Appellate Division Cases
(Civil)
PARTIES
Md. Abdul Muttalib…………………… Petitioner.
-Vs-
Md. Abdul Wahab ……………………….Respondent
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Judgment Dated: 14th Mav 2007.
For a declaration that the registered deed dated 24.03.1988 being No.2969 of 1988 is forged, collusive, inoperative and not binding upon the plaintiffs ………….(2)
The High Court Division held that the Court of appeal which is the final Court of fact has considered the evidence on record and found that the defendant could not adduce any evidence to prove that the deed in question was executed by Taposh and others and accordingly found that the same is a forged deed. The High Court Division next held that the question of res-judicata does not arise in the instant case as to constitute res-judicata it has to be shown that any issue of the pre-emption case was an issue in the instant case. The High Court Division then held that Taposh, one of the executants of the kabala in question in favour of defendant was a minor at the time of execution of the deed in question and the position of law is that execution of any document by a minor is not a valid document in the eye of law ……………….(6)
Therefore, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same ……………………….(7)
Accordingly, the leave petition is dismissed ………………..(8)
Md. Nawab AH, Advocate-on-Rccord. …………………..For the Petitioner
Sved Aniirul Islam, Advocate (with M. Nurul Amin, Advocate) instructed by A.KM. Shah idtil Huq, Advocate-on-Record ………………….For the Respondent
Civil Petition For Leave To Appeal No.835 of 2005
(From the judgment and order dated 19.03.2005 passed by the High Court Division in Civil Revision No. 1386 of 2002.)
JUDGMENT
M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 19.03.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 1386 of 2002 discharging the Rule.
2. The plaintiffs instituted Title Suit No.44 of 1994 in the Court of Senior Assistant Judge, Jhemdah for a declaration that the registered deed dated 24.03.1988 being
No.2969 of 1988 is forged, collusive, inoperative and not binding upon the plaintiffs alleging, inter alia, that the land appertaining to C.S. Khatian No.320, S.A. Khatian No.402. Plot No. 193 measuring an area of 26 decimals of mouza Ahammadabad belonged to Keshob Chandra who sold .7decimals in favour of Bachiruddin and others. Keshob Chandra also sold 7 decimals of land by kabala dated 13.03.1978 and by nother
kabala deed dated 30.03.1979 in favour of Tahasuddin. After transfer Keshob had only .11 decimals o[ land and he again transferred .7 decimals of land by deed of gift dated 29.03.1980 in favour of his son Mohcndra. After the said transfer Keshob had only .4 decimals of land in his share.He then died leaving only son Mohendra who transferred .7 decimals of land by kabala deed dated 24.12.1981 in favour of the plaintiff who possessed the land. When the plaintiff went to the Local Revenue Office to get his name mutated, he learnt that in his kabala dated 24.12.1981 in place of Plot No. 193 Plot No. 194 was wrongly written. The further case is that the defendant No.l created a kabala deed dated 21.04.1988 showing transfer of .5/4 decimals of land in his favour by Pankoj, Taposh and Asim, Sons of Bashu Deb, full brother of Mohendra. The plaintiffs further allegation is that the kabala deed dated 21.04.1988 is a forged deed as Pankaj, Taposh and Asim are all Indian citizens and they never came to Bangladesh and never executed the document.
3. The defendants contested the suit by filing a written statement denying the material
allegations made in the plaint. Their case is that Keshob Chandra was the owner of the suit land. He transferred 7decimals of land in favour of Bachiruddin and others and also transferred another 7 decimals of land in favour of Tahasuddin by 4 kabala deeds dated
01.08.1984 and 02.08.1984 and transferred .4decimals of land in favour of Shapna. After the said transfer Keshob had .11 decimals of land and he died leaving behind three sons Taposh, Pankoj and Asim. Thereafter, Taposh, Pankoj and Asim transferred .5 decimals of land by the kabala in question dated 24.03.1988 in favour of the defendant No. 1 at a consideration of Tk.20,000/-. The defendant got .10 decimals from Plot No. 193. The further case is the defendant sold .1 decimals by a kabala deed dated 14.04.1988 in favour of Bedena Khatun, wife of the plaintiff and also sold .2 decimals of land by kabala deed dated 16.04.1988 in favour of Abdus Sattar who sold the same in
favour of the plaintiff. The further allegation is that the defendant No.l is in possession
of .8decimals of land. The further case is that Taposh and others, sons of Bashu Deb are the inhabitants of Bangladesh. Taposh and others were present at the time of registration of the deed. The deed in question was found valid in preemption case No. 149 of 1988.
4. The trial Court dismissed the suit. On appeal in Title Appeal No.36 of 1999 the appellate Court allowed the appeal. Being aggrieved, the defendants moved the High
Court Division in revisional jurisdiction and obtained the Rule, which after hearing was discharged.
5. We have heard Mr. Md. Nawab Ah, the learned Advocate-on-Record for the petitioner
and Mr. Syed Amirul Islam, the learned Counsel with Mr. Nurul Amin, the learned Advocate for the respondent and perused the judgment of the High Court Division and other connected papers.
6. The High Court Division held that the Court of appeal which is the final Court of
fact has considered the evidence on record and found that the defendant could not adduce any evidence to prove that the deed in question was executed by Taposh and others and accordingly found that the same is a forged deed. The High Court Division next held that the question of res-judicata does not arise in the instant case as to constitute res-judicata it has to be shown that any issue of the pre-emption case was an issue in the instant case. The High Court Division then held that Taposh, one of the executants of the kabala in question in favour of defendant was a minor at the time of execution of the deed in question and the position of law is that execution of any document by a minor is not a valid document in the eye of law.
7. Therefore, we are of the view that the High Court Division upon correct assessment
of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.
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8. Accordingly, the leave petition is dismissed.
Source : V ADC (2008), 237