Case No: Appeal from Appellate Decree No. 331 of 1968
Judge: Bimalendu Bikash Roy Choudhury,
Court: High Court Division,,
Advocate: Mr. Fazlul Karim,Mr. Md. Ahsanul Kabir,,
Citation: 40 DLR (1988) 26
Case Year: 1988
Appellant: Ala Meah
Respondent: Ali Ahmed
Subject: Property Law,
Delivery Date: 1986-8-13
High Court Division
Bimalendu Bikash Roy Chowdhury J
Ala Meah, being dead his heirs are Syed Ali & ors
August 13, 1986.
Long and continued possession of the parties trying to set up benami though an important element for consideration does not raise any presumption in favour of benami.
Case Referred to-
Sree-Durga Charan Chunder Vs. Kharda Co. Ltd. 20 Cat. WN 254 - (AI.R. 1916 Cal: 367).
Ahsanul Kabir, Advocate - For the appellant Nos. 1-3.
M. Fazlul Karim, Advocate - For the respondent.
Appeal from Appellate Decree No. 331 of 1968.
Bimalendu Bikash Roy Chowdhury J.
This appeal is directed against the judgment and decree dated 17.2.67 passed by the learned Subordinate Judge, 2nd Court, Chittagong in other Appeal No. 175 of 1966 reversing those dated 31.3.66 passed by the learned Munsif, North Raozan in Other Suit No. 150 of 1962.
2. The suit was one for declaration that the kabala dated 12th August, 1948 standing in favour of defendant No. 1 was a benami document and also for permanent injunction restraining the defendants from entering into the suit property, damaging the huts and dispossessing the plaintiffs there from. It was bought by one Ala Miah and Amina Khatun, predecessors of the present appellants. Their case, inter alia, is that they are the owners of the property described in the schedule to the plaint which consists of their homestead and a tank measuring 32.25 acre of land. On 12th August, 1948 in order to avoid creditors they executed kabala purporting to transfer the property in favour of defendent No, 1 who was friendly to plaintiff No. 1. There was no payment of any consideration thereunder and they continued to possess the property as before. The custody of the kabala also remained with them. Defendant No. 2 who is father-in-law of defendant No. 1 removed the original kabala from the plaintiffs' custody and subsequently took various kabalas from defendant No. 1. The defendants had never any possession nor did they ever assert any act of possession upon the disputed homestead and tank and the plaintiffs have been in possession thereof for over the statutory period of limitation in their own right, but on or about 20th November, 1962 the defendants having no right, title or possession therein threatened the’ plaintiffs to dispossess them from the suit property.
3. Defendant Nos. 1 and 2 contested the suit by filing separate written statements denying the claim of the plaintiffs. In his written statement defendant No. 1 asserted that the Impugned Kabala was an out and out sale deed and lie paid consideration money for the same and also got possession. It was further asserted that he sold out the property to defendant No. 2 who is now in possession thereof. Defendant No.2 supported the case of defendant No. 1 and claimed himself to be a bona fide purchaser for value without any notice of the alleged benami transaction.
4. The learned Munsif having decreed the suit with costs, defendant Nos. 1 and 2 filed Other Appeal No. 175 of 1966 to the learned District Judge, Chittagong. The appeal was, on transfer, heard by the learned Subordinate Judge, 2nd Court, Chittagong who allowed the appeal, set aside the judgment and decree of the learned Munsif and dismissed the suit of the plaintiffs with cost.
5. Being aggrieved the original plaintiffs preferred the above appeal there from to this court. On their death the present appellants have been substituted in their place.
6. Mr. Ahsanul Kabir, the learned Advocate appearing for the appellants has first urged that the judgment of the Court of appeal below is not a proper judgment of reversal inasmuch as the learned Subordinate Judge did not consider the question of possession which is an important factor raising a presumption of benami.
7. In reply Mr. M. Fazlul Karim, the learned Advocate appearing on behalf of the respondents submits that the learned Subordinate Judge has considered all the material facts and circumstances taken into consideration by the trial Court and in consideration thereof found that the impugned kabala was with consideration and not a sham deed. It is further submitted by him that when there is direct evidence as to the passing of the consideration money under the kabala and the transferee has the custody of the original deed, the question of possession is of no importance in deciding the point at issue and the court of appeal below has, therefore, committed no error of law in having failed to consider the question of possession of the disputed property in the instant case.
8. It appears that the learned Munsif found that there was a close relationship between plaintiff No. 1 and defendant No.1, that there had been no passing of consideration money under the kabala Ext. A and that the plaintiffs have got possession of the disputed property. He further noticed that the plaintiffs have given a sufficient explanation as to how the defendants had the custody of the disputed kabala. Accordingly he held that the transaction in question was a benami one. Excepting the finding as to the possession of the plaintiffs in the disputed property the learned Subordinate Judge appears to have reversed all the finding of the trial Court. He rejected the plea of the plaintiffs that defendant No. 1 had close relationship with the plaintiff No. 1 and that defendant No.2 fraudulently took away the kabala from the custody of the plaintiffs. He noticed that the plaintiffs failed to bring any attesting witness to the disputed kabala whereas the defendants by examining the scribe and an attesting witness of the kabala proved the passing of consideration under the kabala. The learned Subordinate Judge, therefore, believed the evidence of the P.Ws. and held that the kabala, was with consideration. He, did not, however, consider the question of possession upon a view that the proof of the custody of the document with the defendant and the passing of the consideration money under the disputed kabala are incompatible with the presumption of benami. "It is well established", as pointed out by a Division Bench of the Calcutta High Court in the case of Biswanath Banerjee and others-Vs. Balailal Mukhopadhya and others, AIR 1973 Cal. 345 at page 351 of the report, that "where there is a clear picture as to source of passing of consideration in a transaction, long and continued possession of the parties trying to set up benami though an important element for consideration does not raise any presumption in favour of benami (Sreedurga Charan Chunder Vs. Kharda Co. Ltd., 20, Cal. WN 254 (AIR 1916 Cal 367)." It has already been seen that the learned Subordinate Judge has come to a clear finding as to the payment of consideration under the kabala on the basis of legal evidence of a conclusive real character. Moreover the transferee has the custody of the document. Under the circumstances it cannot be said that he has committed any error of law in finding that the transaction in question is a real one. The finding is essentially a finding of fact which the learned Subordinate Judge has arrived at on consideration of the evidence on record after fully appreciating the principles of law applicable to the facts of the case and after adverting to the reasonings of the trial Court. I, therefore, find no substance in the submission of the learned Advocate for the appellants.
9. The learned Advocate for the appellants has next contended that the plaintiffs are in possession of the property in suit for over the statutory period of limitation in assertion of their own right and the trial court has also found possession with the plaintiffs which has not been reversed by the court of appeal below. He, therefore, submits that even if it be held that the impugned kabala is genuine, the plaintiffs would still be entitled to a decree for permanent injunction against the defendants. Inviting my attention to the relevant paragraphs of the plaint the learned Advocate contends that the learned Subordinate Judge did not address himself to this aspect of the plaintiffs' case. I have perused the plaint and the materials on record and it appears that this question has not drawn the attention of the court of appeal below. The claim of the plaintiff as to benami having failed this question has assumed importance and has now become decisive. I am, therefore, of the view that determination of this question is necessary for complete adjudication of the dispute between the parties. I think, therefore, that this case should be remitted to the first appellate court for determination of this narrow question, whether the plaintiffs have been in possession of the disputed land over the statutory period and entitled as such to a decree for permanent injunction.
10. The appeal, is, accordingly, allowed and the judgment of the court of appeal below is set aside and the case is sent back to the learned Subordinate Judge for fresh disposal of the appeal in the light of the observations made herein above. In the circumstances I make no order as to costs.