Feroza Khatun Chowdhurani Vs. Abdur Rahim and others

Appellate Division Cases

(Civil)

PARTIES

Feroza Khatun Chowdhurani being dead her heirs Abdul Matin and others ………………………. Appellants

-VS-

Abdur Rahim and others ………………………Respondents

JUSTICE

Syed J.R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

JUDGEMENT DATE: 13th February 2007.

After his death the heirs of his brother Dr. Abdul Halim in collusion with Revenue

Officers got their names recorded in the finally published khatian in respect of 8 annas share of the suit land, putting up the claim that the revenue sale was benami transaction in that Dr. Abdul Halim younger brother of Joynal Abedin, had purchased 8 annas share in the land and that there was threat of dispossession of the plaintiffs from half of the land. Hence the plaintiffs filed Title Suit No. 502 of 1975……………………….. (2)

In view of above mentioned observation we are of the view that the High Court

Division did not commit any error in sending the case on remand to adjudicate the matter afresh in accordance with law giving the parties opportunity to adduce further evidence in support of their respective claims in addition to the evidence already on record. The order does not put any bar upon the plaintiffs to adduce evidence to prove their claim………………… (13)

We are at a loss to understand as to what prompted the plaintiffs to prefer this appeal…………………… (14)

Abdul Quiyum, Senior Advocate, instructed by Md. Sajjadul Haq, Advocate-on-Record…………..For the Appellants

A.J. Mohammad Ali, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocateon-

Record……………….. For the Respondents

JUDGMENT

1. Amirul Kabir Chowdhury J : This appeal by leave at the instance of the plaintiff is

directed against the judgment and order dated 11.04.1985 passed by the High Court Division, Comilla Bench in Second Appeal No. 375 of 1979.

2. Predecessor of the plaintiffs, late Moulvi Joynal Abedin purchased the suit land in revenue sale held on 11 July 1942. The judgment debtor namely, Haralal challenged the sale by filing Title Suit No. 48 of 1942 but lost it at all stages and finally in second appeal which was dismissed on 3 August 1948. Joynal Abedin mutated his name and paid rent all through till his death in 1960 and his name was recorded in the preliminary Record-of-rights. But after his death the heirs of his brother Dr. Abdul Halim in collusion with Revenue Officers got their names recorded in the finally published khatian in respect of 8 annas share of the suit land, putting up the claim that the revenue sale was benami transaction in that Dr. Abdul Halim younger brother of Joynal Abedin, had purchased 8 annas share in the land and that there was threat of dispossession of the plaintiffs from half of the land. Hence the plaintiffs filed Title Suit No. 502 of 1975.

3. Defendant respondents contested the suit denying the allegations and claiming that

Joynal Abedin admitted the joint purchase and relinquished his claim to the extent of 8 annas share by a registered Nadabipatra dated 21 June, 1945 in the basis of which the finally published khatian recorded their 8 annas interest. The suit was decreed by the trial court. Both the trial court and the lower appellate court concurrently found that the Nadabipatra was forged document, copy of which was produced for the first time after the death of Joynal Abedin, that the finally published khatian in favour of joint pruchase got no basis and on those findings decreed the suit. In second appeal – S.A. No. 375 of 1979 a learned Single Judge of the High Court Division observed that the concurrent findings were not sustainalbe in law as the courts below wrongly shifted the onus of proof of the benami purchase and the Nadabipatra upon the defendants.

4. The learned Single Judge by the impugned judgment and order allowed the appeal setting aside the judgment and decree of the courts below and sent back the suit on remand to the trial court to adjudicate the matter afresh in the light of the observation made in the body of the judgment.

5. Hence is this appeal

6. Leave was granted to consider the submissions made on behalf of the appellants that the order of remand is improper in that concurrent findings of the trial court and the lower appellate court are based on evidence and that the onus to prove the benami purchase to the extent of 8 annas share of the suit land is upon the defendant and that presumption in favour of nadabipatra Ext.C has been rebutted by the plaintiffs and therefore there was no room of the High Court Division to send the suit on remand.

7. Mr. Abdul Quiyum, learned Counsel appearing on behalf of the appellants reiterated the aforesaid submissions made earlier.

8. He thereafter submits that on the basis of evidence both the courts below came to concurrent conclusion that the nadabipatra produced on behalf of the defendant respondents was not a- genuine document and without adverting to the materials on record the High Court Division passed the impugned judgment on remand. There being cogent evidence indicating that the nadabipatra was not a genuine document and there being concurrent conclusive finding to the effect by both the courts below the High Court Division committed error in sending the suit again on remand.

9. Mr. A. J. Mohammad Ali, learned Counsel opposes the appeal.

10. We have considered the submissions and perused the materials on record.

11. It appears that the High Court Division in consideration of the materials on record observed, inter-alia, “Oral evidence with regard to possession, as have been claimed by both the parties in respect of the disputed land, seems to be very much balanced. The courts below could not find any direct contradiction among the withnesses of the defendants side, who were examined to prove their possession. But upon making certain aspersion on the character of the D.Ws. The courts below have believed the evidence of P.Ws. in arriving at a finding of possession. I have already mentioned that payment of rent for long time is also a piece of evidence regarding possession but the courts below without considering such evidence, specially exhibit-A series, have found possession in favour of the plaintiffs upon taking into consideration only the oral evidence of Borgaders notwithstanding the fact that P.W.2 Daiya Gazi appears to be a partisan witness as one of his son has purchased some land out of the disputed property from the plaintiffs.

12. As a matter of fact, the courts below have abruptly held that exhibit-C is a gorged document. Thus, in my opinion, non-consideration of exhibit-A -series by the courts below has caused a serious error in the decision of the case merit and that the courts below have also committed an error in procedure by shifting the onus upon the defendants to prove that eshibit-C is a genuine document. I have already observed that the plaintiffs did not take any stop to prove their case that during his life time Joynal Abedin got his name mutated in the relevant register in pursuance of exhibit-1 and did not also produce any rent receipt in support thereto. In the interest of justice a chance should be given to the plaintiffs to prove their case by producing any evidence in support thereto if there be any.”

13. In view of above mentioned observation we are of the view that the High Court

Division did not commit any error in sending the case on remand to adjudicate the matter afresh in accordance with law giving the parties opportunity to adduce further evidence in support of their respective claims in addition to the evidence already on record. The order does not put any bar upon the plaintiffs to adduce evidence to prove their claim.

14. We are at a loss to understand as to what prompted the plaintiffs to prefer this appeal.

15. In view of the discussion made above we do not find any substance in this appeal.

16. The appeal is, therefore, dismissed.

17. Parties do bear their respective costs.

Ed.

Source: IV ADC (2007), 306

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