Appellate Division Cases
(Civil)
PARTIES
Md. Ekabbar Hajra and others………… Petitioners
-Vs-
Salamat Hajra being dead his heirs Sufia Begum and others………… Respondents
JUSTICES
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Jovnul Abedin J
Judgment Dated: 4th April 2007
The Code of Civil Procedure, Section 115(1)
For declaration that the deed of sale dated 14.07.1937 by Abdul Karim Hajra predecessor-in-interest of the plaintiffs and proforma-defendants purported to have been executed in favour of the defendant No.l Abdul Khaleque and Abdul Haque, predecessor-in-interest of the defendant Nos.2 to 12 has not been acted upon, ineffective and that the vendees are the banamders for the vendor Abdul Karim Hajra and that no right, title and interest accrued to the vendees on the strength of the aforesaid deed of sale……… (2)
It appears that the learned Assistant Judge having considered the evidence of the witnesses found that the plaintiffs have been in continuous possession of the suit land and both the S.A. and the R.S. Khatians were recorded in the name of the plaintiffs. The plaintiffs also paid upto date rents in respect of the suit land. The trial court found that the land revenue of the suit land has been paid by the plaintiffs and the defendant Nos.15 to 200 the heirs of late Rahim Hajra and that the plaintiffs have been in continuous possession of the suit land. The plaintiff-petitioners contention was that the deed of sale dated 14.07.1937 was not acted upon though the execution of the deed of sale has been admitted by the plaintiffs stating that their predecessor-in-interest Abdul Karim Hajra having been heavily indebted to Jogeshwar Hardhan wanted to save the suit land by creating a kabala dated 14.07.1937 in the names of his cousins name, Abdul Khaleque (defendant No.l) and Abdul Hoque without receiving any consideration money. On the other hand the defendant No.l Abdul Khaleque did not dispute the plaintiffs case rather by filing written statement he supported the plaintiffs case. After the death of the defendant No.l his son Abu Sama Miju, defendant No.l (Uma) as D.W.I in examination-in-chief deposed in support of the plaintiffs case……………………. (13)
It was also found that there was no evidence of any act of possession on behalf of the defendants in the suit land since 1937. In such view of the matter the High Court Division reversed the judgment of the lower appellate court as the lower appellate court committed illegality in reversing the judgment and decree of the trial court without legally adverting to the findings of the trial court ………………(15)
Fanique Ahmed, Senior Advocate, instructed by Md. Nurul Islam Bhuiyan, Advocate-on-Record …………..For the Petitioners
Syed Amirul Islam, Advocate, instructed by Mahmuda Begum, Advocate-on-Record ……………………….For Respondent No. 11
Respondent Nos.1-10 & 12-38 Not represented.
Civil Petition For Leave To Appeal No.605 of 2005
(From the judgment and order dated 09.08.2004 passed by the High Court Division in Civil Revision No. 1887 of 1996.)
JUDGMENT
Amirul Kabir Chowdhury J : Md. Ekabbar Hajra and nine other defendant petitioners seek leave to appeal against the judgment and order dated 09.08.2004 passed by a Single Bench of the High Court Division in Civil Revision No. 1887 of 1996 making the rule absolute.
2. One Salamat Hazra, predecessor of the respondent Nos.l to 13 instituted Title Suit
No. 107 of 1988 renumbered as Title Suit No:32 of 1991 for declaration that the deed of sale dated 14.07.1937 by Abdul Karim Hajra predecessor-in-interest of the plaintiffs and proforma-defendants purported to have been executed in favour of the defendant No.l Abdul Khaleque and Abdul Haque, predecessor-in-interest of the defendant Nos.2 to 12 has not been acted upon, ineffective and that the vendees are the banamders for the vendor Abdul Karim Hajra and that no right, title and interest accrued to the vendees on the strength of the aforesaid deed of sale.
3. It was averred in the plaint that the lands described in schedule to the plaint belonged to Abdul Karim Hajra, predecessor-in-interest of the plaintiffs and his brother Abdul Rahim Hajra and that by amicable partition Abdul Karim Hajra got 1.63 acres of land mentioned in the schedule Kha of the plaint and that being indebted to Jogeshwar Prodhan he created a kabala in the name of Abdul Khaleque (defendant No. 1), Abdul Haque, predecessor of the defendant Nos.2 to 12 without taking any consideration money and that Abdul Karim Hajra died leaving behind the plaintiff and proforma-defendant
Nos.13 and 14 and that S.A. Khatian Nos.165. 95 and 36 in respect of the suit land with other lands were correctly prepared in the name of the plaintiffs and the plaintiffs paid rent to the Government regularly and that the defendant No.l and the defendant Nos.2 to 12 or their father Abdul Haque never possessed the suit land and the S.A. Khatian was also not prepared in their names and that the plaintiffs coming to know of the aforesaid deed of sale dated 14.07.1937 instituted the suit.
4. The predecessor of the present respondent Nos.14 to 19 and the defendant No.l filed written statement supporting the plaintiffs’ case and stating, inter-alia, that he had no objection if the suit was decreed. After the death of the defendant No.l his heirs were substituted as the defendant Nos.l(Ka) to l(Kha).
5. The petitioners were impleaded as added defendant Nos.15 to 20 who contested the suit filing written statement denying material allegations made in the plaint stating, inter-alia, that Abdul Karim Hajra sold 1.63 acres of land on 14.07.1937 to Abdul Khaleque and Abdul Haque by registered deed of sale and delivered possession to them and that they owned and possessed the property for more than twelve years and thereafter died leaving behind the defendant Nos.2 to 12 as his heirs who inherited 81 Vi decimals of land and that the defendant Nos.2 to 12 sold 32 decimals of land to the defendant Nos. 15 to 20 the present petitioners by 4 registered deeds of sale and delivered possession and
that the plaintiffs having no right, title or possession in the suit property and that the deed of sale dated 14.07.1937 being not benami the suit was liable to be dismissed.
6. Three witnesses were produced on behalf of the plaintiff while four witnesses were examined on behalf of the contesting defendant Nos.15 to 20. One witness was however examined on behalf of the non-contesting defendants.
7. The learned Assistant Judge, Chandpur by judgment and decree dated 27.08.1991 decreed the suit. The defendant Nos. 15 to 19 preferred Title Appeal No. 143 of 1991
before the learned District Judge, Chandpur. A, learned Subordinate Judge after hearing both the parties by judgment and decree dated 22.04.1996 allowed the appeal and thereby dismissed the suit.
8. Being aggrieved thereupon the defendant petitioners moved the High Court Division in Civil Revision No. 1887 of 1996 under Section 115(1) of the Code of Civil Procedure and a learned Single Judge of the High Court Division by the impugned judgment and order made the rule absolute thereby decreed the suit.
9. Hence is this petition.
10. Mr. Faruque Ahmed, learned counsel appearing on behalf of the petitioners submits, inter-alia, that registered deed of sale dated 14.07.1937 is a genuine document and the plaintiffs failed to prove the plaint case and as such the High Court Division committed error in decreeing the suit reversing the judgment of the lower appellate court.
11. He submits that the lower appellate court being the last court of fact disbelieved the evidence produced by the plaintiff and dismissed the suit and the High Court Division misdirected itself in reversing the said judgment without legally adverting to the findings arrived at by the lower appellate court and as such committed error.
12. We have considered the submissions and perused the materials on record.
13. The High Court Division after considering the facts and circumstances and evidence
on record observed: “It appears that the learned Assistant Judge having considered the evidence of the witnesses found that the plaintiffs have been in continuous possession
of the suit land and both the S.A. and the R.S. .Khatians were recorded in the name of the plaintiffs. The plaintiffs also paid upto date rents in respect of the suit land. The trial court found that the land revenue of the suit land has been paid by the plaintiffs
and the defendant Nos. 15 to 200 the heirs of late Rahim Hajra and that the plaintiffs have been in continuous possession of the suit land. The plaintiff-petitioners contention was that the deed of sale dated 14.07.1937 was not acted upon though the execution of
the deed of sale has been admitted by the plaintiffs stating that their predecessor-in-interest Abdul Karim Hajra having been heavily indebted to Jogeshwar Hardhan wanted to save the suit land by creating a kabala dated 14.07.1937 in the names of his
cousins name, Abdul Khalequc (defendant No.l) and Abdul Hoque without receiving any consideration money. On the other hand the defendant No.l Abdul Khaleque did not
dispute the plaintiffs case rather by filing written statement he supported the plaintiffs case. After the death of V the defendant No. 1 his son Abu Sama Miju, defendant No.l (Uma) as D.W.I in examination-in-chief deposed in support of the plaintiffs case.”
14. It further appears on the evidence on record the trial court observed that 1.63 acres of land mentioned in the deed of sale dated 14.07.1937 along with other lands measuring 2.50 acres of land stand recorded in the names of the vendor Abdul Karim Hajra and his brother Abdul Rahim Hajra in C.S. Khatian Nos.234 and 511 and that the heirs of Abdul Rahim Hajra, holder of 8 annas share of the aforesaid C.S. recorded land admitted the case of the plaintiffs. The Trial Court also found on scrutiny of evidence that the witnesses produced on behalf of the defendant-petitioners i.e. D.Ws.2 to 5 contradicted each others in their evidence and therefore the learned Assistant Judge disbelieved them.
15. It was also found that there was no evidence of any act of possession on behalf of the defendants in the suit land since 1937. In such view of the matter the High Court Division reversed the judgment of the lower appellate court as the lower appellate court committed illegality in reversing the judgment and decree of the trial court without legally adverting to the findings of the trial court.
16. We have perused the impugned judgment and in the facts and circumstances and materials on record we arc of the view that the High Court Division came to a correct decision in making the rule absolute reversing the judgment and decree of the lower appellate court.
17. In view of the discussion made above, we do not find any substance in this petition.
18. The petition is accordingly dismissed.
Source : V ADC (2008),430