this Sec. 145A from this aspect of view another meaning is also presumed that the Land Survey Tribunal will have no jurisdiction to correct the SA record; in other words it is to say that if any dispute of a suit involves incorrectness also of the former SA record, this Land Survey Tribunal shall have 110 jurisdiction to try the suit.
Arising out of; meaning of: The term 'arising out of' as used in this Sub-sec. (4) does not mean any suit which in its plaint's statements states that the last BS record has been wrongly published and thereby cloud has been cast to plaintiff's title. These terms should mean only those which the Tribunal can grant u/sub-sec. (8) of sec. 145A of SAT Act, i.e. correction of the record-of-rights only. Therefore, the suits which in their prayer seek a declaration that the last BS record is incorrect and also seek correction of the said BS record in a specified manner shall be deemed to be arising out of the last record of rights.
Final publication; meaning of:  'Final publication' in this Sub-sec. (4) denotes a record-of-rights which has been finally published u/r. 33 of the Tenancy Rules, 1955.
Which are not within the ambit of jurisdiction of the Land Survey Tribunals:
(i) If SA record is also wrong the Land Survey Tribunal shall have no jurisdiction to correct the record and to try the suit:
We have already seen that Sec. 145A (4) speaks that the Land Survey Tribunal shall have jurisdiction only to those suits which have been arisen out of final publication of the 'last revised record of rights', i.e. BRS/BS/RS Khatian.
From    this Sub-section another meaning is also construed that in case the earlier SA Khatian was rightly published in the name of the plaintiff or his predecessor/vendor but the BRS record has been wrongly recorded in others' names, then he can get the last BRS record corrected by this Tribunal; but if the previous SA record was also wrong, i.e. if SA record was not published in the name of plaintiff or his predecessor or vendor as the case may be, then this Tribunal shall have no jurisdiction to try the suit and to correct the SA Khatian. For better appreciation of this view we have to mention that Sec. 144 of SAT Act provides for two types of record-of-rights: one is 'prepared' and another is 'revised'. From reading Sec. 145A(4) SAT Act we find that this Tribunal shall have jurisdiction only upon the 'revised' record-of-rights. We know that this BRS record has been prepared revising from the SA record. As such if till; SA record was not correct, one cannot enter his name recorded in the revised BRS record unless he got decree from Civil Court to that effect. As such when the SA record was not rightly published in the plaintiff's name he cannot get his name recorded in the present BRS record too by this Land Survey Tribunal basing only upon the CS record.
Therefore, from the compact reading of the sees. 145A, 144 & 17 of the SAT Act it is it is clear that this Tribunal shall have authority to correct only those record-of-rights which were rightly published in SA record; but in the cases when the SA record was also incorrect, even in slight portion, no suit can be entertained in this Tribunal for correction of the last record. In this respect we find support from an authority that "After final publication of the record-of-rights, after the SA Survey the only mode for correction of the same was through Civil Court and thus subsequent to preparation of SA record of right the RS record was prepared and after final publication thereof the mode for correction of any wrong entry appearing in the RS record was through Civil Court and without moving the Civil Court no correction. In those records is lawful or permissible and as such the draft record in the instant case having been prepared following the preparation of the SA and SA records in accordance with law, the attempts of the petitioners for correction of the same u/rr. 30 & 31 were rightly failed. Without correcting the SA Khatian and RS Khatian as prepared in respect of the case lands in accordance with law earlier, the petitioner cannot get its name entered in the recent record prepared during Mohanagar Survey allegedly only on the basis of CS Khatian, 14 MLR (AD) 401 = 15 BLC (AD) 115, 14 MLR (AD) 401.
(ii) Disputes of factual aspects are beyond ambit of any summary proceeding:
For more appreciation of this point we may state about another similar principle of law as to that "disputed question of fact cannot be decided in a summary proceeding of writ jurisdiction and dispute as to title to and possession in suit lands is not within mischief or writ jurisdiction "; ref. 58 DLR 517, 52 DLR 7, 7 MLR (AD) 157, 2 MLR (AD) 378, 4 MLR (AD) 417, 5 BLC (AD) 176, 58 DLR 450, 2 MLR (AD) 102, 1969 SCMR 283, 7 MLR (AD) 157.
Though suit in Land Survey Tribunal is not a writ petition, but as, we have already seen above that this is obviously a summary proceeding; therefore, we presume getting support from the above stated principle of writ principles that "when a dispute involves complicated question of title and possession between the parties, then this dispute cannot be determined in Land Survey Tribunal in a summary proceeding; rather the matter should be determined by a civil court in a properly formed suit for establishment of title of the parties". We find support in favour of this view that : - A right of easement to be confirmed in a proceeding u/s. 143A is absolutely beyond the scope of investigation under this section, 31 DLR 421. Caution should be taken by the Court below not to encourage adjudiction of disputed title and possession under the grab of a proceeding u/s. 143A. A complete end effectual adjudication with regard to title and possession must be left open for properly constituted suit, 31 DLR 42 J.
In this regard, Sec. 54 of the SAT Act is clear that when the dispute between the parties relate to title to as well as possession of the suit lands, the Land Survey Tribunals have no authority to settle the same. Then only the Civil Court has ample jurisdiction to declare title to, and or possession of, the suit lands. This view finds support from the decisions reported in 10 DLR 527, 53 DLN 506, BSCD Vol. Vp. 269. The suit contemplated in sec. 30 of SAT Act relates to a matter other than a suit for the decision of a question of title and possession. The bar of jurisdiction created by sec. 30(2) SAT Act is not related to question of title and possession to any land which has been specially provided in Sec. 54 of the Act, 10 DLR 527.
Our view: However, in all these cases the dispute should go to be determined by the civil court in a properly framed suit.
Our observations and recommendations: In our analytical study, as we have understood from the compact reading of the Sees. 145A, 144 & 17 of the SAT Act, that this Land Survey Tribunals have jurisdiction and cognizance only to correct the latest record-of-rights and it has no jurisdiction to correct the former SA record; in other words if any dispute of a suit involves incorrectness or both the last BRS record as well as the former SA record, this Tribunal shall have no jurisdiction to try the suit. But in our observations, we have seen that not only a huge number of cases, but sent percent of cases which have been filed before this Tribunal involve disputes both the last BRS/RS as well as the former SA record-f-rights, either in whole or in part; which have no cognizance before this Land Survey Tribunal; which are only cognizable by the civil courts. Therefore, in our view, if these suits be heard and disposed of upon admissibility/maintainability and cognizance of the suits from this view point, most of suits before it must be dismissed on this ground only.

(The writer is Joint District and Sessions Judge, Judge Court, Satkhira). 

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