X -Versus- Md. A & others

DISTRICT – ________________________
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. OF ______________
IN THE MATTER OF:

An application under Section 115(1) of the Code of Civil Procedure, 1908

(Against Decree)

AND

IN THE MATTER OF:

X

Wife of: Y

Village: _____________

P.S. ________________

District: _______________

… Defendant/Respondent/ Petitioner

-Versus-

1. Md. A

S/o. B

Village: _____________

P.S. ________________

District: _______________

… Plaintiff/Appellant/Opposite Party

2. The Sub-Register

Joydebpur Sub- Registry office

P.S. Joydebpur

District: Gazipur

…Defendant/Respondent/Proforma opposite party

AND

IN THE MATTER OF:

Judgement being dated 30.10.2008 and Decree being dated 7.10.2008 passed by the learned Joint District Judge, 2nd Court, Gazipur in the Title Appeal No. 122 of 2003 allowing the appeal by setting aside the Judgement being dated 27.04.2003 and Decree being dated 03.05.2003 passed by the learned 5th Assistant Judge Court, Gazipur in the original Title Suit No. 55/99 dismissing the suit.

Application valued at Tk. 1,000.00

Suit valued at Tk. 1,000.00

To

Mr. Justice M. M. Ruhul Amin, the Chief Justice of Bangladesh and his companion justices of the said Hon’ble Court.

The humble Petition on behalf of the Petitioner above named most respectfully –

SHEWETH:

1. That the Plaintiff/Appellant/Opposite Party (the opposite party) filed a Title Suit being no. 154/94 (renumbered as 55/99) on 03.10.94 for declaration of cancellation of the exchange deed being no. 3094 dated 21.03.1991 executed between the opposite party and Defendant/Respondent/Petitioner (the petitioner) in the office of the Defendant/Respondent/Proforma opposite party (the opposite party no. 2). The brief description of the said suit was inter alia that the opposite party was the owner of ‘Ka’ schedule land of the plaint and the petitioner was the owner of ‘Kha’ schedule land of the said plaint. Both the owner of the lands resides far from their own land. Because of this inconvenience the petitioner and the opposite party agreed to execute a deed of exchange and consequently, the exchange deed no. 3094 dated 21.03.1991 was duly executed. Subsequently, at the time of exchanging the possession of schedule lands, it was revealed that the opposite party gave away her land to her son-in-law, Johir Uddin long before where Mr. Uddin was pursuing his brick manufacturing business in the disputed land and therefore exchange of possession was not occurred. While the opposite party called for a ‘Salish’, in that the petitioner agreed to return the disputed land to the opposite party. But the petitioner was delaying in executing the “return deed” and the date on 10.03.1992 was fixed for registering the same. On the said date the petitioner and her husband attended the opposite party no. 2. But at one point they told the opposite party that they had a job at Joydevpur Bazar for a while, they left the place and did not come back. The opposite party waited for them till sunset. Subsequently, when the opposite party told the petitioner to registrar the “return deed” on 15.09.1994, the petitioner denied to do so.

2. That the petitioner contested the suit by filing the written statement on 28.05.1998 contending inter alia that the petitioner and the opposite party were agreed to exchange the disputed land and because of the difference of value of the lands, the petitioner handed over the possession of ‘Kha’ schedule land of 8.75 decimals and Tk. 60,000.00 (taka sixty thousand) to the opposite party and in exchange of the opposite party handed over the possession of ‘Ka’ schedule land of 35 decimals to the petitioner and thereby the exchange deed being no. 3094 dated 21.03.19 was duly executed between the petitioner and the opposite party. The petitioner later on mutated his land under his name on 14.12.1993 being reference no. 1999/93-94. The petitioner has been enjoying the ownership and possession of the disputed land since the execution of the deed of exchange. Due to rise of value of the disputed land, the opposite party filed the said Title Suit.

3. That the learned Assistant Judge eventually tried the suit and after considering the evidence on record and the documents submitted by the both parties, dismissed the suit in favour of the Petitioner vide judgment and decree being dated 27.04.2003 and 03.05.2003 respectively and came to the finding that the deed of exchange was executed on 21.03.1991 and the opposite party filed the said Title Suit for declaration of cancellation of the deed of exchange on 03.10.1994, after the expiry of 3 years 6 months and 12 days. Therefore, the suit was barred by limitation. Moreover, in the deed of exchange it was mentioned that both the petitioner and the opposite party obtained the possession of the exchanged land. The opposite party could not submit any exhibit in favour of his case. But the petitioner submitted the deed of exchange and the mutation documents, D.C.R., tax receipts of 35 decimals land in his favour.

4. That being aggrieved by the aforesaid judgment and decree, the Opposite party preferred an appeal before the learned Joint District Judge, 2nd Court, Gazipur, Title Appeal no. 122/03. The appeal was contested by the Petitioner. Eventually, the learned Joint District Judge heard the appeal and was pleased to allow the appeal on contest against the Petitioner and the deed of exchange being no. 3094 dated 21.03.91 was declared cancelled by the judgment and decree dated 30.10.2008 and 07.10.2008 respectively.

5. That it is submitted that the learned Joint District Judge failed to consider the fact that the opposite party took the possession of the exchanged land and thereafter having satisfied with such possession executed the deed of exchange, which is mentioned clearly in that deed.

6. That it is submitted that the learned Joint District Judge failed to interpret the section 119 of the Transfer of Property Act, 1882 properly. It is clearly stipulated that if there is any defect in the title then the party so deprived by that defect is entitled to take back the exchanged land. The opposite party failed to exhibit any document in his favour to establish the fact that the title of the exchanged land was defective.

7. That it is submitted that the learned Joint District Judge failed to consider the fact that the opposite party in his original Title Suit prayed for cancellation of the deed of exchange. The learned Joint District Judge erroneously drew the finding that the suit was for compensation for breach of contract.

8. That it is submitted that the learned Joint District Judge failed to consider the appropriate provision of Limitation Act in respect of cancellation of deed of exchange. The limitation period as per Article 91 of the Limitation Act, 1908, to file a suit for canceling or setting aside an instrument is 3 (three) years from the date of the knowledge of defects. The opposite party filed the original Title Suit after the expiry of 3 years 6 months and 12 days of his knowledge of alleged defects of the title, which is more than prescribed 3 (three) years. The learned Joint District Judge erroneously applied Article 116 of Limitation Act, which is appropriate for compensation for the breach of contract. The opposite party prayed in his original suit for declaration of cancellation of the deed of exchange and Article 116 of the Limitation Act does not apply in this regard.

9. That it is submitted that the learned Joint District Judge failed to consider the evidence given by PW-1, the son of opposite party, that the opposite party failed to give evidence before the court himself although he was able to appear before the Court. The PW-1 admitted that the opposite party himself executed the deed of exchange and duly registered the same.

10. That it is submitted that the learned Joint District Judge failed to consider the fact that although the opposite party have had the knowledge of alleged defects in the title of the deed of exchange immediately after its execution but he failed to take the matter before the Court till the expiry of 3 years time. The learned Joint District Judge also failed to consider the fact that since the value of the exchanged land got rise, the opposite party with the ill motive prayed for the cancellation of the deed of exchange and thereby trying to get back the exchanged land.

11. That it is most respectfully submitted that the impugned Judgement and Decree in the Title Appeal No. 122/2003 has been passed due to mis-conception of law and facts.

12. That being aggrieved and dissatisfied with the aforesaid judgment and decree of the learned Joint District Judge the Petitioner begs to make this revisional application before your lordship on the following amongst other-

G R O U N D S

I. For that the learned Appellate judge has erred both in law and facts and as such the learned Appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice.

II. For that the learned Joint District Judge failed to consider the fact that the opposite party took possession of the exchanged land and thereafter executed the deed of exchange, which is clearly mentioned in the deed resulting in an error in the decision occasioning failure of justice.

III. For that the learned Joint District Judge erroneously interpreted the section 119 of the Transfer of Property Act, 1882 and as such the learned Appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice.

IV. For that the learned Joint District Judge failed to consider the fact that the opposite party in their original Title Suit prayed for cancellation of the deed of exchange and as such the learned Appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice.

V. For that the learned Joint District Judge erroneously applied Article 116 of Limitation Act and as such the learned Appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice.

VI. For that the learned Appellate Court ought to have upheld the judgment and decree of the learned trial court resulting in an error in the decision occasioning failure of justice.

VII. For that the learned Joint District Judge’s findings are based on surmise and conjecture resulting in an error in the decision occasioning failure of justice.

VIII. For that other grounds will be orally urged at the time of hearing.

Wherefore, it is most humbly prayed that your Lordships would graciously be pleased to call for the records, issue Rule calling upon the opposite parties to show cause as to why the impugned Judgment being dated 30.10.2008 and Decree being dated 7.10.2008 passed by the learned Joint District Judge, 2nd Court, Gazipur in the Title Appeal No. 122 of 2003 shall not be set aside, and after hearing make the Rule absolute and/or pass any other or further order or orders as to your Lordships may deem fit and proper for the ends of justice.

And

It is further prayed that the operation of Judgment being dated 30.10.2008 and Decree being dated 7.10.2008 passed by the learned Joint District Judge, 2nd Court, Gazipur in the Title Appeal No. 122 of 2003 may kindly be stayed till disposal of the Rule.

And for this act of kindness, your humble petitioner as in duty bound, shall ever pray.

A F F I D A V I T

I, …………………………….., son of …………………………………, of Village- …………………………., P.S. ……………………, District: …………….. aged about …………. years by faith Muslim, by profession ……………………, nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows: –

01. That I am the Tadbirkar of the Petitioner and as such I am fully acquainted with the facts and circumstances of the case and competent to swear this affidavit.

02. That the statements made in paragraph Nos. 1 to 12 hereinabove are true to my knowledge and matters of record, which I verily believe to be true and the rests are submission before this Hon’ble Court.

Prepared in my office

___________________________

(……………………………………..) DEPONENT

Advocate

………………….. Dhaka. The deponent is known to me and identified by me.

Solemnly affirmed before me by

the said ___________________ at

the Supreme Court premises, Dhaka

on this the … day of ___________at _________.

(…………………………………….)

Advocate

COMMISSIONER OF AFFIDAVITS

SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

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