Appellate Division Cases
(Civil)
PARTIES
Abdul Majid alias Mujibur Rahman Molla…………….. Appellant
-Vs-
Md. Abdul Matin and others ………………………….Respondents
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 20th August 2006
The Evidence Act, Sections 91 and 92 Brindaban Das reported in 6 BLD (HCD) page 85
The Limitation Act, Section 14
The suit was filed seeking declaration that the deed of exchange dated March 21,1993 is not a deed of exchange but a deed of sale………………..(1)
The said deed of exchange was created only to defeat claim of pre-emption of the plaintiff since he and his “brother Abdur Rahman have homestead in plot No. 60
adjacent to plot No. 61. The deed in question though has been camouflage as
exchange deed between the defendant No.l on one part and the defendant Nos.2 and 3 on the 2nd part, but is in fact an out and out sale deed…………… (2)
Plaintiff is not a party to the document, the deed of exchange, challenging the nature
and character whereof the suit Jias been filed. The plaintiff has filed the suit asserting that only to defeat the right of claim of pre-emption the camouflaged deed in question i.e. Ext. 1, had been made although same is a sale deed. The appellate Court on detailed discussions of the evidence arrived at the definite Finding that the deed challenging which the suit has been filed is in fact a camouflage deed i.e. although the deed has been described as the deed of exchange but in fact is a sale deed ………………..(11)
Civil Appeal No. 81 of 2003 (From the Judgment and Order dated November 28, 2001 passed by the High Court Division in Civil Revision No. 170 of 1995)
Kh. Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocateon-record ………………For the Appellant
Md. Nawab AH, Advocate’-on-record……………. For Respondent No.1
Respondent Nos.2&3 ……………………. Not represented.
JUDGMENT
1. Md. Ruhul Amin J : This is defendants’ appeal, by leave, against the judgment dated
November 28, 2001 of a Single Bench of the High Court Division in Civil Revision No.
170 of 1995 discharging the Rule obtained against the judgment and decree dated
November 13, 1994 of the 1st Court of Suborbinate Judge (now Joint District Judge)
Magura in Title Appeal No. 55 of 1994 allowing the same upon reversing the judgment and decree dated February 28, 1994 of the Court of Assistant Judge, Salikha, Magura in Title Suit No. 46 of 1993 dismissing the same. The suit was filed seeking declaration that the deed of exchange dated March 21, 1993 is not a deed of exchange but a deed of sale.
2. It is the case of the plaintiff that the land in suit i.e. land of plot No. 61 belonged to
Barkatulla Tarafder who transferred the same to his wife Ayesha Khatun. The plaintiff and his brother are the owners of the land of plot No. 60 adjacent to plot No. 61. The deed of exchange was made between defendant No.l on one side and the defendant Nos.2 and 3 on the other side. The land of plot No.61. is covered by the exchange deed. The said deed of exchange was created only to defeat claim of pre-emption of the plaintiff since he and his brother Abdur Rahman have homestead in plot No. 60 adjacent to plot No. 61. The deed in question though has been camouflage as exchange deed between the defendant No.l on one part and the defendant Nos.2 and 3 on the 2nd part, but is in fact an out and out sale deed. It has been alleged by the plaintiff that the quantity of land said to have been given by the defendant No.l in exchange of the land said to have been received from the defendant Nos.2 and 3 is not correct, that the whole transaction between the defendant No.l and defendant No.2 and 3 is a camouflage transaction for some evil design arid for the sole purpose of defeating the plaintiffs right of preemption.
The plaintiff, as claimed, said to have came to know about the transaction on March 22, 1993 and thereupon obtained the certified copy and became certain about the camouflage transaction between the defendant No. 1 on one part and the defendant Nos.2 and 3 on the 2nd part.
3. The suit was contested by the defendants by filing joint written statement. It is the case of the defendants that the defendant Nos.2 and 3 are the relatives and that husband of defendant No.2 is looking after the land own by defendant Nos.2 and 3, that defendant No.l owns 47 decimals of land of plot No. 2038 in mouza ‘**I*I!*?H’ (Bangla) and owns 42 decimals of land of plot No. 6445 in mouza htFa*ft#\ (Bangla) The defendant No. 1 thus owns in total 89 decimals of land in the said 2 mouzas, that defendant Nos.2 and 3
own 89 decimals of land of plot No.66 in mouza >*wR?*n’ (Bnagla) and the said land is adjacent to the house of the defendant No.l, that is adjacent to the house of the defendant No.l. that for better management and enjoyment of the land own by the defendant No.l and defendant Nos.2 and 3 they exchanged their respective land by the exchange deed dated March 21, 1993, that in the transaction in question no consideration money passed and that only there has been exchange of land, that after exchanged the defendants are owning and possessing their respective land got by exchange, that at the time of last Union Parishad Election there was mis-understanding between the defendant No. 1 and the plaintiff and because of that plaintiff has filed the suit making incorrect statements.
4. The trial Court though held that the suit is not barred by limitation and the same is not
bad for defect of party and the suit is quite maintainable but dismissed the suit on the
finding that the deed in question is a deed of exchange and that the plaintiff could not
prove that the deed in question is not a deed of exchange.
5. The plaintiff went on appeal. The appellate Court concurred with the findings of the trial Court that the suit is not barred by limitation, that the suit as framed is quite maintainable. The appellate Court reversed the judgment and decree of the trial Court on the finding that the defendant No.l on the one part and the defendant Nos. 2 and 3 on the other part failed to establish that they have land adjacent to the land of plots exchanged by them, that defendants failed to prove that for convenience as regard possession and enjoyment they exchanged the land of plots as mentioned in the deed in question, that plaintiff has been able to prove that to defeat his right of preemption the defendants have brought into existence the deed in question, that deed in question claimed by the defendants was not brought into existence for convenient enjoyment or possession of their respective land.
6. As against the judgment and decree of the trial Court the defendant No.l moved the
High Court Division in revisional jurisdiction and obtained Rule. The High Court Division on consideration of the evidence on record held that the transaction made by Ext.l (the Exchange deed) was a colourable transaction as there is specific evidence of payment of consideration money of Tk. 50,000/- and as such the deed in question (Ext. 10 is not an exchange deed but a sale deed. The High Court Division while discharging the Rule observed that the Court of appeal on discussions of the evidence made the finding about the deed in question that the same is not an exchange deed but a sale deed and that as the finding made by the appellate Court is ‘not arbitrary, fanciful and perverse’ as such on interference is called for with the finding and decision of the appellate Court.
7. Leave was obtained for consideration of the contention that in view of the provision of
Sections 91 and 92 of the Evidence Act the High Court Division erred in affirming the
decision of the Court of appeal below that the deed in question is a sale deed arrived at on
the basis of oral evidence adduced on behalf of the plaintiff without any consideration of
the limitation set by the said provision of law.
8. The plaintiff is not a party to the document (Ext.l) challenging the nature and character
of which the suit has been filed. The defendant No.l on one part and the defendant Nos.2
and 3 on the 2nd part are the parties to the document Ext.l i.e. deed of exchange challenging the character and nature of which the suit has been filed or in other words suit was filed making contention that the deed of exchange (Ext.l) is in fact not a deed of
exchange but a sale deed and the transaction in question has been resorted to only to defeat the right of pre-emption of the plaintiff and his brother. Section 91 of the Evidence Act provides that when the terms of contract or of a grant or of any other disposition of property have been reduced to form of a document and in all cases in which any other matter required by law to be reduced to the form of a document no evidence shall be given in prove of the terms of such contract, grant or other disposition of the property, or any such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provision of the Evidence Act. Section 92 of the Evidence Act provides that when the terms of any contract, grant or other disposition of property or any other matter required by law to be reduced to the form of a document, have been proved according to the provision of Section 91 of the Evidence Act, no evidence of oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.
9. In the instant case there is no situation as contemplates by the provision of Sections 91
and 92 of the Evidence Act. In that view of the matter the learned Counsel felt difficulty to support the appeal making contention whereof leave was obtained and thereupon the
learned Counsel for the appellant sought permission of the Court to support the appeal on
additional ground which runs as: “Because even if the appeal fails on the ground on which leave had been granted (on the principle enunciated in the case of Brindaban Das reported in 6 BLD (HCD) page 85) the appeal should be allowed on other ground based on the principle that Court will not pass an infructuous decree, as in the present case, the intended application for pre-emption to be filed by the plaintiff-respondent being barred by limitation, time for filing such an application having expired as early as 1993”.
10. In the background of the additional ground urged by the learned counsel of the
appellant it has been submitted that the appellant though is not likely to succeed in the
appeal on the ground on which leave was obtained but be can succeed in the appeal on
the ground that a Court would not pass a decree which would be infructuous, as in the
instant case, if the decree passed by the appellate Court is maintained would be infructuous since prescribed time for filing pre-emption case has lapsed and that provision of Section 14 if the Limitation Act shall have no application, if any pre-emption case is filed by the plaintiff and on the top of everything there is no special limitation for enabling the plaintiff to proceed with the pre-emption case,.if any is being filed by him after the disposal of the appeal by this Court.
11. It has already been mentioned that the plaintiff is not a party to the document, the
deed of exchange, challenging the nature and character whereof the suit has been filed. The plaintiff has filed the suit asserting that only to defeat the right of claim of pre-emption the camouflaged deed in question i.e. Ext. 1, had been made although same is a sale deed. The appellate Court on detailed discussions of the evidence arrived at the definite finding that the deed challenging which the suit has been filed is in fact a camouflage deed i.e. although the deed has been described as the deed of exchange but in fact is a sale deed. The High Court Division on independent discussions of the materials on record refused to interfere with the finding and decision of the appellate Court. Ground raising which leave was obtained or in other words placing reliance on the provisions of Sections 91 and 92 of the Evidence Act leave was obtained contending
that the suit was not maintainable since said provisions of the Evidence Act bar the parties to the document or strangers to lead evidence other then the document itself relating to the terms and condition of the document and that the parties are debarred from leading evidence from varying, contradicting, adding to, or subtracting from the terms and condition of the document. In the facts and circumstances of the instant case there having no such situation as contemplates by the provision of Sections 91 and 92 of the Evidence Act, the learned Counsel has raised the additional ground (as quoted hereinbefore) in the midst of the hearing of the appeal. In our view ground that has been urged in the midst of hearing as would be a matter for consideration in the pre-emption
case, if any filed, by the plaintiff after the disposal of the appeal and as such we are not
inclined to consider the ground (already quoted above) or express any wive about the legality or sustainability of the ground so raided in the midst of hearing.
12. In the background of the discussions and the view expressed by us about the ground
taken in the course of hearing we do not find any merit in the appeal.
13. Accordingly the appeal is dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 56