Md. Aslam Khan Vs. Haji Abdur Rahim and others

Appellate Division Cases

(Civil)

PARTIES

Md. Aslam Khan ……………………………………Appellant

-Versus-

Haji Abdur Rahim and others……………………. Respondents

JUDGES

Md. Ruhul Amin J.

Md. Tafazzul Islam J.

Date of Judgment

18th June. 2006

Section 60 of the Registration Act Section 114(e) of the Evidence Act

The Specific Relief Act. Section 42

Seeking declaration that the kabala described in the schedule attached to the plaint is forged, fraudulent and void. (1)

When the plaintiff is a party to a document and if he seeks relief for avoiding the document he is to ask for cancellation of the same and a suit for mere declaration that the questioned kabala is forged, fabricated and fraudulent in not maintainable without seeking cancellation has referred to the case of Sree Chitta Ranjan chakraborty being dead has heirs Ashish Chakroborty and others Vs. Md. Abdur Rob alias Mvi. Md. Abdur Rob reported in 17 BLD (AD) 126 wherein it has been observed ” that where a written instrument is ab initio void the transaction is a nullity and the plaintiff is not required to have it cancelled or set aside, and if, on the other hand, the instrument is only voidable, then it would be essential for the plaintiff to have it cancelled or set aside”. In the instant case the document in question is voidable at the best and as such the plaintiff was required to seek for consequential relief in the form of cancellation of the document in question or for setting aside the same. Abani Mohan Saha Vs. Assistant Custodian (S.D.O.) Vested property, Chandpur and others reported in DLR (Ad) 223 (12)

The law is now settled that order of remand can not be passed by a Court as a matter of cause (41 DLR (AD) 124) and in a case where the party/parties is/are negligent in producing evidence or to fill up the lacuna (7 BLT (AD) 7) (17)

ADVOCATES

For the Appellant Mahbubex Alain, Senior Advocate, instructed by dry. Md. Zahangir, Advocate-on-record.For Respondent No.l Mahbub Ali, Advocate, instructed bx Md. Nawab Ali, Advocate-on-record Respondent Nos. 2-11 …. Not represented.

JUDGMENT

1. MD. RUHUL AMIN. J:- This is plaintiffs appeal by leave against the judgment dated August 23. 2001 of a Single Bench of the High Court Division in Civil Revision No.526 of 2000 discharging the same. The Rule was obtained against the judgment and decree dated June 29. 1999 of the Court of Additional District Judge, Moulvibazar in Title Appeal No.54 of 1995 allowing the same and thereupon dismissing the suit being Title Suit No.32 of 1993. The trial Court by the judgment and decree dated February 23. 1995 decreed the Title Suit No.32 of 1993 which was filed seeking declaration that the kabala

described in the schedule attached to the plaint is forged, fraudulent and void.

2. The suit was filed on September 8. 1993 having been served on September 28.1992 with the summons of Miscellaneous Case No. 18 of 1992 filed on September 20. 1992. The Miscellaneous Case was filed seeking pre-emption as contiguous land holder of the land transferred by the kabala sought to be declared as forged, fabricated and void.

3. The suit was filed stating, inter alia, that the land in suit was owned by plaintiff’s father

Osman Khan who died leaving two sons, one of whom is the plaintiff and a daughter, that

upon amicable partition amongst the heris of Osman Khan plaintiff got the land in suit and possessing the same, that on September 28, 1992 plaintiff received the summons of Miscellaneous Case (pre-emption) No. 18 of 1992 and thereby came to know that the defendant Nos.1-5 upon using the name of the plaintiff have created the kabala in question in respect of the land mentioned therein, that the plaintiff obtained the certified copy of the kabala from the office of the sub-Registrar, Srimongal. that the plaintiff has not executed and registered the kabala in question, that though in the kabala value of the land has been mentioned Tk. 1.00.00/- but in fact the market price of the land in suit is Tk. 100.000/. that the plaintiff has never received any money in connection with the alleged kabala from the defendant Nos.1-5. that the deed was never acted upon and the said forged and fabricated kabala as has created cloud on plaintiffs title in the land in suit, hence the suit.

4. The pre-emptor of the Miscellaneous Case No. 18 of 1992 got himself impleaded in the plaintiffs suit i.e. Title suit No.32 of 1993 as defendant No.l 1 and contested the suit by filing written statement. It is the case of the defendant No. 11 i.e. Respondent No.l herein, that plaintilT being in need of cash money sold the land in suit by the kabala impugned in the suit for Tk. 10.000/- to the defendant Nos.1-5.of whom defendant No.5 is the maternal aunt of the plaintiff and the defendant Nos.1-4 are the close relations of the defendant No.5, that plaintiff in pursuant to the said act made over possession to the defendants, that at the lime of transfer many elites of Srimongal Town were present and in presence of them plaintiff received Tk. 10.000/-, that the plaintiff executed and registered the kabala impugned in the suit, that the plaintiff put his left hand thumb impression in the Thumb Impression Register of the office of the sub-Registrar, that the suit has been filed in collision with defendant Nos. 1-5 who are close relations of the plaintiff to frustrate the claim of pre-emption.

5. The trial Court decreed the suit on the finding that the plaintiffs suit is not barred by limitation that the suit is quite maintainable as per provision of section 42 of the Specific Relief Act, that the plaintiff proved his possession in the land in suit by his evidence as well as by the evidence of P.Ws.2-6, that the defendant has not proved that the plaintiff executed and registered the kabala, nor the defendant has established that plaintiff received the consideration Tk. 10,000/-, that although it has not been established who had brought into existence the kabala but it has been established by the plaintiff that the same is forged one. 6. The defendant No.ll. Respondent No.l herein, went on appeal. The appellate Court allowed the appeal and thereupon reversed the judgment and decree of the trial Court on the finding that the plaintiff and the defendant filed the suit to frustrate the claim of pre-emption of the defendant No.l 1 lor which he has already filed Miscellaneous Case No. 18 of 1992. Thereupon the plaintiff moved the High Court Division in revisional jurisdiction and obtained the Rule.

7. The High Court Division discharged the Rule on the finding that the trial Court decreed the suit wrongly placing onus upon the defendant to prove the kabala in question

forged and fabricated although under the law it was the duty of the plaintiff or in other words onus was on the plaintiff to establish that the kabaka in question is forged, fabricated and fraudulent, that the plaintiff did not take fiy step for calling the Thumb Impression Register from the office of the sub-Re; istrar and for examination of the thumb impression appearing in the Thumb Impression Register of the office of sub-registrar by a Hand Writing Expert to establish that the kabala in question was forged, fabricated and fraudulent one. that the plaintiff failed to prove h s case by reliable evidence and the plaintiff has filed the suit solely for the purpose of defeating the claim of pre-emption of the defendant No. 11 for which he has already filed Miscellaneous Case No. 18 of 1992, that the findings and decisions of the appellate Court as to that plaintiff could not prove his  case are based on due considerations of the evidence and as such no error was committed by the lower appellate Court in setting aside the judgment and decree of the trial Court which was made upon placing the onus wrongly on the defendant for proving the deed in question as forged as well as reliable evidence being nil.

8. Leave was granted to consider the contention that plaintiff having had denied to have executed the alleged kabala the onus was upon the recipients of the document to prove the same as genuine but the recipients having had not proved the same the trial Court quite legally decreed the suit and thereby cancelled the impugned deed, but the appellate Court wrongly set aside the judgment and decree of the trial Court and the High Court Division was in error in affirming the judgment of the lower appellate Court, that the recipients of the alleged kabala having not contested the claim of the plaintiff, the appellate Court was in error in dismissing the suit on the basis of the contest of the added defendant No.l 1 who had no locus stand to challenge the claim of the plaintiff, that the plaintiff having had prayed before the Court to call the Thumb Impression Register to show that the kabala in question is forged and fabricated and as such there having had no laches on the part of the plaintiff in proving his case the appellate Court was in errr in dismissing the suit of the plaintiff and the High Court Division committed an error in affirming the judgment and decree of the lower appellate Court.

9. The last contention of the appellant relating to calling of Thumb Impression Register from the office of the sub-Registrar for the purpose of establishing the fact that the kabala in question was forged and fabricated is not correct. In fact, as seen from the judgment of the High Court Division, the plaintiff filed application for calling volume wherein the kabala in question was entered into from the office of the sub- registrar instead of calling the Thumb Impression Register. In the background of the fact that the original kabala was not filed before the Court and as such the plaintiff ought to have take step for calling thumb impression register from the office of the sub-Registrar and to get the thumb impression examined by a Hand Writing Expert for the purpose of establishing his claim that the kabala in question is forged and fraudulent.

10. The learned Counsel for the appellant took us through the judgment of the High Court

Division and the courts below. In the background of the facts and circumstances of the case and the findings made by the last Court of fact as well as by the High Court Division the learned Counsellor the appellant submitted that for the interest of justice the case may

be sent back to the trial Court to enable the plaintiff to call the thumb impression register

from the office of the sub-Registrar and to get the thumb impression appearing in the said

register in connection with the deed in question as well as the plaintiffs thumb impression

examined by the Hand Writing Expert for ascertaining the genuineness or otherwise of the kabala in question.

11. The learned Counsel for the Respondent seriously took exception to the aforesaid submission of the learned Counsel of the appellant and submitted that the plaintiff and the

recipients of the kabala in question, who are the defendant Nos. 1-5, are closely related to

each other and the plaintiff and the said defendants in collusion with each other have filed

the suit much long after the filling of the Miscellaneous case claiming pre-emption of the land transferred by the kabala with the sole object of frustrating the defendant’s, i.e. the pre-emptor’s claim of pre-emption. The learned Counsel also submitted that the High Court Division as well as the lower appellate Court in the background of the materials on

record has quite correctly held that the plaintiff has filed the suit in collusion with the defendant Nos. 1-5 to frustrate the claim of the defendant No. 11 who has already filed the Miscellaneous case for pre-empting the land transferred by the kabala in question. The learned Counsel further submitted that collusive character of the suit is very much apparent from the fact that the summons of the Miscellaneous Case, which was filed on September 20. 1992 was served on the plaintiff on September 28, 1992 and long thereafter the plaintiff filed the suit on September 8, 1993. It has also been ubmitted by the learned Counsel that the entries in the kabala has the presumption of correctness under the provision of section 60 of the Registration Act as well as, in view of the provision of section 114(e) of the Evidence Act. It has also been submitted that the suit as framed was not maintainable in that plaintiff being a party to the kabala he was required to seek for consequential relief by way of cancellation of the kabala but the plaintiff has filed the suit seeking merely declaration that the kabala in question is forged, fraudulent and void. It has also been submitted by the learned Counsel for the Respondent No.l that evidence of possession of the land had no relevancy since matter of possession is not an issue in the suit in the background of the relief sought in the suit.

12. The learned Counsel for the Respondent No.l in support of his contention that when the plaintiff is a party to a document and if he seeks relief for avoiding the document he is to ask for cancellation of the same and a suit for mere declaration that the questioned kabala is forged, fabricated and fraudulent in not main- -J tainable without seeking cancellation has referred to the case of Sree Chitta Ranjan chakraborty being dead has heirs Ashish Chakrcborty and others Vs. Md. Abdur Rob alias Mvi. Md. Abdur Rob reported in 17 BLD (AD) 126 wherein it has been observed that where a written instrument is ab initio void the transaction is a nullity and the plaintiff is not required to have it cancelled or set aside, and if, on the other hand, the instrument is only voidable, then it would be essential for the plaintiff to have it cancelled or set aside”.In the instant case the document in question is voidable at the best and as such the plaintiff was required to seek for consequential relief in the form of cancellation of the document in question or for setting aside the same. The other contention that the document being a registered one has the presumption of correctness because of the certificate attached thereto by the sub-Registrar and thereupon signature put and the seal affixed by the registering officer and thus has the presumption that the said official acts have been regularly performed and that there is presumption under section 60 of the Registration Act that the document was duly registered and in support of the said contention the learned Counsel has referred to the case of Abani Mohan Saha Vs. Assistant Custodian (S.D.O.) Vested property. Chandpur and others reported in DLR (Ad) 223.

13. The High Court Division as well as the lower appellate Court upon due consideration

of the facts and circumstances of the case and the evidence on record have held that the suit has been filed to frustrate the claim of pre-emption of the Respondent No. 1 who for the enforcement of right of pre-emption has filed the Miscellaneous Case No. 18 of 1992 and long thereafter the plaintiff filed the suit. The trial Court decreed the suit wrongly shifting the onus on the defendant for establishing the fact that the document for setting aside whereof suit has been filed, was executed by the plaintiff. The plaintiff filed the suit seeking declaration that the document in question was fraudulent and forged. Since the plaintiff is urging upon the Court to declare the document in question forged and fraudulent it was the obligation of the plaintiff to establish the said fact. The plaintiff in support of his case that the document in question forged and fabricated has examined himself alone. He being int.: .;sted for getting the kabala declared fraudulent and fabricated or for that matter » forged there was necessity of corroboration of his evidence to that effect by the same was nil. In the state of the matter the appellate Court and the High Court Division dismissed the suit on the finding that the plaintiff failed to establish his case. The learned Counsel for the appellant in the background of the materials on record felt difficulty to assail the finding of the High Court Division and the lower appellate Court that the plaintiff failed to prove his case or in other words failed to prove that the impugned document was forged and fabricated. The undenied position is that the plaintiff and the recipients of the document in question i.e. Respondent Nos. 1-5 are closely related to each other and at one stage plaintiff tried to place a case before the Court that defendant Nos. 1-5 in collusion with the defendant No. 11 i.e. Respondent No.l herein, created the document in question only to deprive the plaintiff of the land sought to be pre-empted. The aforesaid contention of the plaintiff was not accepted by the Court of appeal and the High Court Division being in the background of the facts and circumstances of the case something absurd. V 14. The High Court Division and the appellate Court below in the facts and circumstances of the case have held that plaintiffs suit is collusive one. The finding so made, in our view, was quite correct in view of the fact that the plaintiff and the defendant Nos. 1-5 are closely related and there is no reason for the defendant Nos. 1-5 to bring into existence the document in question fraudulently or resorting to forgery. The fact of non-contesting the suit by the defendant Nos. 1-5 has highlighted the allegation of the Respondent No.l that the suit is a collusive one and the same has been filed by the plaintiff in collusion with the defendant Nos. 1-5 only to defeat the right of pre-emption of the contesting defendant Nq.ll. In the background of the materials on record it is seen that plaintiff purposely did not produce the evidence before the Court to establish that the document in question is a fraudulent one. The plaintiff tried to obtain a decree in collusion with the defendant Nos. 1-5 making untrue statements but the said attempt has been frustrated because of the contest made by the defendant No. 11 i.e. Respondent No.l herein.

15. It is seen from the judgment of the High Court Division that plaintiff filed an application for calling the volume wherein the deed in question was copied from the office of the sub-Registrar instead of calling the thumb impression register for getting the thumb impression appearing in the said register and the thumb impression of the plaintiff examined by the Hand Writing Expert. In the background threof the learned Counsel for the appellant has submitted that the case may be sent back on remand for enabling the plaintiff to get the thumb impression examined by a Hand Writing Expert upon calling the thumb impression register and thereupon if the case is adjudicated then ends of justice would best be served. 16. The submission so made is not a merited one, first the High Court Division as well as the Court of appeal below on consideration of the materials on record have held that the suit is collusive one. Since the findings so made by the High Court Division and the appellate Court is based on materials on record no purpose would be served in remanding the case back for enabling the plaintiff to get the thumb impression in the thumb impression register examined for the purpose of ascertainment whether the same is of the plaintiff. Secondly the suit has not been disposed of on preliminary point of that without framing and trying the issue which should have been framed and adjudicated or that without determining any question of fact which was required to be determined for a correct decision in the matter involved in the suit.

17. The law is now settled that order of remand can not be passed by a Court as a matter of cause (41 DLR (AD) 124) and in a case where the party/parties is/are negligent in producing evidence or to fill up the lacuna (7 BLT (AD) 7).

18. In the background of the discussions made hereinbefore we do not find any merit in the appeal.

19. Accordingly the same is dismissed with costs.

Source: III ADC (2006) 793