Appellate Division Cases
(Civil)
PARTIES
Dudu Mia being dead his heirs; 1 (a) Md. Moyezuddin and others…………………………Appellants.
-VS-
Ekram Mia Chowdhury being dead his heirs;
1 (a) Nezmatullah and others…………………………… Respondents.
JUSTICE
Mahmudul Amin Choudhury CJ
Mainur Reza Chowdhury J
Md. Ruhul Amin J
Mohammad Fazlul Karim J
JUDGEMENT DATE: 5th August 2001.
The Specific Relief Act, Sections 42 & 39
AIR 1924 (Cal) 411 and 17 DLR 119.
The Court Fees Act, Section 7(iv) (c). Article
17 of Schedule II
While admittedly plaintiff was a party in the rent decrees as such in the absence of seeking avoidance either by way of a declaration that the rent suits were null and void or void abinitio the plaintiff in law cannot have the decree in the suit which is for mere declaration of title has referred to the decision in the case of Sufia Khannam Chowdhury Vs. Faizun Nesa Chowdhury reported in 39 DLR (AD) 46 and the decision in the case of abdul Hamid Vs. Dr. Sadeque Ali Ahmed & ors repoted in 21 DLR 507. In the case reported in 39 DLR it has been held- “Where a document has been adjudged voidable it will have to be avoided both by declaration and cancellation and if the document is adjudged void or void ab-initio it need not be cancelled.”……………………..(12)
“In case of void document a person may rely on its invalidity as against himself without suing for its cancellation, and a suit by him for declaring its invalidity is not a suit for declaration with consequential relief. But in a case of document that is only voidable the case is otherwise as the party cannot impeach the arrangement effected by it without having it cancelled A suit for avoiding documents to which the plaintiff was a party on such grounds of fraud, misrepresentation and undue influence is a suit for declaration with consequential relief.” ………………….(12)
Civil Appeal No. 29 of 1998 (From the Judgment and Order dated 28th July, 1996 passed by the High Court Division in First Appeal No. 343 of 1970.)
Md. Fazlul Karim, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record………..For the Appellants
Sk. Afzalur Rahman, Advocate, instructed by Sharifuddin Chaklcider, Advocate-on-Record. ……………..For the Respondents No.l (a)
Respondent Nos. l(b)-l(e) ……………. Ex-parte.
Respondent Nos. 2-21 ……………. Not Represented.
JUDGMENT
1. Md. Ruhul Amin J: The instant appeal by leave at the instance of defendant No.l is against the judgment and order of July 28,1996 of the High Court Division in First Appeal No. 343 of 1970 allowing the appeal and consequently set aside the judgment and decree of August 28, 1970 of the Court of Subordinate Judge, Chittagong in Other Suit
No. 35 of 1969 dismissing the same which was for declaration of title in respect of the land described in Schedule l(a) and 2(a).
2. Plaintiff-respondent instituted the suit stating inter alia, that land described in Schedule
1 belong to him and to his two other brothers and that upon amicable settlement with the brothers, (defendant No.2) as well as with the predecessor of defendant Nos. 5-9, got in his exclusive share the land described in Schedule 1 (a), that he and his two other bothers had rent receiving interest in the land of Schedule 2, that he purchased l/3rd of the land described in Schedule 2 in the benami of his son, defendant No.l and his wife Begumjan (since deceased) and the rest 2/3rd of the land described in Schedule 2 was purchased by his two other brothers in the benami of their respective chosen persons, that at the time of purchasing the land of Schedule 2 the defendant No.l was a minor boy, that on attainment of majority he entrusted to the defendant No. 1 to look after his property, that some time in 1954 his wife Begumjan died and that while he wanted to marry again the defendant No.l opposed that but he took 2nd wife and that has 4 children out of 2nd marriage, that since the 2nd marriage relation between him and the defendant No.l was not cordial, that in the middle of Ashar. 1376 B.S. defendant No.l disclosed that by alleged lease and the decree he has acquired interest in the land described in the Schedules l(a) and 2(a) and thereupon he made enquired interest in the land described in the Schedules l(a) and 2(a) and thereupon he made enquiry to ascertain the correctness of the claim of the defendant No. 1 and got the trace of a fraudulent Rent Suit No. 732 of 1954, said to have been filed by the plaintiff and a compromise decree was passed therein. It was the case of the plaintiff that the decree that was obtained in Rent Suit No. 732 of 1954 was fraudulent since the said rent suit was not filed by him.
3. The suit was contested by the defendant No.l, herein appellant, contending, inter alia, that the suit is not maintainable as framed and that the same is hit by the provision of Section 42 of the Specific Relief Act. The specific case of the defendant No.l was that plaintiff gifted the land described in Schedule l(a) to him so that his sisters do not raise any claim on his demise and that to perfect that right the plaintiff filed Rent Suit No. 734 of 1954 in the Court of Munsif (now Assistant Judge) Cox’s Bazar and finally filed a compromise petition therein and the suit was decreed on the basis of the compromise petition, that defendant No.l’s mother purchased l/3rd (and of the Schedule 2 with her own money for her own interest and also for his interest, that the plaintiff and his 2 brothers Emdad Miah and Amin Sharif had the rent receiving interest in the land of Schedule 2. that plaintiff and Emdad Miah filed Rent Suit No. 135 of 1959 in the Court of Munsif for the rent of their 2/3rd shares against the defendant No.l and his mother and other purchasers, that heirs of Amin Sharif were made pro-defendants in the said rent suit, that plaintiff never sold any land to defendant No.2 and that the plaintiff and the defendant No.2 have no possession in the land in suit and that the defendant No.l is in possession of the land in suit.
4. The Suit was dismissed by the trial court on the findings (as to the relief as regard the land of schedule l(a)) “It has been stated that defendant No.l took the signature of the plaintiff in two blank sheet of papers on the allegation that they would be required to grant receipt to the Eksona tenants of the plaintiff and the defendant used those papers in the said Rent Suit No. 732 of 1954, but not a word stated by the PW.l in his evidence with regard to those allegations. The plaintiff was a party in the said Rent Suit and also in the decree passed on the basis of the Solenama filed in the suit. The plaintiff has filed this suit for a declaration of his title to the suit land but he has not prayed for setting aside the decree passed in that suit or to get it declared null and void. The decree passed in that suit is a great obstacle in the way of getting declaration of plaintiffs title to the suit land. Without removing that obstruction the plaintiff cannot establish his title to himself”, and (as regard Schedule 2(a)) “The evidence on the side of the plaintiff as regards the benami transaction is very meager. On the other hand we find from Ext. D that the plaintiff and his brother defendant No.2 filed Rent suit 135 of 1959 against the transferees of Ext.A including the defendant No.l and his mother Begumjan and by impleading the heirs of Amin Sharif as pro-defendants for the rent of 1360-1362 B.S. That suit was decreed vide Ext.C. This is also another obstruction for getting a decree for declaration of plaintiffs title in Schedule 2(a) without removing that obstruction by praying for cancellation of the decree passed in that suit or by praying for a declaration that the decree passed in that suit was void. In this suit the plaintiff has not made any such prayer. Begumjan died leaving the plaintiff as husband and other heirs. The plaintiff can get some declaration on the basis of his inheritance from Begumjan if he has been in possession of the same. But from the discussion below it will be seen that the plaintiff has not been able to prove his possession in the lands of Schedule l(a) and2(a)”. Ext.A is the kabala of June 5,1940 by which plaintiff and his two brothers said to have purchased the land of Schedule 2 in the benami of their chosen persons. The trial court, as to question of possession, on detail discussion of the evidence of the parties arrived at the findings “thus considering the evidence on both sides I find that the plaintiff has not been able to prove his possession in the suit land and as such the suit is barred under Section 42 of the Specific Relief Act.”
5. As against the judgment and decree of the trial court the plaintiff filed First Appeal as
mentioned herein above and the High Court Division has allowed the appeal on the findings; “Defendant No.l failed to prove his allegation that the suit land was gifted to him by the plaintiff who, therefore, remained owner of the suit land inspite of the rent decrees which are admittedly collusive. With regard to the finding of the learned Subordinate Judge as to possession, we find it faulty. Those rent suits were between an old father and his son. So unless son can prove his exclusive possession adverse to that of his father the legal presumption that the true owner is deemed to be in possession of the suit land cannot be brushed aside”. It may be mentioned that the Rent Suit No. 135 of 1959 was between the plaintiff and one of his brothers on one side and on the other side the defendant No.l and the heirs of one of the brothers of the plaintiff.
6. In support of the appeal learned Counsel has submitted that the Court of first instance on consideration of the evidence, namely Ext.A, the sale deed of June 5, 1940, Ext.C. the decree in Rent Suit No. 135 of 1959, Ext.D, the certified copy of the plaint of the Rent Suit No. 732 of 1954 and Ext.F, the certified copy of the decree therein having had dismissed the suit on the findings that the plaintiff did not make any prayer in the suit for setting aside the decree passed in the rent suits, although he was a party to the said decrees and as such the plaintiff was not entitled to the decree for mere declaration of title to the land in suit without having those decrees set aside but the High Court Division eversed the decree of the trial court on the view that because of the defense case itself those rent decrees being collusing the same in law need not be set aside for having a declaration by the plaintiff in his suit as framed. The learned Cousel has further submitted that the finding relating to possession of the trial court being that plaintiff was out of possession and consequently suit being hit by Section 42 of the Specific Relief Act. the High Court Division was in error in interfering with the said positive finding of fact on a mere surmise that the relation between the plaintiff and the defendant being father and son the legal presumption of possession of the land in suit is in favour of true owner, the plaintiff.
7. The learned counsel appearing for the plaintiff-respondent has made submissions supporting the judgment of the High Court Division. He has also submitted that plaintiff is entitled to the relief sought since the suit as has been framed is very much maintainable and that provision Section 42 of the Specific Relief Act is in no way a bar in having the relief of declaration of title without seeking declaration as regard the decrees in rent suits.
8. Findings as to possession by the High Court Division is totally unsatisfactory and also unsustainable in that the High Court Division has reversed the finding of the trial court as regard possession of the parties of the land in suit without discussing the evidence on record at all, but merely on assumption and hypothesis premised contrary to the materials on record. The trial court on discussion of evidence of both sides arrived at the definite finding that plaintiff failed to proof his possession. The learned Counsel for the respondent could not point out any infirmity, or leagal flaw in the discussion and consideration of the evidence of the parties by the trial court and in arriving at the definite finding that plaintiff failed to proof his possession in the land in suit. Plaintiffs suit was for mere declaration of title. Plaintiff having had failed to proof his possession in the land suit, in law the suit was not maintainable. The High Court Division in reversing the finding of possession made by the court of first instance, as already mentioned, did not at all discuss the evidence of the parties but proceeded on presumption and assumption, contrary to the materials on record. The finding of the High Court Division as to possession of the plaintiff is based on assumption in total disregard and non-consideration of the documentary as well as oral evidence. There can be no assumption or presumption in respect of a matter in issue in a suit, in the instant suit the question of possession, when the parties have led evidence relating to the said matter in issue in the suit. In a suit contention of the respective parties in respect of a matter having bearing in the ultimate decision in respect of a matter in issue in the suit, when there is evidence either documentary of oral or both the court in law is required to give its decision on the basis of the said evidence on record or in other words on the basis of materials either may be legal document (s) or oral evidence or both and if a decision is made in disregard of the evidence or materials on record the same is no decision in the eye of law or in other wards is not sustainable in law. In the instant case the High Court Division was in serious error in reversing finding of the trial court as to possession upon assumption in disregard of the evidence on record.
9. The other moot point whether the plaintiff is required to avoid by seeking declaration against the decrees in the rent suits wherein he was party to have the relief sought in the instant suit for mere declaration of title. The Rent Suit No. 372 of 1954 relates to the land described in Schedule l(a). Plaintiffs case in his pleading in respect of Rent Suit No.732 of 1954 was that defendant No.l obtained his signature in blank sheet of papers representing that the same would be required to grant receipts to the Eksona tenants of the plaintiff and that those papers have been used for filing compromise petition by the defendant No.l in Rent Suit No. 732 of 1954, but in support of the said case he did not depose in court nor had led evidence by examining withness nor had placed any material on record. The case of the defendant No.l in respect of the Schedule l(a) that plaintiff gifted the said land to him and that to perfect the said gift plaintiff filed the rent suit and finally compromised the same with defendant No.l.
10. The case of the plaintiff as to the land described in Schedule 2(a) is that he purchased the land of the said Schedule in the benami of his wife Begumjan and his son defendant No.l. As against that case of the plaintiff, the case of the defendant No. 1 is that land described in Schedule 2(a) was purchased by his mother with her money for her benefit and for the benefit of her son the defendant No.l. The plaintiff and his two brothers had rent receiving interest in the land described in the Schedule 2 and that the plaintiff and his one brother filed the rent suit No. 135 of 1959 impleading the defendant No.i and his mother and other purchasers including the heirs of plaintiffs another brother as regard the land of Schedule 2 for realization of the rent of the years 1360-62 B.S. and the same was decreed (vide Ext.C).
11. So it is seen that in both the rent suits plaintiff was a party and that rent suits were decreed admitting the title of the defendant No. 1 in respect of the land described in schedule l(a) and 2(a). The trial court dismissed the suit on the findings that in the absence of seeking declaration against the decrees in the rent suits the plaintiff cannot have the decree in the suit as framed. Admittedly inspite of having full knowledge and particulars of the rent decrees the plaintiff has filed the instant suit without seeking any declaration as against the rent decrees wherein he was a party. The High Court Division reversed the findings of the trial court as to that without seeking declaration against the rent decrees either null and void cannot have the decree as sought in the suit filed by the plaintiff upon the finding that the rent decrees in question were “collusive and consequently those need not be set aside”. It is seen from the judgment of the trial court that as against the decree in Rent Suit No. 732 of 1954 it was the case of the plaintiff that the defendant No.l obtained his signature in blank sheet of papers upon representing that those would be required for granting receipt to the Eksona lessee of the plaintiff and that later on defendant used those in the said rent suit, but in support thereof plaintiff has not deposed in court nor has led evidence of any kind. Son the question of obtaining rent decree collusively by the defendant No.l in Rent Suit No. 732 of 1954 was not established by the plaintiff. The other rent suit, being No. 135 of 1959 was brought by the plaintiff and one of his brothers against the defendant No.l and heirs of another brother of the plaintiff, in other words against the transferees of kabala Ext. A for arrears of rent. This rent suit was decreed. So it comes to that the plaintiff and his brother admitted the defendant No.l, his mother Begumjan and the other transferees of the Ext,A (kabala dated June 5, 1940) by which plaintiff and his two brothers said to have purchased the land of Schedule 2 from the tenants, in the benami of defendant No.l, his mother and others, as the tenants of the land of schedule 2 and consequent there upon tenant of the land of Schedule 2(a). Defendant No.2 has not contested the suit denying the genuineness of the rent decree in Rent Suit No. 135 of 1959.
12. Learned Counsel for the appellant in support of his submissions that while admittedly plaintiff was a party in the rent decrees as such in the absence of seeking avoidance either by way of a declaration that the rent suits were null and void or void abinitio the plaintiff in law cannot have the decree in the suit which is for mere declaration of title has referred to the decision in the case of Sufia Khannam Chowdhury Vs. Faizun Nesa Chowdhury reported in 39 DLR (AD) 46 and the decision in the case of abdul Hamid Vs. Dr. Sadeque AH Ahmed & ors repoted in 21 DLR 507. In the case reported in 39 DLR it has been held- “Where a document has been adjudged voidable it will have to be avoided both by declaration and cancellation and if the document is adjudged void or void ab-nitio it need not be cancelled.” In the aforesaid case respondent, whose suit was decreed, prayed for a declaration that the sale deed was void being brought about by fraud, collusion and misrepresentation. So in a case where plaintiff is a party to a document or decree that has clouded his title to the property in suit, he is to seek declaration either of the way, i.e, that the document or decree is void or void ab-initio or that for declaration as well as for cancellation. In the absence of seeking a declaration as against such document or decree he can not have a declaration merely in respect of his title in respect of the property in suit even if he contends that his suit is not barred as per proviso to the Section 42 of the Specific Relief Act. The plaintiff is to seek relief as against the document or decree to which he is a party. In the case reported in 21 DLR it has been observed; “there is a difference between a suit for cancellation of an instrument and a suit for declaration that the instrument is not beinding upon the plaintiff, when the plaintiff seeks to establish a title to himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed, as the case may be, even though it be framed as a suit for a mere declaration”. “In case of void document a person may rely on its invalidity as against himself without suing for its cancellation, and a suit by him for declaring its invalidity is not a suit for declaration with consequential relief. But in a case of document that is only voidable the case is otherwise as the party cannot impeach the arrangement effected by it without having it cancelled A suit for avoiding documents to which the plaintiff was a party on such grounds of fraud, misrepresentation and undue influence is a suit for declaration with consequential relief….”
13. From the aforesaid decision it is seen that a document or a decree to which one is a party and that the said document stands as a hurdle to a declaration of title as regard the property of the one to which the document or the decree relates, then one is to avoid that instrument in having declaration in respect of the property. The High Court Division was not correct, rather was in error, in observing that “decrees are collusive and consequently those need not be set aside” and that “in the language of the decision in 21 DLR 507 those decrees to be treated as non-existence”. By the expression “those decrees” the learned Judges of the High Court Division have referred to the decrees in Rent Suits. The learned Judges of the said Division have incorrectly placed reliance on the decision reported in 21 DLR 507 for the proposition that collusive instrument “need not be set aside” in that instrument alleged to be collusive has to be adjudged so and that in case of an instrument where in plaintiff is a party, then to have declaration to the property of the said instrument the plaintiff in law is required to avoid that in one of the way i.e. declaration that the instrument is void or that declaration and cancellation.
14. The learned Counsel appearing for the respondent in support of his submissions that the decrees in the rent suit having been found not be set aside and that no declaration to adjudge the said decrees as collusive or null and void or that void ab-initio need be sought by the plaintiff in seeking a declaration of title in respect of the land in suit has referred to the decision reported in 44 DLR(AD) 46. This decision has no relevancy to the question involved in the present appeal. The learned Counsel has also referred to the decision reported in 21 DLR (SC) 365. In the reported decision, in the background of the facts of the case it has been observed; “At best, the relief claimed might be stretched to a declaration of legal character. Since the terms and conditions of the respondent’s service were not regulated by any legal instrument, in could not be said that the declaration asked for by him was in relation to any legal character.” The plaintiff of the reported case was an employee of a private Bank and having been removed from the employment filed the suit seeking declaration that termination of his service was illegal. In that background of the facts of the case and the relief sought, it has been held in the reported decision that the relief in the suit “could not be covered by the provisions of Section 42”. So this decision has no relevancy to the point or question of law involved in the instant case. The learned Counsel has also referred to the case reported in AIR 1924 (Cal) 411 and 17 DLR 119. In the case reported in AIR 1924 Calcutta 411 amongst other one of the matter was what the expression “further relief in the proviso to Section 42 of Specific Relief Act, 1908 means. In the case report in 17 DLR plaintiff filed the suit (a) for declaration that certain documents were void ab-initio and that the defendants have acquired no interest in the suit premises by virtue of aforesaid documents, (b) that the documents have been brought into existence by forgeries and false personation and that no consideration did pass for the said documents. The suit was filed with fixed court fee. The learned Subordinate Judge was of opinion that plaintiff was to pay advalorem Court fee as the plaintiff in the form of declaration was seeking some other relief which was no doubt of consequential relief and thereupon directed plaintiff to pay advalorem court fee. As against that plaintiff moved High Court and obtained a Rule. The matter came up before a Division Bench which differed from the decision given by another Division Bench and referred the matter to the Full Bench. Questions formulated for answers-(l) in a suit for declaration that certain document was void ab-initio as it was not executed by the plaintiff but executed by some body else by falsely personifying him to be the executant and as such the document has not affected the right, title and interest of the plaintiff. Whether he is bound to pay court fee under Section 7(iv) (c) of the Court Fees Act as a suit for declaratory decree with consequential relief or under Article 17 of Schedule II of the Court Fees Act as a suit for bare declaration, (II) whether in such a suit plaintiff is to ask for consequential relief as contemplated under Section 39 of the specific Relief Act and if has not specifically asked for such a relief, whether he should be held, by necessary implication, that there is a prayer for such a relief, because it comes under Section 39 of the Specific Relief Act, (III) if a suit is framed as one for declaration that certain document is void, should it be treated as one coming under Section 42 of Specific Relief Act or as one coming under Section 39 of the Act. The answers to the questions were as follows; “1) First part-No, Second Part- Yes, 2) No. 3) It falls under both the Sections.
The first part of the prayer ‘A’ falls under sections 39 and Second Part of the said prayer
under Section 42 of the specific Relief Act”.
15. So the facts of those cases and the questions of law decided therein were quite different and as such the same are also not relevant in the instant case.
16. In view of the discussion made herein above we are of the view that the plaintiff cannot have the relief south in the suit, i.e. mere declaration of title, in the absence of seeking declaration either that the rent decrees were not binding on him being collusive or that void in-abinitio. The plaintiff has not framed his suit in the manner as was required by law.
17. In the result the appeal is allowed. The judgment and the decree of the High Court
Division in First Appeal No. 343 of 1970 are set aside and that the judgment and the decree of the Court of Subordinate Judge in Other Class Suit No. 35 of 1969 are restored. There is no order as to costs.
Ed.
Source: IV ADC (2007), 299