Abul Hossain Molla & others Vs. Abdul Karim Mia & others, 3 LNJ (2014) 124

Case No: Civil Revision No. 6417 of 2001

Judge: Md. Shawkat Hossain,

Court: High Court Division,,

Advocate: Mr. Bivash Chandra Biswas,Mr. S.A. Newaz,Mr. A.S.M. Khalequzzaman,,

Citation: 3 LNJ (2014) 124

Case Year: 2014

Appellant: Abul Hossain Molla & others

Respondent: Abdul Karim Mia & others

Subject: Parties to a suit,Land Law,

Delivery Date: 2013-11-21


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Shawkat Hossain, J.


Judgment on
21st November, 2013
  Abul Hossain Molla and others
. . .Petitioner
Versus
Abdul Karim Mia and others.
O. P. No. 1 Abdul Karim Mia being dead his heirs: 1(a) Rina Parvin and others.
. . . Opposite Parties
 

Evidence Act (I of 1872)
Section 91
The claim of the defendants that Sabdul Sheikh, the mortgagee got possession of the land can’t stand in view of section 91 of Evidence Act, and the oral evidence that has been adduced on behalf of the defendants does not, in any way, help the defendants. . . . (24)
 
Code of Civil Procedure (V of 1908)
Order I Rule 9
It is evident that plaintiff No. 1 has no interest to the property under lot No. 2 and similarly plaintiff Nos. 2-19 have no interest to the property under lot No. 1 and both the schedule property belong to separate holdings but in fact, for the reason above it can’t be termed as misjoinder of parties. . . . (30)
 
Code of Civil Procedure (V of 1908)
Order I Rule 1
Under the aforesaid provision plaintiffs having separate and distinct causes of action may join in one suit if the right to relief arises out of the same set of acts or circumstances and involves a common question of law or fact. It is apparent that the suit in hand has common question of law or fact as requires under Order 1 of the Code of Civil Procedure for joining as plaintiffs and the same question of law or fact would arise if the plaintiffs filed separate suits....(32 and 34)

Begam Jan and others Vs Moklesor Rahman and others, 6 BLC 580; Jahanara Begam being dead his heirs: Sheikh Sahanaj Begam and others –Vs- Hazera Khatun being dead her heirs: Md. Aminul Haque and others 24 BLD (AD) 47 ref.
 
Mr. Bivash Chandra Biswas, with
Mr. S.A. Newaz, Advocates
. . . For the petitioners.

Mr. A.S.M. Khalequzzaman, Advocate
. . . For the opposite parties.

Civil Revision No. 6417 of 2001
 
JUDGMENT
Md. Shawkat Hossain, J.
 
On an application under Section 115(1) of the Code of Civil Procedure, defendant-respondents obtained the instant Rule against the judgment and decree dated 05.08.2001 and 10.08.2001 respectively passed by Subordinate Judge, 2nd Court, Faridpur in Title Appeal No. 258 of 2000 reversing those dated 09.08.2000 and 14.08.2000 respectively passed by Assistant Judge, Alfadanga, Faridpur in Title Suit No. 43 of 1999 and decreed the suit.

Plaint case, in short, is that the suit property under lot No. 1 appertaining to C.S. Khatians-542, 543 comprising .96 acre of land of mouja Kachiagram under P.S. Alfadanga, District-Faridpur originally belonged to Bhuban Mohan Majumder, who died leaving 4 sons-Jiban Kumar Majumder, Panchanan Majumder, Nil Ratan Majumder and Kalidas Majumder. They possessed the suit land under lot No.1 and thereafter transferred the same by registered patta deed No. 2247 dated 04.07.1944 in favour of plaintiff No. 1 and delivered possession in his favour. S.A. record was duly prepared in the name of plaintiff No.1 for the aforesaid land under lot No.1 and plaintiff No.1 has been in possession of the same.

The suit land under lot No.2 appertaining to C.S. Khatian No.168 comprising .90 acre of land under mouja-Noapara, P.S. Alfadanga, Distirict-Faridpur originally belonged to Goher Sheikh and others. On amicable partition with the co-tenants, Goher Sheikh, Abdul Mazid, Golam Rasul and Pachu got .50 acre of land under Plot No.803 and .40 acre of land under Plot No.1278 as described in lot No.2 in their saham. Goher Sheikh and others possessed the suit land under lot No.2 and thereafter Pachu transferred .22 acre of land in favour of plaintiff No.1 by registered deed 13.11.1957; Goher transferred .45 acre of land along with other land in favour of plaintiff No.1 by registered deed dated 04.08.1958 and Abdul Alim, the son of Abdul Majid transferred .22 acre of land in favour of plaintiff No.2 (wife of plaintiff No.1) by registered deed dated 05.10.1987. Plaintiff No.1 subsequently made a heba-bil-ewaj deed dated 25.03.1968 in favour of his wife (plaintiff No.2) and transferred .11 acre of land in favour of Abdus Samad the predecessor of plaintiff Nos. 4-13 by registered deed dated 06.04.1977 (in the aforesaid deed inadvertently .11 acre was written as .22 acre). Plaintiff No.1 further transferred .11 acre of land in favour of Hosne-Ara by registered dated 20.03.1975. Hosne-Ara afterwards sold the same in favour of plaintiff No.3. C.S. recorded tenant Golam Rosul died leaving plaintiff Nos. 14-19. Plaintiff No. 1 is in possession of suit land under lot No. 1 and plaintiff Nos.2-19 are in possession of land under lot No.2, adversely against the defendants and all others. On 31.07.1999 defendants raised their claim to suit the land having S.A. record prepared wrongly in their name. Plaintiffs thus filed the above suit for declaration of title and permanent injunction.

Defendant Nos. 6-8 contested the suit by filing written statement contending interalia that land under lot No.2 that appertaining to C.S. Khatian No.168 originally belonged to Goher Sheikh, Abdul Mazid, Golam Rasul and Pachu Sheikh. The aforesaid tenants mortgaged the land under lot No.2 by registered mortgage deed dated 13.08.1929 and there was an agreement that on payment of money including principle money and interest thereon, they will get the property released but the above mortgage land was never released thereafter. Since they could not pay the mortgage money and interest thereon, they surrendered possession of the land in favour of Sabdul Sheikh. Sabdul Sheikh by virtue of the mortgage deed remained in possession of the land under lot No.2 with his all interest and accordingly S.A. record was prepared in his name but with wrong insertion of the name of Abdul Majid. Mazid had no interest and possession to the land under lot No.2. The mortgagors never claimed the property afterwards and Sabdul Sheikh paid rents. The heirs of Sabdul Sheikh thereafter sold .44 and 1/2 acre of land in favour of defendants by registered deed dated 13.05.1999 and delivered posses-sion of the same in their favour. Plaintiffs have/had no possession to the suit land and they filed the suit on fictitious claim.
 
On pleadings, trial Court framed the following issues:
  1. Is the suit maintainable in its present form?
  2. Is the suit barred by limitation?
  3.  Is the suit bad for defect of parties?
  4. Have the plaintiffs any right, title, interest and exclusive possession to the suit land?
  5. Are the plaintiffs entitled to get relief as prayed for?
 Trial Court, in appreciation of the facts of the pleadings and on assessment of the evidence on record, decreed the suit in part in respect of the land under lot No.1. Plaintiffs thereby preferred the appeal.

On appeal, appellate Court after hearing both sides and weighing the evidence on record in view of the facts of the pleadings reversed the judgment passed by the trial Court and decreed the suit.

In the trial Court, plaintiffs examined P.W.1 Abdul Karim Mia, P.W.2 Md. Tuku Sheikh and P.W. 3 Md. Zahur Mollah and produced exhibits 1-4(cha).

Defendants, on the contrary, examined D.W.1 Abul Hossain Mollah, D.W. 2 Sayed Chand Ali and D.W.3 Yousuf Mollah and produced exhibits Ka-Gha.

Mr. Bivash Chandra Biswas, the learned Advocate appearing for the petitioners submits that, in fact, the defendants have no interest to the lot No.1 and the property under lot No.2 is under dispute, which was mortgaged in favour of Sabdul Sheikh. It was agreed that possession of the mortgage property shall remain with the mortgagors and the mortgagors shall have no right to sell the property until the mortgage money and interest thereon is paid and the mortgagors being failed to pay the mortgage money and interest thereon, subsequently surrendered its possession in favour of Sabdul Sheikh, the mortgagee who remained in possession and accordingly S.A. record was prepared in his name and subsequently the heirs of Sabdul Sheikh transferred .44  acres of land in favour of defendants by registered deed and the defendants are in possession of the suit property and trial court in view of the above facts and evidence on record decreed the suit in part as to land under lot No. 1, but the appellate Court by misreading of evidence and being failed to appreciate the facts of the pleadings reversed the judgment passed by the trial court without adverting to its findings and arrived at the decision resulting to an error occasioning failure of justice.

Mr. Bivash Chandra Biswas further submits that plaintiffs could not produce any evidence that mortgagors ever paid the mortgage money and interest thereon and the land under mortgage was thus redeemed and the plaintiff- predecessors in interest remained in possession of the same.

Mr. Bivash Chandra Biswas also submits that the appellate Court reversed the judgment without adverting to the findings of the trial court and having independent decision of it’s own and as such the impugned judgment is not a judgment of reversal.

Mr. Bivash Chandra Biswas further submits that the appellate Court failed to appreciate and weigh the evidence on record and arrived at an erroneous decision  resulting in an error occasioning failure of justice and it warrants interference.

Mr. Bivash Chandra Biswas refers citations from 4 BLC 362 and 4 BLC 490.

Mr. A.S.M. Khalequzzaman, the learned Advocate appearing on behalf of the opposite parties submits that admittedly the mortgagors retained the possession of the  mortgaged property under lot No.2 as before and S.A. record was wrongly prepared in the name of Sabdul Sheikh along with  Abdul Majid and plaintiffs obtained rightful interest to the property under Lot No.2 by way of purchase.

Mr. A.S.M. Khalequzzaman further submits that in fact, although no document appears as to payment of mortgage money but on such non payment of mortgaged money, the title of the ex-tenants having been in possession of the same, was never extinguished and plaintiff Nos. 2-19 rightly acquired title by way purchase to the land under lot No. 2.

Mr. A.S.M. Khalequzzaman also submits that in fact, the deed of mortgage apparently reads as a deed of security and in the event of any failure of payment of money advanced to the mortgagors, the mortgagee was given authority to take legal action for recovery of the same with interest thereon but not doing so, the claim has now become time barred. 

Mr. A.S.M. Khalequzzaman further submits that plaintiffs purchased the suit land from the legal owners and they have obtained title to the land under both the lots and appellate Court by way of adverting to the findings of the trial Court rightly reversed and decreed the suit and no occasion arises to call for any interference to the impugned judgment.

The bone of contention in the instant suit is the deed of mortgage that has been marked by the defendants as exhibit- ‘kha’.

From the facts of the pleading the land under lot No. 1 finds no dispute. Indisputably, plaintiffs No. 1 retains title and possession on it.

Main concern in the suit is the land under lot No. 2.

The recital of the deed, exhibit- ‘kha’ runs as under- “আমাদের নিম্নলিখিত জমি আবদ্ধ রাখিয়া আপনার নিকট হইতে আপনার মবলগে ২০০ টাকা কর্জ করিয়া লইলাম। টাকায় সুদ শতকরা তিন টাকা দুই আনা হিসাবে মাসিক (অপাঠ্য) টাকা পরিশোধের ওয়াদা আগামী ১৩৩৭ সালের আশ্বিন মাসের সুদ ও আসল টাকাসহ দিব ও ওয়াদা মধ্যে টাকা পরিশোধ করিতে না পারিলে উপরোক্ত  হারে সুদ চলবে, যখন সে টাকা দিব তখনই অত্র খাতের পৃষ্ঠে ওয়াশীল পাইব। আপনার টাকা পরিশোধ না হওয়া পর্যন্ত আবদ্ধ সম্পত্তি কোনরুপে লিখিত পড়িত ছাড়া হস্তান্তর করতে পারিব  না আবদ্ধীয় সম্পত্তিতে আপনার টাকা পরিশোধ না হইলে অগ্রে আবদ্ধীয় সম্পত্তি পরে আমাদের স্থাবর ও অস্থাবর সম্পত্তি ক্রোক নিলাম দ্বারা আপনার টাকা আদায় করিয়া লইবেন। আবদ্ধীয় সম্পত্তি আমাদের খাস দখলে আছে ও থাকিবে।”

From the reading of exhibit-‘kha’ it appears that it was a deed of security. The possession of the property under the deed was remained with the mortgagors. There was a time frame for payment of the money and for failing which there was condition to recover the same along with interest by way of attachment and sale of the mortgage property including other properties of the mortgagors but no evidence appears that in default of payment of money so advanced and interest thereon any legal action was taken for attachment  or sale of the property under the deed, exhibit- ‘kha’. Time for payment of the money advanced was expired after the month of Ashin, 1337 B.S. Obviously, the claim now stands time barred.

It is evident that the possession of the land remained with the mortgagor and plaintiffs 14-19 have obtained interest to the land under lot No. 2 as successors of C.S. tenant Golam Rani and plaintiffs 2-13 have obtained interest by way of purchase from the successors of C.S. tenants in support of which they have exhibited their chain of title deeds.

Since the exhibit- ‘kha’ proves the possession of the land under lot No.2 with the predecessors of the plaintiffs, the claim of the defendants that Sabdul Sheikh, the mortgagee got possession of the land can’t stand in view of section 91 of Evidence Act, and the oral evidence that has been adduced on behalf of the defendants does not, in any way, help the defendants.

In the case Begam Jan and others Vs Moklesor Rahman and others, 6 BLC 580, it has been held-

“The oral evidence is not admissible in varying or contradicting the recitals contained in the registered sale deed in view of the sections 91 and 92 of the Evidence Act which clearly excludes oral evidence for the purpose of varying or contradicting the terms contained in a registered document. The trial Court has committed wrong and error in granting one-third share to the plaintiffs accepting the oral evidence of the DWs overlooking the provision of sections 91 and 92 of the Evidence Act’’. 

It appears that appellate Court on due consideration of the evidence on record, both oral and documentary, in view of the facts of the pleadings adverted to the findings of the trial Court and reversed the same. It does not appear that appellate Court committed any glaring mistake or by misreading of evidence or non-consideration of evidence arrived at the decision that calls for any interference.

In course of hearing Mr. Bubash Chandra Biswas, the learned Advocate for the defendant-respondent-petitioners raises objections to the plaint having no valuation statement as required under Order 7, Rule 1(i) of the Code of Civil Procedure and it suffers from mis-joinder of parties having no joint interest to the land under dispute and thus the suit is not maintainable and the impugned decree can’t stand.

On perusal of the plaint it is evident that the plaint lacks valuation statement as requires Under Order 7 Rule 1(i) of the Code of Civil Procedure. But, para 5 of the plaint refers the valuation as under- “আদালতের এলাকা ও কোর্ট ফি নির্ণয়ার্থে নালিশী জমির বাৎসরিক আয়-ব্যয় এর পর নীট লাভ ১৩,৯৫০/- টাকা অত্র মোকদ্দমার তায়দাদ সাবর্থে তদুপরি কোর্ট ফি প্রদানে দায়ের করা গেল।”

In this respect Mr. Khalequzzaman refers from page 245 of Ganguly’s Civil Court Practice and Procedure by M.R. Mallick which approves such valuation statement in a plaint.

It is evident that plaintiff No. 1 has no interest to the property under lot No. 2 and similarly plaintiff Nos. 2-19 have no interest to the property under lot No. 1 and both the schedule property belong to separate holdings but in fact, for the reason above it can’t be termed as misjoinder of parties.

Order 1, Rule 1 of the Code of Civil Procedure provides-

“All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.’’

Under the aforesaid provision plaintiffs having separate and distinct causes of action may join in one suit if the right to relief arises out of the same set of acts or circumstances and involves a common question of law or fact. In the case Jahanara Begam being dead his heirs: Sheikh Sahanaj Begam and others –Vs- Hazera Khatun being dead her heirs: Md. Aminul Haque and others 24 BLD (AD) 47, it has been held-

“A person to be joined in a suit as the plaintiff is subject to two conditions; the right to relief must in each case be in respect of or arise out of the same act or transaction or series of acts or transactions alleged to exist, whether jointly, severally or in the alternative and where, if such persons brought separate suits, any common question of law or fact would arise. It is desirable to read Order 2 Rule 3 as both Order 1 Rules 1 and 3 deal to some extent with the joinder of causes of action.”

It is apparent that the suit in hand has common question of law or fact as requires under Order 1 of the Code of Civil Procedure for joining as plaintiffs and the same question of law or fact would arise if the plaintiffs filed separate suits. Obviously, the suit as it is framed does not hit either by Order 7, Rule 1(i) or by Order 1, Rule 1 of the Code of Civil Procedure and the objection raised by Mr. Bibash Chandra Biswas the learned Advocate for the petitioners does not hold good.

The decisions in the case Rokeya Begam Vs Mozammel Haque reported in 4 BLC 364 finds no relevancy to the case of the petitioners. In the above case ‘it was clearly stipulated that in the event of failure to repay the mortgage money the kot kabala will be treated as saf kabala and the title of the mortgaged property will be absolutely vested in the mortgagee’.

The decision in the case Nurul Islam Chawdhury Vs. Mrs. Fazal Ahmad reported in 4 BLC 490 also finds no relevancy in facts and circumstances of the instant case and it helps, in no way, the petitioners.

In view of the discussion made herein before, the Rule bears no substance.

Accordingly, the Rule is, therefore, discharged.

No order as to costs.

Send down the L.C. Record at once.

Ed.