Fazlur Rahman Sikder Vs. Abdul Hashem Howlader & others

Appellate Division Cases

(Civil)

PARTIES

Fazlur Rahman Sikder…………………… Petitioner.

-Vs-

Abdul Hashem Howlader & others……………. Respondents.

JUSTICES

Md. Ruhul Amin J

Md.Tafazzul Islam J

Judgment Dated:6th August 2006

Suit seeking for declaration that sale deed No.3277 executed on 5.7.1962 and registered on 5.11.1962 in respect of the Kha schedule land is null and void and not binding upon the plaintiff on the averments that he, as the only son of Lehajuddin, became owner of the land described in Ka schedule of the plaint …………..(2)

As it appears the High Court Division discharged the Rule holding that in revisional jurisdiction the High Court Division can not interfere with the findings of fact of the final court of facts except in exceptional circumstances i.e. when the findings are shockingly perverse or are vitiated by non-consideration and misreading of the material evidence or misconstruction of any important document affecting the merit of the suit…………… (5)

Md. Nawab Ali, Advocate-on-Record. …………….For the Petitioner.

Respondents…………………. Not represented.

Civil Petition For Leave To Appeal No. 572 of 2005

(From the judgment and order dated 30th March. 2005 passed by the High Court

Division in Civil Revision No. 3893 of 1999).

JUDGMENT

Md. Tafazzul Islam J: This petition for leave to appeal is directed against the

judgment dated 30.3.2005 of a Single Bench of the High Court Division in Civil Revision No. 3893 of 1999 discharging the Rule obtained against the judgment and decree dated 12.8.1999 passed by the learned Subordinate Judge (now Joint District Judse), 1st Court, Jhalakati in Title Appeal^ No. 99 of 1997 reversing those of dated 19.8.1997 passed by the learned Assistant Judge, Rajapur, Jhalakati in Title Suit No.59 of 1996

decreeing the suit.

2. The plaintiff filed the above suit seeking for declaration that sale deed No.3277 executed on 5.7.1962 and registered on 5.11.1962 in respect of the Kha schedule

land is null and void and not binding upon the plaintiff on the averments that he, as the only son of Lehajuddin, became owner of the land described in Ka schedule of the plaint and during R.S. operation his name was recorded in Khatian No. 1834. On 22.6.1962 Lehajuddin executed and registered sale deed No. 2613 selling 16 decimals of land to the defendant No.l and also delivered to him the possession of the land sold and thereafter the defendant No.l fraudulently created the above sale deed executed on 5.7.1962 and registered on 5.11.1962 which is under challenge; there was no need for Lehajuddin to execute the above sale deed on 5.7.1962 just after 12 days of the registration of the earlier

sale deed dated 22.6.1962; Lehajuddin did not at all go to the Sub-Registrar’s Office nor received any consideration against the sale deed under challenge; Lehajuddin died on 19.7.1962 and so the defendant No.l fraudulently showed execution of the above sale deed under challenge; the defendant No.l never claimed the suit land but during the last settlement operation he for the first time produced the sale deed under challenge to claim title to the suit land on recording Ka schedule land in his name and hence the suit. The

defendant No. 1 contested the suit by filing written statement contending, inter alia, that the plaintiff has no cause of action and the suit is also barred by limitation; the father of the plaintiff on 22.6.1962 sold 16 decimals of land to him from his homestead land and since the plaintiff fled away from the house with the proceeds of the above sale Lehajuddin. for necessity of money, executed the sale deed under challenge and also delivered possession of the same to the defendant No.l and thereafter Lehajuddin became bedridden and then died; after his death the sale deed under challenge was registered and then the defendant No.l mutated his name and obtained dakhila by paying rent and since

then he is possessing the suit land for over 35 years; the plaintiff earlier brought a criminal case being C.R. Case No. 19 of 1971 against the defendant No.l on the allegation that the defendant No.l fabricated the sale deed under challenge and the above criminal case was dismissed on 2.2.1973. The learned Munsif (now Assistant Judge) after hearing decreed the suit. On appeal the learned Subordinate Judge (now Joint District Judge), allowed the appeal. The plaintiff then moved the High Court Division and obtained Rule in Civil Revision No.3839 of 1993 and the High Court Division, after hearing, discharged the Rule.

3. The learned counsel for the petitioner submitted that the High Court Division committed error of law in not holding that Lehajuddin did not execute the sale deed, the defendant No.l did not acquire any right title and interest in the suit land by  the sale deed under challenge which is fabricated; the High Court Division did not at all consider that though Abdul Hashem Hawlader and Abdul Wahed Howlader were shown as vendees of the sale deed under challenge but Abdul Wahed Hawlader did not contest the suit;

the thumb impression of Lehajuddin, who died on 19.7.1962, was taken by ‘Ba Kalam’ but when it was placed for registration of the sale deed under challenge the Sub-Registrar did not register the said deed as he was not satisfied as to whether the same was actually executed by Lehajuddin but then the defendant No.l fraudulently got the above deed registered by the District Registrar beyond the knowledge of the plaintiff without any

enquiry and notice.

4. As it appears the appellate Court found that by virtue of Misc. Case No.37 of 1962

the sale deed under challenge was registered in accordance with law and the same was filed by the defendant No. 1 before the District Registrar while seeking permission for its registration and the plaintiff also filed C.R! Case No. 19 of 1971, which was ultimately dismissed, against the defendant No.l alleging fabrication of the said sale deed and accordingly the plaintiff was aware of the same and so the suit not being filed within time is also barred by limitation, the plaintiff could not prove his possession by adducing evidence; the rent receipts submitted by the plaintiff are not the receipts in respect of the suit land, the plaintiff fled away stealing the proceeds of the sale deed earlier registered and in view of the above the father of the plaintiff handed over the possession of the land in question to the defendant No.l and also executed the sale deed under challenge; the defendant No.l also submitted dakhilas and rent receipts for the years 1959-1960 which proves his possession in the suit land for nearly 30/35 years and further the District Registrar duly registered the sale deed.

5. As it appears the High Court Division discharged the Rule holding that in revisional

jurisdiction the High Court Division can not interfere with the findings of fact of the final court of facts except in exceptional circumstances i.e. when the findings are shockingly perverse or are vitiated by non-consideration and misreading of the material evidence or

misconstruction of any important document affecting the merit of the suit and further the learned Advocate for the petitioner appearing before the High Court Division could not also point out any such legal infirmity; admittedly the suit property belonged to Lehajuddin who on 5.7.1962 executed the sale deed under challenge and thereafter handed over possession of the suit land to the defendant No.l but before its registration

Lehajuddin died and in view of the objection of the plaintiff the Sub-Registrar did not register it but ultimately on 5.11.1962 it was registered on the order of the District Registrar under section 73 of the Registration Act who after ascertingly the truth of the execution of the sale deed under challenge passed order for registra-tion of the same.

6. We are of the view of that the High Court Division on proper consideration of the evidence and the materials on recordsarrived at a correct decision. The learned

counsel also could not point at any illegality or infirmity in the decision of the High

Court Division so as to call for any interference.

7. The petition is dismissed.

Source : V ADC (2008),687

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