Harun-or-Rashid @ Hiru Miah Vs. Alamgir Hossain and others, 4 LNJ (2015) 761

Case No: Civil Revision No. 615 of 2011

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Md. Delwar Hossain,Ms. Salma Rahman,,

Citation: 4 LNJ (2015) 761

Case Year: 2015

Appellant: Harun-or-Rashid @ Hiru Miah

Respondent: Alamgir Hossain and others

Subject: Revisional Jurisdiction,

Delivery Date: 2015-08-16


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Borhanuddin, J

Judgment on
16.08.2015
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Harun-or-Rashid alias Hiru Miah
. . . Petitioner
-Versus-
Alamgir Hossain and others
...Opposite parties
 
Registration Act, (XVI of 1908)
Sections 28 and 30
The sale deed was registered by the District Registrar of Bakergonj on 19.10.1983 when section 30 of the Registration Act, was very much in existence as such the argument advanced by the learned advocate for the petitioner does not hold water. . . .(11)

Code of Civil Procedure (V of 1908)
Section 115(1)
Order VI, Rule 7
This point was neither agitated in the trial court nor in the appellate court below rather for the first time raised in this revisional jurisdiction. It is evident from plaint and also from testimony of the PWs that the point urged by the learned advocate for the petitioner is a quite departure from the pleading set forth in the plaint under order 6 rule 7 of the Code of Civil Procedure. . . . (12 and 13)
 
Hafizuddin Ahmed and another Vs. Mahbubul Huq and others, 35 DLR (AD) 174; Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Dhaka and another Vs. Most. Anju Bibi and others, 2 MLR (AD) 291 and Bangladesh Vs. Md. Aslam and others, 44 DLR 69 ref.

Mr. Md. Nasiruddin, Advocate
. . . For the Petitioner

Mr.  Md. Delwar Hossain, with
Ms. Salma Begum, Advocates
. . . For Opposite Party nos.1 and 2

Civil Revision No. 615 of 2011

JUDGMENT
Borhanuddin, J.
 

This rule has been issued calling upon opposite party nos. 1 and 2 to show cause as to why judgment and decree dated 23.08.2010 passed by the learned Additional District Judge, Jhalakati, in Title Appeal No. 95 of 2001 affirming judgment and decree dated 27.06.2001 passed by the learned Joint District Judge, 2nd Court, Jhalakathi, in Title Suit No. 27 of 1994 dismissing the suit, should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper.

Facts relevant for disposal of the rule are that petitioner herein as plaintiff instituted Title Suit no.27 of 1994 in the Court of learned Joint District Judge, 2nd Court, Jhalakathi, for declaration of title, cancellation of registered sale deed dated 19.10.1983 and praying for saham contending interalia that the suit land belonged to Nowab Ali. After his expiry daughter Arafatunnessa, defendant no.1, inherited 1/5 of his property and rest of the property inherited by defendant nos. 2-12; During possession, Arafatunnessa transferred her share in favour of her youngest son, the plaintiff, vide registered Heba-bil-Ewaj dated 22.04.1974; Since then plaintiff has been possessing ‘kha’ schedule land on payment of rents and taxes to the Government exchequer; plaintiff is in ejmali possession of the land with defendants; Plaintiff or her mother never transferred any land in favour of any one; Suit land is not partitioned by metes and bounds; Plaintiff requested defendants for partition of the land but defendants did not pay heed and ultimately refused on 30.01.1992; Hence, the suit. 
 
Defendant nos. 5 and 6 contested the suit by filing joint written statement denying material allegations made in the plaint and contending interalia that the suit is not maintainable, barred by limitation, barred by the principles of waiver, estoppel and acquiescence and bad for defect of parties. Further contending that their predecessor Mansur Ali, only son of original owner of the suit land Nowab Ali, expired leaving six sons, two daughters and wife i.e. defendant nos. 4-12; Defendant no.1 executed bainanama on 25.01.1980 in favour of these defendants by taking consideration money of taka 8,000/- out of total consideration amount of taka 10,500/- and delivered possession thereof; Pursuant to said bainanama, defendant no.1 executed and registered sale deed dated 19.10.1983 in favour of these defendants  by taking rest of the consideration money; Plaintiff created Heba-bil-Ewaz with an ulterior motive and filed the suit with false pleas; Suit is liable to be dismissed.
 
After hearing the parties and assessing evidence on record, learned Joint District Judge decreed the suit by his judgment and decree dated 25.10.1998. Challenging the decree, defendants filed Title Appeal No.124 of 1998. Appellate court below allowed the appeal and sent the case on remand for retrial. Pursuant to the judgment of the appellate court below, exhibit-‘Kha’ and exhibit-‘1’ were sent to the handwriting expert for comparison signature and LTI of Arafatunnessa. Handwriting expert send his report on 17.05.2001. After rehearing the parties and assessing evidence on record, learned Subordinate Judge dismissed the suit on contest against defendant nos. 5 and 6 and exparte against the rest.
 
Being aggrieved, plaintiff as appellant field Title Appeal No.95 of 2001 in the Court of learned District Judge, Jhalakati. On transfer the appeal was heard and disposed of by the learned Additional District Judge, Jhalakati, who after hearing the case and reassessing evidence on record dismissed the appeal vide his judgment and decree dated 23.08.2010 and thereby affirmed findings of the learned Joint District Judge.
 
Having aggrieved by and dissatisfied with the judgment and decree, plaintiff-appellant as petitioner preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present rule.
 
Mr. Md. Nasir Uddin, learned advocate appearing for the petitioner confined his submission only one point i.e. sale deed dated 19.10.1983 registered in violation of section 28 of the Registration Act inasmuch as lands described in the schedule of the deed situated under Nalcity Sub-registrar office as such, the sale deed ought to be registered by the Sub-registrar of Nalcity as per provision of section 28 but the sale deed evidently registered by the registrar of Bakerganj who had no jurisdiction to register the document and without considering this legal aspect courts below committed an error of law resulting in an error in the decision occasioning failure of justice. In support of his submission, learned advocate referred to the case of Ali Azam Saial and others-Vs- Joynal Abedin Saial and others, reported in 61 DLR 299.
 
On the other hand Mr. Md. Delwar Hossain with Ms. Salma Begum, learned advocates appearing for the opposite party nos.1 and 2 submits that it is apparent from the sale deed dated 19.10.1983 that the deed was registered by the Registrar of Bakerganj. By referring District Statistics 2011 publish by Bangladesh Bureau of Statistics, he submits that Bakergonj District established in 1797, lateron renamed as Barisal District, Jhalakati came into existence as a Sub-division of Barisal District in 1972 and upgraded to a District on 1st February, 1984 but the deed was registered at Bakerganj on 19.10.1983 which shows that the document was registered legally as per provision of law. He also submits that a question of law may be raised at any stage of the proceeding but if the determination of question of law is dependent upon prior determination of a question of fact then this principle of law will not be applicable as such, point raised by the learned advocate for the petitioner has no legal basis. He again submits that since there is no allegation in the plaint that the sale deed executed and registered fraudulently, the court cannot allow any departure from the earlier pleadings set forth in the plaint under order 6 rule 7 of the Code of Civil Procedure. In support of his submissions, learned advocate referred to the case of Hafizuddin Ahmed and another-Vs- Mahbubul Huq and others, reported in 35 DLR (AD) 174, the case of Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Dhaka and another-Vs- Most. Anju Bibi and others, reported in 2 MLR (AD) 291 and the case of Bangladesh-Vs- Md. Aslam and others, reported in 44 DLR 69.
 
Heard the learned advocates. Perused revisional application, judgment and decree passed by the courts below alongwith lower Courts record and decisions cited by the learned advocates.
 
On perusal of the record it appears that the plaintiff in his plaint did not make any statement that the sale deed dated 19.10.1983 was executed and registered fraudulently. He stated in the plaint that his mother executed and registered Heba-bil-Ewaj in favour of him on 23.10.1984 and delivered possession thereof but both the courts below arrived at a concurrent finding that plaintiff failed to prove his contention by adducing oral and documentary evidence. The only point agitated by the learned advocate for the petitioner is that the sale deed dated 19.10.1983 registered at Bakergonj is in violation of section 28 of the Registration Act inasmuch as lands described in the schedule of sale deed situated under Nalcity Sub-registrar office which amply proves that the sale deed was not registered in accordance with law. It is pertinent to mention here that the date of registration of the sale deed is 19.10.1983, when Section 30 of the Registration Act was in operation, subsequently omitted by ordinance L of 1985. Section 30, before omission, was as under:
 
“30. Registration by Registrars in certain cases-(1) Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar subordinate to him
(2) Notwithstanding anything contained in section 28 any Registrar may receive and register any document without regard to the situation in any part of Bangladesh of the property to which the document relates if he is satisfied that there is sufficient cause for doing so.”
 
It appears from exhibit ‘ka’ that the sale deed was registered by the District Registrar of Bakergonj on 19.10.1983 when section 30 of the Registration Act., was very much in existence as such, argument placed by the learned advocate for the petitioner does not hold water.
 
Apart from that this point was neither agitated in the trial court nor in the appellate court below rather for the first time raised in this revisional jurisdiction. In the case of Hafizuddin Ahmed and another-Vs- Mahbubul Huq and others, reported in 35 DLR(AD) 174, our apex court held:
 
“There is hardly any dispute that a question of law may be raised at any stage of a proceeding. But if the determination of a question of law is dependent upon prior determination of a question of fact then this principle of law will not be applicable.”
 
Furthermore, it is evident from plaint and also from testimony of the PWs that the point urged by the learned advocate for the petitioner is a quite departure from the pleading set forth in the plaint under order 6 rule 7 of the Code of Civil Procedure. In the case of Bangladesh-Vs- Md. Aslam and others, reported in 44 DLR 69, this Division held:
 
“The plaintiff must not make any departure from the earlier pleadings made in the plaint so as to bring into existence any new claim or raise any new ground or plea which are quite inconsistent, incongruous or a departure from the earlier stand or pleas. The Court will not allow either party from making any departure from the earlier pleadings set forth in the plaint or written statement. Plaint and written statement are the foundation of the claim of the plaintiff and the defendant; any deviation from the earlier stand would surely land the other side into serious dislocation and by 0rder 6 rule 7 of the Civil Procedure Code the same has been made prohibited”.
 
Under the facts and circumstances of the case and for the reasons stated above in the light of the decisions referred to, I do not find any reason to interfere with findings of the court below.
 
Accordingly, Rule is discharged without any order as to cost.
 
Judgment and decree dated 23.08.2010 passed by the learned Additional District Judge, Jhalakati, in Title Appeal No. 95 of 2001 affirming judgment and decree dated 27.06.2001 passed by the learned Joint District Judge, 2nd Court, Jhalakati, in Title Suit No. 27 of 1994, is hereby maintained.
 
Send down the lower courts record alongwith a copy of this judgment to the court concern at once.

Ed.