Sarabala Jaladash & others Vs. Monoranjan Jaladash & others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 1526 of 2008

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. M.A. Azim Khair, Advocate, Mr. Abdul Wadud Bhuiyan, Advocate,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Sarabala Jaladash and others

Respondent: Monoranjan Jaladash and others

Subject: Registration Act

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

28.05.2018

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Sarabala Jaladash and others

. . .Plaintiff-Appellant-Petitioner

-Versus-

Monoranjan Jaladash and others

. . .Defendant-Respondent-Opposite party.

Registration Act (XVI of 1908)

Section 60

With regard to section 60 of the Registration Act, 1908 (Act XVI of 1908) mere execution and registration of a document is not enough to treat the same a genuine instrument for transfer until and unless it is proved by tangible evidence that it was duly effected or possession was delivered or actually executed and registered as alleged from the side of the party concerned.         . . . (23)

Code of Civil Procedure (V of 1908)

Sections 115(1)

The courts below in their observation and findings on detail discussions over the evidences on record arrived at a concrete decision that the plaintiff to the suit has failed to prove the genuineness of their basic document. Furthermore; the analysis of evidence as done by the learned courts below does not call for any interference of this Court in absence of material omission or misreading and non-reading of evidence. No such discrepancy or contradiction is noticed and both the courts in respect of the matter of adjudication arrived at a concurrent findings. Under section 115(1) of the Code of Civil Procedure this Court invoking the revisional jurisdiction only in case of gross illegality or infirmity and misreading or non-reading of evidence and non-consideration of material facts is empowered to interfere with the judgment and decree passed by the Appellate Court. But in the instant case as I have already come across from the papers on record that no such infirmity or illegality is noticed by which the impugned judgment and decree is liable to be interfered with.     . . . (24)

43 DLR (AD)82; 2 BLC (AD)92 and 5 MLR (AD) 316 ref.

Mr. M.A. Azim Khair, Advocate

. . . For the petitioners

Mr. Abdul Wadud Bhuiyan, Advocate

. . . For the Opposite Parties..

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the Opposite Parties to show cause as to why the impugned judgment and decree dated 29.11.2007 and 06.01.2008 respectively passed by the learned Additional District Judge, 7th Court, Chittagong in Other Appeal No.320 of 2000 affirming those of dated 29.06.2000 and 03.07.2000 respectively passed by the learned Senior Assistant Judge, 1st Court, Chittagong in Partition Suit No.74 of 1997 in dismissing the suit should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.             The facts giving raise to this Rule in a nutshell are as follows: one Suresh Chandra Jaladas, the predecessor of the petitioners and the opposite party No.8 as plaintiffs instituted the original Partition Suit being No.74 of 1997 in the 1st Court of learned Assistant Judge, Sadar, Chittagong against the present opposite parties No.1, 3-7 contending inter alia that one Gokul Bashi Jaladas and Broja Bashi Jaladas were the original owners of the suit land and the R.S. khatian was correctly prepared in their names. Subsequently, Broja Bashi died leaving behind two sons namely Jotish Jaladash and Piary Mohon Jaladash. Gokul Bashi died leaving behind one son Piary Mohon Jaladash. The P.S. record of right was correctly prepared in the names of Jotish, Piary Mohon and Hori Mohon Jaladash. Jotish Jaladash died leaving behind one son the defendant No.1. The suit land has been recorded in the recent khatian in the names of Jotish, Hori Mohon, Piary Mohon and one Nirmol Jaladash and it is the case of the plaintiff that the record in the name of Nirmal Jaladash was wrong. Jotish Jaladash sold out his share in favour of the plaintiff and his brother the defendant No.7 by a registered sub-kabala dated 27.09.1978 and the plaintiff has been possessing the suit land from the time of his father. The municipal holding was in the name of the plaintiff’s father and after the death of their father the plaintiff mutated his name, but the share of the plaintiff was written as 02 annas in place of 04 annas in the mutation khatian. The B.S. recorded tenant Nirmol Jaladash has no right, title, interest and possession in the suit holding. The actual share of the plaintiff’s vendor was not recorded in the relevant B.S. khatian and the further case of the plaintiff is such that his house was burnt in the year 1997. Due to the obstruction of the defendant No.1, the plaintiff failed to re-construct his house in the suit land, which constrained the plaintiff to institute the original suit.

3.             The contrary case of the contesting defendant No.1 in short is thus, that Gokul Bashi and Broja Bashi were the original owners of the suit land. Gokul Bash died leaving behind one son Horimon Jaladash. Subsequently, Horimon died leaving behind one daughter. Broja Bashi died leaving behind two sons namely Piary Mohon and Jotish. At the death of Jotish his only son the defendant No.1 inherited the property and had been owning and residing in the suit premises with his family members. It is the case of the defendant-opposite party that Jotish Jaladash never sold out the suit land in favour of the plaintiff and the defendant No.7 and the kabala deed dated 27.09.1978 in fact was not executed and registered by Jotish Jaladash and the said kabala deed is a forged, created and spurious document. The further case of the defendant-opposite party is such that Jotish Jaladash was a literate person and he was able to put his signature and used to perform his regular works by putting his signature. Due to his illness from the year 1971 till his death he could not move and the plaintiff out of ill-motive to grab the property on the basis of a forged kabala deed having no manner of right, title, interest and possession in the suit premises on false allegation filed the suit.

4.             The learned trial court during trial of the original suit after framing 04 different issues examined witnesses from the sides of the respective parties and thereafter dismissed the suit on contest by his judgment and decree dated 29.06.2000.

5.             Being aggrieved, the plaintiff preferred an Other Appeal being No.320 of 2000 in the Court of learned District Judge, Chittagong, which was transmitted to the 7th Court of learned Additional District Judge, Chittagong for hearing and disposal and the learned appellate court on hearing the appeal by the impugned judgment and decree dated 29.11.2007 disallowed the appeal and affirmed the judgment and decree passed by the trial court.

6.             Being aggrieved by and dissatisfied with the impugned judgment and decree, the plaintiff-appellant-petitioners have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of status quo.

7.             During hearing of the Rule Mr. M.A. Azim Khair, the learned Advocate appeared on behalf of the petitioners while Mr. Wadud Bhuiyan, the learned Advocate appeared on behalf of the opposite parties.

8.             The learned Advocate appearing on behalf of the petitioners submits that both the courts below during disposal of the original suit and its subsequent appeal committed illegality and irregularity. The learned Advocate further submits that it is not the pleading’s case of the contesting defendant No.1 that his father Jotish Jaladash did not put his left Thumb Impression (hereinafter L.T.I.) in the sub-kabala deed dated 27.09.1978 in favour of the plaintiff and the defendant No.7 in respect of the suit property, but the learned courts below failed to appreciate the actual pleading of the plaintiff and arrived at an erroneous findings that the father of the defendant No.1 Jotish Jaladash did not execute and register the sale deed which is the title document of the plaintiff in respect of the suit property. The learned Advocate also submits that the title document of the plaintiff i.e. the sub-kabala dated 27.09.1978 has been duly proved by the plaintiff and has been marked as Exhibit-2 and as such under section 60 of the Registration Act it has got a presumptive value of correctness. The learned Advocate also submits that both the courts below committed an error of law in not taking specific notice of the defence case as made out in their written statement and as such committed an error in law resulting in an error in the decision occasioning failure of justice. The learned Advocate in respect of the deposition of the defendant’s witness No.1 argued that the witness No.1 in his testimony testified that, Jotish Jaladash was paralyzed and he could not move since 1971, but the learned trial court as well as the appellate court without apprising the evidence on record came to an erroneous findings that the father of the defendant No.1 going to the concerned sub-registry office executed and registered the deed. That there is no positive evidence from the side of the contesting defendant that Exhibit-2 was created by false personification, rather; it is apparent from the face of the document that Jotish Jaladash after putting his L.T.I. executed the sale deed in favour of the plaintiff and the defendant No.7. The learned Advocate lastly submits that under section 54 of the Transfer of Property Act the registered instrument marked as Exhibit-2 has a legal value of transfer and until and unless this document is cancelled by a competent court of law, it cannot be said that no property was transferred by this instrument in favour of the purchasers and realizing the legal position after filing of the suit in the year 1997 the defendant filed an Other Suit being No.23 of 1999 for cancellation of the kabala deed, but that suit was dismissed for non-prosecution on 03.06.2008 vide Annexure-‘A-1’ filed from the side of the petitioners through their supplementary affidavit. The learned Advocate also submits in his concluding submission that the trial court as well as the appellate court without going into the merit of the suit and proper assessment of the evidence in its true perspective committed an error of law resulting in an error in the decision occasioning failure of justice and as such the impugned judgment and decree is liable to be interfered with.

9.             As against the aforesaid submission of the learned Advocate for the petitioners, the learned Advocate appearing on behalf of the opposite parties, opposing the Rule controverted the argument advanced from the side of the learned counsel for the petitioners and submits that, neither the trial court nor the appellate court during disposal of the original suit and its subsequent appeal committed any illegality or irregularity. The learned Advocate further submits that both the courts below concurrently in their observation and finding held after proper assessment of evidence and appreciation of law that the basic document of the plaintiff i.e. the sub-kabala deed dated 27.09.1978 allegedly executed and registered by the father of the defendant No.1 Jotish Jaladash is a forged instrument and it was not executed and registered by the alleged vendor Jotish Jaladash in favour of the plaintiff and the defendant No.7. The learned Advocate also submits that in the pleading of the defendant No.1 there is a clear recital that his father did not transfer the suit property in favour of the plaintiff and he was a literate person and used to perform his day to day work by putting his signature in case of necessity. The defendant also denied the execution of the kabala deed by his father and it is the case of the defendant No.1 that his father being a literate person used to put his signature not L.T.I. and the plaintiff’s witness No.1 not at all denied the fact that, Jotish Jaladash was a literate person, rather; he expressed his ignorance about that fact. The learned Advocate after referring some decisions of our Apex Court reported in 43 DLR (AD)82, 2 BLC (AD)92 and 5 MLR (AD) 316 submits that the concurrent findings of the courts below with regard to the facts of the case cannot be interfered with in absence of misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision failure of justice inasmuch as the findings of facts are immune from interference in the revsional jurisdiction of this Court save and except the above mentioned illegalities and the instant case nowhere it is found that the appellate court during disposal of the appeal committed any such illegality or infirmity or misreading and non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice, and as such the impugned judgment and decree cannot be interfered with. The learned Advocate lastly submits that the plaintiff has hopelessly failed to discharge his onus of proof as to the genuineness of his title document by adducing sufficient credible tangible evidence, despite; there was an imperative duty upon the plaintiff to prove his case by sufficient credible evidence.

10.         In order to appreciate the submission advanced from the sides of the learned counsels to the parties, I have perused the judgment and decree passed by the trial court in Other Suit No.74 of 1997, the impugned judgment and decree passed by the appellate court dated 29.11.2007 in Other Appeal No.320 of 2000, the evidence led from the sides of the respective parties during trial of the original suit and the pleadings of the parties including the case records.

11.         On perusal of the case records along with the connected papers it transpires that the plaintiff-petitioners instituted the original partition suit being No.74 of 1997 in the 1st Court of learned Assistant Judge, Chittagong on 25.06.1997. In that suit it was contended by the plaintiff Suresh Chandra Jaladash that the father of the defendant No.1 Jotish Chandra Jaladash being the owner of the property for want of money transferred the suit land described in schedule 1(Ka) of the plaint in favour of the plaintiff by a sub-kabala deed dated 27.09.1978 having No.11762 and it is the case of the plaintiff that he is residing in the suit property as of their homestead property since the regime of his father and the Poura holding was started in the name of his father. Subsequently, it was transferred in the name of the plaintiff and the plaintiff is possessing the suit property on payment of rents regularly.

12.         As against the case of the plaintiff the contesting defendant No.1 in his written statement denied the contention of the plaintiff as stated in the plaint and in respect of the transfer deed as alleged from the side of the plaintiff by his (defendant No.1) father Jotish Chandra Jaladash and it is the specific case of the defendant-opposite party in his pleading that the plaintiff has created a forged, collusive kabala deed in his name in order to grab the suit property and the father of the defendant-opposite party knows the signature and as such the alleged execution of sub-kabala deed by putting his L.T.I. is not believable as well as practical and in fact, the plaintiff did not acquire any right, title, interest and possession in the suit property by virtue of that deed.

13.         Apart from this; on meticulous consideration of the evidences led from the sides of the respective parties I find that the plaintiff Suresh Jaladash as P.W.1 testified in his examinatin-in-chief in support his pleading’s case and in the cross-examination he has categorically asserted that in respect of 02 koras land he has instituted the suit for partition. During cross-examination in a reply to a question from the side of the defendant, P.W.1 testified that the 02 sons of Broja Bashi were Jotish and Piary Mohon and they inherited the property left behind their father in equal share. In another stage of his cross-examination P.W.1 in a reply to a question from the side of the defendant-opposite party with regard to the sub-kabala deed Exhibit-2 testified that he does not know as to whether Jotish was literate. P.W.1 conceded that he did not find the execution of Jotish, who died about 25 years back and the property left behind Jotish is being possessed by the defendant No.1 Monoronjon. In another stage of his testimony P.W.1 admits that after the death of his father the holding was not opened in his name and he cannot say in whose name the holding has been opened in respect of the suit property. P.W.1 further conceded in his testimony that he did not file any application for mutation in his name on the basis of a kabala deed dated 27.09.1978. This witness also expressed his inability to state that in the year 1978 what was the price of land in the suit Mouza and he cannot say for how many years Jotish was unable to move. In the last portion of his cross-examination the plaintiff Suresh Jaladash again expressed his inability to state as to whether Jotish Jaladash was literate or not or can put his signature. At 10.00 a.m.  the kabala deed was written by the scribe and it was registered at 12.00 p.m. according to the testimony of the plaintiff.

14.         P.W.2 Suvash Jaladash in his testimony testified about the kabala dated 27.09.1978. He claimed himself an attesting witness of the deed in which Surendra and Makhon were witnesses and Makhon identified the executant and put his signature to that effect.

15.         During cross-examination P.W.2 testified at a stage in a reply to a question from the side of the defendant that he was not present at the time of delivery of possession in favour of the plaintiff. This witness in his testimony admits that Jotish Jaladash was a literate person and he was able to put his signature, but in the kabala deed of the plaintiff, Jotish gave his L.T.I. (Left Thumb Impression). P.W.2 in his deposition expressed his inability to state the name of the deed- writer/scribe.

16.         Vis-à-vis; the witnesses adduced from the side of the defendant-opposite party, are two in numbers. D.W.1 is the defendant No.1 himself and the other witness on behalf of the defendant No.8 is D.W.2.

17.         D.W.1 Monoronjon during his testimony testified that at the demise of his father Jotish; he being the only son; inherited the entire property left behind his father Jotish Chandra Jaladash and since then the property is being possessed by him as of his homestead. He has produced the corresponding R.S. khatian No.387 which has been marked as Exhibit-‘Ka’. The subsequent P.S. khatian No.842 and B.S. Khatian No.332 were also produced from his side including some rent receipts showing payment of rents which has been marked as Exhibits-‘Ka-(1)’, ‘Ka-(2)’ and ‘Kha’ series. The defendant No.1 in his deposition categorically testified that the kabala deed dated 27.09.1978 is a created, false and ineffective document and in this kabala his father did not put his L.T.I. (Left Thumb Impression). His father also did not execute and register the above mentioned kabala deed going to the Registry Office and since 1971 his father was unable to move elsewhere. D.W.1 also testified that in the year 1978 the consideration amount of 02 koras land of their locality was more than Tk.1500/- (one thousand and five hundred) and his father had no necessity to transfer the land in the year 1978 and as such never proposed to transfer the land in favour of the plaintiff and his father did not obtain any consideration amount of the property and as such the plaintiff have no right, title, interest and possession in the suit land for which he has prayed for getting a separate saham.

18.         The other witness D.W.2, Lucky Jaladash, who is the son of Piary Mohon Jaladash testified in his testimony that as am-mokter of his father the defendant No.8, he (D.W.2) is deposing before the court since his father is sick and unable to move. In respect of the title document of the plaintiff, this witness in his testimony testified that he has seen Jotish Jaladash, who was a literate person and he was unable to move elsewhere before his death and his son Monoronjon used to look after him and so far his (D.W.2) knowledge goes; in the year 1978 Jotish did not go to the Sub-register Office. This witness also testified that in the year 1978 Jotish had no necessity to transfer his homestead property.

19.         On meticulous consideration with regard to the matter of adjudication between the parties, I find that both the courts below rightly arrived at a conclusive decision on proper assessment of evidences in its true perspective that the pertinent point for consideration is as to whether the sub-kabala deed dated 27.09.1978 in favour of the plaintiff by the admitted owner Jatish Jaladash was a genuine instrument for sale or not, and as to whether it was actually executed and registered by the executant and whether the possession was delivered in favour of the purchaser of this deed.

20.         I have come across from the pleadings of the parties that the title document as alleged from the side of the plaintiff with regard to acquisition of his title and interest in the suit land by virtue of the aforesaid transfer deed has been challenged from the side of the contesting defendant and although, it is the case of the plaintiff-petitioners that Jotish sold out the land measuring 02 koras equivalent to 0.01 acres as described in schedule 1(ka) of the plaint in favour of the plaintiff and his brother the defendant No.7 and they got possession therein by virtue of the aforesaid transfer deed, but they have hopelessly failed to prove that.

21.         Scrutinizing the evidence on records it further appears that the contesting defendant, who is the son of the executant Jotish denied the execution of his father by putting L.T.I. and both the courts below with regard to this, arrived at a conclusive decision that the executant of the deed in fact did not execute the deed by putting his L.T.I. therein, inasmuch as; by credible evidence it is not at all proved from the side of the plaintiff. In this context; consulting the evidence led from the sides of the parties I have the reason to inclined such a view that the evidence, which was initiated from the side of the plaintiff and produced before the trial court are not credible and they cannot be relied upon in believing the case of the plaintiff.

22.         In order to falsify the specific contention of the contesting defendant it was the imperative duty upon the plaintiff to adduce sufficient tangible evidence to arrive at a concrete decision as to the genuinity of the title document marked as Exhibit-2.

23.         With regard to section 60 of the Registration Act, 1908 (Act XVI of 1908) mere execution and registration of a document is not enough to treat the same a genuine instrument for transfer until and unless it is proved by tangible evidence that it was duly effected or possession was delivered or actually executed and registered as alleged from the side of the party concerned.

24.         The courts below in their observation and findings on detail discussions over the evidences on record arrived at a concrete decision that the plaintiff to the suit has failed to prove the genuineness of their basic document. Furthermore; the analysis of evidence as done by the learned courts below does not call for any interference of this Court in absence of material omission or misreading and non-reading of evidence. No such discrepancy or contradiction is noticed and both the courts in respect of the matter of adjudication arrived at a concurrent findings. Under section 115(1) of the Code of Civil Procedure this Court invoking the revisional jurisdiction only in case of gross illegality or infirmity and misreading or non-reading of evidence and non-consideration of material facts is empowered to interfere with the judgment and decree passed by the Appellate Court. But in the instant case as I have already come across from the papers on record that no such infirmity or illegality is noticed by which the impugned judgment and decree is liable to be interfered with.

25.         Having regard to the facts, circumstances and the discussions referred to above, I am constrained to hold such a view that the Rule has got no merit to succeed.

26.         In the result, the Rule is discharged without any order as to costs. The impugned judgment and decree dated 29.11.2007 and 06.01.2008 respectively passed by the learned Additional District Judge, 7th Court, Chittagong in Other Appeal No.320 of 2000 affirming those of dated 29.06.2000 and 03.07.2000 respectively passed by the learned Senior Assistant Judge, 1st Court, Chittagong in Partition Suit No.74 of 1997 is hereby affirmed.

27.         Let the order of status quo granted earlier by this Court at the time of issuance of the Rule stands vacated.

28.         Send down the lower court’s records immediately and communicate the judgment and order at once.

Ed.



Civil Revision No. 1526 of 2008