Case No: Civil Appeal No. 203 of 2003
Judge: Md. Joynul Abedin ,Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Mahmudul Islam,,
Citation: 60 DLR (AD) (2008) 131
Case Year: 2008
Appellant: AH Md. Ali Haider Quoraishi
Respondent: Shaheen Quoraishi and others
Subject: Procedural Law,
Delivery Date: 2007-1-16
Syed JR Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul K Chowdhury J
Md Joynul Abedin J
AH Md. Ali Haider Quoraishi
Shaheen Quoraishi and others
January 16, 2007.
The Code of Civil Procedure, 1908 (V of 1908)
Order VI, rule 17
The High Court Division ought to have allowed the application for amendment of the plaint with prayer to adduce additional evidence because such amendment is necessary for determining the real question of controversy between the parties, giving an opportunity to the plaintiff to substantiate his claim. ……(26 and 27)
Judgment of Amirul Kabir Chowdhury J. giving majority view.
Cases Referred To-
Imambandi Begum vs. Kumleshwari Pershad (1886) 13 1A 160; Ram Narain vs. Md. Hadi (1898) 26 1A 38; Daulat Chandra Gope vs. Monowara Begum, 1996 BLD (AD) 251; Md. Ali Akhand vs. Shalan Nessa, 1998 BLD (AD) 50 = 3 BLC (AD) 177; Dr. Rezia Khatun vs. Bhanu Guha 1986 BLD (AD) 135; Bilas Kunwar vs. Desraj Ranjit Sing, 42 IA. 202; Probodh Ranjan Shorn vs. Md. Yeasin, 1980 BSCR (AD) 457; Mustafizur Rahman vs Abdul Kader 3 BLC (AD) 38.
Abdul Wadud Bhuiyan, Senior Advocate (Mansur Habib, Advocate with him), instructed by Md. Nawab Ali, Advocate-on-Record—For the Appellant.
Mahmudul Islam, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record—For Respondent No. 1.
Not represented-Respondent Nos. 2-4.
Civil Appeal No. 203 of 2003
(From the judgment and order dated 22-7-2001 passed by the High Court Division in First Appeal No. 40 of 1994)
Syed JR Mudassir Husain CJ.
I have perused the judgment written by Mr. Amirul Kabir Chowdhury, J and I agree with his findings and decision.
Md Fazlul Karim J.
I have gone through the judgments in the matter written by my brothers, Amirul Kabir Chowdhury, J and Md. Joynul Abedin, J. In view of the judgment and decree of the Trial Court decreeing the suit on merit and those of the Court of Appeal below allowing the same without considering the facts and circumstances of the case and rejecting the application for amendment and an application under Order XLI, rule 27 of the Code of Civil Procedure without considering in its real perspective, ends of justice has not been secured by rejecting those application. Thus, in the facts and circumstances of the case and for reasons aforesaid, ends of justice would best be served, while agreeing with my learned brother, Amirul Kabir Chowdhury, J to send back the case on remand for giving opportunity to both the parties upon allowing the applications for amendment of the plaint and under Order XLI, rule 27 of the Code of Civil Procedure and permitting both the parties to take necessary steps in the suit for disposal of the suit in accordance with law.
Amirul Kabir Chowdhury J.
This appeal at the instance of the plaintiff arises out of the judgment and order dated 22 July 2001 passed by a Division Bench of the High Court Division in First Appeal No. 40 of 1994 reversing the judgment and decree dated 2-11-1993 passed by the First Court of the learned Subordinate Judge, Dhaka in Title Suit No.18 of 1985 decreeing the suit declaring the suit property to have been purchased in the benami of the defendant (respondent No.1). The appellant as, plaintiff instituted Title Suit No. 578 of 1979 in the 4th Court of the Subordinate Judge, Dhaka, renumbered as Title Suit No.1283 of 1981 and being transferred to the First Court of the Subordinate Judge, Dhaka again renumbered as Title Suit No.18 of 1985 stating, inter alia, that the appellant and the respondent No. 1 when were reading MBBS Course in Dhaka together, intimacy developed between them and that the respondent was a Hindu widow named Kamala Rani wife of late Promode Sundar Roy who died in 1950 in Assam leaving the respondent as his widow and two daughters Bithi Roy and Sathi Roy. The children were staying at Karimganj, Assam in India with their maternal grand-parent. After passing the MBBS examination he went to Karachi for obtaining M. Phil. degree and was attached to Jinnah Hospital when the respondent used to maintain contact with him through letters. In 1964 the respondent No.1 flew to Karachi and got married with the appellant. They thereafter returned to Dhaka and the appellant served as Medical Officer in different hospitals including Post Graduate Medicine Research Hospital, Dhaka and also was Medical Officer in different organisations and also was doing private practice. The respondent was then living with the appellant in Dhaka. The appellant was also Professor of Pathology in Dhaka Medical College Hospital and thus he was earning a lot of money. The respondent No.1 also managed a job in the Motijheel Central Government Dispensary as Medical Officer and that the appellant purchased a plot of land measuring 5 kathas together with one-storied building at Pallabi being Plot No. 4, Block 1/A from the Eastern Housing Society Ltd in benami of his wife, the respondent No. 1 at a cost of Taka 54,000 in August, 1968. He paid part of the consideration money from his own savings and balance Taka 30,000 was paid by taking loan from the House Building Finance Corporation (HBFC). The appellant thereafter purchased the suit plot in Gulshan Model Town in 1970 from its original allottee. The consideration money was paid from his own fund and with the sale proceeds of his house at Pallabi, after repaying the loan of House Building Finance Corporation and at that time also at the influence of the respondent No.1, and because of bondage of love and affection for the respondent No.1, the appellant purchased the disputed property in Gulshan in benami of his wife, the respondent No.1 by deed of sale dated 16-1-1970.The appellant, thereafter, started construction of a two-storied building upon the land in Gulshan.
4. The appellant was awarded scholarship for higher studies in England leading to MRCP in Pathology and he left for UK in the month of September, 1970 after making all arrangement for completing the construction of the house in Gulshan. After completion of the construction the house was let out to the Hoechst Pharmaceuticals Co Ltd Dhaka. The respondent No.1 during the liberation period in 1971 left Bangladesh for India and thereafter the appellant took her to UK in early 1972 from India and they were residing there at their own house in London together. The eldest daughter of the respondent No.1, namely Bithi Roy and her husband were brought to London in 1974 and their settlement was managed in UK Later on the second daughter of the respondent No.1 namely Sathi Roy and her husband were also brought to UK by the appellant and he met their matrimonial expenses and made arrangement for their settlement there. There was no issue out of the wedlock between the appellant and the respondent No.1. It is also the contention of the appellant that the disputed property at Gulshan was purchased by his own money in the benami of the defendant respondent No.1 but because of the attempt of the respondent No.1 to sell the suit property and because of their strained relationship as husband and wife the suit has been filed.
5. The suit has been contested by the respondent No.1 by filing a written statement contending, inter alia, that the suit property has been purchased by the money of the respondent No.1 herself and she denied that it was purchased by the appellant in the benami of the respondent No.1 at the expenses of the appellant. The respondent contended further that the appellant used to maintain a large paternal family his with his small income and, as such, he had no means or money to purchase the disputed property.
6. Further case of the respondent No.1 is that she herself paid consideration money for the disputed property and purchased the same in her own name, for her own interest and it was never purchased by the appellant in benami, in her name and the appellant did not pay the consideration money.
7. The learned Subordinate Judge examined witnesses of the parties, received documents in evidence and decreed the suit.
8. The defendant-respondent preferred First Appeal No.40 of 1994 before the High Court Division. When the appeal was pending an application was filed on behalf of the plaintiff for amendment of the plaint under Order VI, rule 17 of the Code of Civil Procedure for incorporating in the plaint new paragraphs including paragraph No. 15(C). It appears that although the High Court Division accepted the proposition of law laid down for the purpose of amendment that the amendment of the pleadings can be made at any stage of the proceeding but upon finding that according to the facts of the instant case the statements made in the proposed amendment as paragraph 15(C) are not subsequent events but relate to an event which was in existence before the institution of the suit, rejected the prayer for amendment of the plaint and consequently the prayer for adducing additional evidence under Order XLI, rule 27 of the Code of Civil Procedure by the plaintiff also met its natural death.
9. Thereafter the High Court Division by the impugned judgment and order allowed the appeal, setting aside the judgment and decree of the trial Court and dismissed the suit.
10. Hence is this appeal.
11. Leave was granted to consider the submissions that the High Court Division committed error of law in allowing the appeal and dismissing the suit although the plaintiff-appellant as PW 1 has been able to prove that he had sufficient means and income to pay the consideration money for purchase of the suit property and he paid the consideration money for purchase of the same and that the plaintiff is in possession of the suit property and that the plaintiff could prove that the disputed property was purchased in the benami of his wife respondent No.1 and he could prove the same by sufficient evidence as found by the trial Court and that the High Court Division failed to consider that in a case of benami transaction, who makes the purchase takes all possible care to see that all public records stand in the name of the benamdar and that it becomes of very little importance when the real purchaser tears off the mask to prove that the money required for the purchase of property came out of his own purse and the property was in the management of the plaintiff who was in possession and in the instant case also the plaintiff could prove that the purchase was made by the plaintiff in the name of his wife respondent No. 1 and that the High Court Division failed to consider that the plaintiff could establish the legally required elements adducing evidence both oral and documentary proving that the transaction was of benami in nature and respondent No.1 was his benamder and that the High Court Division should have allowed the application for amendment filed under Order VI, rule 17 of the Code of Civil Procedure with added prayer to prove the statements of the proposed amendment by adducing additional evidence.
12. At the time of hearing of the appeal Mr. Abdul Wadud Bhuiyan, learned Counsel in support of the appeal has taken us through the materials on record including the impugned judgment and reiterates the submissions made earlier. He contends, inter alia, that the High Court Division committed error of law in allowing the appeal thereby dismissing the suit though the plaintiff as PW 1 proved that he had sufficient means and income to pay the consideration money for the purchase of the suit property in the benami of his wife-the respondent No. 1.
13. He further submits that the High Court Division did not consider material evidence on record and did not controvert the findings of fact arrived at by the trial Court based on evidence and the impugned judgment is not a judgment of legal reversal.
14. He also submits that the High Court Division committed error of law in disregarding the fact that in the purchase of the property both at Pallabi and Gulshan the plaintiff alone paid the consideration money by cash and cheque, the plaintiff paid Rs. 6,000 by crossed cheque No. SBL 993798 of the United Bank Limited, EPRTC Branch, Dhaka from his Account No.1439 of the said United Bank Limited as advance money at Rs. 10,000 to SM Taqui, the owner of the property, at the time of the Deed of Agreement on August 4, 1969.
15. He very strenuously submits that the High Court Division committed error of law in rejecting the application filed by the plaintiff for amendment of the plaint and adduce additional evidence under Order XLI, rule 27 of the Code of Civil Procedure and persistently submits that as a result of the said order of rejecting the application the plaintiff has been deprived of the legal opportunity of substantiating his claim.
16. Mr. Mahmudul Islam, learned Counsel appearing for the respondent No.1, opposes the appeal contending, inter alia, that the plaintiff appellant miserably failed to prove his claim of purchasing the suit property in the benami of the respondent No.1, his wife, inasmuch as not a single corroborative witness was produced by the plaintiff.
17. He further submits that even none of the brothers of plaintiff has been examined by the plaintiff to prove his claim not to speak of examining the Attorney entrusted to look after the property.
18. He further submits that, though some papers relating to banking transaction of the plaintiff to show payment of part of the consideration money by him are referred to now but' there is no material to connect its relevance in the suit.
19. He thereafter submits that the High Court Division rejected the application for amendment of the plaint as it contained materials alleged to be prevailing long after disposal of the suit and moreso, no authentic document was produced. In such view of the matter, according to Mr. Islam, the order of rejecting applications for amendment as well as adducing additional amendments is absolutely justified.
20. He then submits that the High Court Division considered the materials and took the decision correctly and, as such, the appeal is liable to be dismissed.
21. We considered the submissions and perused the materials on record including the judgment of the trial Court as well as that of the High Court Division. Since we have decided to send the suit on remand for fresh trial in accordance with law we refrain from making any observations touching the merits of the claim of respective parties.
22. After examining evidence of the witnesses and on perusal of documents of the parties the trial Court, as already noticed, decreed the suit in favour of the plaintiff, appellant. The High Court Division however, in appeal, set at naught the said judgment and decree.
23. In course of deposition the plaintiff stated that documents in support of his claim were in the custody of his residence at Cardiff at London kept by him at the time he left for Kuwait and that the defendant-respondent during his absence removed the suitcase containing the aforesaid documents and that in this connection Barry Country Court gave an order. It appears that the appellant on 17-6-2001 filed an application before the High Court Division in the pending First Appeal No. 40 of, 1994 under Order VI, rule 17 of the Code of Civil Procedure praying to allow amendment of the plaint as per statements made in paragraphs 15(a)-15(c) of the petition stating, inter alia, that—
"15. (c) that before purchase of the suit property by the plaintiff there was a deed of agreement on 4-8-1969 between Mr. SN Taqui and the plaintiff whereby the suit property was agreed to be sold to the plaintiff at a consideration of Taka 84,000 only. Since the DIT was insisting upon some construction on the suit land Mr. Taqui immediately required a sum of Taka 10,000 for raising the construction and it was agreed upon between the plaintiff and Mr SM Taqui that the cost of construction would no way exceed Taka 30,000 and that the plaintiff shall spend that said Taka 30,000 towards construction works of the proposed residential building on the premises of first party Mr. Taqui. Out of the consideration money a sum of Taka 10,000 was paid by the plaintiff as earnest money to M Taqui. Out of this amount of Taka 10,000 paid as earnest money a sum of Taka 4,000 was paid in cash and the remaining sum of Taka 6,000 was paid by crossed cheque No. SBL 993798 drawn on M/s United Bank Limited, EPRTC Branch, Dhaka by the plaintiff out of his Saving Account No. 1439. The relevant pass book of the aforesaid Saving Account No. 1439 will be submitted as evidence to prove the aforesaid contention and for that purpose it would be necessary to call for the said records of the Account Ledger Book, etc. from the United Bank Limited now Janata Bank, formerly, EPRTC. Brancha and now BRTC Branch, Motijheel, Dhaka."
24. Accordingly the plaintiff also filed application under Order XLI, rule 27 of the Code of Civil Procedure for admission of additional evidence in support of the statements made by him in the aforesaid application for amendment.
25. It further appears that the copy of order dated 7 July 1982 of plaint No. 8001075 of Barry County Court, along with a number of other documents was filed by the plaintiff appellant. The documents included the deed of agreement dated 4 August 1969 between SM Taqui and the defendant No. 1 for purchase of the suit property wherein it has been mentioned that out of total amount of Rupees 40,000 a sum of Rupees 10,000 was paid in advance to SM Taqui out of which 4,000 was paid in cash and 6,000 was paid through crossed cheque No. SBL. 993798 drawn on United Bank Limited EPRTC Branch, Dhaka. Extracts from the pass book of SB-Account No. 1439 in the name of the plaintiff appellant were also filed in an attempt to prove payment of the aforesaid amount of Taka 6,000 from his account (account of the plaintiff).
26. We have perused the impugned judgment and order. The High Court Division, while disposing of the appeal, allowing the same in favour of the defendant, observed, inter alia, that in the application for amendment of the plaint "certain facts after the suit was decreed were sought to be incorporated".
27. It appears that the contention of the appellant that the statement made in the application for amending the plaint is essentially necessary for determining the real question in controversy between the parties cannot, in the facts and circumstance, be brushed aside.
28. The documents including, the agreement dated 4-8-1969,the banking documents and order sheets, etc. of the proceedings of Barry County Court being considered necessary by the plaintiff-appellant for determining the real question, an application was also filed under Order XLI, rule 27 of the Code of Civil Procedure.
29. From the impugned judgment it appears that the High Court Division disposed of the aforesaid applications while pronouncing the judgment of the appeal itself without considering the above facts and circumstances and thus arrived at an erroneous decision and so we are unable to see eye to eye to the impugned judgment and order.
30. We are of the view that ends of justice would be met if the suit is sent back on remand for giving both the parties adequate opportunity to take necessary steps for amendment of the pleadings and adducing evidence in accordance with law.
31. In such view of the matter, we find substance in this appeal. The appeal is allowed. Judgments and orders of both the Courts below are set aside. The suit is sent back on remand to the trial Court for disposal in accordance with law in the light of the observations made above. The parties do bear their respective costs.
Md. Joynul Abedin J.
I have read the judgment delivered by my brother, Mr Amirul Kabir Chowdhury, J, allowing the appeal by setting aside the judgment and decree passed by the trial Court and the appellate Court below sending the suit back to the trial Court on remand for disposal on the ground that the appellate Court below erred in law in failing to allow the application for amendment of the plaint as well as the application for additional evidence filed before it by the plaintiff during pendencey of the appeal (FA No. 40 of 1999). I regret I could not persuade myself to agree with the judgment and the reasons assigned in support thereof and pass a separate judgment as under.
33. The appellant as plaintiff instituted Title Suit No. 578 of 1979 impleading respondent No.1 as defendant No.1 and respondent Nos. 2 and 3 as defendant Nos. 2 and 3 praying for a decree for a declaration that the plaintiff is the owner of the suit property by purchase and defendant No.1 is merely his benamder. The said suit was subsequently renumbered as Title Suit No. 1283 of 1981 on transfer to the 4th Court of Subordinate Judge, Dhaka and then again renumbered as Title Suit No. 18 of 1985 on transfer to the 1st Court of Subordinate Judge, Dhaka. This suit was filed by the plaintiff husband against his wife, defendant No.1, seeking the above declaration.
34. The plaintiff husband filed the aforesaid suit, inter alia, on the allegations that while the plaintiff and defendant No. 1 were studying MBBS in Dhaka Medical College in 1962 intimacy developed between them. After successful completion of MBBS Course by both of them the plaintiff went to Karachi in 1964 for obtaining M Phil degree and was attached to Jinnah Hospital. Defendant No.1 was then a Hindu widow named Kamala Rani as her husband died in 1950 leaving behind the defendant No.1 and two daughters and at the material time these daughters were with their maternal grandparents at Karimganj, India. The defendant No.1 subsequently flew to Karachi and both the plaintiff and defendant No.1 got married in 1964 when the age of defendant No.1 was shown as 32 years and the plaintiff was aged about 26 years. The plaintiff obtained his M Phil degree and returned to Dhaka and joined the Institute of Post Graduate Medicine (IPGMR) in January, 1966. The defendant No.1 (wife) also returned with the plaintiff and joined as Medical Officer in the Motijheel Central Dispensary. Subsequently, the plaintiff was transferred from the Post Graduate Medicine (IPGMR) as Assistant Professor of Pathology (Micro Biology) to the Dhaka Medical College Hospital and had a private practice. The plaintiff then with the savings of his income purchased a plot of land measuring 5 kathas with a one-storied building at plot No.4, Block-1/A, Pallabi from the Eastern Housing Society Limited in August, 1968 at a cost of Taka 54,000 in the name of his wife, defendant No.1. The plaintiff purchased the said house in the benami of his wife, defendant No.1, by paying the consideration money from his own savings and also by taking loan of Taka 30,000 from the House Building Finance Corporation. In about two years thereafter the plaintiff purchased the suit property at Gulshan by a registered deed No. 6871 dated 16-1-1970 in the benami of his wife, defendant No. 1 for a consideration of Taka 54,000 out of the sale proceeds of his aforesaid Pallabi house property which he sold for Taka 56,000. The plaintiff nonetheless obtained House Building loan from the House Building Finance Corporation in the name of his wife, defendant No.1, by mortgaging the suit property and he also stood as a guarantor against the loan. The plaintiff thereafter obtained a Scholarship for higher studies in England leading to MRCP Pathology and he left for the UK in the month of September, 1970. Construction of the one-storied house on the suit property was completed by the end of December, 1970 and the house was let out to the Hoechst Pharmaceuticals Co Ltd., Dhaka and since the suit property was in the name of defendant No.1 tenancy agreement was signed by the defendant No.1 as landlord. During the liberation period in 1971 defendant No.1 fled away to India and the plaintiff subsequently managed to bring her to UK in 1972 and both of them were residing in their own house purchased by the plaintiff in London. The plaintiff and defendant No.1 did not have any issue of their own during their long conjugal life. Plaintiff used to manage the suit property through his younger brother, Ali Hossain Quarishi, appointing him as the Constitutory Attorney for and on behalf of defendant No.1. The plaintiff came to know in 1979 that defendant No.1 was secretly trying to dispose of the suit property behind his back and in order to protect the suit property he filed the suit on 16-8-1979 for the aforesaid declaration.
35. The defendant No.1 contested the suit by filing a written statement that she became LMF doctor in 1953 and subsequently joined as Medical Officer, Outpatient Department, Chittagong Medical Collage Hospital in 1954 and served there for 4'/2 years. During this period she earned a lot of money also from her private practice. The defendant No.1 came to know the plaintiff in 1962 when both of them were reading MBBS in Dhaka Medical College. Both the plaintiff and defendant No.1 passed MBBS in 1962. The defendant No.1 being persuaded by the plaintiff went to Karachi and got married with him on 24-9-1964 as per Muslim Law. Before her marriage defendant No.1 served as Medical Officer with the Holly Family Hospital in Dhaka and also as Assistant Surgeon at Azimpur Maternity. The defendant No.1 also worked in a dispensary in Karachi and earned handsomely. After her return from Karachi, defendant No.1 also served in the Central Government Dispensary at Motijheel where she was given free accommodation and the plaintiff used to live with her in the Quarter at Motijheel Central Colony. The plaintiff worked as a Demonstrator both at Dhaka Medical College Hospital and IPGMR at a small salary till he was appointed as an Assistant Professor in 1969 in the Dhaka Medical College and the plaintiff had no private practice althrough. Since the defendant No.1 was a career woman firstly as an LMF doctor and thereafter as an MBBS doctor and used to earn handsomely since 1953 through her service and private practice she purchased her Pallabi house property in August, 1968 with her own money and the Pallabi property was never a benami property of the plaintiff. Defendant No. 1 subsequently sold her Pallabi property and purchased the suit property at Gulshan out of her own earnings and the sale-proceeds of her Pallabi property and constructed one-storied house on the suit property at Gulshan also by taking a loan from the House Building Finance Corporation and the suit property was never a benami property of the plaintiff. After completion of the suit property the defendant No.1 let it out to Hoechst Pharmaceutical Company Limited on the basis of a written agreement which was renewed on 1-11-1978 coupled with the Maintenance Agreement with the stipulation that the tenant would deposit the rent to her credit in her Savings Account No. 9717(48) with Sonali Bank, University Branch, Dhaka.
36. Defendant No. 2 DIT also contested the suit by filing a written statement supporting the case of the defendant No.1 contending, inter alia, that one Mr SM Taqui was the original allottee of the suit property and he sold the same to the defendant No.1 with permission of the DIT at a consideration of Taka 54,000 by a registered sale deed dated 16-1-1970.
37. The plaintiff examined 3 PWs including himself as PW 1 and defendant No.1 examined herself as DW 1. In support of their respective case. The trial Court on consideration of evidence and materials on record decreed the suit in favour of the plaintiff by judgment and decree dated 2-11-1993 on the finding that the plaintiff proved the source of money for the purchase of the suit property and also proved his possession of the suit property. The trial Court also found that the plaintiff proved his motive for purchase of the suit property in the benami of his wife, defendant No. 1. Similarly the trial Court also found that the defendant No.1 could not prove that she purchased the suit property with her own money and she also failed to prove her possession of the suit property.
38. In this background of the case, the defendant No.1 challenged the aforesaid judgment and decree by filing FA No. 40 of 1994 on 3-2-1994 before the High Court Division. After more than 7 years of the filing of the appeal the plaintiff, who already secured the decree in his favour, filed an application for amendment of the plaint in the appeal on 17-6-2001 praying for incorporating in the plaint paragraph 15(a), 15(b) and 15(c) on the ground "in view of some important subsequent events that took place in the suit and as these events are required to be incorporated in the plaint for ends of justice, the plaint needs to be amended." The plaintiff also filed an application for- additional evidence on 26-6-2001 along with a list of documents required to be admitted as evidence in the suit. The appellate Court below i.e. the High Court Division, after hearing the said applications decided to dispose of the same at the time of disposal of the appeal.
39. The High Court Division as the appellate Court below subsequently on careful consideration of the evidence and materials on record set aside the judgment and decree passed by the trial Court on the ground that the findings arrived at by the trial Court on the point of source of consideration money, possession of the suit property as well as the custody of the title documents of the suit property and the motive of benami transaction were contrary to evidence and also for non appreciation and non-consideration of material evidence on record. The appellate Court below also held that the trial Court illegally shifted the onus on the defendant No.1 while decreeing the suit holding that the defendant No.1 had failed to prove the payment of consideration money for the suit properly and also the possession of the suit property and the custody of title and other documents and thus there was a miscarriage of justice.
40. With regard to payment of consideration money by the plaintiff the appellate Court below considered and found that the purchase of Pallabi house property by the plaintiff in the benami of defendant No.1 was an important and material fact and it was therefore necessary for the plaintiff in the first place to establish the same by credible and corroborative evidence that it was the plaintiff who purchased the Pallabi house property with his own funds, But he utterly failed to do so and the trial Court in its obvious limitation kept this material and important aspect totally out of its consideration in passing the decree in favour of the plaintiff. The trial Court even failed to notice and discuss that the plaintiff could not prove the source of his income for purchase of the Pallabi house property in August, 1968. Because the plaintiff did not even lead any evidence that he took loan of Taka 30,000 from House Building Finance Corporation (HBFC) for such purchase. The plaintiff has not even examined any witness to prove that he purchased the Pallabi house property in the benami of his wife, defendant No.1. This also takes much of the wind out of the sail of his boat to reach his goal that he bought the suit property at Gulshan in January, 16, 1970 with the sale proceeds of the Pallabi house. The High Court Division therefore justly found that the plaintiff could not prove his possession of the title documents as well as the possession of the suit property and the plaintiff also failed to prove that he collected or received the rent of the suit property at Gulshan.
41. The appellate Court below by the impugned judgment and decree also disallowed the application for amendment of the plaint and the application for admission of the additional evidence on sound proposition of law stating that the facts and events taking place subsequent to the filing of the suit and the events and some facts taking place after the decree were not required in law to be incorporated in the plaint by way of amendment as per Order VI, rule 17 of the Code of Civil Procedure, inasmuch as they are not necessary to resolve the real controversy between the parties as contemplated under Order VI, rule 17 of the Code of Civil Procedure. The appellate Court below also refused to amend the plaint by incorporating the fact stated in paragraph 15(c) of the application for amendment which sought to include certain fact in relation to the Agreement dated 4-8-1969 on the ground that the fact sought to be incorporated in the plaint during appeal was very much in the knowledge of the plaintiff at the time of filing of the suit and no explanation was even offered to show why this fact was not mentioned in the plaint and moreso, what prevented the plaintiff to bring this document on record at the time of trial of the suit. Incorporation of this fact in the plaint was also refused on the ground that this fact was not necessary to resolve the real controversy between the parties. In other words, the High Court Division as the appellate Court below refused amendment as the fact sought to be included in the plaint was not necessary for the purpose of determination of the real question in controversy between the parties. Further, since the prayer for amendment was disallowed the prayer for additional evidence was meaningless and was accordingly, rejected.
42. In a transaction where a person purchased the property in the name of another person, the person who pays the consideration money acquires the property for his own benefit, and the person whose name appears in the deed of transfer, he merely lends his name as a transferee but he acquires no interest in the suit property. The initial presumption in the case of a transfer concluded by a registered deed is in favour of the person whose name appears as the transferee in the deed but this presumption is rebuttable.
43. Normally the disputed question of benami cannot be determined only on consideration of source of consideration money and it also becomes incumbent for the Court to fall back upon other surrounding, circumstances of the transaction. The essential ingredients of a benami transaction are as to who has paid the consideration money, who is in possession of the suit property, who has the custody of title deeds and also how the property is dealt with in the sense who enjoys the property and collects the rent. The onus of proof of these ingredients lies upon him who claims certain transaction as benami. In other words, the motive of benami transaction as well as the conduct of the parties including their dealings and enjoyment of the property also become factors for consideration.
44. In the case of Bilas Kunwar vs. Desraj Ranjit Sing, 42 IA. 202, apart from adopting the principle as laid down in Gopeekrist Gossain's case, it is held that the source of purchase money is not only an important qualification but this was and is always considered to be the only criterion in the absence of all other relevant circumstances in a case where ownership is keenly disputed. The Privy Council in Imambandi Begum Vs. Kumleshwari Pershad (1886) 13 1A 160 held as under:
“where there are benami transaction and the question is who is the real owner, the actual possession or receipt of rents of the suit property is most important".
45. Similarly, in the case of Ram Narain vs. Muhammad Hadi (1898) 26IA 38 the Privy Council laid stresses on the factum of possession of the property and the collection of rents.
46. In the instant case the plaintiff claims that he as the husband of the defendant No.1 has rented the suit property (Gulshan property) as his own property purchased by him with his own fund in the name of defendant No. 1 as his wife out of love and affection. Admittedly, the title deed of the suit property is in the name of the wife. Since defendant No.1 appears to be beneficiary of the suit property on the face of the record onus squarely lies on the plaintiff to prove his claim that although the suit property apparently appears to have been owned by defendant No. 1 but in reality he is the owner, inasmuch as the consideration money was paid from his own fund and not from the fund of his wife, defendant No.1. In order to discharge this onus plaintiff is required to prove his ownership by adducing very strong and formidable evidence, particularly with regard to the payment of consideration money from his own fund.
47. The plaintiff in order to prove his ownership of the suit property examined himself as PW 1 and also examined PW 2 and PW 3 to corroborate his evidence. It is noted from the record that the plaintiff made out a case that he first purchased the Pallabi house in August, 1968 from the Eastern Housing Limited at a price of Taka 54,000. He thereafter acquired the suit property at Gulshan in January, 1970 by a registered sale deed by appropriating the sale proceeds of his Pallabi house sold at Taka 56,000. In this background of the case, the plaintiff was under a legal obligation to prove the factum of acquisition of the Pallabi property by him with his own fund and thereafter to acquire the suit property at Gulshan out of the sale proceeds of his Pallabi house by adducing strong, formidable and convincing evidence. Regrettably, the plaintiff is not found to have discharged his onus in this regard with any convincing evidence as he did not call anyone as a witness with whom he negotiated the purchase and also paid the price for the house. It is found that only PW 1 has asserted that he was the owner of Pallabi house property and he subsequently acquired the suit property at Gulshan out of the sale proceeds of his Pallabi house property. The plaintiff also could not adduce any oral or documentary evidence corroborating his evidence showing that he paid the price of the Pallabi house property in cash or by cheque drawn on his bank account. He did not even call any of his brothers or the family members to prove that it was the plaintiff who purchased the Pallabi house property with his own money. The claim of purchase of the Pallabi house property by the plaintiff in the benami of his wife, defendant No. 1, is a very important and material fact in deciding the issue involved in the suit. The mere assertion of PW 1 that the plaintiff purchased the Pallabi house property prior to purchasing the suit property at Gulshan without any corroboration by any other evidence as indicated above remains unproved.
48. The plaintiff as PW 1 stated in his evidence that he joined the Institute of Bacteriology, at Mohakhali on his return to Dhaka from Karachi for a few weeks without mentioning any post, position or even the date he joined. Thereafter he said he joined the Institute of Post Graduate Medicine in Microbiology Department as a Demonstrator and thereafter he also joined Dhaka Medical College Hospital in the same post as a Demonstrator till he was appointed as an Assistant Professor at Dhaka Medical College Hospital in May 1968 and his salary as Demonstrator was shown to be a meagre amount of Taka 400 per month. From his own showing in evidence it is found that he, in fact, started earning from early 1966 and during this short span of his service with a meagre income of Taka 400 per month as a Demonstrator till he purchased the Pallabi property in August, 1968 it could not be said that the plaintiff was capable of buying the said Pallabi property with such a small income during a period of about two years. Further, as stated above, the plaintiff did not adduce any corroborative evidence that it was he, who negotiated the sale and purchased the Pallabi house property with his own money in August, 1968. The plaintiff equally failed in-the absence of any corroborative evidence to discharge his onus that he also purchased the suit property at Gulshan with his own fund. When, on the other hand, PWs 2 and 3 have not supported his case at all. Rather PW 3 proved the case of defendant No.1 when he categorically deposed that defendant No. 1 had a good private practice as a lady doctor and she used to pay for the building materials, Raj Mistri and labours and also the contractor. This, in fact, demolished the case of the plaintiff. The plaintiff in his evidence has sought to introduce a new case that he also used to earn through private practice upon establishing a Private Laboratory at Motijheel. But this was never his plaint case. Hence his evidence and that too his solitary evidence with regard to his income through private practice by setting up his own Private Laboratory is not admissible in evidence. It is, therefore, evident that the finding of the trial Court that the plaintiff purchased the house property at Pallabi and thereafter the suit property at Gulshan with his own fund is not borne out by the evidence and materials on record; rather such finding is manifestly contrary to evidence on record and the High Court Division, as the appellate Court below, rightly reversed this finding in due advertence to the evidence and materials on record.
49. Further, the finding of the trial Court that the plaintiff purchased the suit property at Gulshan with his income earned during his stay in London is palpably erratic and perverse. The High Court Division therefore rightly reversed this finding in accordance with law, inasmuch as this income is postdated one. The relevant portion of the judgment of the trial Court in this regard reads as under;
jÛ‡b D”PZi wWMÖx jvfKv‡j ev`x cÖPzi A_© DcvR©b K‡ib Ges Zvnvi †mB DcvwR©Z A‡_© bvwjkx m¤úwË µq I Zvnvi wbgv©Y KvR m¤úbœ Kiv nq| [the translation of these words: while doing his higher studies in London, the plaintiff earned a lot of money and the suit property was purchased and construction work was completed with that amount.]
50. If we advert and look into the evidence on record led by both the parties it is found that the construction works of the one-storied house at Gulshan were carried out by the defendant No. 1 and not by the plaintiff. The plaintiff as PW 1 deposed that he left for UK in September, 1 970. But before his departure he authorised his brother to look after the construction work on the suit property. This piece of evidence also remains uncorroborated. Although the plaintiff claimed that his brother was authorised by him to look after the suit property but he was not called and examined by him as a witness in this case. Rather it is found from the evidence of the defendant No.1 as DW 1 as corroborated by PW 3 that it was defendant No.1 who did the construction work of the one-storied house on the suit property by engaging Darwan (PW 3) and contractor and paid for the construction materials and after the completion of the construction of the said one-storied house in the suit property the same was rented to Hoechst Pharmaceuticals Co Ltd Dhaka on the basis of agreement signed between the defendant No.1 as landlord and the said Pharmaceuticals company as the tenant. It is, therefore, palpably clear from the evidence on record that the defendant No.1 not only purchased the suit property with her own fund but she (defendant No.1) also used to collect rent and enjoy constructive possession of the same through her tenant, Hoechst Pharmaceuticals Co Ltd Dhaka. The plaintiff could not even examine any one from the tenant side or any one of his brothers or family members that the plaintiff purchased the suit property and as landlord he inducted the tenant in the suit premises and collected rent and the defendant No.1 merely signed the tenancy agreement only for the reason that the suit property stood in her name. There is therefore a valid presumption in law in favour of the defendant No. 1 that had the brothers or any other family members of the plaintiff been examined in this case as witness they would not have supported the case of the plaintiff. The appellate Court below is therefore found to have reversed the finding of the trial Court with regard to purchase, construction of the one-storied house on the suit property and the possession of the same by the plaintiff in due advertence to the evidence on record.
51. With regard to custody of the title and other documents, the plaintiff led evidence to show that the said documents were all along with him. He took those documents with him while he went to England and lastly when he left Cardiff for Kuwait in early 1979 he left those documents in his house at Cardiff and the defendant No. 1 taking advantage of his absence removed those documents. He also deposed that this fact was also borne out in the judgment by the Magistrate at Ipswich, London and also from the judgment dated 7th July, 1982 of the Barry County Court, England. The trial Court believed this evidence and found the possession of the title deeds and other documents of the Gulshan house property in favour of the plaintiff although, as already stated above, there was no corroborative evidence in this regard. The High Court Division as the appellate Court below did not believe this finding in the absence of any corroborative and convincing evidence given by any of the family members of the plaintiff or by bringing the certified copy of the judgment of the Ipswich Magistrate and the Barry County Court of 1982 during the trial of the suit which took place in 1985 and the judgment and decree was passed even much later on 2-11-1993.
52. Intriguingly, the plaintiff, even after securing the decree in the suit in his favour, filed an application for amendment of the plaint and also for additional evidence on 24-6-2001 at a much belated stage when the appeal against the said decree by the defendant No. 1 (FA No. 40 of 1994) was pending before the High Court Division. Even at this time, the plaintiff did not apply for additional evidence with regard to the aforesaid judgment of the Ipswich Magistrate. It may however be briefly mentioned that unfortunately, the said judgment dated 7th July, 1982 of the Barry County Court does not show that title and other documents to the suit property were removed by the defendant No. 1. Further discussion in this regard herein below will show in some detail when the plaintiff’s application for additional evidence will be discussed.
53. The Barry County Court dealt with the matrimonial cause under Married Women's Property Act, 1882 and Matrimonial Causes (Property and Maintenance) Act, 1988 concerning the title and possession of some of the joint matrimonial properties of the plaintiff and the defendant No.1 and not any other matter or property concerning theft/removal which exclusively belonged to the defendant No.1 as her own property as per the deeds themselves. The title documents of the suit property were admittedly in the name of the defendant No.1 and she was therefore free to and not debarred by any law to secure their custody, if necessary, by removing them from the unlawful possession of the plaintiff. Moreover, the said judgment of the Barry County Court did not hold that the title deeds of the plaintiff relating to suit property were illegally removed from the custody of the plaintiff. The Barry County Court did not say anything about the title deeds of the suit or any other property. It merely ordered for settlement of some joint properties acquired by the parties during their stay in England. However, in view of whatever has been stated hereinabove it can be said without any hesitation that the plaintiff has failed to prove that the title documents of the suit property were in his custody at the time when the suit was filed in 1979 and they were subsequently removed from his custody by the defendant No. 1 during pendency of the suit.
54. With regard to motive behind the alleged benami transaction, which is often regarded as an important factor in benami transaction, the trial Court found that the plaintiff bought the suit property in the name of his wife, defendant No. 1 with his own fund due to his love and affection for her. Rather the motive has not been proved in this case. Further, the finding of motive of the plaintiff in buying the Pallabi property or the suit property at Gulshan in the name of the defendant No. 1 cannot be supported by the evidence on record. It is in evidence of the plaintiff that he got married with the defendant No.1 in September, 1964 in Karachi and at that time the plaintiff was 26 years of age and the defendant No.1 was shown to have been 32 years of age by swearing an affidavit while she was, in fact, 40 years of age as claimed by the plaintiff. He also said in evidence that he married defendant No.1 merely because of her insistence and not because of his feelings for her. It can, therefore, safely be said that the plaintiff married defendant No.1 more for satisfying his need to build up his carrier than to have her as a perpetual partner in life. In other words, plaintiff’s marriage with the defendant No.1 was merely an arrangement or union of convenience. It can therefore, be said with some degree of certainty that the plaintiff married the defendant No. 1, a qualified established doctor, only to use her to build up his own career with her help and thereafter to settle in life by taking a second wife of his choice leaving the defendant No. 1 in the lurch in her old age behind her back without her consent and that too by snatching her own house at Gulshan claiming it to be his benami property. She is consequently so precariously situated in her old age of about 80 years now that she has now none to rum to and no other property to fall back on.
55. As already stated hereinbefore that the plaintiff filed an application under Order VI, rule 17 of the Code of Civil Procedure for amendment of the plaint. Soon thereafter he also filed an application under Order XLI, rule 27(1) of the Code of Civil Procedure for additional evidence. The High Court Division, as the appellate Court below, which is also the final Court of fact, rejected the application for amendment on the ground that paragraphs 15(a) and 15(b) of the amendment application contained narration of facts taking place subsequent to the filing of the suit on 18-6-1979 and also subsequent to the decree passed in the suit on 2-11-1993 and were, therefore, not relevant and important issues for deciding possession of the suit property in the facts of the suit. The High Court Division also refused to amend the plaint by incorporating paragraph 15(c) of the amendment application on the ground that the fact stated was already in existence about 10 years before the institution of the suit and no reason was shown or explanation given by the plaintiff in the application as to why such fact was not incorporated or omitted in the plaint at the time of filing of the suit. Such amendment was also refused on the ground that such fact was not necessary for deciding the real questions in controversy between the parties in the suit. The High Court Division as the appellate Court below also rejected the application for additional evidence, firstly, for the reason that the application for amendment of the plaint was rejected and secondly, that the passbook containing entries from 25-11-1967 to 14-7-1969 were also not relevant for the purpose of deciding the issue that the plaintiff paid Taka 6,000 by a crossed cheque No. SBL 993798 drawn on United Bank Limited, EPRTC Branch, Dhaka to Mr. SM Taqui, the vendor of the suit property at Gulshan. Because the aforesaid passbook appearing at page 48 of the Paper Book, Second Part, does not show the existence of such a cheque. The rejection of these two applications are therefore justified and based on sound principle of law.
56. It appears that the deed of agreement dated 4-8-1969 entered into by and between Mr SM Taqui as a first party and Dr Mossammat Shahin Quoraishi i.e. the defendant No.1 as the second party is with regard to construction of residential building on the suit property at Gulshan and this is also written in the agreement that the defendant No.1 paid Taka 4,000 to Mr SM Taqui in cash and Taka 6,000 by a cross cheque No. SBL 993798 drawn on United Bank Limited, EPRTC Branch, Dhaka as advance in favour of the first party, Mr. SM Taqui. It is no where written in the said agreement that the said cheque was, in fact, given by the plaintiff drawn on his account. In this context, it can be said with some degree of force that the plaintiff by filing the said application for additional evidence sought to prove the passbook SB Account No. 1439 of the said Bank for a collateral purpose. It is reiterated that this passbook bearing No. 1439 standing in the name of the plaintiff contained entries from 25th November, 1967 to 14th July, 1969 does not reflect the existence of the said cheque. The application for amendment as well as for additional evidence were but a motivated one were filed to unnecessarily delay the disposal of the appeal after having secured the decree in the suit.
57. With regard to the judgment and order dated 7-7-1982 of the Barry County Court, a photo copy of the same appears at pages 13 and 14 of the Paper Book, Second Part, also does not show that the documents of title and other documents were removed by the defendant No.1 from the house of the plaintiff at Cardiff. The plaintiff belatedly sought to bring on record the aforesaid judgment of the Barry County Court to establish the alleged fact of removal of the title and other deeds of the suit property by the defendant No.1. But the schedule of properties in respect of which the aforesaid judgment was apparently passed by the Barry County Court has not been filed although the schedule of the concerned properties is stated to be attached to the said judgment. This schedule was purposely omitted from being filed along with the judgment with ulterior motive. In the absence of such schedule mentioned in the said judgment the allegation of removal of document by the defendant No.1 is misleading and meaningless. Moreover, the plaintiff purposely omitted to bring the said judgment on record during the trial of the suit, inasmuch as the evidence in the present case was recorded in 1985 and judgment and decree were delivered on 2-11-1993 whereas the said judgment was given by the Barry County Court on 7-7-1982. Further, the plaintiff did not obtain the certified copy of the said judgment of the Barry County Court and filed the same before the High Court Division for authenticity for the Court to rely and act on it. The plaintiff, therefore, appears to have manipulated the words "goods and chattels removed" as narrated in the judgment of the said Barry County Court with ill motive to mislead and confuse the High Court Division. The genuineness of the said judgment of the Barry County Court therefore is not only in doubt but the bonafide of the plaintiff to bring such documents ort record is also doubtful because of the fact that he sought to bring the same on record at a conscionably belated stage on 25-6-2001 and that too when he won the suit on the basis of the evidence on record and secured the decree on 2-11-1993.
58. With regard to additional evidence, it is stated that the High Court Division as the lower appellate Court being the final Court of fact had considered the nature of the documents produced by the plaintiff for the first time before the High Court Division and the High Court Division in its judicious discretion rightly rejected the application for additional evidence, inasmuch as the power of taking additional evidence under Order XLI, rule 27 of the Code of Civil Procedure can be exercised only where the appellate Court requires further evidence for the causes stated in the rule. Since these causes/ingredients in the present case are absent the High Court Division as the lower appellate Court withheld permission for adducing additional evidences in accordance with law; otherwise it would have amounted to giving the plaintiff an opportunity to fish out evidence in order to prove his case by making up the lacuna. In other words, since the legal requirements in Order VI, rule 17 for the amendment of the plaint as well as for taking additional evidence under Order XLI, rule 27(1) of the Code of Civil Procedure were absent the High Court Division being the lower appellate Court did not commit any error of law in rejecting the aforesaid two applications. The views are well supported in the cases of Daulat Chandra Gope vs. Monowara Begum, 1996 BLD (AD) 251 and Md. Ali Akhand vs. Shalan Nessa, 1998 BLD (AD) 50 = 3 BLC (AD) 177. It is highly abnormal and intriguing for the plaintiff to ask for amendment of the plaint and admission of additional evidence when both the trial Court as well as the appellate Court below did not come across any difficulty in deciding the points at issue between the parties on the basis of evidence already on record. Moreover, it is highly abnormal that the plaintiff, who succeeded in the suit and secured the decree before the trial Court, Would ask for an amendment of the plaint and admission of additional evidence, unless for a collateral purpose. But this purpose is not very far to seek, inasmuch as the defendant No. 1 is now a sick old lady of about 80 years of age having none to look after her and in view of this state of her present condition she is not likely to see the outcome of this protracted suit in her lifetime and this enures to the benefit of the plaintiff.
59. This is why when the materials on record are already enough and sufficient to decide the point or points at issue and the Courts below did decide the issues and disposed of the suit, a feeble attempt has been made on behalf of the plaintiff to send the case back on remand for a fresh disposal by the trial Court by admitting as evidence the Agreement dated 4-8-1969, crossed cheque No.99398 drawn on United Bank Limited, EPRTC Branch, Dhaka as well as the extracts from the passbook of SB Account No.1439 of the plaintiff to prove payment of Taka 6000 to Mr. Taqui from the account of the plaintiff. This Agreement dated 4-8-1969 was already proved in evidence by the defendant as Exhibit J vide page 29 of the Second Part of the Paper Book and it is stated in the agreement that this cheque was paid to Taqui by the defendant No.1 and not by the plaintiff. The Pass Book now sought to be admitted and proved as evidence does not show any existence of the said cheque in the entries of the passbook. These are all misleading statements consciously made to shelve the case in cold storage to deprive the defendant No.1 of any benefit of the suit as she is on the wane and decay because of her old age and sickness.
60. With regard to Barry County Court judgment dated 7-7-1982 this would suffice to say that this was already brought on record by way of evidence by the plaintiff and the trial Court considered it and found possession of the title documents in favour of the plaintiff, which is however not believed by the appellate Court below and reversed the same. I have also criticised this piece of evidence hereinbefore to say that such judgment does not prove that the title deeds of the suit property were removed by the defendant. Moreover, the plaintiff did not file any criminal case with the police if any such deed was at all removed by the defendant No.1. Moreover, no such case would lie as the defendant No.1 removed her own documents, if at all, as the said documents of title are in her name. It is again reiterated that the additional facts sought to be incorporated in the plaint as relevant by way of amendment and the additional evidence stated to have been relevant are already on record and both the trial Court and the appellate Court below have already decided the Case taking due notice of them. It is pertinent to mention that this Court observed in Probodh Ranjan Shorn vs. Md Yeasin 1980 BSCR (AD) 457 that it is well settled that remand orders are not made as a matter of course. When there is sufficient evidence on record, remand of a case to the trial Court for fresh disposal is not called for and remand order should be avoided as for as possible. The Privy Council observed in some cases that indiscriminate order of remand tantamounts to shirking the responsibility of the Court and must be avoided; case of Dr. Rezia Khatun vs. Bhanu Guha reported in 1986 BLD (AD) 135 may be adverted to in this connection.
61. This apart, the present case is an old case of more than 27 years. Superior Courts generally show aversion to an order of remand in old cases and it is warranted in law that the Court should decide the issues on the basis of evidences on record. It is well settled that remand orders are not to be made as a matter of course and it should be avoided as far as possible when there are sufficient evidence on record and specially the remand orders are disapproved and deprecated in old cases. The case of Mustafizur Rahman vs. Abdul Kader, 3 BLC (AD) 38 may be noted in this connection that an order cannot be held more unconscionable and unjust than to send the case back on remand to the trial Court for fresh disposal after such a long lapse of time. After more than 27 years when as per evidence on record the defendant No.1 who palpably held documents of title to the suit property is now about 80 years of age and forsaken and abandoned by the plaintiff husband by contracting a second marriage behind her back and without her consent before even filing the present suit, the present suit needs to be decided on the basis of the evidence on record in the ends of justice.
62. On overall analysis and examination of evidence and materials on record, it has been proved that on all probabilities the plaintiff has failed to prove that he paid for the consideration money for both the Pallabi house property as well as the suit property at Gulshan with his own funds as he had not been able to establish on evidence that he had sufficient means in 1968 to purchase the Pallabi house property and then to purchase and construct the one-storied building on the suit property at Gulshan, inasmuch as the plaintiff utterly failed to adduce any independent and corroborative evidence on these points by examination even of his own brothers, family members as well as the contractors, Darwans and any other person or persons connected with the negotiation of sale and construction works. The plaintiff even could not examine any of the owners from whom he alleged that he negotiated and paid for the Pallabi and Gulshan property with his own money. On the other hand, PW 3 Hatem Ali, a Darwan of the suit property at Gulshan during its construction, proved the case of the defendant No.1 which totally falsified the case of the plaintiff.
63. Hence the appeal is allowed and the judgment and decree passed by the High Court Division i.e. the lower appellate Court, dismissing the suit are upheld and affirmed and the judgment and the decree of the trial Court is set aside without any order as to cost.
Order of the Court
By majority judgment the appeal is allowed without cost.
Judgments and orders of both the Courts below are set aside. The suit is sent back on remand to the trial Court for disposal in accordance with law in the light of the observations made in the judgment.