Appellate Division Cases
(Civil)
PARTIES
A. Jabbar Rari and others……………………………….. Appellants
Vs
Sultan Hossain Matbar and others ……………………… Respondents
JUSTICE
Syed J. R. Mudassir Husain CJ
M. M. Ruhul Amin J
Amirul Kabir Chowdhury J
Date of Judgment
6th March 2006
Specific performance of contract
The impugned judgment cannot stand in the eye of law as the High Court Division failed to notice that only issue to be decided in the matter is whether the unregistered deed of sale dated 01.03.1976 in favour of the plaintiff appellants is a genuine document or not (11)
Stamp paper for writing any bainaptra is purchased in the name of vendor but in the instant case the stamp was not purchased in the name of vendor Sushil Kumar Samajdar nor the names of other purchasers (17)
In the suit only point for consideration is whether the unregistered deed of sale dated 01.03.1976 is a genuine document or not and if it is found to be genuine document the suit of the plaintiff should succeed (22)
Civil Appeal No. 41 of 1999
(From the Judgment and Order dated 19.03.1998 passed by the High Court Division in Civil Revision No. 2184 of 1992)
ADVOCATES
A. J. M. Mohammad AH, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record. For the Appellants ,Mihir Kanti Majumder, Advocate, instructed by Zahirul Islam, Advocate-on-Record For the Respondent No. 1. Not represented Respondent Nos. 2-49.
JUDGMENT
1. Amirul Kabir Chowdhury J: – At the instance of the plaintiffs this appeal by leave arises out of the judgment and order dated 19.03.1998 of a Single Judge of the High Court Division in Civil Revision No. 2184 of 1992 making the rule absolute.
2. The appellants as plaintiffs instituted Title Suit No. 104 of 1985 against the defendant respondents for specific performance of contract which was decreed by the learned Assistant Judge Madaripur Sadar by thejjpudgment and decree dated 12.08.1990. The defendants preferred Title Appeal No. 37 of 1991 before the learned District Judge, Shariatpur who after hearing the appeal dismissed the same by the judgment and decree dated 14.05.1992. The High Court Division however reversed the judgments and dismissed the suit.
3. The plaintiffs case was that the suit land comprising an area of 1.28 acres belonged to defendant No. 1 Shushil Kumar Somojdar in 4 annas share, to Ramprobha in 5 anas share and to Horomochon and others the rest 7 anas share. Rambrobha executed a power of attorney authorizing her husband Shushil Kumar Somojdar to transfer he share of .43 acre of land. In exercise of the said power Shuhil Kumar Somojdar executed a sale deed in respect of 1.28 acre of land which includes Shushil Kumar Somojdar’s own share as well. On 01.03.1976 on receipt of the consideration money he delivered possession thereof the
plaintiffs but the kabala in question could not be registered on that date owing to his illness. Shushil Kumar Somojdar agreed to register the deed after recovery from illness, but when he finally refused to register the deed, the plaintiff petitioners filed the instant suit.
4. Defendant No. 1 Shushil Kumar Somojdar died issueless and the Government of Bangladesh as defendant No. 2 was substituted in his place. Defendant No.2 and added defendant Nos. 3-6 contested the suit by filing two separate written statements. A written statement was also filed by the defendant No.l.
5. Defendant No.l however subsequently filed a petition supported by an affidavit praying for striking off his written statement filed earlier in which he afcitted the contract to sell the suit land withme plaintiffs on 01.03.1976 and also admitted execution of the kabala and its non-registration owing to his illness. He also stated that he did not transfer 6.82 acres of land including the suit land to defendant Nos. 3-6 for TK. 12,000/-. He also did not execute any bainapatra in favour of defendant Nos. 3-6 on receipt of consideration money or handed over its possession to them. Obtaining his signature while he was in deathbed at Dhaka Medical College Hospital, the alleged bainapatra of defendant Nos. 3-6 was created and as such it is collusive, fraudulent, antedated and created without his knowledge. He had no title in other lands besides 1.28 acres of suit land, which he transferred to the palintiff.
6. Defendant No.2 stated in their written statement that the suit land was declared as enemy property vide V.P. Case No. XII-55/8-1/85-84 and the enemy property authority settled 1.25 acres of land out of the suit land with some persons who have been possessing the same. Defendant No. 1 had no title to the lands transferred to defendant Nos. 3-6 and the kabala in question is illegal, collusive, vide and without consideration.
7. Defendant Nos. 3-6 stated in their written statement that the contract between the plaintiffs and defendant No.l is false, without consideration and antedate and no delivery of possession took place in favour of the plaintiffs. Defendant No. 1 sold 6.28 acres of land to defendant Nos. 3-6 for Tk. 12,000/- and executed a bainapatra on receipt of Tk. 4,6000/-. After payment of the remaining stipulated amout defendant No.l executed and registered a kabala in their favour. They are in possession of the suit land.
8. Both the trial court and the lower appellate court found taht the plaintiffs proved their contract dated 01.03.1976 by examine the deed writer, the attesting witnesses and also proved the payment of consideration money by examining witnesses. Both the courts below concurrently held tht the bainapatra of defendant Nos. 3-6 is not genuine and that Shushil Kumar Somojdar had no authority to transfer more thereon .43 acres of land in the share of his wife Ramapropha.
9. The High Court Division considered several earlier suit and held that the aforesaid documents of earlier suits justified the case of defendant Nos. 3-6. The High Court Division held that in a suit for specific performance of contract the possession of the suit land is very much material and found that defendant Nos. 3-6 are in possession of the suit land being bonafied purchaser for value without notice. Hence is this appeal.
10. Leave was granted to consider the submission that both the courts below arrived at a concurrent finding of fact that the plaintiffs have been able to prove their deed of agreement and that the alleged transaction in favour of the defendant Nos. 3-6 was antedated and that the High Court Division fell into error of law in not adverting to and repelling those findings and in entering into questions of title and possession of the suit land which is beyond the scope of inquiry in a suit for specific performanceof contract and thereby the High Court Division caused failure of justice.
11. In support of the appeal Mr. A. J. Mohammad Ali, learned Counsel appearing for the appellants has taken us through the impugned judgment and reiterating the contentions made earlier submits, inter-alia, that the impugned judgment cannot stand in the eye of law as the High Court Division failed to notice that only issue to be decided in the matter is whether the unregistered deed of sale dated 01.03.1976 in favour of the plaintiff appellants is a genuine document or not but the High Court Division transgressed the jurisdiction and decided the case in favour of the defendants taking into consideration the question of title and possession unnecessarily.
12. He further submits that there being concurrent findings of facts as to execution of unregistered deed of sale dated 01.03.1976 the High Court Division set aside the judgment of the courts below without reversing the findings of fact arrived at by both the courts, the said courts being courts of fact.
13. Mr. Mihir Kanti Majumder. learned Advocate appearing for the respondent No.l opposes the appeal and submits, inter- within its jurisdiction in making the rule absolute setting aside the judgment and decree of the courts below which were not based on evidence and rather material evidence was not considered and that question of actual possession in the face of pleadings of the parties being relevant the two courts below committed illegality in not deciding the issue and as such the High Court Division correctly exercised its jurisdiction in setting at naught the illegal findings arrived at by both the courts below.
14. We have considered the submissions made at the Bar and perused the materials on record.
15. It appears that the lower appellatecourt being the last court of fact after considering the materials on record including the evidence came to the finding that the defendant No.l during pendency of the suit filed a written statement on 10. 06.1977 wherein he admitted the execution of kabala dated 01.03.1976 in favour of the plaintiff and also admitted that he could not register the same as he was seriously attacked by gastric pain. It does not appear from the judgment of the High Court Division that this aspect of the case or this finding has at all being reversed. It may, however, be mentioned that an affidavit dated 12.05.1978 purported to have been sworn by the defendant No. 1 has been filed. It appears that the defendant No. 1 in the aforesaid affidavit dated 12.05.1978 stated that he gave papers to Mr. Abdus Salam, Advocate to pray for time to file written statement on his behalf and then fell sick and that during his illness his physician Niabaran Chandra Bashu told him that the aforesaid Advocate sent some papers for signature of the defendant No.l thereon on the plea that those papers were essential in the suit and that he signed the papers accordingly on the advice of Dr. Nibaran Chandra Bashu and thus in the said affidavit prayed to struck off the written statement.
16. It is strange that the defendant No.l though disowned the aforesaid written statement dated 10.6.1977 by the aforesaid affidavit dated 12.05.1978 but did not file subsequently any other written statement contesting the suit. Moreover, in order to establish the plea that on the cloak of necessity in connecting with the suit the papers were sent by his Advocate to Dr. Nirbraran Chandra Bashu or that on the papers handed over to Dr. Nibaran Chandra Bashu, the signature, no evidence whatsoever was produced nor the aforesaid physician Dr. Nibaran Chandra Bashu was examined. The excuse in the matter of filing the written statement by the defendant No.l on 10.96.1977 admitting the claim of the plaintiffs could not thus be established at all.
17. The lower appellate court on the basis of materials on record came to the findings that for the bainapatra the sheet anchor of the defendant respondents, stamp papers were purchased on 01.02.1973 in the name of Hamid Ali Haider only but the deed was written also in the name of Sultan Hossain Matbar, Nayan Sarif Matbar etc. any bainaptra is purchased in the name of vendor but in the instant case the stamp was not purchased in the name of vendor Sushi 1 Kumar Samajdar nor the names of other purchasers find place and moreover though the stamps were purchased on 01.02.1973 but the deed is said to have been executed on 05.02.1973 and after considering the evidence on record the lower appellate court came to the definite finding that thee is no existence of exhibit-C(l) i. e. bainapatra dated 05.02.1973 before the exhibit-A i. e. the sale deed dated 01.03.1976 and that document exhibit-C (1) was created by putting antedate thereon and that though D. W. 2 deposed that he wrote the alleged bainapatra as per instructin of Sultan Hossain but there is no evidence that Sushil Kumar Samajdar engaged him to write out the same and as such the lower appellate court concluded that the said document exhibit-C(l) appears to have been created in collusion with Sultan Hossain Matbar and while considering the evidence of witnesses produced by the defendant respondents, the lower appellate court found that D. Ws. 4 and 5 Makim Bakaha Sardar and A. Rahman being related to D. W. 1 they were highly interested in favour of the defence and thus their testimony could not be relied on and this finding of fact has also not bee reversed by the High Court Division.
18. The lower appellate court also found that Rama Prava Devi authorised Sushil Kumar Samajdar to transfer. 43 decimal of plot No. 255 of R. S. Khatian No. 250 so the latter had no authority to transfer the entire interest of Rama Prava Devi and any transfer made for more than .43 decimal of land, therefore, would have no legal effect.
19. The lower appellate court found that Sushil Kumar received the consideration money of Tk. 2,000/- and executed the deed of sale exhbit-1 but the same could not be registered due to gastric pain of the aforesaid vendor the defendant No.l (since dead).
20. It appears that the High Court Division passed the impugned judgment based on materials of some other suits and laboured hard to find title in favour of the defendants and observing that title follows possession also made an erroneous finding as to possession of the defendants and found fault with the courts below holding that there is no specific finding that the plaintiff has got right, title and possession over the suit land and as such did not see eye to eye to the judgments passed by the trial court and also that the lower appellate court. The High Court Division observed:”In the instant case I have already found that both the courts below did not discuss the evidence of possession adduced by either party in as much as the mere reading of the evidence on record, justify that all the P.W. s are admitted inter related and hostile with the defendants. So it is not safe to rely on the evidence adduced by the plaintiffs.”
21. In a suit for specific performance of contract we are of the view that the above observations and findings as to possession are not relevant.
22. It may be reiterated that in the suit only point for consideration is whether the unregistered deed of sale dated 01.03.1976 is a genuine document or not and if it is found to be genuine document the suit of the plaintiff should succeed. The trial court as well as the lower appellate court being the courts of fact on the basis of evidence came to the finding that the aforesaid unregistered deed of sale dated 01.03.1976 had been executed by the defendant No. 1 and as such the suit for specific performance of contract filed by the plaintiff was decreed.
23. We have given our anxious consideration to the facts, circumstances and evidence on record and the submissions advanced on behalf of the parties and are of the view that the judgment of the High Court Division, in view of the discussion made above, cannot stand in the eye of law.
24. We therefore find substance in this appeal and as such the appeal must be allowed.
25. The appeal is, therefore, allowed. The impugned judgment and order of the High Court Division is set aside. The parties do bear their respective costs.
Sourcr: III ADC (2006) 273.