Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

Code of Civil Procedure (V of 1908)

Order VII, rule 3

Order 7, rule 3 of the Code of Civil Procedure got no manner of application in a case of benami declaration of title whenever the identity of the suit land is admitted.                                            …(24)

Government of Bangladesh Vs. Sheikh Hasina and others, 60 DLR (AD) 90; 42 DLR 434; 12 MLR (AD) 105; 39 DLR (AD) 236; 35 DLR (AD) 217; Habibur Rahman Vs. Abdul Wadood, 21 DLR 386 and 21 DLR 466, ref.

Mr.Md.Nurul Amin with

Mr. Sabya Sachi Mondal

—For the petitioner.

Mr.Abul Kalam Moinuddin with

Mr. Munshi Abdul Hamid

—For the opposite.

Judgment

Mr. Justice Shahidul Islam

1. 1.         This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 28.6.1999 passed by the learned Additional District Judge, 1^st Khulna in Title Appeal No. 248 of 1992 dismissing the appeal and affirming those dated 7.5.1992 passed by the learned Additional Assistant Judge, 3^rd Court, Khulna in Title Suit No. 192 of 1990 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.
2. 2.         This Court by order dated 27.10.1999 directed the parties to maintain status quo in respect of possession in the suit properties.
   1. 3.         The opposite parties as plaintiff instituted Title Suit No. 192 of 1990 in the Court of Additional Assistant Judge, 3^rd Court, Khulna seeking for declaration of title in the plaint schedule of land measuring an area of 2.00 acres appertaining to C.S. Khatian No. 5 of mouza Badurgacha and the land of C.S. Khatian No. 505 of mouza Bilpabla contending, inter alia, that those lands belonged to Keshab Lal Mondal who gave a proclamation for transfer of those lands and the plaintiff intended to purchase the same. The defendant’s father Akhil Chandra Biswas was the sister’s husband of the plaintiff and he used to live in the mess of the plaintiff. The plaintiff purchased the said land for his own benefit and by his own money but in the name of Akhil Biswas by a registered kabala deed dated 18.11.1958. Akhil Biswas did not make any payment towards the consideration of the land. It is the specific case of the plaintiff that he purchased the suit land by his own money and got possession thereon. He started possessing the entire purchased land and continued his possession for more than 12 years. During S.A. operation the land was recorded in the name of his name-lender namely, Akhil Chrandra Biswas who died leaving behind the defendant as his only son. The plaintiff requested him to execute and register a kabala in his name but the defendant refused to executed and registered a deed on 18.10.1981 and as such the suit was instituted on 28.10.1981 seeking for declaration of title simplicitor in the suit land.
3. 4.         The defendant No. 1 contested the suit by filing written statement denying the material averments made in the plaint and contending, inter alia, that his father Akhil Chandra Biswas purchased the suit land by a registered kabala deed, executed on 18.11.1958 and registered on 24.11.1958 by his own money and started possessing through borgader. The S.A. record was prepared in his name. It is his case that the defendant used to pay rent through his maternal uncle’s son (plaintiff’s son). His father died leaving him the only son and he started possessing the land through bargader and he continued possession for more than 12 years. It is the further case of the defendant that the plaintiff is his full maternal uncle. The plaintiff’s brother Hori Krishna Mondal and the plaintiff used to live in a joint mess till the liberation war was taken place and the plaintiff was the head of the joint family. The defendant used to take help of Hori Krishna Mondal in the case of payment of rent and used to keep custody of the rent-receipts with Hori Krinshna Mondal. The plaintiff did never purchase the suit land by his own fund and did never possess the same. With these averments he prayed for dismissal of the suit.
4. 5.         The trial was taken up by the learned Assistant Judge, Additional Court No. 3, Khulna who framed the following issues:-

                 (i)            Is the suit maintainable in its present form?

               (ii)            Is the suit barred under section 42 of the Specific Relief Act?

             (iii)            Has the plaintiff any title and possession in the suit land?

             (iv)            Is the plaintiff entitled to a decree declaring title or is entitled to any other relief?

1. 6.         The plaintiff examined himself as PW1 and examined one Satish Chandra Mondal as PW2 and examined the executants of the kabala deed dated 24.11.1958 as PW3. The defendant examined him as DW1 and one Nalini Kanta Kabiraj, an attesting witness of the deed was examined as DW2 and Kali Pada Mondal was examined as DW3.
2. 7.         The learned Assistant Judge upon taking into consideration the entire evidence on record came to a finding that the plaintiff himself purchased the suit land by his own fund and for his own benefit and found the possession of the plaintiff in the suit land and declared the title of the plaintiff in the suit land by the judgment and decree dated 7.5.1992.
3. 8.         Being aggrieved by the said judgment and decree the defendant preferred Title Appeal No. 192 of 1990 and that appeal was heard by the learned Additional District Judge, 1^st Court, Khulna who after making vivid discussions of the evidence on record subscribed the same view with the learned Assistant Judge and came to a finding that the plaintiff purchased the suit land by his own fund and in the benami of the defendant’s father and further found that the 4 ingredients of acquisition of property in the benami have been proved by the plaintiff by adducing evidence and thereby dismissed the appeal and affirmed the judgment and decree of the trial Court by the impugned judgment and decree dated 28.6.1999.
4. 9.         Being aggrieved by the impugned judgment and decree the defendant has obtained the instant Rule.
5. 10.     Mr. Md. Nurul Amin, the learned Advocate appeared with Mr. Sabya Sachi Mondal, the learned Advocate for the defendant petitioner. Mr. Md. Nurul Amin took this Court through the judgments of the Courts below and submitted that the Courts below proceeded with the disposal of the suit upon the question of benami declaration although no prayer for benami declaration was made in the plaint.
6. 11.     Mr. Abul Kalam Mainuddin, the learned Advocate after coming to understand that no prayer for benami declaration was prayed for in the plaint made a prayer to this Court to allow the opposite party an opportunity to come up with a prayer for amendment of plaint only incorporating a prayer for benami declaration. Although the matter was head in full and the date for delivery of judgment was fixed on 16.7.2012 but upon considering the evidence on record as well as prayer made by Mr. A. K. Mainuddin, the date of delivery of judgment was deferred to 29.7.2012 allowing a scope to the plaintiff to amend his plaint. On 29.7.2012 the plaintiff opposite party submitted an application seeking for amendment of plaint only by incorporating an additional prayer seeking benami declaration as well as paying ad volerum Court fees. The copy of the application for amendment of plaint was supplied earlier to the learned Advocate for the petitioner and the defendant petitioner also submitted a counter affidavit on 29.7.2012. The matter was taken up for delivery of judgment was just at the 4 P.M and Mr. Md. Nurul Amin made a prayer for shifting the date for delivery of judgment and accordingly the date was shifted to 31.7.2012. Today the matter has appeared in the list for delivery of judgment. Mr. Md. Nurul Amin took part in the hearing afresh and he submitted that the prayer for amendment of plaint is at too belated stage and as such the same is barred by limitation. Secondly he submitted that the intention of acquiring the property in the benami is absent in the plaint and as such the amendment cannot be allowed to fill up lacuna. With these submissions he prayed for rejection of the application for amendment of plaint.
7. 12.     Mr. Abul Kalam Mainuddin, the learned Advocate appearing for the opposite party on the other hand submitted that the plaintiff has categorically stated in the plaint that the property was acquired by the plaintiff in the name of the defendant`s father as he was the plaintiffs sister’s husband and was a trustworthy man to the plaintiff and as such the property was acquired in the name of the defendant’s father. He submitted that since the Courts below have found concurrently the possession of the plaintiff in the suit land as well as payment of consideration was made by the plaintiff, the question of limitation as raised by the learned Advocate for the petitioner does not bear any merit. With these submissions he prayed for allowing amendment of plaint.
8. 13.     I have gone through the plaint statements very carefully. At paragraph 2 of the plaint the plaintiff has specifically mentioned the intention of his acquiring the property in his benami and in the name of defendant father which is reproduced hereunder:-

“2| D³ †Kve gÛj Z`xq mZvs‡ki RwgRgvq mZ¡evb `LwjKvi _vKv Kvwjb wb¤œ Zckxj ewY©Z RwgRgv weµq Kwievi †NvlYv Kivq evw` Zvnv Rvwb‡Z cvwiqv wbR A‡_© I m¦v‡_© bM` UvKv cÖ`v‡b Lwi` K‡ib| Lwi` Kvwjb D³ Rwg wbR wek¦vm fvRb AvZgxq G¶‡b g„Z AwLj P›`ª wek¦v‡mi †ebv‡g Lwi` K‡ib| AwLj P›`ª wek¦vmB wb‡Ri †Kvb A_© m¦v_© mskÖe D³ Lwi`v Rwg Rgvq wQj bv ev bvB| evw` D³ Rwg †Kke gÛj Gi wbKU nB‡Z 18/11/58 Zvwi‡L mwn m¤cv`b †iwRwóª Kwiqv j‡qb| D³ iƒc Lwi‡`i ci evw` ‡Kve gÛj Gi wbKU nB‡Z `Lj cÖvß nBqv Zvnv‡Z Pvl KviwKZ Kwiqv dmjvw` DZcv`‡b Mªn‡b LvRbvw` Av`vq w`qv `LwjKi Av‡Qb| †mKviY Lwi` Kvj ZK& `LwjKvi _vKvq mK‡ji ÁvZmv‡i wei“× m‡Z¡ `LwjKvi Av‡Qb Ges Øv`j e‡lBi Da©Kvj wei“× `Lj RwbZ DËg mZ¡ AR©b Kwiqv‡Qb|”

1. 14.     It further appears that at paragraph 3 and 4 of the plaint the plaintiff has made specific statements about the mode of his possession and payment of rent and the reasons for filing the suit which are reproduced hereunder:-

“3| Gm.G. LwZqvb `wjj wjwLZ e¨K&wËi bvg Abymv‡i nq| wKš‘ Dnv mwVK Ae¯’vi cwiPvqK b‡n| LwZqv‡b AwLj wek¦v‡mi bv _vwK‡jI LvRbvw` evw` wb†R I KLbI Zvnvi cyÎ gvidZ eivei Av`vq †`b|

4| DKZ AwLj wek¦vm g„Z nBqv‡Qb| evw` DKZ Rwg Rgvq mZ¡evb `LwjKvi Av‡Qb| G¶‡Y D³ AwLj wek¦v‡mi Iqv‡ik 1bs weevw` D³ Rwg Rvq evw`i mZ¡ `Lj Am¦xKvi Kwiqv DKZ m¤cwË `vex Kwi‡Z‡Qb| MZ Bs 18/10/81 Zvwi‡L cÖKv‡k¨ Zckxj Rwg Rgv Zvnvi wbR m¤cwË ewjqv cÖKvk Kwiqv‡Qb| †mKvi‡Y evw` evZ©gvb ‡gvK`©gv `v‡qi Kwi‡Z eva¨ nB‡jb|”

1. 15.     Upon considering the statements as made in paragraph 3 and 4 as well as the evidence on record and the findings of the Courts below I find that due to inadvertence or ignorance of the filing Advocate for the plaintiff the prayer for benami declaration was not incorporated in the plaint although the plaintiff has founded his claim on the benami declaration. From the statements made in the written statement it appears that the defendant at paragraph 13 and 14 also has taken defence as against the benami claim as made out by the plaintiff. Taking into consideration the entire facts and circumstances as well as the statements made in the plaint and written statement and the findings of the Courts below, I have no doubt but to hold that the plaint was founded upon the claim of benami declaration but the learned Advocate for the plaintiff inadvertently omitted to incorporate the prayer for benami declaration. Mere incorporation of a prayer for benami declaration in the plaint, by way of amendment will neither change the nature and character of the suit nor will take away any right of the defendant as the defendant had already contested the suit upon the question of benami acquisition of property by the plaintiff, in the trial Court as well as in the lower appellate Court. Order VI Rule 17 of the Code of Civil Procedure provides the provisions for allowing amendment of plaint to determine the real question of controversy. Here in the instant case, I find, that the prayer for amendment of plaint as made by the plaintiff opposite party is essential only to decide and dispose of the matters in controversy as the evidence on record adduced by the plaintiff supported the fact of benami declaration, particularly the PW3 being the seller of the property, on oath adduced before the Court that he received consideration money of the suit land from the plaintiff and handed over possession of the same in favour of the plaintiff. In view of the above I am inclined to allow the prayer for amendment of plaint. The application for amendment of plaint is allowed. The said application for amendment of plaint do form part of the plaint.
2. 16.     After allowing the prayer for amendment Mr. Md. Nurul Amin, the learned Advocate for the petitioner formulated the following points of argument:-

i)        the suit is barred under Order VII Rule 7 of the Code of Civil Procedure;

ii)      no claim was made regarding benami transaction or benami acquisition of property and as such the suit is barred. In support of his contention he referred to the case law of Government of Bangladesh –v- Sheikh Hasina and others, reported in 60 DLR (AD) 90;

iii)    the suit is also barred under Order VII Rule 3 of the Code of Civil Procedure. He submitted that the land as shown in the schedule are not specifically demarcated; in support of his contention he referred to the case law reported in 42 DLR (HCD) 434 and 12 MLR (AD) 105;

iv)    the evidence of DW2 was not at all considered by either of the Courts below and the petitioner has submitted a supplementary affidavit before the Court taking a ground that the evidence of DW2 was not considered;

v)      in case of benami declaration the plaintiff must ask for consequential relief seeking recovery of khas possession; in support of his contention he relied upon the case law of Md. Yunus –v- Yousuf, reported in 21 DLR 466;

vi)    the evidence of PW3, the seller of the land is inadmissible under section 92 of the Evidence Act;

vii)  the contents of the deed cannot be varied or altered;

viii)            the suit is barred by limitation;

ix)    the plaintiff must prove his own case and he cannot take any advantage upon the weakness of the defendant; in support of his contention he relied upon the case reported in 39 DLR (AD) 236.

1. 17.     Mr. Abul Kalam Mainduddin, the learned Advocate simply submitted that the questions raised by Mr. Md. Nurul Amin have already been answered by the Courts below in their judgments and the evidence on record are enough to decide the question of benami. He further submitted that the suit is neither barred under Order VII Rule 3 of the Code of Civil Procedure nor barred by limitation. He submitted that the plaintiff has proved his own case of acquisition of property in the benami and in the name of the defendants father beyond doubt. He prayed for discharge of the Rule.
2. 18.     Let us take up the question of limitation first, as to whether the suit is barred by limitation?
3. 19.     From the plaints statements as made out in paragraph 2, 3 and 4 which have been quoted in the forgoing paragraphs, it appears that, the plaintiff made specific statements that the property was acquired by him and by his own fund and in the name of the defendant’s father who was the plaintiff’s sister’s husband. From the plaints statements it appears that the defendant’s father used to live in the mess of the plaintiff and after the death of the defendants father the plaintiff approached to the defendant on 18.10.1981 for transferring the land in his name but that was denied and the suit was instituted on 28.10.1981. The PW3 being the seller of the suit land admitted on oath before the Court that the plaintiff himself paid the consideration money and purchased the suit land in the name of defendant’s father by adducing the following evidence:-

“Avwg D³ Rwg ev`x Kvš— iv‡gi wbKU weµq K‡iwQjvg, Bs‡iRx 24-11-58 Zvwi‡L `vZv wnmv‡e `wjj †iwRóªx nq, `wjj m¤cv`b nq 18Ð11Ð58 Zvwi‡L| Avwg `vZv wnmv‡e `wjj m¦v¶i Kwi| bvt Rwg eve` `wj‡ji UvKv cqmv ev`x Kvš— ivg Avgv‡K w`qvwQj| `wjj MªnxZv AwLj P›`ª wek¦vm Avgv‡K †Kvb UvKv cqmv cÖ`vb K‡iwQj bv| bvt Rwg †Kbv †ePvi e¨vcv‡i AwLj P›`ª wek¦v‡mi ms‡M †Kvb K_vevZ©v n‡qwQj bv|”

Those evidence have not been controverted or shaken by the defendant during cross-examining him. With regard to possession the defendant could not adduce any reliable evidence. On the other hand the plaintiff produced rent-receipts showing payment of rent and adduced evidence in support of his possession. The rent-receipts are document of possession and collateral evidence of title is the settled law and that has been settled in 35 DLR (AD) 217. In view of the above I find that the question of limitation as raised by Mr. Md. Nurul Amin the learned advocate for the petitioner is misconceived I hold that the suit was not barred by limitation.

1. 20.     Let us take up the second point for decision as raised by Mr. Md. Nurul Amin as to whether the suit is barred under Order VII Rule 7 of the Code of Civil Procedure?
2. 21.     Order 7 Rule 7 of the Code of Civil Procedure runs thus:-

“7. Every plaint shall state specifically the relief which the plaintiff clams either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.”

1. 22.     Upon a careful perusal of the provisions of Order 7 Rule 7 of the Code of Civil Procedure it appears that the plaintiff in filing a suit should seek relief specifically in the plaint and the court is also empowered to grant any relief as it things fit to the same extent as if it had been asked for. Upon careful perusal of the plaint it appears that the plaintiff has founded his whole claim seeking acquisition of property by his own fund and in the name of defendant’s father. In the plaint it has been mentioned that the plaintiff, for the benefit of his own has purchased the suit land by his own money and in the name of the defendant’s father as he was trustworthy to the plaintiff and the defendant was living in his mess. It has been specifically stated that the plaintiff himself had paid rent sometimes by himself sometimes through his son and has been possessing the property by himself for more than 12 years, consequently acquired title in the suit land adversely against the defendant. The PW1 in his evidence substantiated his fact of physical possession by adducing oral evidence as well as by producing rent-receipts exhibit-2 series and that fact of possession was supported by PW3, the vendor of the deed and the PW2. The evidence of possession as adduced by the defendants is much weaker in type than that of the plaintiff. The plaint although did not contain any relief with regard to benami declaration but the trial Court in framing the issue No. 4 took into consideration that whether the plaintiff is entitled to any other relief or reliefs.
2. 23.     Upon a careful reading of Order VII Rule 7 of the Code of Civil Procedure it appears that the plaint shall state specifically the relief which the plaintiff claims either simple or in alternative and it shall not be necessary to ask for general or other relief which is always be given as the Court may think just to the same extent as if it had been asked for. From the plaint it is clear and unambiguous that the plaintiff instituted the suit seeking benami declaration specifically, elaborately and without any ambiguity but the learned Advocate who drafted the plaint had inadvertently missed to add the prayer for benami declaration although the case of benami acquisition of property was made out in the plaint and the plaintiff adduced evidence claiming accusation of the suit property by his own fund and in the benami of the defendants father. Whenever the plaint`s statements made out a case of benami acquisition of property and that was proved by sufficient evidence, a court of law should not hesitate to decree the suit following the provision of order 7 Rule 7 of the Code of Civil Procedure although no prayer for benami declaration was incorporated in the plaint order. 7 Rule 7 of the code has given a court enough power to grant relief which the plaintiff or defendant claims. In the instant case the relief was claimed but the prayer portion was not specifically written which was a mere mistake. In view of the above, the submissions as made by Mr. Nurul Amin does not bear any merit and the case law referred to above in the case of Government of Bangladesh –v- Sheikh Hasina, reported in 60 DLR (AD) 90 paragraphs 44 and 46 got no relevancy or any manner of application in the instant case and accordingly, the point so raised is answered negatively against the defendant petitioner.
   1. 24.     Let us take up the ground No. 3 as to whether the suit is barred under Order 7 Rule 3 of the of Civil Procedure Code. I have gone through the plaint. It appears that the plaintiff has sought for a declaration of benami acquisition of the suit property measuring 1.07 acres of land out of 4.25 acres of land of Khatian No. 5 and 93 acres of land out of the land of Khatian No. 505. The defendant did not deny the identity of the case land as given in the plaint. The schedule of property as described in the plaint is admitted by the defendant. This point in issue was not raised before the trial Court or before the appellate Court. Since the suit was instituted upon the question of benami declaration and after amendment of plaint and on paying ad volerum Court fees the point so raised by Mr. Md. Nurul Amin has become unworthy of consideration inasmuch the scope and application of order 7 Rule 3 in a case of benami declaration got no manner of application. In such a case the relevant points are the relationship between the parties, intention of acquisition of property in the benami of the defendant. Subsequent conduct with regard to possession of the suit property payment of consideration and the possession of the title deed. Those essentials are subject to proof by plaintiff adducing evidence. In view of the above the point so raised is decided negatively. The case law reported in 42 DLR (H.D) 434 and 12 MLR (A.D) 105 have got no manner of application in the instant cases.
   2. 25.     Whether the evidence of DW2 was not at all considered? The DW2 is the attesting witness of the deed dated 28.11.1958. The PW3 being the vendor / seller came before the Court and adduced on oath that he himself had a talk of sale with the plaintiff for transferring the suit land and received payment of consideration from the plaintiff and he had handed over possession in favour of the plaintiff. That evidence remained unshaken. The evidence of seller (PW3) is the best evidence in the suit whenever the evidence of PW3 is found to be the best evidence, the evidence of attesting witness namely the evidence of DW2 losses its weight and does not carry any evidentiary value inasmuch as an attesting witness should not supposed to know the contents of the deed and the mode of payment of consideration by the plaintiff or the defendant. He is simply an attesting witness. An attesting witness is simply an witness to the due execution of the deed by the executant. He is bear a witness to the deed. In the case law of Habibur Rahman v.s Abdul Wadood reported in 21 DLR Page 386 it has been held that an attesting witness of a document is not supposed to know the contents of the deed or anything else witness to the payment of consideration is best known by the executant of the deed. The PW.3 being the seller of the suit land is the best witness as he recieved the consideration. In view of the above, the point so raised by Mr. Md. Nurul Amin does not bear any merit.
3. 26.     Let us take up the point NO. V for decision as to whether in a suit for benami declaration the plaintiff is required to pray for consequential relief as referred to above in the case law of 21 DLR 466. I have gone through the said decision. In the plaint of that case law it was specifically stated that the plaintiff was out of possession at the time of institution of the suit but in the instant case the plaintiff has asserted his possession in the suit land and proved his possession by adducing oral evidence as well as documentary evidence. So the case law referred to above does not have any manner of application in the instant case. Moreover the plaintiff has paid ad volerum Court fees before this Court. The possession of the plaintiff has already been decided by both the Courts below concurrently and as such the point so raised by Mr. Nurul Amin does not have any leg to stand, accordingly and answered negatively.
4. 27.     Now let us take up the point No. VI as to whether the evidence of PW3 is inadmissible under section 92 of the Evidence Act?

Section 92 of the Evidence Act runs thus:

“92. Exclusion of Evidence of oral Agreement – When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:”

I have gone through the section 92 of the Evidence very carefully. Section 92 of the Evidence Act has been introduced by the legislature not to contradict or vary or to add or to subtract anything from any written contract, grand or document. In the instant case, the case is otherwise. In the instant case the plaintiff has instituted a suit only for a declaration that he is the real purchaser of the suit land on the strength of the kabala deed dated 28.11.1958 and the defendants father is his name-lender. The plaintiff has not made out any case contradicting or varying or adding or subtracting any statements as made in the deed. In view of the above the point as raised by Mr. Nurul Amin is misconceived and the point is answered negatively as against the petitioner. To declare or decide a transaction as benami or acquisition of property in the benami the following are the essentials which got to be proved by the plaintiff by adducing evidence:-

i)        the custody of document by which the property was acquired;

ii)       motive of acquisition of property;

iii)    source of purchase money;

iv)    possession of the parties;

v)      the relationship between them;

vi)    subsequent conduct between the parties relating to enjoyment of the suit land.

1. 28.     Let us take up the point to decide the question of custody of document.

From the record it appears that document was produced by the plaintiff and that was marked as exhibit-1 and as such the first essential has been proved in favour of the plaintiff.

1. 29.     Let us take up the point to decide as to the motive of acquisition of property in the benami of the defendant’s father.

In the plaint it has been specifically stated that the defendant’s father was the sister’s husband of the plaintiff and the plaintiff purchased the said property in the benami of defendant by his own money. During cross-examination to the PW1 added the following evidence:-

“cvwK¯—vb Avg‡j eo fvB‡qi bv‡g Rwg _vwK‡j †QvU fvB cvB‡e g‡b Kwiqv fwMœcwZi bv‡g Rwg wK‡bwQjvg|” That evidence was not denied

From the above undenied evidence it appears that the plaintiff had another brother and as such the motive of acquisition of property in the benami has been explained very clearly. On the other hand DW1 in his evidence adduced the following:-

“bvwjkx `wj‡ji mgq Avgvi 10/12 eQi eqm wQj| Avwg ZLb bvevjK wQjvg| `wj‡ji mgq Avwg †iwRwóª Awd‡m Dcw¯nZ wQjvg bv| KLb,  †Kvb mgq Kvnvi m‡½ bvwjkx `wjj †ePv‡Kbv K_v nq †m m¤c‡K© Avgvi †Kvb e¨w³MZ Ávb bvB| Avgvi bvwjkx `wj‡ji UvKv cqmv Av`vb cÖ`vb m¤c‡K© Avgvi †Kvb e¨w³MZ Ávb bvB|”

From the evidence as quotted above it is very clear that the evidence of PW1 has given a satisfactory explanation about his motive of acquisition of property in the benami but the defendant failed to adduce any evidence contrary to the motive of acquisition of property by the plaintiff. The second essential is decided in favour of the plaintiff.

1. 30.     Let us take up the 3rd essential as to the source of purchase money for acquisition of property.

The PW1 in his examination-in-chief has added that he himself had paid the consideration money and the father of the defendant had no fund of his own by adducing the following evidence:-

“Avgvi fwMœcwZ Rwgi c‡Yi UvKv cÖ`vb K‡i bvB| Avwg wbR Znwej n‡Z UvKv cÖ`vb Kwi|”

Those evidence were not shaken during cross-examination. On the other hand the DW1 in his cross-examination added that he did not know about the payment of consideration by adducing the following evidence:-

“Avgvi bvwjkx `wj‡ji UvKv cqmv Av`vb cÖ`vb m¤c‡K© †Kvb e¨w³MZ †Kvb Ávb bvB| 1918 m‡b Avgvi evev c„_K A­æ evm KwiZ wKbv Avwg Rvwbbv|”

From this evidence it appears to this Court that the payment of consideration was made by the plaintiff. From the evidence of PW1 it appears that the plaintiff had 35/40 bighas of landed property at the time of purchasing the suit land by adducing the following evidence in his cross-examination:-

“bvwkjx `wj‡ji mgq Avgvi 35/40 weNv Rwg wQj| Avgvi fwMœcwZ AwLj P‡›`ªi 7/8 weNv Rwg wQj|”

From those evidence it has been clearly proved that the payment of consideration money was made by the plaintiff. Accordingly this point is decided in favour of plaintiff opposite party.

1. 31.     Let us take up the point, the relationship between the parties and subsequent conduct between the parties relating to enjoyment of the suit land.

Already I have seen that admittedly the plaintiff was the brother of the wife of the defendant’s father and the defendant’s father was the sister’s husband of the plaintiff. The defendant was the i¡N£e¡ of the plaintiff. During cross-examination it has been admitted by the DW1 that the defendant’s father was in the mess of the PW1 at the time of acquisition of property. I have already seen that the evidence adduced by the defendant do not support the defendant’s possession. It was the case of the defendant that he possessed the suit property through bargader. No bargader come forward to support the possession of the defendant. The exhibit-2 series rent receipts 10 in numbers proved it beyond doubt that the plaintiff paid rent till 1980 and the suit was instituted in 1981. Thereafter the defendant paid rent for 1981 and 1983. The evidence of possession if read together with exhibit-2 series those proved it beyond doubt that the Courts below have rightly found possession in favour of the plaintiff. The PW1 has added that the defendant’s father being his sister’s husband was his trustworthy person and as such he acquired the property in the name of defendant’s father. Since the defendant No. 1 knew nothing about the purchase of the suit land as he was minor and Since the evidence on record supported the possession of the plaintiff I have no hesitation but to hold that the suit land was acquired by the plaintiff in the name of the defendant and the defendant’s father was the name-lender of the plaintiff.

1. 32.      After pronouncement of judgment Mr. Nurul Amin submitted that after allowing amendment of plaint the defendant is entitled to submit an additional written statement and the suit may be sent back on remand. Since the parties to the suit started contesting the suit on the issue of benami acquisition of property and adduced evidence to the best of their satisfaction and since no new case has been made out by the amendment of plaint, I am of the view that although the defendant is entitled to submit additional written statement but that is not essential in the instant case as there is nothing to improve the defendants case by adducing further evidence inasmuch as both the parties to the litigation adduced evidence in support of their own case.
2. 33.      If the suit is sent back on remand that would not serve any fruitful purpose for deciding the matter in controversy. Only a relief seeking benami declaration has been added by way of amendment of plaint. No new fact has been incorporated in the plaint changing the nature of the suit or taking away any right of the defendant. In view of the above the prayer for remand of the suit is rejected.
3. 34.      In view of the above there is no necessity of submitting any additional written statement. The question of filing additional written statement comes in whenever any new fact is incorporated and a new case is made out and in that case it is essential for the ends of justice to allow the defendant to submit additional written statement and to adduce more evidence. But in the instant case the evidence on record are enough to decide the matter in controversy. Both the Courts below have proceeded with the disposal of the suit and appeal upon the question of benami declaration. The decision of the courts below are concurrent upon the factual aspects of the case.
4. 35.      From the facts and circumstances of the case and the discussions made above I find that the Courts below committed no error of law resulting error in the decision and occasioning failure of justice. I find no merit in the Rule.
5. 36.      In the result, the Rule is discharged, however, without any order as to costs. The impugned judgment and decree dated 28.6.1999 passed by the learned Additional District Judge, 1^st Court, Khulna in Title Appeal No. 248 of 1992 dismissing the appeal and affirming those dated 7.5.1992 passed by the learned Additional Assistant Judge, 3^rd Court, Khulna in Title Suit No. 192 of 1990 are hereby affirmed. The order of status quo granted earlier by this Court stands vacated.
6. 37.      The office is directed to send the lower Court’s record.

Ed.