Amal Krishna Chakrabarty being dead his heirs: Kali Das Chakrabarty and others Vs. Sekendar Mallik being dead his heirs. Younus Mallik and others

Appellate Division Cases

(Civil)

PARTIES

Amal Krishna Chakrabarty being dead his heirs: Kali Das Chakrabarty and others ……………………….. Petitioners

-VS-

Sekendar Mallik being dead his heirs. Younus Mallik and others…………………………………. Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

JUDGMENT DATED: 7th August 2006

Petition is dismissed

Transfer of Property Act, Section 43

Judgment sought to be appealed that it was primarily contended before the High Court Division from the side of the parties to the appeal how far the Court of appeal below was correct in applying the provision of Section 43 of the Transfer of Property Act………………….. (5)

It has also been submitted by the learned Counsel that the High Court Division was in error in holding that provision of Section 43 of the Transfer of Property Act has no application in the facts and circumstances of the case. We find no substance in the above submission since High Court Division upon detailed discussions of the facts and circumstances of the case found that no case was made out from the side of the parties for application of the provision of Section 43 of the Transfer of Property Act ……………………………………….(8)

N.K. Saha, Advocate, instructed by Md. hi aw ah AJi, Advocate-on-record ………………..For the Petitioners

Respondent………………………………….. Not represented

Civil Petition for Leave to Appeal No. 538 of 2005

(From the judgment and order dated April 13, 2004 passed by the High Court Division

in Second Appeal No. 76 of 1979 [heard along with the Civil Rule No. 1336(S) of 1982])

JUDGMENT

Md. Ruhul Amin J: This petition for leave to appeal is against the judgment dated April 13, 2004 of a Single Bench of the High Court Division in Second Appeal No. 76 of 1979 (heard along with Civil Rule No. 1336 (S) of 1982) allowing the appeal upon setting aside the judgment and decree dated February 28, 1978 of the 1st Court of Subordinate Judge (now Joint District Judge), Faridpur in Title Appeal No. 185 of 1976 allowing the appeal in part upon reversing the judgment and decree dated August 27, 1976 of the

Additional Court of Munsif (now Assistant Judge) (in charge of 1st Court of Munsif), Goalanda. Faridpur in Title Suit No. 120 of 1971 decreeing the same in full and thereby declared the title of the plaintiffs in the land in suit and also allowed the relief seeking confirmation of possession.

2. The trial Court further restrained the defendants permanently from entering into the land in suit. It may be mentioned the appellate Court decreed the suit in part and thereupon modified the judgment and decree of the trial Court declaring title of the plaintiff in respect of 27 decimals of land of R.S. plot No. 205 and also confirmation

of possession as regard thereto.

3. The suit was filed stating, inter alia, that the land described in the ‘Ka’ schedule belonged to Abdul Barik Mollah, that defendant Nos. 8 and 9 purchased 1.15 acres of land of R.S. plot Nos. 163, 175, 204 and 205 and they sold the said land to the plaintiffs by the kabala dated October 25. 1956 i.e. the land described in the ‘Kha’ schedule and the plaintiffs upon such purchase are in possession of the said land, that the defendant Nos. 1-3 in collusion with defendant Nos. 4-7 in Magh, 1376 B.S. threatened the plaintiffs to disposses from the land in suit. Hence the suit.4. The suit was contested by the defendant

No. 3 by filing written statement denying the material averments made in the plaint and stating, inter alia, that by a deed of Heba-bil-Ewaz dated February 16, 1945 Abdul 3arik Mollah transferred the land of R.S. Khatian No. 118 to his wife Fuljan to discharge the obligation of payment of dower or in other words to discharge the dower debt, that after the death of Fuljan her heirs leased out the land of the said R.S. khatian No. 118 to defendant No. 7 by the kabuliyat dated November 26. 1952 and the said defendant No.7 leased out the land so taken lease from the heirs of Fuljan to the defendant No.3 by a registered patta dated April 28, 1953, that the defendant No.3 paid rent and is in possession of the land so acquired from defendant No.7 and that his name has been

recorded in the record of right and he is paying rent to the Government, that defendant

Nos.l and 2 are the contractors and they have converted the land is suit to a brick field upon paying compensation to the defendant No.3’s bargader. that defendant No.7, a man of dubious nature, has set up the plaintiffs to file the suit.

5. As it appears from the judgment sought to be appealed that it was primarily contended

before the High Court Division from the side of the parties to the appeal how far the Court of appeal below was correct in applying the provision of Section 43 of the Transfer of Property Act. It may be mentioned the High Court Division on detailed discussions of the materials on record held that there was no case for applying the principle of Section

43 of the Transfer of Property Act. The High Court Division in the background of the facts and circumstances of the case held that Ext. c i.e. the kabuliyat by which defendant No. 7 took lease from the heirs of Fuljan was a void document since the same was executed by minor and the recipients of the Ext. c were also minors. The High Court Division has also observed that as acquisition of title by defendant No.7 by the Ext. C was not valid since the same was void document and as such defendant No. 3 by urchase

from defendant No. 7 did not acquire any right, title and interest in the land in suit.

6. The High Court Division further observed that the lower appellate Court was in error in applying the provision of Section 43 of the Transfer of Property Act in the facts and circumstances of the case. As the judgment of the trial Court was not a happy one (as observed by the High Court Division) on the point of possession of the plaintiffs the High Court Division considered the evidence of the witnesses examined by the plaintiffs and also the evidence of the D.Ws. on the question of possession and thereupon held that the

plaintiffs are in possession of the land in suit. The High Court Division on detailed

discussions of the materials on record found title of the plaintiffs in respect of the land in suit. The High Court having had found title and possession of the land in suit with the plaintiff restored the judgment and decree of the trial Court which was reversed by the lower appellate Court.

7. We have heard the learned Counsel for the petitioners and perused the materials in the petition for leave to appeal. It has been urged by the learned Counsel that the High Court Division was in error in holding that defendant No.7 did not acquire title on the basis of the kabuliyat dated November 26, 1952 and as such the transfer of the land by the defendant No. 7 which he acquired by the kabuliyat, to the defendant No.3 by the patta dated April 28. 1953 was not valid and that the High Court Division failed to notice that the S.A. record stood in the name of the defendants which goes to show that defendants

are in possession of the land in suit. It is seen from the judgment of the High Court Division that the said Division upon assigning reason arrived at the finding that the kabuliyat Ext. C was void and as such transfer of the land by the defendant No. 7 on the basis of the said void document to the defendant No. 3 no title passed from the defendant No. 7 to the defendant No. 3. The finding so made by the High Court Division could not be assailed by the learned Counsel.

8. It has also been submitted by the learned Counsel that the High Court Division was in error in holding that provision of Section 43 of the Transfer of Property Act has no application in the facts and circumstances of the case. We find no substance in the above submission since High Court Division upon detailed discussions of the facts and circumstances of the case found that no case was made out from the side of the parties for application of the provision of Section 43 of the Transfer of Property Act. It has also been

submitted by the learned Counsel for the petitioners that High Court Division was

in error in not holding that the plaintiffs have no right, title and possession in the land in suit and the defendant No.3 has valid title and that the said title of defendant No.3 has been perfected by long possession of the land in suit. The submission so made is of no substance since the High Court Division on detailed discussions of the oral evidence of the parties found that possession of the land in suit is with the plaintiffs and that also found title of the land in favour of the plaintiffs.

9. In the background of the discussions we find no substance in the petition.

10. Accordingly the petition is dismissed.

Source : V ADC (2008), 61

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