Md. Badiuzzaman Vs. Parvin Akhter Jahan & another

Appellate Division Cases

(Civil)

PARTIES

Md. Badiuzzaman……………….. Petitioner.

-Vs-

Parvin Akhter Jahan & another………… Respondents.

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 16th November 2006

For cancellation of oral gift in respect of the first floor of the building situated on the suit property together with the recovery of khas possession thereof by evicting the defendant therefrom………………. (2)

It appears that the plaintiff did not deny his signatures on the affidavit notarized by the Notary Public at Khulna. It is also not his case that his signatures on the affidavit in question confirming oral gift of first floor of the building in question in favour of the defendant No.l was obtained by duress or coercion and the plaintiff also did not adduce evidence to prove such plea ……………….(7)

Thus it is clear that the signatures of the plaintiff in the affidavit before the notary Public at Khulna are rather admitted …………………(8)

Therefore, in the facts and circumstances of the case, we are of 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. …………..(9)

Accordingly, the leave petition is dismissed …………….(10)

Mihir Kanti Mazumder, Advocate (instructed by A.K.M. Shahidul Huq, Advocate-on-Record) …………….For the Petitioner

Syed Mahbubur Rahman, Advocate-on-Record ………………..For Respondent No. 1

Respondent No.2 …………………Not represented.

Civil Petition For Leave To Appeal No. 757 of 2005

(From the judgment and order dated 09.05.2005 passed by the High Court Division in F.A.No.114 of 2000.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment

and decree dated 09.05.2005 passed by a Division Bench of the High Court Division in First Appeal No. 114 of 2000 allowing the appeal.

2. Short facts are that the plaintiff filed Title Suit No.220 of 1994 for cancellation of oral gift in respect of the first floor of the building situated on the suit property together with the recovery of khas possession thereof by evicting the defendant therefrom alleging, inter alia, that one Major (retired) Habibur Rahman Miah got the suit property from Dhaka Cantonment of the then East Pakistan Circle for 99 years and necessary deed was registered as being No.9945 of 1968 for an area of 1230 kathas and the plaintiff and one Begum Mahmooda Akhter purchased the same from said Major Habibur Rahman Miah by registered kabala being No.6016 of the year 1981 and the plaintiff got possession

over 6 katha of land in the western side of the plot in question. The plaintiff got his

name mutated in the Revenue Department of the Government and has been possessing

the same on payment of rent and taxes.

3. The further case of the plaintiff is that he married defendant No.l on 5th January 1979 and they have one son and one daughter out of the said wed-lock. The plaintiff being a Marine Engineer had to pass his time in different ships throughout the year in foreign countries when the defendant No.l used to reside in the house so constructed over his purchased land. The plaintiff went to Sweden for higher studies in the month of April 1984, where defendant No.l joined him later on. The plaintiff came back after obtaining his higher degree and joined his work in Bangladesh Inland Water Transport

Corporation, Dhaka. The defendant taking advantage of his absence started to lead fast life. The plaintiff constructed a two storied building on the land so purchased with a plan of four storied building. The defendant No. 1 took some fraudulent steps to get the first floor of the building transferred in her name since its completion though the plaintiff had no intention to do so. Defendant No.l by taking fraudulent pleas managed to prepare an affidavit authenticated by Notary Public at Khulna while the plaintiff was serving there

obtaining his signatures thereon converting the same as confirmation of oral gift though no formalities as required under law took place in this behalf. The further case of the plaintiff is that the name of the witnesses have been entered thereto subsequently by fraudulent means and after completion of the aforesaid fraudulent act defendant No. 1 continued to lead fast life for which the plaintiff was forced to divorce her. The further case of the plaintiff is that the said divorce was revoked and defendant No.l was taken back as wife on the mediation of the relations of defendant No.l and since 1991 he has been living in Dhaka after coming from Khulna on transfer, but defendant No.l did not change her mind and continued to lead fast life and being disgusted thereby he finally divorced her. On knowing about the divorce, defendant No.l managed to possess the first

floor of the building standing on the schedule land on the basis of false oral gift authenticated by Notary Public, though in fact he did not make any gift in respect of

first floor of the building as alleged. Defendant No. 1 in course of time managed to realize rent from tenants at different times in respect of the first floor of the building in question claiming her title thereto. The further allegation is that the plaintiff constructed a garage over left out land of the schedule property as well as servant quarter on the top of the first floor. After aforesaid divorce defendant No.l acquired no title over the first floor of the building in question on the basis of alleged oral gift supported by declaration before Notary Public and her such possession is illegal. Hence is the suit.

4. The defendant No.l contested the suit by filing written statement stating, inter alia, that the suit is not maintainable and the same is barred by limitation. Her case is that the plaintiff gifted her the first floor of the building in question out of love and affection since she was the beloved wife of the plaintiff but after coming from Sweden the plaintiff become debauch and started to lead life with women and wine and being disgusted she got herself separated by way of divorce and she has been possessing the first floor of the building in her own right through bharatia.

5. The trial court dismissed the suit. On appeal the High Court Division allowed the appeal in part. Being aggrieved the plaintiff petitioner moved this Division.

6. We have heard Mr. Mihir Kanti Majumder, the learned Advocate for the petitioner and Mr. Syed Mahbubur Rahman, the learned Advocate-on-Record for the respondent No.l and perused the judgment of the High Court Division and other connected papers.

7. It appears that the plaintiff did not deny his signatures on the affidavit notarized by

the Notary Public at Khulna. It is also not his case that his signatures on the affidavit in question confirming oral gift of first floor of the building in question in favour of the defendant No.l was obtained by duress or coercion and the plaintiff also did not adduce evidence to prove such plea.

8. Thus it is clear that the signatures of the plaintiff in the affidavit before the notary

Public at Khulna are rather admitted.

9. Therefore, in the facts and circumstances of the case, we are of 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.

10. Accordingly, the leave petition is dismissed.

Source : V ADC (2008),519

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