Appellate Division Cases
(Civil)
PARTIES
Nurul Haque being dead his heirs
Aminul Haque and others………………………… Appellants.
-vs-
Abdus Salam Chowdhury being dead his heirs
Samona Khatun & others ……………………………Respondents.
JUSTICE
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 13th July, 2004
The Evidence Act, (I of 1872), Section 114.
The High Court Division without adverting to the reasonings given by the trial Court for believing or disbelieving evidence of plaintiff’s witness and defendants witness reversed the findings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indicated earlier that the trial court thoroughly discussed all aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortunate ……..(30)
Civil Appeal No. 279 of 2001 (From the Judgment and Decree dated 18.4.2000 passed by
the High Court Division in First Appeal No. 92 of 1971)
T.H. Khan, Senior Advocate, instructed by Md, Aftab Hossain, Adovcate-on-Record……………For the Appellants
Md. Fazhd Karim, Senior Advocate instructed by Md. Nawab Ali, Adocate-on-Record…………..Respondent No. 1-7
Ex-parte……………………. Respondent Nos. 8-12
JUDGMENT
1. M. M. Ruhul Amin J :- This appeal by leave is directed against the judgment and decree dated 18.04.2000 passed by a Division Bench of the High Court Division in First Appeal No. 92 of 1971 allowing the appeal.
2. Short facts are that one Abdus Salam Chowdhury, the predecessor-in-interest of the respondents instituted Title Suit No. 80 of 1966 in the Court of Subordinate Judge (now Joint District Judge). Rangpur for establishment of title and recovery of khas possession in the suit property stating, inter alia, that he had some properties in the district of Jalpaiguri in India and also some shares in the Nipuchaur Tea Estate, Jalpaiguri. One Satyabati Devi and her co-shaeres had properties in the Rangpur town as described in schedule A to the plaint. Satyabati Devi and her co-sharers were desirous of leaving this country for good and negotiated with the original plaintiff to exchange the property described in schedule A to the plaint with the plaintiff’s properties situated at Jalpaiguri in India along with 30 shares of Nipuchapur Tea Estate described in schedule -B to the plaint. Thereafter a deed of agreement was drawn up 1st and signed by the parties on September, 1960 and in terms of the deed of agreement a deed of exchange was executed on behalf of Sudhir Kamal Sen and his co-sharers through their constituted attorney Abu Siddique Mazumder (defendant No.7) on 30.12.1960. The further case of the plaintiff was that Abu Siddique Mzumder was friendly with the plaintiff from before and since the plaintiff could not come to Rangpur from India at the relevant time for the purpose and since he had none to look after his properties the plaintiff appointed Abu siddique Mazumder (defendant No.7) as his attorney by a power of attorney dated 21.01.1961 to manage and look after his property at Rangpur. It was also the case of the original plaintiff that at the time of exchange the property in suit was under requisition of the Government and occupied by the Manager. Employment Exchange, Rangpur, Thana Agriculture officer, Rangpur and one Ashraf Hussain. Thereafter on 02.09.1961 the property was de-requisitioned and he got vacant possession with respect to a portion described in schedule-C to the plaint and allowed the remaining portion of schedule-A property to be in possession of the said Agricultural officer as a tenant under him and in this way the plaintiff became absolute owner of schedule-A property by exchange. The plaintiff asserted that he allowed his attorney Salamutullah who is defendant No.6 of occupy and reside in a portion of the property described in schedule-C on behalf of the plaintiff as his licensee on condition that he would vacate the premises when demanded by the plaintiff. The plaintiff thereafter permanently left India and came to live in the then East Pakistan on 25.03.1961 and on his demand said Salamatullah promised to leave the disputed property soon. In April 1962 Salamatullah was transferred to Karachi but he left for Karachi without handing over possession to the plaintiff. The plaintiff further asserted that defendant Nos. 1-5 illegally entered into the premises as described in schedule-C without any knowledge of the plaintiff. The original plaintiff mutated his name with the Municipality and has been paying rent to the Government after duly registering his name in the Govt. records and he revoked the power of attorney earlier granted in favour of defendant No. 6 as he found that his interest at the hands of his attorney was not safe. Thereafter, the original defendant No.l claimed the property in suit asserting the original plaintiff as his benamder and hence the suit.
3. Defendant Nos. 1-5 and 7 contested the suit by filing written statement and their case in a nut shell is that defendant No. 1 is the father of defendant Nos. 2-4 and defendant No.l used to live at Jalpaiguri in India and was connected with several Tea Estates and in 1951 he became the secretary of Rahimia Lands and Tea Company (Private) Limited which was a concern of Nowab Mosharraf Hossain’s family and the original plaintiff went to Jalpaiguri from Noakhali immediately after partition of India and when he was in difficulty he sought help from original defendant No. 1 and was appointed a Munshi in the Longarkhana of the Nowab family where the defendant No.l. The further case of the original defendant No.l is that some time after partition of the Sub-Continent, the defendant No.l sent his son who is defendant No.2 in January, 1951 to Rangpur and when he himself was living at Jalapiguri at that time. He was subsequently transferred to Calcutta office of the Rahmina Land and Tea Company (Pvt.) Ltd. ant at that time he came in contact with the owners of the suit property and they agreed to exchange the same with the property of the defendant No.l in India and for expediency defendant No. 1 made the plaintiff his benamader as he was a man of defendant’s confidence and the exchange deed was finalized accordingly and prayer was made for derequisition of the property in the name of the plaintiff who is the benamder of defendant No. 1. The further case was that there was no negotiation with Satish Kamal Sen for the exchange of the property with the plaintiff who is only a benamder of defendant No. 1 in relation to the disputed property. The further case is that defendant No. 1 is the real and beneficial owner of the suit property and the same was never possessed by defendant No. 6 on behalf of the plaintiff as a licensee.
4. The trial court on consideration of the materials both oral and documentary dismissed the plaintiff’s suit. On appeal being First Appeal No. 92 of 1971 the High Court Division after hearing the parties allowed the appeal. Being aggrieved the heirs of defendant No.l preferred the civil petition for leave to appeal before this Division.
5. Leave was granted to consider the submissions that the impugned judgment of the High Court Division is not a proper judgment of reversal inasmuch as it does not conform to the long established principle that in reversing the judgment of the trial court the appellate court must fully apply its judicial mind to each and every finding of the trial Court and the decision based and the reasons given therefore and those findings and reasoning’s are required to be set aside with cogent reasons but these well established principles of dispensation of even handed justice have been glaringly violated in the impugned judgment of the High Court Division to the great prejudice of the appellants resulting in miscarriage of justice and further submission that the High Court Division committed illegality in deciding the case in a causal and indifferent manner as the impugned judgment exfacis bears ample testimony of non-application of judicial mind by the High Court Division to the most relevant issues in the case and the findings arrived at by the trial court and the further submission that while interfering with the judgment of the trial court the High Court Division failed to notice that the trial court’s judgment was based on totality of the factual findings on the relevant issues of facts that normally crop up as pertinent question in a case of benami transaction and not a single issue in isolation and also the submission that the High Court Division erred in law in holding that the learned Subordinate Judge (now Joint District Judge was not aware of the legal position as to whom lay the onus of proof in a case of benami transaction though with little care could have found that the trial Court was quite conscious with regard to the onus of proof in benami transaction and the further submission that the High Court Division failed to appreciate the long established principle, criteria and factors pertaining to benami transaction such as motive for the benami, how and by whom the consideration was paid, the conduct of parties both during and after the transaction, custody of the title deeds, possession of the property, negotiated deal and various other matters connected with the transaction and held that original defendant No.l successfully discharged the onus that lay on him and established that he was the real and beneficial owner of the property in suit and that the original plaintiff was his benamder with respect thereto and the further submission that the High Court Division ought to have discussed the elaborate evidence relating to the topic of custody of the basic documents but has not applied its judicial mind in this regard and the further submission that the High Court Division it appears tried to say that in a benami transaction only possession of the title deed is the main criteria which is not at all correct and the submission that the High Court Division in this case though is a final court of fact discarded the judgment of the trial Court and its finding in a very superficial and summary fashion in one sentence stating that the defendant failed to discharge his onus regarding exchange and such hasty and abrupt procedure can hardly be countenanced by the Appellate Division which would upset the whole jurisprudence as to the judicial duties and obligations of the appellate court and negation of justice and the further submission that the negation of justice and the further submission that the learned Subordinate Judge (now Joint District Judge) had the advantage of observing the demeanour of the witnesses and as a matter of fact assessed the credibility and reliability of D.W.3 Mahtabuddinn Khan, Advocate who drafted the exchange deed at Ranpur and relying on his testimony along with other reliable evidences held that the basic document of title was with defendant No.l when the same was shown to D.W. 3 a few days before September, 1965 Indo-Pak war and the said document was handed over to the plaintiff while a boundary depute arose. But the High Court Division failed to appreciate this aspect of the matter and also the evidence of D.W.3 which has caused miscarriage of justice.
6. We have heard Mr. T. H. Khan, the learned Counsel for the appellants and Mr. Md. Fazlul Karim, the learned Counsel for the plaintiff-respondent Nos. 1-7 and perused judgment of the High Court Division and other connected papers.
7. The case of the plaintiff was that he was the real owner of the disputed property and purchased the same with own money and for his own benefit whereas the case of the defendant No.l was that the plaintiff was his benamder and the defendant No.1 purchased the suit property with his own money and for his own benefit. The vital point for consideration in this case is whether the plaintiff was the real owner or he was the benamder of defendant No.l in respect of the disputed ‘A’ schedule property situates in the center of Rangpur town. The deed of agreement Ext.3 dated 01.09.1960 was executed by admitted owners of disputed property Satyabati Devi, Sudhir Kamal Sen and other co-sharers in Calcutta in favour of the plaintiff Abdus Salam Chowdhury as well as the deed of exchange Ext. 1 executed by defendant No.7 Abu Siddique at Rangpur on 31.12.1960 on the basis of the power of attorney, Exbt. 2 dated 05.09.1960 executed by Satyabati Devi and her co-sharers in Calcutta regarding the suit property were produced by the original plaintiff from his custody.
8. It was the case of the plaintiff that he purchased 10 decimals of land in Jalapiguri town, India from defendant No.l by kabala dated 04.04.1960 Ext. A(3) and also acquired 39 shares of Nipuchapur Tea Estate of Jalpaiguri and effected exchange with Kusum Kamini in lieu of 3/ 3 decimals of land and 9 shares of Nipuchapur Tea Estate and thereby obtained the property named kusumalay at Rangpur and the remaining shares and lands were given to Satyabati and her co-sharers by way of exchange and obtained the disputed property. The case of the defendant No.l on the other hand, was that he made an ostensible transfer of his 10 decimals of land out of 15 decimals of land in Jalpaiguri town and 30 shares of Nipuchapur Tea State in favour of the plaintiff at Jalpaiguri without any consideration only to facilitate the exchange of the disputed property with Satyabati Devi and her co-sharers and the other house, kusumalaya with kusum kamini at Rangpur. By the aforesaid two exchanges defendant No. 1 became the real owner of the disputed property and house therein and the plaintiff became beneficial owner of the house Kusumalaya.
9. The trial court observed that in the circumstances of the case the onus, rather heavy onus, lies on the defendant No. 1 to establish his assertion that the plaintiff was his benamder in respect of the disputed property. The trial court further held that in all cases of benami transaction it is necessary to consider the motive for benami, how and by whom the consideration was paid, the conduct of the parties both during and after the transaction, custody of the title deeds, possession of the property and various other matters connected with the transaction.
10. The High Court Division at the very outset of the judgment observed that the learned trial court was not aware of the legal position as to whom lay the onus of proof in a case of benami transaction like the present one. We must observe that the trial court was quite aware of the ingredients of benami transacting and the onus to prove the same and other matters connected with benami transaction as it appears from trial Court’s judgment .It is unfortunate that the High Court Division without considering the judgment of the trial Court made a sweeping remark that the trial court was not aware of the legal position regarding onus of proof in a case of benami transaction. The trial court it appears made sincere endeavor in deciding the question of benami transaction and took into consideration the relationship of the parties from .long before the transaction, the documents produced by the defendant No. 1, namely the passport of his wife Ext.Y (9) the certified copy of income tax assesssment order Ext.EE and other connected papers to arrive at a conclusion that the defendant No.l was at the relevant time the Secretary of Rahimia Land and Tea Company (Pvt) Ltd, Jalpaiguri and he paid income tax on his salary of Tk. 10,282/and on dividend of TK. 214/- respectively during the period from 01.04.1960 to 31.03.1961 . It further appears that the plaintiff admitted in his examination-in-chief that defendant No.l purchased considerable properties in the name of his eldest son defendant No.2 by the kabalas, Ext. A series at Rangpur. The total value of the properties thus purchased by defendant No.l through his son defendant No.2 at Rangpur in 1959-60 comes to TK. 19,199/-. The trial court also considered the life insurance policy of defendant No.l for TK. 15,000/- and the declaration made by him at the end of 1959 before the Martial Authority regarding an amount of TK. 30,000/- 35,000/- lying with Muslim Commercial Bank and Lyod’s Bank Dhaka. All these matters the trial Court considered to arrive at the conclusion that the defendant No.l had sufficient means to acquire property at Jalpaiguri and also the disputed property. In this connection the trial Court had also taken into consideration the evidence of D.W.9(defendant No.2), son of defendant No.l who corroborated his father in all material particulars on the
above matters.
11. The trial court found that the defendant No.l Nurul Huq attended the 43rd Annual General Meeting of the Indian Tea Planters Association held on 12tn April, 1958 as Secretary of Rahimia Land and Tea Company (pvt). Ltd. Ext.Z. The trial Court also found Ext. EE, the assessment order to be a genuine document and in this connection considered SRO 128 (r) 65 and Postal circular Ext. 28. From all these the trial Court concluded that the defendant No. 1 was a man of sufficient means and as such at the relevant time he was not required to transfer 10 decimals of land in Jalpaiguri town and 30 shares of Nipuchapur Tea Estate in India in favour of the plaintiff for his sustenance as claimed by the plaintiff. The definite case of the defendant No.l was that 10 decimals of land and 30 shares in Nipuchapur Tea Estate belonging to him was transferred to the plaintiff without any consideration only to facilitate the exchange of the disputed property and kusumalaya in the name of the plaintiff.
12. The trial Court next considered the circumstances leading to the exchange deed regarding the disputed house. In this connection it is to be mentioned here that Satyabati Debi and Sudhir Kama! Sen and their co-sharers were residents of Calcutta. The trial court found that the plaintiff could not show that he was at the relevant time residing in Calcutta or visited Calcutta with Passport and visa. It is not disputed that the defendant No.1 left India for good on 01.08.1965 with Indian passport. The case of defendant No. 1 was that from Jalpaiguri he was transferred as Secretary of Rahimia Land and Tea Company (Pvt). Ltd. to their Calcutta office at 6, Rowdown Street, Calcutta and at Calcutta he negotiated the transaction with Satish Kamal Sen and others. The defendant No.l also filed papers Ext. Y(9) to show that he also lived at 155, park Street, Calcutta in connection with his service.
13. It is undisputed that D.W..8 Asraf Hossain at the relevant time was an occupant in a portion of the disputed house at Rangpur town, he stated that he had talk with D.W. 1 at Rangpur in 1959 about the exchange of the disputed property and he gave first information to the defendant No. 1 at 6, Rowdown Street, Calcutta by a letter. This D.W. 8 is a competent and disinterested witness. The further case of the defendant was that though the disputed property was shown to have been exchanged in lieu of 10 decimals of land in Jalpaiguri and 30 share of Nipuchapur Tea Estate but in fact he got back 10 decimal of land at Jalpaiguri and 30 share of Nipuchapur Tea Estate from Satish Kamal Sen and others afterwards on payment of cash money to satyabati Devi, Satish Kamal Sen and other co-sharers and the owner of Kusumalaya. The defendant No.l filed Ext. EE and AA to show that later on he sold the shares in Nipuchapur Tea State to Babulal Agrawala and 10 decimals of land to Arun Kumar Nandi. It is in the evidence of defendant No.l that he paid Tk. 11,995/- to Sudir Kamal Sen and others and got back the share certificates of Nipuchapur Tea Estate and 10 decimals of land in Jalpaiguri town and transfereed the same to others as stated above.
14. Defendant’s case is that at the request of the plaintiff he exchanged Kusmlaya with his own money for the plaintiff out of love and affection and the disputed property with his own money for his own benefit in the benami of the plaintiff.
15. It is on record that in respect of Kusumalay, Kusum Kamini executed the power of attorney in favour of elder brother’s son of the defendant No.1 and the case of the defendant No.l is that his son defendant No.2 bore all expenses in respect of execution of document for Kusumalaya in favour of the plaintiff under his instruction. It is in the evidence of plaintiff that he received the original document in respect of Kusumalaya from his attorney, Lutfor Rahman elder brother’s son of defendant No.l.
16. The learned Advocate for the respondents argued that Ext. CC and AA are forged documents and no reliance can be placed on these documents. Ext. CC is the certified copy of mutation register book in respect of 48 shares 4 of the Nipuchapur Tea Estate, Jalpaiguri. It is clear that one G. Momen of Jalpaiguri was owner of the shares in the Nipuchapur Tea Estate and in respect of some shares the name of the plaintiff was mutated i.e in respect of 10+38=48 shares and subsequently those were transferred to Babu Lai Agorwala of Jalpaiguri. This exactly supports the case of the defendant No.l and not the plaintiff as it is the consistent case of the defendant No. 1 that as the owners of both the disputed property and Kusumlaya were not willing to sell the property for cash money he had to make exchange deed but later on he paid cash money to them and got back 10 decimals of land and the share certificates and sold the same to one Arun Kumar Nadi and Babu Lai Agarwala by Ext. AA and CC.
17. Ext.2 is the power of attorney executed by Sudhir Kamal Sen and others in respect of the disputed property. In this power of attorney defendant no.6 Abu Siddique Majumder, brother-in-law of defendant No.l was appointed on 05.09.1960 as a constituted attorney for doing the needful in the matter. It is undisputed that Abu Siddique Majumder is not related to the plaintiff nor a close man of the plaintiff. Ext. 2(b) is another general power of attorney executed on 25. 01.1961 by plaintiff Abdus Salam in favour of Abu Siddique Majumder, brotherin-law and Salamutullah, full brother of defendant No. 1 in respect of disputed property and other properties. It is to be noticed that normally the plaintiff is supposed to appoint his close relation as attorney by the power of attorney relating to the disputed property. But he appointed the close relations of the defendant No. 1 as attornies. The learned Advocate for the appellants argued that this goes to show that in fact the close relations of defendant No.l were appointed as attorneys as the defendant No.l was the real owner and the plaintiff was benamder. The trial court held that the plaintiff did not adduce any evidence to corroborate him regarding the transaction but the defendant No. 1 on the other hand examined D.W.9 (defendant No.2), the constituted attornies D.W.2 & 5 of the plaintiff in respect of the disputed property and D.W.3 Mahatabuddin Khan, a senior Advocate of Rangpur Bar and Vice-Chairman of Rangpur Pouras have and D.W.8 Asraf Hossain who admittedly, occupied a portion of the disputed property at the relevant time and gave initial information to the defendant No. i regarding intention of the owners of the disputed property to sell the same. These witnesses corroborated him regarding the transaction and custody of the original documents.
18. We have also noticed thai D.Ws. 2 and 5, Salamutullah and Abu Siddique Majurnder respectively consitituted attornies of the plaintiff in respect of the disputed property and D.Ws. 3,6,8,9 in their evidence supported the case of defendant No.l and in our view their evidences especially the evidence of D.W. 3 were rightly taken into consideration by the trial court regarding custody of the original documents by the defendant No.l . The trial court gave importance to the evidence of D.W.3 Mahabtabuddin Khan, a senior Advocate practising in the Civil side at Rangpur Bar and Vice Chairman of Rangpur Municipality since 1939. Rejoined the Bar on 7t h August 1925. He stated that he drafted the deed of exchange Ext. 1 at the instance of D.W. 2 Salamatullah and D.W. 5 Abu Siddique full brother and brother-in-law respectively of the defendant No.l regarding the house in suit. He further stated that power of attorney and agreement executed in Calcutta were placed before him in connection with preparation of the draft and D.W. 2 Salamatullah told him that his brother (defendant No. 1) was purchasing the house in suit in the name of the plaintiff. He further stated that long after that the deed of exchange was shown to him by defendant No. 1 Nurul Haque and Abu Siddique. He further stated that defendant No.l pointed out some mistakes in the number of some shares as written in the deed of exchange and this meeting with defendant No.l, Nurul Haque took place a few days before September War of 1965 . He saw the deed of exchange and other documents Ext. 1, 2 and 3 with Nurul Haque, defendant No. 1 on that occasion. The defendant’s case is that when boundary dispute arose with Dr. T. Rahman he handed over original title deeds to the plaintiff to file a case through Mr. Taleb Ali, Advocate. We have also gone through the evidence of D.Ws 1, 2, 3, 4, 5, 6, 8 and 9. We are of the view that the trial court has rightly placed reliance on their evidence and specially the evidence of D.W. 3 and in our view the plaintiff could not dislodge the evidence of D.W. 3 regarding the custody of the original documents by the defendant No.l till the boundary dispute with Dr. T. Rahman when those were handed over to the plaintiff.
19. Both parties claim that they bore all expenses of the documents in connection with the deal. The evidence of the plaintiff is that total cost of the same was more than TK. 2,000/- whereas the defendant No. 1 deposed that he spent Tk. 282/- towards the cost of the documents in Calcutta. The trial court with reference to the documents found that cost of stamps used in the aforesaid 4 documents comes to Tk. 116/- and further found that some other incidental costs in connection with the 4 documents, such as advocate’s fees, Notary public’s fees etc. were also incurred. The plaintiff could not account for as to how he spent an amount of Tk. 2000/- for the same as claimed by him. The defendant No. 1 had given a figure which corresponds with the expenditure. The plaintiff could not say how much he paid as registration costs and how much for income tax clearance certificate in respect of transfer of the disputed property whereas the defendant No.l gave a vivid account of the expenditure incurred in this connection.
20. Ext. 2(b) executed by the plaintiff in respect of the disputed property and kusumalay at Robertsonsganj, Rangpur shows that the plaintiff authorized Salamutullah and Abu Siddique Majumder, two attornies to do everything including sale etc. in respect of the suit property but they i.e the attomeies would have no power to sell, mortgage etc. in respect of Kusumalaya which the defendant stated was acquired for the plaintiff by the defendant No.l out of love and affection for him. But the plaintiff authorized the attornies to deal with the disputed property in whatever manner they liked without any reservation including sale, but he was very particular regarding kusumalaya in respect of which he was cautious enough not to delegate power of sale or mortgage to the attornies. The trial court found that the disputed property is at least three times more valuable, if not more than that of Kusumalaya. From the differential treatment in respect of the two properties as discussed above the trial court rightly found that this is a sufficient induction of the fact that the plaintiff was all along dealing Kusumalaya as an owner and did not deal with the disputed property as an owner as he had no interest in the disputed property.
21. It is on record that the plaintiff got his name mutated in respect of Kusumalaya immediately after the transaction whereas he got his name mutated in respect of disputed property when trouble arose between him and the defendant No.l that is, on 27.05.1966 . From this the trial court concluded that the plaintiff was vigilant regarding Kusumalaya from the beginning but he was indifferent regarding the disputed property and this indicates that he was not the onward of the disputed property rather the defendant No. 1 was the real owner and the plaintiff was his benamder.
22. The defendant No.l Nurul Hauqe as D.W.I in his evidence stated that at the time of agreement Ext.3 dated 01.09.1967 Satyabati and others handed over some papers including three dakhilas to him and he filed those dakhilas on 10.05.1967 i.e few days after the filing of the written statement before the trial court and those three dakilas were marked Ext. P. P (1) and P(2) . The three dakhilas relating to payment of rent for the year 1363 B.S. to the Government Acquired Estate are in respect of the disputed property. The plaintiff did not give any satisfactory explanation as to how these dakhilas went to the custody of the defendant No.l. The normal presumption is that those were handed over to the defendant No. 1 by the original owners at the time of negotiation of the transaction.
23. It is not disputed that the application for de-requisition of the disputed property was filed by D.W 2. Salamatullah brother of defendant No.l who himself signed the name of the plaintiff in the application for de-requisition and got the property de-requisitioned.
24. It is undisputed that the disputed property was under requisition when it was purchased. It is also undisputed that Salamatullah, brother of defendant No. 1 who was at that time serving as superintendent of Customs and Excise at Rangpur was residing in a portion of the disputed property and when he left for Karachi on transfer in March, 1966 the power of attorney in his favour was revoked. It is also admitted that even after his transfer from Rangpur to Karachi his family occupied a portion of the disputed property. It is on record that the defendant No.2 Aminul Haque (D.W.9) son of defendant No. 1 also lived in a portion of the disputed property. The trial court disbelieved the plaintiff’s contention that as the activities of Salamatullah as suspicious he revoked the power of attorney and believed the contention of Mr. Salamatullah that as he was transferred to Karachi from Rangpur at his request, the power of attorney in his favour was revoked. The trial court held that Salamatullah and defendant No.2 Aminual Haque, son of defendant No.l initially entered upon a portion of the disputed property, in their own right and not as licensee of anyone.
25. It is an admitted case of both parties that an amount of Tk. 10,000/- was in deposit as compensation of the disputed property for the period of requisition and the plaintiff withdrew the entire amount from the requisition department sometimes after his arrival at Rangpur from Jalpaiguri. The trial Court on consideration of the materials on record arrived at the conclusion that the withdrawal of this amount from the office of Deputy Comissioner. by the plaintiff does not prove anything conclusively or that he is the real owner of the property. The trial Court also held that since the title deeds stood in the name of the plaintiff, it was rather natural that he would withdraw the amount. In our view the above findings of the trial Court are based on the materials on record.
26. The plaintiff’s case is that he got delivery of the deed of exchange (Ext. 1) from scribe Bazlur Rahman after his arrival at Rangpur. The case of the defendant on the other hand is that the receipt of the document was with Abu Siddique (D.W.5) who executed the same as constituted attorney of the plaintiff and he endorsed the same to the scribe and got back the original document from the scribe and kept the same in his custody and later on handed over to defendant No.l. It is undisputed that at the time of execution and registration of the document plaintiff was not at Rangpur and he came to Rangpur afterwards. The trial Court accordingly concluded that the plaintiff was not known to scribe Bazlur Rahman from before and as such unless the plaintiff was introduced to the scribe by D.W.6 Abu Siddique. the scribe was not supposed to hand over the original document to a stranger and this fact belies plaintiff’s story that he got delivery of the original deed of exchange from the scribe. The defendant’s case that Abu Siddique who as attorney executed the deed, got delivery of the same and kept in his possession and later on handed over to the defendant No.1 appears to be probable.
27. It is on record that the plaintiff filed a criminal case on 10.05.1966 against defendant No.l and others. The trial court found that only after getting possession of the original title deeds the plaintiff filed the criminal case and the present suit against the defendant No. 1 and others.
28. Therefore from our above discussion, it is clear that the trial Court meticulously considered the evidences both oral and documentary, the facts and circumstances of the case and all other relevant aspects and then came to the conclusion that the defendant No.l having sufficient means acquired the disputed property with his own money and for his own benefit in the benami of the plaintiff, his trusted man and the defendant No.l was in possession of the original deeds and only in May, 1966 when trouble arose with neighbor Dr, T. Rahman regarding boundary, the defendant no.l handed over the title deeds to the plaintiff to file an application before the Deputy Commissioner though Mr. Taleb Ali, Advocate and getting possession of the original title deed the plaintiff got his name mutated on 27.05.1966 in respect of disputed property.
29. The observation of the High Court Division that for non-examination of Mr. Taleb Ali the presumption under section 114(g) of Evidence Act is against the defendant No.l is not at all sustainable because Mr. Taleb Ali was not in possession of the documents rather defendant’s case is that documents were handed over to the plaintiff for filing an application regarding boundary dispute with Dr. T. Rahman through Mr. Taleb Ali Advocate.
30. It is to be mentioned here that the High Court Division without adverting to the reasoning’s given by the trial Court for believing or disbelieving evidence of plaintiff’s witness and defendant’s witness reversed the findings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indicated earlier that the trial court thoroughly discussed all aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortunate.
31. Regarding taking the disputed property in the benami of the plantiff, the defendant No.l offered an explanation stating that transfer could not be made in his name as he was then an Indian national and his brother-in-law Abu Siddique was served with a notice by the Indian Government to quit India and his father-in-law, Md. Aminur Rahman Haq who was then a Manager of another Tea Estate advised him not to take the document in the name plaintiff who was his trusted man. The explanation appears to be reasonable.
32. In the facts and circumstances of the case and in view of the discussion above, we are of opinion that the High Court Division as the final court of fact without considering the evidence and the materials on record and without adverting to the reasoning given by the trial court reversed the findings of the trial. Therefore, the impugned judgment of the High Court Division is not at all a proper judgment of reversal. Accordingly the same is liable to be interfered with. The appeal is thus allowed with cost.
Ed
Source: I ADC (2004), 573