Sawkat Ali Khan being dead his heirs, Haider Ali Khan and others Vs. Ahmed Ali and others

Appellate Division Cases

(Civil)

PARTIES

Sawkat Ali Khan being dead his heirs, Haider Ali Khan and others…….Petitioners

-VS-

Ahmed Ali and others ……………….Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 21st August 2006

We have heard the learned Counsel and perused the materials on record. The learned Counsel for the petitioners failed to point out error of a kind calling for interference with the judgmet of the High Court Division which has concurred with the findings and decisions of the appellate Court affirming the judgment and decree of the trial court. Uniform finding of the appellate Court and the trial Court was that the document on the basis of which plaintiffs of the respective suits are claiming interest in the land described in the schedule attached to the plaint of the respective suits were fabricated and faudulent. On perusal of the judgment of the lower appellate Court and the trial Court we find that there is no reason to take exception to the findings and decisions arrived at by the said courts as regard the kabalas on the basis of which plaintiffs of the respective suits are claiming the land and sought for partition and other reliefs. The findings and decisions of the High Court Division and the Courts below do not suffer from misreading or non-consideration of evidence or that mis-construction of document …………………(10)

In that view of the matter we find no merit in the petition …………………….(11)

Accordingly the petition is dismissed. ……………….(12)

Mohammad Ozair Farooq, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record ……………………….For the Petitioners.

Md. Aftab Hossain, Advocate-on-Record ………………..For the Respondents Civil Petition for Leave to Appeal No. 682 of 2005

(From the Judgment and Order dated November 24, 2004 passed by the High Court Division in Civil Revision No. 720 of 2003)

JUDGMENT

Md. Ruhul Amin J: This Petition for leave to appeal has been filed against the judgment dated November 24, 2004 of a Single Bench of the High Court Division in Civil Revision No. 720 of 2003 discharging the Rule obtained against the judgment and decree dated October 13, 2002 of the Court of Additional District Judge, Manikganj in Title Appeal No. 40 of 1993 (heard along with Title Appeal No. 41 of 1993) dismissing the appeals and thereby affirming the judgment and decree dated March 31,1993 of the Court of Assistant Judge, Sadar, Manikganj in Title Suit Nos. 82 of 1991 and 102 of 1990.

2. The trial Court by the aforesaid judgment and decree dismissed the Title Suit No. 82 of 1991 and also dismissed the Title suit No. 102 of 1990.

3. Title Suit No. 102 of 1990 was filed seeking partition and Title Suit No. 82 of 1991 was filed seeking declaration that the deed No. 5649 dated 19.6.1969 is void, fraudulent and fabricated.

4. Decree for partition in Title Suit No. 102 of 1990 was prayed for on the basis of the kabala No. 5649 dated 19.6.1969. In the said suit plaintiff of Title Suit No. 82 of 1991 was one of the defendants. Title Suit No. 82 of 1991 wherein Sawkat Ali was the plaintiff prayed for cancellation of deed No. 5649 and also for a decree of partition on the basis of the kabala No. 5923 dated 24.9.1968. The trial Court by its judgment and decree declared both the kabalas void, fraudulent and fabricated.

5. As against the judgment and decree of the trial Court the plaintiff of Title Suit No. 82 of 1991 who was also a defendant in Title Suit No. 102 of 1990 wherein Ahmed Ali and others were the plaintiffs filed appeals i.e. Title Appeal Nos. 40 of 1993 and 41 of 1993.

6. As against the judgment and decree of the appellate Court, which dismissed both the appeals, the plaintiff of Title Suit No. 82 of 1991 moved the High Court Division in provisional jurisdiction against the judgment and decree passed in Title Appeal No. 40 of 1993 which was filed against the judgment and decree passed in Title Suit No. 82 of 1991.

7. The case of the plaintiff in Title Suit No. 82 of 1991, who was the defendant in TitleSuit No. 102 of 1990, was that the deed No. 5649 dated 19.6.1969 on the basis of which plaintiffs of Title Suit No. 102 of 1990 are claiming the land described in the schedule of the plaint of the said suit is fraudulent and ante-dated, that the land owned by Monindra Kumar Shaha was recorded in his name in S.A. record, that Monindra Kumar Shaha by the deeds dated 24.9.1968 and 30.9.1968 sold 1.50 acres of land to Sawkat Ali Khan and said Sawkat Ali Khan mutated his name and paid rent and since purchase he is in possession, that Monindra Kumar Shaha and Rajendra Kumar Shaha sold their property to different persons and migrated to Indis.

8. The case of the plaintiffs of Title Suit No. 102 of 1990 was that Jogendra Nath Saha’s land was inherited by his sons Monindra Nath Saha, Rajeshor Saha, Rajendra Nath Saha and Mohendra Nath Saha and widow Ashto Shakti Saha, that by the partition deed dated 9.7.1939 Monindra Nath Saha got 1.79 acres of land and Rajendra Nath Saha and Mohendra Nath Saha got 5.50 acres of land, Rajeshor Saha’s interest devoled upon Monindra Nath Saha, Rajendra Nath Saha and Mohendra Nath Saha. Mohendra Nath Saha sold his share to the extent of 3.10 acres of land to the plaintiffs of Title suit No. 102 of 1990 by the deed dated 19.6.1969, that other defendants also purchased some other land, that Mohendra exhausted his share got by the partition deed by selling to the plaintiffs of Title Suit No. 102 of 1990, that plaintiff of Title Suit No. 82 of 1991 in collusion with Mohendra Nath Saha created a deed in respectr of the land which on the basis of the partition deed got by Mohendra and Rajeshor, that the deed so created by the plaintiff of Title Suit No. 82 of 1991 is fraudulent.

9. As stated hereinbefore the trial Court dismissed both the suits i.e. Title Suit Nos. 82 of 1991 and 102 of 1990. There were 2 appeals as against the judgment and decree of the trial court and the appeals were dismissed. Thereupon the plaintiff of Title No. 82 of 1991 moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division discharged the Rule concurring with the findings and decisions of the trial Court.

10. We have heard the learned Counsel and perused the materials on record. The learned Counsel for the petitioners failed to point out error of a kind calling for interference with the judgmet of the High Court Division which has concurred with the findings and decisions of the appellate Court affirming the judgment and decree of the trial court. Uniform finding of the appellate Court and the trial Court was that the document on the basis of which plaintiffs of the respective suits are claiming interest in the land described in the schedule attached to the plaint of the respective suits were fabricated and faudulent.

On perusal of the judgment of the lower appellate Court and the trial Court we find that there is no reason to take exception to the findings and decisions arrived at by the said courts as regard the kabalas on the basis of which plaintiffs of the respective suits are claiming the land and sought for partition and other reliefs. The findings and decisions of the High Court Division and the Courts below do not suffer from mis-reading or non-consideration of evidence or that mis-construction of document.

11. In that view of the matter we find no merit in the petition.

12. Accordingly the petition is dismissed.

Source : V ADC (2008), 315

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