Md. Yusuf Shaikh and others Vs. Shahabuddin Shaikh and others, (Shahidul Islam, J. )

  1. 2.          The petitioner instituted Title Suit No. 191 of 1973 in the Court of Munsif, 1st Court Khulna seeking for a declaration that the registered kabala deed dated 18.12.1970  bearing No. 2099 and registered at the Khulna Registry office to be fraudulent without jurisdiction and also for  declaration of title of the plaintiff as well as for permanent injunction restraining the defendant No. 1 from disturbing  the peaceful possession of the plaintiff in the suit land contending inter alia that the land of  plots 1497 and 1498 of C. S. Khatian No. 132 of mouja Khujadanga, Khulna P. S. measuring an area of 1.43 acres belonged to Umashashi who was had 12 annas 13 gondas 13 kara 1 kranti share. The remaining portion of those two plots were recorded in C. S. kthatian No. 1.62 in the names of Mathura Nath Das and others in C. S. khatian No. 163 in the name of Mathura Nath Das alone. Out of the land recorded in khatian no .132 Umashasi leased out .66 decs of land to Armanullah by accepting kabuliat executed by the latter on 26.4.26 and on realizing rent, granted dakhilas in his favour. Armanullah being in need of money leased out his raiyati interest in favour of Khagendra nath Tanti by executing a registered patta on 24.4.35 at a rental of Tk. 4/5-annas. Khagendra Nath possessed the land and died leaving the proforma defendants 2 and 3, namely, Jagabandhu Saha and Amar Chandra Saha @ Tantis. These 2 defendants while possessing the land transferred the same by way of sale along with plots Nos. 1499 and 1500 and 1501 of the same khatian to the plaintiffs on receiving consideration money of Tk. 500/- by a registered kabala dated 26.12.1970 but the plaintiffs were inducted possession only into the schedule land and not on the other plots mentioned in the kabala as because proforma -defendants No. 2 and 3 had no title or possession on in those plots. Since purchase, the plaintiffs have been in possession of .66 decimals from the southern side of plots 1497 and 1498. The plaintiffs father claimed that they acquired title by purchase from the tenants under Umashasi over the remaining portions of the two plots. Defendant No. 1 has no title or possession over the  suit land, but he is threatening to dispossess the plaintiffs claiming to have purchased the same from defendants 2 and 3 by a kabala dated. 28.02.1970. The plaintiffs on taking certified copy of the kabala have come to learn that a fraudulent kabala had been created collusively after transferring land to plaintiffs by defendants 2 and 3. Hence the suit.
  2. 3.          The defendant No. 1 contested the suit by filing written statement contending inter alia that admittedly the suit property belong to Armanullah who took lease of .66 decimals of land out of 2 suit plots from umashasi and thereafter leased out the same to the father of pro-defendants 2 and 3. He claimed that since the time of Jogendra Nath Tanti he was cultivating the land as bargader. In April, 1969 the pro defendants 2 and 3 contracted to sell the suit land to him for Taka 700/- and as per contract he paid up the entire consideration money to the defendants and since then he started possessing the land. It was agreed that the kabala would be executed by both defendants 2 and 3 in his favour after obtaining necessary permission. Since April, 1969 the defendant No. 1 was possessing the land on the strength of his purchase and subsequently, defendant nos. 2 and 3 on 28.12.1970 executed and registered a kabala in his favour and handover the receipt of Kobala for taking delivery from the sub-Registry office to him. The defendant had no knowledge about the alleged kabala of the plaintiff. That Kobala was created fraudulently in collusion with the pro-defendants 2 and 3, behind the back o the plaintiff. His further case is that the plaintiffs did never possess the suit land and their alleged purchase is fraudulent and therefore, the suit is liable to be dismissed.
  3. 4.          The learned  Munsif framed 4 issues;

a)      Is the suit maintainable in its present form?

b)      Is the disputed kabala deed for without consideration collusive, fraudulent void and whether plaintiffs have right title possession and interest in the suit land?

c)      Are the plaintiffs entitled to get a decree for permanent injunction?

d)      To what relief if any to the plaintiffs?

  1. 5.          Both the parties adduced evidence both oral and documentary. The learned Munisf by the judgment and decree dated 31.08.1976 decreed the suit against which the defendant No. 1 preferred Title Appeal No. 195 of 1976.
  2. 6.          That appeal was heard by the learned District Judge, Khulna who by the impugned judgment and decree dated 30.04.1985 allowed the appeal, set aside the judgment of the Trial Court and dismissed the suit.
  3. 7.          Being aggrieved by the said judgment and decree the plaintiffs have obtained the instant Rule.
  4. 8.          Mr. Abul Kalam Mainuddin, the learned Advocate appeared with Mr. Munshi Abdul Hamid, for the plaintiff petitioner. Mr. Syed Mokaddas Ali, the learned Advocate appeared for the defendant opposite party.
  5. 9.          Mr. Syed Mokaddas Ali, taking me through the judgment of the courts below submitted that the plaintiffs as well as defendants No. 1 purchased the land of suit plot from the same vender and the deed of the plaintiff exhibit-2 is earlier dated on point of time than that of exhibit A and as such the learned Munsif lawfully decreed the suit but the learned district Judge without considering the priority of the transfer deed has allowed the appeal, reversed the judgment of the trial Court most illegally.   He prayed for the setting aside of the impugned judgment and decree and supported the judgment of the Trial Court.
  6. 10.      Mr.  Syed Mokaddas Ali, on the other hand submitted that the land in suit was not transferred by the vendor of the plaintiff and as such the suit was instituted upon misconception of law and fact and without going through the recital of exhibit-2. He submitted that the deed of the defendant is although of later dated but the suit land was transferred by the exhibit-A in favour of the defendant and as such the learned District Judge lawfully passed the impugned judgment and decree and there is nothing to interfere with the said judgment and decree. He prayed for discharge of the Rule.
  7. 11.      The only question got to be investigated by this Court as to whether the impugned judgment and decree are sustainable in law?
  8. 12.      To answer this question this  Court is required to decide the following points to arrive at a lawful decision :

a)      Whether the plaintiff got any locus standi to make a prayer for declaration that the Kabala deed dated 28.12.1970 being numbered 20998 and registered at the Khulna Registry office, duly executed by Sree Jagabandhu Saha and others in favour of the defendant to be collusive, for without any consideration, fraudulent and also for declaration title in 66 decimal of land from the southern side of Plot No. 1497 and 1498?

b)      Whether the impugned judgment and decree is sustainable in law?

  1. 13.      Let us take up the point No. 1 for decision. Admittedly the suit land belonged to Sree Jagabandhu Saha and Omar Chandra Saha. Admittedly Sree Jagabandhu Saha and Omar Chandra Saha transfer .77 acre of land in favour of the plaintiff petitioners by a registered kabala deed dated 26.12.1970 being No. 20967 from Plot No. 1497, 1498 which was marked as exhibit-2. Admittedly those Jagabandhu Saha and other transferred the rest 66 decimal of land by registered kabala deed dated 28.12.1970 in favour of the defendant No. 1 out of the land those two Plot No. 1497, 1498. Admittedly Jagabandhu Saha and Omar Chandra Saha acquired those lands of plot No. 1497, 1498 by a patta dated 24.4.1935. The plaintiff has instituted the suit under Section 42 of the Specific Relief Act which runs thus;

“42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

  1. 14.      Upon perusal of the said provision it appears that for getting any sort of declaration or declarations the plaintiff has two acquire some legal character or right to any property and such legal character or right was denied by others. In the instant case the plaintiffs as well as the defendant No. 1 by 2 by registered kabala deeds dated 26.12.1970 and 28.12.1970 have purchased the entire land covered by Plot No. 1497 and 1498 of mouja Khojadanga under Police Station, Khulna, District Khulna. I have gone through the exhibit-A as well as the exhibit-2 very carefully. In the recital of exhibit-2, the deed of the plaintiff the following piece and parcel of land was transferred, description the where of runs thus; “‡gŠRv 64 bs †LvRv WvsMv g‡a¨ 132/2 bvg¦vi LwZqv‡bi ¯n‡j nvj 127 bs LwZqvwbi

1497 †PŠÏkZ mvZvbeŸB `v‡M wejvb .67 kZK

1498 †PŠÏkZ AvUvbeŸB `v‡M wejvb .76 kZK

1.43 kZK Rwgi ga¨ nB‡Z `w¶Y cvk© w`qv .66 kZK ev‡` ewµ 77 kZK”

  1. 15.      So from the above schedule of land it appears that the plaintiff purchased 77 decimal of land out of 2plots excluding .66 decimal of land from the southern portion of those plots.
  2. 16.       Upon perusal of the exhibit-A it appears that Jagabandhu Saha and Omar Chandra Saha transfered 66 decimal of land by register kabala deed dated 28.12.1970 in favour of the defendant from those 2 plots and the schedule of property so transferred has been described in the following manner; “‡gŠRv  †LvRv WvsMv g‡a¨ mv‡eK 132/2 bs  LwZqv‡bД

1497 †PŠÏkZ mvZvbeŸB `v‡M wejvb .67 kZK

1498 †PŠÏkZ AvUvbeŸB `v‡M wejvb .76 kZK

1.43 kZK Rwgi ga¨ nB‡Z `w¶Y cvk© w`qv .66 kZK  Rwg gvÎ|

  1. 17.      From exhibit-A it is very much clear that 66 decimal of land was sold to the defendant from the extreme southern part of plot No. 1497 and 1498.
  2. 18.      The plaintiff has sought for declaration upon the land description whereof run thus; ‡Rjv I _vbv, Lyjbvi Aš—M©Z 64 bs †LvRvWvsMv ‡gŠRvq †Rjv Rwi‡ci 132 bs LwZqvwb †LvRvWvsMv 1497 `v‡M 67 kZK I 1498 `v‡M 76 kZK GKzwb 1 GKi 43kZK Rwgi ga¨ D³ 2 `v‡Mi `w¶Y cvk© nB‡Z .66 kZ‡K bvwjwk Rwg e‡U|
  3. 19.      If the schedule of land as describe in the plaint is compared or tallied with the land as described in the schedule of exhibit-2 it appears that plaintiff did not purchased .66 decimal of land from the extreme southern part of Plot No. 4197 and 1498. Rather the said land was purchased by the defendant by exhibit-A. There is no ambiguity in the description of schedule of land as described in exibit-A, exhibit-2 and the plaints schedule. As such it appears that the plaintiff without having any legal status or character or any right in the suit land has sought for declaration of title therein. The plaintiff deed is although earlier dated deed on point of time but by that deed he purchased 77 decimal of land excluding the suit land. In view of the above I have no hesitation but to hold the plaintiff got no locus standi to institute the instant suit and the deed of the defendant does not come to cause any prejudices to the interest of the plaintiff. In view of the above the Court of appeal was justified in reversing the judgment of the trial Court. The trial Court without considering the exhibit-A and 2 judicially had decreed the suit and that was not proper. Since the plaintiff did not purchased the suit land he was not entitle to any decree seeking declaration title therein.
  4. 20.      Let us take up the point No. 2 for decision: From the above discussion and the facts and circumstances the judgment and decree passed in the appeal is a lawful decree and there is nothing to interfere with the same and the decree is sustainable in law. Accordingly this point is answered in the affirmative.
  5. 21.      The learned District Judge, Khulna did not commit an error of law resulting an error in the decision occasioning failure of justice
  6. 22.      In view of the above I do not find merit in the Rule.
  7. 23.      Accordingly, the Rule is discharged however without any order as to costs.
  8. 24.      The office is directed to send the lower Court’s records at once.

Ed.

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