Jobeda Bewa & others Vs. Md. Abdur Razzaque

Appellate Division Cases

(Civil)

PARTIES

Jobeda Bewa & others ……………….Appellants

-Vs-

Md. Abdur Razzaque …………………Respondent.

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

JUDGEMENT DATE: 19th October 2006

The Specific Relief Act, 1877, Section 42

The plaintiff has been residing in the dwelling house of Laibot Ali Pramanik and

in view of the relationship between Laibot Ali Pramanik and the plaintiff as stated

above, separate delivery of possession was also not necessary, the plaintiff already

being in possession of the land gifted to him by deed of gift by Laibot Ali Pramanik………………(9)

It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered document. If such type of cancellation of a registered instrument is allowed to continue, there will be no sanctity of any registered instrument…………………. (10)

Civil Appeal No. 317 of 2002 (From the judgment and order dated 30.10.2001 passed by the High Court Division in Civil Revision No. 4207 of 1996.)

Lutfor Rahman Mondal, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record………………..For the Appellants

Aftab Hossain, Advocate-on-Record……………………For Respondent

JUDGMENT

1. M.M. Ruhul Amin J : This appeal by leave is directed against the judgment and order dated 30.10.2001 passed by a Single Bench of the High Court Division in Civil Revision

No.4207 of 1996 making the Rule absolute.

2. The plaintiff filed other class suit No. 381 of 1987 in the Court of Senior Assistant Judge, Additional Court No.l, Rajshahi for declaration of title to the suit land on the basis of a deed of gift (hebanama) executed by his uncle, Mohammad Laibot Ali Pramanik stating, inter alia, that after execution and registration of deed of gift (hebanama) delivery of possession was handed over to him but at the instance of the defendant Nos.l and 2, wife and brother of Laibot Pramanik, the latter executed another deed dated 12.11.1979, cancelling the deed of gift dated 04.08.1978 which clouded the title of the plaintiff. Hence is the suit.

3. The defendant Nos. 1-9 contested the suit by filing written statement denying the material allegations made in the plaint and further contended that the suit land is barred by limitation and bad for defect of execute the deed of heba but he did not get the possession of the suit land. Laibot Pramanik executed a registered deed on 11.12.1972 cancelling the earlier heba deed in favour of the plaintiff. After the death of Laibot Pramanik the defendants became the owners as his heirs in the suit land and they have been possessing the suit land. So the suit is liable to fail.

4.The trial court dismissed the suit. On appeal being Title Appeal No.193 of 1991 the appellate court also dismissed the appeal. Being aggrieved the plaintiffs moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division

upon hearing made the Rule absolute.

5. Leave was granted to consider the submission that “considering the proven facts, circumstances and the evidence on record of the case, the learned Single Judge of the High Court Division due to its misconception of the provisions of section 42 of the Specific Relief Act, 1877 has set aside the judgment and decree of the courts below without reversing the concurrent finding of facts of the courts below after consideration of the evidence on record to the effect that the plaintiff has no title and possession of the suit land and the suit is bad for non-joinder of necessary parties, causing miscarriage of justice.” and the nest submission that “while exercising its revisional jurisdiction the High Court Division has no power, authority and jurisdiction to interfere with the concurrent finding of facts of the courts below without reversing the same on the basis of the evidence on record, but the learned Single Judge of the High Court Division due to its misconception in law, did not consider the evidence on record of a case of concurrent finding of facts by the courts below causing miscarriage of justice.”

6. We have heard Mr. Lutfor Rahman Mondal, the learned Advocate for the appellant and

perused the judgment of the High Court Division and other connected papers.

7. It is not disputed that the suit property belonged to Laibot Ali Pramanik. It is also not

disputed that the plaintiff being brother’s son of Laibot Ali Pramanik, the latter being issueless brought him up as his son and the plaintiff also resides at the dwelling house of

Laibot Ali Pramanik.

8. It is not denied that Laibot Ali Pramanik executed a heba deed on 04.08.1978 in favour

of the plaintiff in respect of the suit land. But subsequently by another deed dated

12.11.1979, he cancelled the earlier heba deed dated 04.08.1978 executed by him in favour of the plaintiff.

9. We have already pointed out that it is not disputed that the plaintiff has been residing in the dwelling house of Laibot Ali Pramanik and in view of the relationship between Laibot Ali Pramanik and the plaintiff as stated above, separate delivery of possession was also not necessary, the plaintiff already being in possession of the land gifted to him by deed of gift by Laibot Ali Pramanik.

10. It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered document. If such type of cancellation of a registered instrument is allowed to continue, there will be no sanctity of any registered instrument.

11. In the above facts and circumstances of the case and in view of the discussion made

above, we are of the view that the High Court Division upon correct decision. There is no

cogent reason to interfere with the same.

12. The appeal is dismissed with any order as to costs.

Ed.

Source: IV ADC (2007),6

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