Musammat Sokhina Khatun Vs. Mosammat Rowshanara Begum and others

Appellate Division Cases

(Civil)

PARTIES

Musammat Sokhina Khatun ………………………………..petitioner

-Vs-

Mosammat Rowshanara Begum and others ……………….Respondents

JUSTICE

Syed J.R. Mudassir Husain C J

Amirul Kabir Chowdhury J

Judgment 10th July 2006

The Code of Civil Procedure, Section 115(1)

For declaration of title to the suit property and cancellation of the deed of heba-bilewaz ……………….(3)

It appears that the impugned deed of hebabil-ewaz was executed on 16.02.1994 and the suit by the plaintiff petitioner appears to have been instituted in 2001. From the materials on record it appears that the plaintiff petitioner failed to explain the reason for such inordinate delay and as such the submission on behalf of the respondents that the suit is barred by limitation cannot be brushed aside ………(12)

The execution of the impugned document is not denied. It is admittedly a registered document. So there is legal presumption of its genuineness. To upset the said presumtion element of fraud is required to be proved. It appears that the plaintiff failed to lead any such evidence ……………..(13)

“It must be remembered that the execution of the deed in question is admitted by the plaintiff opposite party. The heba-bil-ewaz deed was a registered one where the plaintiff put her signature. A duly executed signed and registered deed always carries with it a presumption of genuineness. If the legality, genuineness of the said deed is challenged on the ground of draud, it must be proved by the person who alleges fraud. Because a fraud vitiates everything and for that reason this burden generally never shifts from the shoulder of the person who alleges the same ……(16)

Civil Petition for Leave to Appeal No. 1663 of 2004 (From the judgment and order dated

18.08.2004 passed by the High Court Division in Civil Revision No. 1571 of 2003.)

Nurul Islam Bhuiya, Advocate-on-Record ……………For the Petitioner

Abdul Wadud Bhuiyan, Senior Advocate, instructed by Chowdhury Md. Zahangir,

Advocate-on-Record …………………For Respondent Nos. 1&2

Respondent Nos. 3&4…………….. Not represented.

JUDGMENT

1. Amirul Kabir Chowdhury J.- The delay is condoned.

2. This petition for leave has been preferred by the plaintiff petitioner Musammat Sokhina Khatun challenging the judgment and order dated 18.08.2004 passed by a Single Judge of the High Court Division in Civil Revision No. 1571 of 2003.

3. Facts, in short, for disposal of the petition are that the plaintiff petitioner instituted Title Suit No. 7 of 2001 in the Court of learned Assistant Judge, Gazaria, Munshigonj for

declaration of title to the suit property and cancellation of the deed of heba-bil-ewaz

dated 16.02.1994 executed in favour of her daughter the defendant respondent No.2. It

has been averred in the plaint that she is the owner of the suit property measuring .47 acres of land and is an old woman of 83 years having two sons and three daughters and the defendant respondent No.l is her daughter while the defendant respondent No.2 is sonin-law and that the defendant respondent No. 1 used to put pressure upon her to transfer some portion of the property in her favour and accordingly she agreed to transfer .08 acres of land by will in favour of the defendant respondent No.l and pursuant thereto the plaintiff petitioner executed and registered a deed of will on 16.02.1994 and that the defendant respondent No.l was however not put in possession of the property and that the defendant respondent Nos.l and 2 were found to dig the suit land without her consent and so the plaintiff petitioner resisted them but they became furious and claimed the property on the basis of a registered deed of heba-bil-ewaz purported to have been executed by the plaintiff petitioner and that the plaintiff petitioner did not execute any such deed of heba-bil-ewaz and that in collusion with scribe and witnesses the aforesaid deed was fraudulently fabricated and as such she felt constrained to file the suit.

4. The respondent Nos.l and 2 as defendants contested the suit by filing written statement denying the material allegations made in the plaint and subscribing, inter-alia, that the suit was barred by limitation and also was not maintainable. It was further stated that the plaintiff proposed to sell the property to the defendant No.l and the defendant No.l agreed and in order to avoid pre-emption the deed of heba-bil-ewaz in question was executed and it was accordingly registered and that possession was also handed over to the defendant respondent No. 1 who mutated her name and paid rents and that at the instigation of other daughters and sons of the plaintiff, the suit has been instituted falsely and was therefore liable to set aside.

5. The plaintiff did not get herself examined as witness and on her behalf four witnesses were examined in support of her case. The defendant examined three witnesses.

6. After hearing the parties, the learned Assistant Judge dismissed the suit. The plaintiff petitioner preferred Title Appeal No. 187 of 2001 before the learned District Judge,

Munshigonj who allowed the appeal by judgment and decree dated 02.02.2003 reversing those of the trial court and thus decreed the suit. The respondent Nos. 1 and 2 moved the

High Court Division in Civil Revision No. 1571 of 2003 under Section 115 (1) of the Code of Civil Procedure against the aforesaid judgment and order.

7. The High Court Division after hearing the parties made the rule absolute by impugned

judgment and order thereby restored the judgment and decree passed by the trial court dismissing the suit.

8. Hence is this petition. In support of the petition Mr. Nurul Islam Bhuiya, learned Advocate-on-Record placed before us the impugned judgment and order and other materials on record and submits, inter-alia, that the learned Single Judge of the High Court Division failed to take notice of the fact that the plaintiff never executed the deed of heba-bil-ewaz deed dated 16.02.1994 in favour of the defendant respondent No.l.

9. He further submits that the claim of the defendant that the property was sold for a consideration of Tk. 70,000/- to meet the demand of dowry has not been proved in the evidence and that the defendant failed to prove the genuineness of the deed of heba-bil-ewaz and that the learned lower appellate court considered the facts and circumstances and evidence on record and came to a correct decision in passing the judgment decreeing the suit and the High Court Division without legally adverting to the cogent findings arrived at by the lower appellate court set aside the same thereby causing prejudice to the plaintiff and thus occasioned failure of justice.

10. Mr. Abdul Wadud Bhuiyan, learned Counsel appearing on behalf of the respondent

Nos.l and 2 placed the materials on record including relevant evidence of the witnesses

and submits that the learned Single Judge of the High Court Division correctly decided the case and passed the impugned judgment in accordance with law and there is no reason to interfere.

11. We have considered the submissions made at the Bar and perused the materials on record.

12. It appears that the impugned deed of hebabil-ewaz was executed on 16.02.1994 and the suit by the plaintiff petitioner appears to have been instituted in 2001. From the materials on record it appears that the plaintiff petitioner failed to explain the reason for such inordinate delay and as such the submission on behalf of the respondents that the suit is barred by limitation cannot be brushed aside.

13. The execution of the impugned document is not denied. It is admittedly a registered document. So there is legal presumption of its genuineness. To upset the said presumtion

element of fraud is required to be proved. It appears that the plaintiff failed to lead any

such evidence.

14. It further appears that the plaintiff though was alive did neither file the suit within long seven years nor she got herself examined as witness in the suit in support of the statement made in the plaint though her son deposed on her behalf.

15. Be that as it may, the trial court after considering the evidence and facts and circumstances of the case dismissed the suit. But the lower appellate court without legally reversing the cogent findings arrived at by the trial court, set aside the same.

16. The High Court Division after considering the materials on record and after hearing the parties found: “It must be remembered that the execution of the deed in question is admitted by the plaintiff opposite party. The hebabil-ewaz deed was a registered one where the plaintiff put her signature. A duly executed signed and registered deed

always carries with it a presumption of genuineness. If the legality, genuineness of the said deed is challenged on the ground of fraud, it must be proved by the person who alleges fraud. Because a fraud vitiates everything and for that reason this burden generally never shifts from the shoulder of the person who alleges the same. It has been already discussed that the plaintiff opposite party could not prove that the heba-bil-ewaz

deed in question was fraudulently obtained by the defendant opposite party.”

17. In view of the facts and circumstances and materials on record and on perusal of the

impugned judgment we are of the view that the High Court Division came to a correct

decision in making the rule absolute.

18. We do not find any reason to interfere.

19. In view of the discussion made above the leave petition stands dismissed.

Ed.

Source: IV ADC (2007), 145