Haji Nayeb Ali Vs. Md. Amir Hossain and others, 2016(1) LNJ (AD) 22

Case No: Civil Appeal No. 168 Of 2008

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Bivash Chandra Biswas,,

Citation: 2016(1) LNJ (AD) 22

Case Year: 2016

Appellant: Haji Nayeb Ali

Respondent: Md. Amir Hossain and others

Delivery Date: 2014-11-25

APPELLATE DIVISION
(CIVIL)
 
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
 
Judgment on
25.11.2014
  Haji Nayeb Ali
... Appellant
Versus
Md. Amir Hossain and others
...Respondents
 
Code of Civil Procedure (V of 1908)
Section 115
The suit of the plaintiffs was for a declaration of their title in the suit land and also for a declaration that the record of rights in respect of R.S. Khatian No. 380 was collusive, fraudulent, ineffective and not binding. Therefore, the appellate Court rightly held that in such circumstances the trial Court fell into error in decreeing the suit only on the prayer for declaration of title simpliciter. . . .(11)
 
Code of Civil Procedure (V of 1908)
Section 115
When the lower appellate Court, being the last Court of fact, comes to any finding based on the evidence on record, the power of the revisional Court to interfere with such finding is limited to cases where the finding of the appellate Court is perverse, or based on wrong appreciation of the evidence. It appears from the judgement of the High Court Division that the aspect of possession of the defendant in the suit land has not at all been dealt with or reversed by the revisional Court. Hence, the impugned judgement is not sustainable on that account. . . .(12)
 
Evidence Act (I of 1872)
Sections 63, 79 and 90
The plaintiffs claimed that the original document was lost and produced a certified copy which had apparently been obtained in 1968. That certified copy is also more than 30 years old. However, unless the original Volume containing the full text of the deed is produced, the certified copy being secondary evidence, the presumption of genuineness only goes to the extent of the genuineness of the certified copy, but not to the genuineness of the original document....(13)
 
Registration Act (XVI of 1908)
Sections 21 and 55(3)
The Index of registered documents will not have the description of the property. In our view the fact that the number of the deed alleged to have been registered on 15.02.1944 is absent from the Index is sufficient to indicate that it is not a genuine document. The judgment of the appellate Court appears to be sound and based on proper appreciation of the evidence and materials on record. . . . (16)
 
Specific Relief Act (I of 1877)
Section 42
It is apparent from the records, as found by the appellate Court, that the plaintiffs’ witnesses admitted possession of the defendant in the suit land. This finding of fact was not addressed by the High Court Division. In our view, in the facts and circu-mstances of the case, the appellate Court rightly held that a suit for declaration of title simpliciter was not maintainable. . . . (17)
 
Abani Mohan Saha Vs. Assistant Custodian (S.D.O.) Vested Property, Chandpur and others, 39 DLR (AD) 223 ref.
 
For the Appellant: Mr. Bivash Chandra Biswas, Advocate-on-Record.
For Respondents: Mr. Abdul Wadud Bhuiyan, Senior Advocate, with Mr. Sheikh Mohammad Morshed, Advocate, instructed by, Mr. Md. Nawab Ali, Advocate-on-Record.
 
Civil Appeal No. 168 Of 2008
 
JUDGMENT
Muhammad Imman Ali, J:
 
This Civil Appeal, by leave, is directed against the judgment and order dated 21.11.2007 passed by a Single Bench of the High Court Division in Civil Revision No. 320 of 2005 making the Rule absolute.
 
The facts of the case, in brief, are that the respondents as plaintiffs filed Title Suit No. 2 of 2004 in the Court of the Assistant Judge, Brahmanpara, Comilla, praying for declaration of title of the suit land. The case of the plaintiffs in short is that, 20 decimals of suit land along with other lands originally belonged to Sreemati Sur Bala and others through registered Kabuliyat and while in possession of the suit land, she sold the same in favour of one Abdur Rahman by sale deed No. 2031 dated 15.2.1944 and while Abdur Rahman was possessing the suit land, he died leaving behind his two sons, namely Farid and Rasul Mia who subsequently, while possessing the suit land, sold it in favour of the plaintiffs by sale deed No. 1116 dated 04.01.2004. Since then the plaintiffs were possessing the suit land. As the S.A. Khatian No. 380 was wrongly published in the name of the defendant No. 1, who has no right, title and possession in the suit land, the plaintiffs prayed for declaration of title in the suit land.
 
The defendant contested the suit by filing written statement contending, inter alia, that the present suit is not maintainable and is barred by limitation. Sreemati Sur Bala and others owned the suit land by registered kabuliyat which was not renewed and then one Okkhaya Kumar Das and Nil Kumar Bhoumik were given lease in the year 1333 B.S. and while in possession of the suit land, Okkhaya Kumar Das and Nil Kumar Bhoumik died leaving behind their sons Raj Kumar Das and Bidhu Bushan Bhoumik and S.A. Khatian No. 380 was rightly published in their names and, thereafter, they sold the suit land in favour of the defendant by a saf kabala deed. The defendant mutated the suit land in his name and as such he has right, title and possession in the suit land and the plaintiffs have no right and title in the suit land and they created the kabala deed No. 2031 of 1944 falsely and as such the suit is liable to be dismissed. 
 
After hearing, the trial Court decreed the suit in favour of the plaintiffs by the judgement and decree dated 01.06.2004.
 
Against the said judgement and decree, the defendant preferred appeal being Title Appeal No. 114 of 2004 before the learned District Judge, Comilla, which was transferred to the Court of the learned Additional District Judge, Brahmanpara, Comilla. After hearing the parties and considering the materials on record the learned Additional District Judge, allowed the appeal reversing the judgement and decree of the trial Court. 
 
Being aggrieved by and dissatisfied with the judgement of the appellate Court the plaintiffs preferred Civil Revision No. 320 of 2005 before the High Court Division and obtained Rule. By the impugned judgment and order the High Court Division made the Rule absolute.
 
Against the said judgement and order of the High Court Division, the defendant as petitioner filed Civil Petition for Leave to Appeal No. 126 of 2008.
 
Leave was granted on the following submissions of the learned Advocate appearing for the petitioner:
 
“ (I). The witness of the plaintiffs, during trial, admitted the possession of the defendant in the suit land, and the appellate Court, the last Court of facts, quoting the portions of those evidence, held that the plaintiffs have no exclusive possession in the suit land, but the High Court Division without arriving at a finding as to possession on the basis of evidence on record erroneously decreed the suit and the plaintiff being out of possession, the suit was not at all maintainable without a prayer for recovery of khas possession.
 
(II). Since the genuineness of the kabala dated 15.02.1944 was seriously challenged the appellate Court called the concerned Index Register and on perusal of the same and on considering the evidence on record, particularly the evidence as discussed by it, came to the conclusion that the above kabala dated 15.2.1944, the basic document of the plaintiffs for his title, is forged one and the High Court Division committed error in interfering with the above finding of fact as to genuineness of the kabala dated 15.2.1944, and further observation of the High Court Division that since the plaintiffs produced the certified copy of the kabala dated 15.02.1944, so it is to be presumed that the kabala dated 15.02.1944 is genuine, but such presumption is never intended to extend to the genuineness of the transaction specially when there is no evidence regarding the execution of the above kabala dated 15.02.1944 and;
 
(III). Though the defendant failed to get his deed executed in the year 1968 registered, but fact remains that since the plaintiffs instituted the instant suit seeking declaration of title, the onus lay upon them to prove their case and they cannot rely upon the weakness of the defendant’s case, but the High Court Division taking into consideration the weakness of the defendant’s case, decreed the suit which thus caused a total failure of justice.”  
 
Mr. Bivash Chandra Biswas, learned Advocate-on-Record appearing on behalf of the appellant made submissions in line with the grounds upon which leave was granted. The learned Advocate upon placing before us the evidence of the defendant’s witnesses pointed out that P.Ws. 2, 3 and 4 admitted the possession of the defendant in their cross-examination. He also pointed out that the appellate Court considered the evidence of C.W. 1 and came to the conclusion that he could not come to any positive finding that the predecessor of the plaintiffs had title in the suit land. He pointed out that C.W. 1 the Mohorar from the record room of the District Registry Office categorically stated that the certified copy of deed No. 2031 of 1944 neither contains the seal of the S.R. Office nor the signature of the Record Keeper, and also the signature of A. Rashid appearing above true copy is not the signature of the then Sub-Registrar A. Rashid. He finally submitted that it is true that the production of a document more than 30 years old raises a presumption of genuineness, but that presumption has been reverted through the evidence of C.W. 1 that the Index Volume for the year 1944 of that Registry Office did not contain the document in question. Also the evidence of C.W.1 raised serious doubt about the genuineness of the certified copy, which was produced in support of the existence of the sale deed of 1944.   
 
Mr. Abdul Wadud Bhuiyan, learned Senior Advocate appearing on behalf of the respondents made submissions in support of the impugned judgement and order of the High Court Division. He further submitted that the High Court Division correctly held that the appellate Court below upon wrong appreciation of the evidence of C.W. 1, erroneously discarded the registered deed No. 2031 dated 15.02.1944, although the concerned Volume was not produced in Court. He further submitted that the certified copy itself being more than 30 years old carries a presumption of its genuineness. In support of his contention he referred to the decision in the case of Abani Mohan Saha Vs. Assistant Custodian (S.D.O.) Vested Property, Chandpur and ors. reported in 39 DLR (AD)223. He submitted that the High Court Division correctly held that it is really very unsafe to discard a document, after more than 30 years, due to the non availability of the description of the property in question in the Index.
 
We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment of the High Court Division and other connected papers on record.
 
It is apparent from the evidence on record that the plaintiffs’ witnesses, namely P.W. 2, 3 and 4 all deposed in their cross-examination admitting the possession of the defendants in the suit land. The suit of the plaintiffs was for a declaration of their title in the suit land and also for a declaration that the record of rights in respect of R.S. Khatian No. 380 was collusive, fraudulent, ineffective and not binding. Therefore, the appellate Court rightly held that in such circumstances the trial Court fell into error in decreeing the suit only on the prayer for declaration of title simpliciter.
 
When the lower appellate Court, being the last Court of fact, comes to any finding based on the evidence on record, the power of the revisional Court to interfere with such finding is limited to cases where the finding of the appellate Court is perverse, or based on wrong appreciation of the evidence. It appears from the judgement of the High Court Division that the aspect of possession of the defendant in the suit land has not at all been dealt with or reversed by the revisional Court. Hence, the impugned judgement is not sustainable on that account.
 
It is true that a registered document carries a presumption of correctness. It is also true that a document which is more than 30 years old is given some sanctity by the law of evidence. However, in the instant case we note that the defendant has all along challenged the genuineness of the registered deed No. 2031 of 1944. The plaintiffs claimed that the original document was lost and produced a certified copy which had apparently been obtained in 1968. That certified copy is also more than 30 years old. However, unless the original Volume containing the full text of the deed is produced, the certified copy being secondary evidence, the presumption of genuineness only goes to the extent of the genuineness of the certified copy, but not to the genuineness of the original document. Moreover, we find from the evidence of C.W.1 that the certified copy did not contain the seal of the Registrar’s Office nor did it bear the genuine signature of A. Rashid, who was the then Sub-Registrar.
 
The High Court Division observed that “Section 55 (3) of the Registration Act provides that Index No. II shall contain such particulars mentioned in section 21 relating to every such document and Memorandum as the Inspector General from time to time directs in that behalf. Section 21 provides that no non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. Though it appears that in page 59 of Index No. II the description of the property in question was not found but there is nothing on record to show that it was only in page 59 the description of the property in question ought to have been recorded.”      
 
We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment and order of the High Court Division and other connected papers on record.
 
It is our view that the observation of the High Court Division is rather misconceived. The Index of registered documents will not have the description of the property. In our view the fact that the number of the deed alleged to have been registered on 15.02.1944 is absent from the Index is sufficient to indicate that it is not a genuine document. The judgment of the appellate Court appears to be sound and based on proper appreciation of the evidence and materials on record.
 
It is also apparent from the records, as found by the appellate Court, that the plaintiffs’ witnesses admitted possession of the defendant in the suit land. This finding of fact was not addressed by the High Court Division. In our view, in the facts and circumstances of the case, the appellate Court rightly held that a suit for declaration of title simpliciter was not maintainable. 
 
In view of the above discussion, we find merit in this appeal which is accordingly allowed without, however, any order as to costs. The impugned judgement and order of the High Court Division is set aside.  
 
Ed.