Appellate Division Cases
Rahmat Goni……………. Petitioner
Mrs. Meherun Nessa & others ……….. Respondents
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md.Tafazzul Islam J
Judgment Dated: 14th December 2006
Schedule property on the basis of Heba-bil-ewaj deed dated 07.12.1982 and for further declaration that the cancellation of deed……………… (2)
It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered instrument and if this type of cancellation of a registered instrument is allowed to continue there would be no sanctity of any registered instrument ………………..(10)
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocateon-
Record ……………………For the Petitioner
Respondents………………….. Not represented.
Civil Petition For Leave To Appeal No.l217of 2005
(From the judgment and order dated 30.07.2005 passed by the High Court Division in Civil Revision No. 16 of 2002.)
M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 30.07.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 16 of 2002 discharging the Rule.
2. Short facts are that the plaintiff filed Title Suit No.33 of 1998 in the Court of Senior Assistant Judge, 3rd Court, Dhaka for declaration of title in respect of 8 annas share of ‘Ka’ schedule property on the basis of Heba-bil-ewaj deed dated 07.12.1982 and for further declaration that the cancellation of deed No.2809 dated 29.09.1997 and the Exchange deed No.7793 dated 29.10.1997 were illegal, collusive, void and not binding upon the plaintiff and the defendants acquired no title and interest by the subsequent cancellation deed and the exchange deed. The case of the plaintiffs is that the suit land
belonged to Osman Gani, father of the plaintiff, who transferred the same to his wife Saleha Khatun (the defendant No.l) by way of heba-bil-ewaj dated 18.03.1969. Saleha Khatun transferred the suit land along with a two storied building and shops in favour of the plaintiff and the defendant No.2 by registered deed of Heba-bil-ewaj dated 07.12.1982. The defendant No.2 had been in possession of a room on the first floor and the plaintiff had been in possession of the shop in the ground floor. The defendant No.2 collected rents -from the shop of the scheduled property. But he did not pay the utility
bills, rather he misappropriated the money. The plaintiff requested the defendant No.2 to pay the collected rents to her but the defendant No.2 refused. The defendant No.2 tried to grab the whole property in question. The defendant No.2 accordingly created a deed of cancellation dated 29.10.1997 and the deed of exchange dated 19.10.1997 executed by
the defendant No.l. The defendants have got no right, title and possession in the suit land on the basis of those documents.
3. The defendant Nos.1-2 contested the suit by filing written statement denying the material allegations made in the plaint. Their case is that Osman Gani, the owner of the suit land transferred the same in favour of defendant No.l who transferred the self same land in favour of the plaintiff and defendant No.2 by a registered heba-bil-ewaj dated 07.12.1982. Thereafter, the plaintiff and defendant No.2 executed an undertaking on 25.12.1982 in favour of defendant No.l in respect of the scheduled property. Subsequently the plaintiff arranged to sell half of the scheduled property and the defendant No.2 protested. The plaintiff also misbehaved with the defendants. The plaintiff also did not lookafter the defendant No.l. Accordingly the defendant No.l decided to cancel the deed of Haba-bil-ewaj dated 07.12.1982 and executed a registered deed of cancellation dated 29.09.1997 and a registered deed of exchange dated 29.10.1997. The defendant No.l handed over possession of the suit property in favour of the defendant No.2. The plaintiff is the permissive possessor of the suit land under defendant No. 2.
4. The trial court decreed the suit. On appeal in Title Appeal No.285 of 2000, the court of appeal dismissed the appeal. Being aggrieved the plaintiff moved the High Court Division in revisional jurisdiction and obtained the Rule which after hearing was discharged.
5. We have heard Dr. Rafiqur Rahman, the learned Counsel for the petitioner and
perused the judgment of the High Court Division and other connected papers.
6. It is not disputed that the suit land belonged to Osman Gani who transferred the same in favour of his wife defendant No.l by a registered heba-bil-ewaj deed dated 18.03.1969. It is also an undisputed fact that defendant No.l transferred the suit land in favour of the plaintiff and defendant No.2 by a registered heba-bilewaj deed dated 07.12.1982. .It is on
record that the suit property consists of a two storied pucca residential building and some shops.
7. The dispute arose when the defendant No.l executed a deed of cancellation dated 29.09.1997 cancelling the earlier deed of heba-bil-ewaj dated 07.12.1982 in favour of the plaintiff and defendant No.2 and thereupon executed a deed of exchange on 29.10.1997 in respect of the suit land.
8. It appears the court of appeal below which is last court of fact upon concurring with the finds and decisions of the trial court held that the heba-bil-ewaj deed dated. 07.12.1982 executed by defendant No.l is a genuine piece of document and the subsequent cancellation of the said registered document by executing a cancellation
deed is illegal and the heba-bil-ewaj deed dated 07.12.1982 in favour of the plaintiff and defendant No.2 executed by defendant No.l stands valid. The possession of. the plaintiff in the suit land is rather undisputed.
9. The learned Counsel argued that the heba-bil-ewaj deed dated 07.12.1982 having not fulfilled the basic requirements of the Muslim law, it was not a heba-bil-ewaj creating any right, title and interest in favour of the plaintiff and defendant No.2. Be it mentioned here that a heba-bil-ewaj deed has all the incidents of a sale deed and it is as good as a sale deed in the eye of law. Even if the ‘ewaj’ (consideration) did not pass, the heba-bil-ewaj deed shall remain valid and the executant may seek relief for realization of the ewaj, as in the case of sale deed for non-payment of entire or part of consideration money, the
executant may seek relief for recovery of money. A heba-bil-ewaj deed as distinguished
from a simple heba (gift) is as good as a sale deed having all the ingredients of a sale deed and as such we do not find any merit in the submission of Dr. Rahman.
10. It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered instrument and if this type of cancellation of a registered instrument is allowed to continue there would be no sanctity of any registered
11. In the light of discussions made above and in the facts and circumstances of the
case, we are of view that the High Court Division upon correct assessment of the
materials on record arrived at a correct decision. There is no cogent ground to
interfere with the same.
12. Accordingly, the leave petition is dismissed.
Source : V ADC (2008),670