Case No: First Appeal No. 236 of 2012 with Civil Rule No. 501(F) of 2012
Judge: Md. Nuruzzaman, J And S. H. Md. Nurul Huda Jaigirdar, J
Court: High Court Division,
Advocate: Mr. Swapan Kumar Dutta, Advocate ,
Citation: 2018(2) LNJ
Case Year: 2017
Appellant: Masudur Rahman @ Azahar Hossain
Respondent: Md. Shamsul Alam Hawlader and others
Subject: Evidence Act
Delivery Date: 2019-12-02
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
Md. Nuruzzaman, J
S. H. Md. Nurul Huda Jaigirdar, J
Masudur Rahman @ Azahar Hossain
. . . Appellant
Md. Shamsul Alam Hawlader and others
. . .Respondents
Evidence Act (I of 1872)
Sections 8 and 101
The man can tell a lie but facts, circumstances and documents cannot. Moreso, only on the basis of oral evidence in the peculiar facts and circumstances of the case as has been discussed in the Judgment we are unable to belief the case of the plaintiff and decreed the suit in favor of him who by the materials on record has already proved that he is not real Masudur Rahman, rather, swindler Masudur Rahman who is admittedly Md. Azahar Hossain Bhuiyan of a clerk of the office of the Deputy Commissioner, Dhaka. It is the cardinal principles of the maxim of law of the land that the defects of the defendants cannot be the basis of the plaintiff rather, the plaintiff must prove his plaint case beyond the shadow of reasonable doubt. We find, therefore, that the judgment and decree passed by the trial Court neither beyond the documentary proofs nor committed any error of law in flagrant violation of law. The judgment and decree passed by the Court below based upon the materials on record. In the above facts and circumstances and discussions made herein above we are of the view that the impugned judgment and decree does not call for any interference as the plaintiff has failed to prove his case. . . .(102 to 104)
Erfan Ali Vs. Joynal Abedin, 35 DLR (AD) 216 ref.
Mr. Swapan Kumar Dutta, Advocate
. . . For the Appellant
Mr. Abdul Halim Biswas Advocate with
Mr. M. Ataul Gani, Advocate
. . . For the Respondents
Md. Nuruzzaman, J. The instant First Appeal at the instance of the plaintiff appellant is directed against the judgment and decree dated 22.5.2012 and 28.5.2012 respectively passed by the Joint District Judge, Additional Court, Dhaka in Title Suit No. 31 of 2012. (Originally Title Suit No. was 08 of 2002) dismissing the suit.
2. The material facts as have been derived from the plaint in short, are that the plaintiff instituted the suit for declaration of title over the suit property, recovery of Khas possession and cancellation of the deed.
3. The plaintiff is the resident of village Perab, Police Station Sonargaon, District old Dhaka at present Narayangonj. The plaintiff’s name is Md. Azahar Hossain alias Masudur Rahman alias Masud Bhuyain. The father name of the plaintiff is Ahmed Hossain alias Shahjahan alias Shahjahan Bhuyain. The plaintiff while residing at Waisghat under Ward No. 06 of Kotwali Police Station purchased a shop in his wife’s name which is situated 95/C Elephant Road. The plaintiff’s wife has been doing business for long time. The marriage between the plaintiff and Most. Sabina Yeasmin was solemnized on 07.03.1980. In the Kabin nama, name of the plaintiff is Md. Azahar Hossain (Masud Bhuiyan) son of Ahmed Hossain (Shahjahan Bhuiyan). Mr. Razaul Karim the local member of Parliament issued a certificate on 9.1.2001 to the effect that the name of the plaintiff Md. Azahar Hossain alias Masudur Rahman son of Ahmed Hossain alias Shahjahan Bhuiyan. The plaintiff for long time was connected with the executive committee of a Mosque. On 2.9.2001 Mosque committee issued a certificate to the effect that the name of the plaintiff Md. Azahar Hossain alias Masud, son of Hazi Ahmed alias Shahjahan Bhuiyan. The plaintiff enlisted his name in the voter list. The plaintiff’s name in the voter list is Md. Masudur Rahman (Azahar) son of Ahmed Hossain (Shahjahan), the plaintiff on 20.8.1989 made an affidavit being affidavit No. 203 before the Notary Public stating that the name of the plaintiff is Md. Azahar Hossain alias Masudur Rahman, son of Ahmed Hossain alias Shahjahan Bhuiyan. The plaintiff is an employee of the office of the Deputy Commissioner, Dhaka. The plaintiff’s father Md. Shahjahan Bhuiyan alias Ahmed Hossain Bhuiyan on 20.7.2002 made an affidavit before the learned Metropolitan Magistrate Mr. Biman Bhihari Bharua declaring that the plaintiffs name is Md. Azahar Hossain Bhuiyan alias Masudur Rahman.
4. One Faizullah Bhuyan was the original owner of the suit property; the corresponding C.S. and S.A. Khatian also prepared accordingly in his name who thereafter vide a registered sale deed No. 5738 dated 11.10.1963 sold the same to one Nowab Ali Akond and made over its possession to the purchaser; Nowab Ali Akond also sold the same to one Helal Uddin Dhali and his wife Kanchan Nahar vide a registered sale deed No. 292 dated 27.01.1978. They also got their names mutated in the corresponding Khatian by filing a Mutation & Jama Separation Case being No. 1211/1977-78. Thereafter for construction of building they also obtained an approved plan being No. 3906 dated 16.09.1978 from the DIT and constructed a building who thereafter vide a registered sale deed No.1558 dated 20.06.1991 sold the same to the plaintiff-appellant and made over its possession to him accordingly. After taking over possession as mentioned above the plaintiff-appellant engaged one Nazrul Islam Bhuyan as his caretaker to look after the property. He also rented the building to different monthly tenants through the said caretaker Nazrul Islam Bhuyan. He subsequently breached the trust of the plaintiff showing himself as Md. Masudur Rahman and started inducting monthly tenants by signing agreements behind the knowledge of the plaintiff. The plaintiff came to know the matter through the local terrorist and hooligan who themselves involved for grabbing the suit property. Nazrul Islam Bhuyan filed two police case being Nos. 35(3) 2000 and 39(3)2000 with Dhanmondi Police Station. The defendant Lutfar Rahman at this time came forward to take the possession of the property evicting the existing monthly tenants of the plaintiff-appellant through concocted and manufactured deed claiming that they purchased the land from one Masudur Rahman. Hence, Md. Yakub Ali, the Officer-in-Charge, Dhanmondi Police Station relying on the General Diary Entry No. 745 dated 13.03.2000 started a Non FIR Case being No. 102 of 2000 and also started a proceeding under section 145 of the Code of Criminal Procedure before the Chief Metropolitan Magistrate, Dhaka with a prayer for appointment of a receiver under section 146 of the Code of Criminal Procedure. The prosecution submitted a report suggesting the appointment of a receiver of the suit property Mr. Meraj Hossain, the learned Metropolitan Magistrate, Dhaka was pleased to attached the same on 17.03.2000 till further order. As this stage the plaintiff-appellant appeared with all supporting documents in that proceedings with a prayer for addition of party and for releasing the said property in his favour. Eventually, the matter was transferred to the Court of Mr. A.K.M. Abdus Salam who upon misconception of law and facts on 10.08.2001 directed to release the property in favour of the 2nd party. The plaintiff appellant against the said judgment and order 10.8.2001 filed a Criminal Revision being No. 344 of 2000 before the Sessions Judge, Dhaka. Eventually, the revision was transferred to the Court of Additional Sessions Judge, 5th Court, who allowed the said Criminal revision and rescinded the order of appointment of receiver. The defendant-respondents also challenged the same order before the High Court Division of the Hon’ble Supreme Court of Bangladesh in Criminal Miscellaneous Case No. 5467 of 2001. The plaintiff-appellant also appeared in said case and contested in the said Criminal Miscellaneous Case but, unfortunately, when the matter was taken up for hearing the learned Advocate of his was not present before the Hon’ble High Court Division. Consequently, the Rule was made absolute on 13.02.2002 behind the knowledge of the plaintiff-appellant. The defendant-respondents as per the judgment and order of the High Court Division also took the possession of the suit property from the Officer-in-Charge, Dhanmondi Thana. Hence, the plaintiff filed the instant Suit.
5. The defendants Respondents Nos. 1-4 contested in the Suit by filing joint written statement. The defendants in their written statement denied the material allegations made in the plaint stating the different facts, inter alia, that:
6. The facts of the case of the answering defendants in short are that one Faizullah Bhuiyan was the owner of the suit property. The said Faizullah Bhuiyan on 11.10.1963 vide registered sale deed being deed No. 5738 sold the suit property to Nowab Ali Akhand. Thereafter, said Nowab Ali Akhand got mutated the suit property on 17.10.1968 vide mutation Case being No. 771(1) PT/6768. Thereafter while said Nowab Ali had been owning and possessing the suit property for his personal necessity on 27.01.1978 sold the property vide registered sale deed being No. 292 to the Helal Uddin Dhali and his wife Khanchon Nahar. The Helal Uddin Dhali and his wife after purchasing the suit property filed a mutation case on 08.02.1978 and got mutated their name vide mutation Case being No. 1211(2) P-1/ 77-78. While Mr Helal Uddin Dhali and his wife had been owning and possessing the suit property without any disturbance and hindrance from any quarter they obtained and approved the plan being plan No. 3906 dated 16.09.1978 from the DIT now Rajuk. Mr. Dhali and his wife while had been owning and possessing the suit property sold the same vide a registered sale deed dated 20.06.1991 being sale deed No. 1558 to Md. Masudur Rahman, son of Ahamed Hossain of 95/C, New Elephant Road, Dhanmondi, Dhaka and handed over the possession of the suit property to said Md. Masudur Rahman. The said Masudur Rahman got mutated his name vide Mutation Case being No. 2175(2)P-91 91-92 on 16.11.1992 and paid the rent. Mr. Masudur Rahman sold the suit property to the defendants on 17.4.2000 vide Registered sale deed being deed No. 1352 and handed over the possession of the property. The plaintiff to grab the suit property with building hatching conspiracy against the defendants with the connivance of Md. Yeakub Ali, the Officer in-charge of Dhanmondi Police Station. The Officer in-charge of Dhanmondi Police Station in the name of maintaining the peace started non FIR case being Dhanmondi Police Station case being No. 102 of 2000 and send a report to the Chief Metropolitan Magistrate for attachment of the suit property. The learned Chief Metropolitan Magistrate vide order No. 39 of 2000 attached the suit property and appointed the Officer in-charge as receiver of the suit property. Before the handover the possession of the suit property to the receiver on 13.3.2000 at midnight a daring dacoity had been committed while the defendants were in possession and living with family. The dacoits looted the ornaments, cash money, furniture with all documents of the defendants regarding the suit property. The police party at the time of occurrence of the dacoity was 20 yards distance from the suit house but they did not come forward to resist the dacoity rather, they helped the dacoits with a doubtful activities. The dacoity had been continuing about 2.00 P.M. to 5.00 P.M. Once again the defendants sought the assistance of Dhanmondi police but all are in vain.
7. The defendants on 13.3.2000 lodged a case with Dhanmondi Police Station and the same was registered as Dhanmondi P.S. Case No. 38 dated 13.3.2000. On 14.3.2000 the news of dacoity was published in the daily Ittefaq, the daily Janakantha, and the daily Inqilab. The Dhanmondi police did not publish or send any rejoinder regarding dacoity. So, it is proved that the Dhanmondi police tried to dispossess the defendants. However, the Dhanmondi police took the possession of the suit house by order of the learned Metropolitan Magistrate through Non-F.I.R. Case No. 102 of 2000. The defendant No. 4 Lutfar Rahman on 14.8.2000 lodged a case against the Caretaker of Nazrul Islam. The plaintiff and Md. Nazrul Islam in the Non F.I.R. case prayed for release and possession of the suit property in their favour. The learned Metropolitan Magistrate after hearing the matter opined that in the name of the so-called caretaker Md. Nazrul Islam made up a concocted case to grab the suit house. Hence, the applications for releasing and handing over the possession of the property in favour of them were rejected. The learned Magistrate further held that the applicant Md. Azharul Islam is not Masudur Rahman. Md. Azharul Islam is the employee of Deputy Commissioner Office. So, according to official service book the aforementioned order was passed.
8. The defendants are the legal and lawful purchaser and owner of the suit property from the Masudur Rahman through registered sale deed and thereafter was on possession of the suit property until attachment by the Court.
9. The plaintiff as petitioner filed Criminal Revision being No. 344 of 2000 before the Metropolitan Sessions Judge against the order dated 10.8.2000 passed by the learned Metropolitan Magistrate. The aforesaid Criminal Revision was transferred to the Court of the Additional Sessions Judge, 5th Court, Dhaka who by the Judgment and Order dated 20.5.2001 allowed the Criminal Revision and thereby set aside the order dated 10.8.2000 passed by the Metropolitan Magistrate.
10. The defendants being aggrieved by the order dated 20.5.2001 passed by the learned Additional Sessions Judge, 5th Court in Criminal Revision No. 344 of 2000 preferred the Criminal Miscellaneous case being No. 5467 of 2001.The Hon’ble Judges of the High Court Division heard the Rule on 13.2.2002 and by the Judgment and Order dated 20.05.2001 set aside the order of the learned Additional Sessions Judge, 5th Court, Dhaka, and cancelled the order of the receiver. The Hon’ble High Court Division further directed the receiver to hand over the possession of the suit house to these defendants. Accordingly, the defendants are in possession of the suit property. In the above facts and circumstances they prayed for dismissal of the suit.
11. The learned Joint District Judge, Additional Court, Dhaka upon perusing the averment of the plaint and written statement of the respective parties framed the following issues to determine the case:
- Is the case maintainable in its present form and manner?
- Is there any defect of parties in the suit?
- Is the plaintiff has any title over the suit property?
- Whether the plaintiff was dispossessed from the suit property?
- Is the deed No.1352 dated 17.4.2000 fraudulent and voidable.
At the trial the plaintiff’s side to prove the plaint case examined 3 P.Ws.
12. P.W. 1. Md. Azaher Hosssain alias Masudur Rahman, P.W. 2-Md. Lutfor Rahman and P. W. 3 Md. Monirul Islam. The plaintiff side also produced some documents in the Court to prove his case which were marked as Exhibits. Affidavit dated 20.7.2002 Ext.-1, Original kabinnama, dated 7.3.1980 Ext.-2, Protoyan Potra (letter of authentication) dated 9.1.2001 ( with objection) Ext. 3, certified copy of the Mosque Committee Ext. 4, Voter list Ext. 5, affidavit dated 20.8. 1989, Ext. 6, S.A. Khatian. Ext. -7, Original deed being No. 5738 dated 11.10.1963 Ext. 8, certified copy of mutation parcha being No. 180/1 Ext. 9, original deed being No. 292 dated 27.1.1978 Ext. 10, rent receipt (one page) Ext. 11, certified copy of lay out plan and clearance letter Ext. 12, certified copy of the original deed being No. 1558, dated 20.6.1991 Ext. 13, One rent receipt book Ext. 14, certified of the application dated 23.3.2000, Ext. 15, certified copy of the judgment of Criminal Revision being No. 344 of 2000 Ext. 16, certified copy of deed No. 1352 dated 17.4.2000 Ext. 17, National ID. Card Ext. 18, Passport Ext. 19, The Notice of Income Tax of four years Ext.-20, Income Tax return form with order for the year 2007-2008 Ext. 21.
13. On the other hand, the defendants side to substantiate the defense case examined 5 D.Ws. D.W. No. 1 Shahjahan Howlader, D.W. No. 2 Md. Jalal. D.W. No. 3. Mortajur Rahman and D.W. No. 4 Kazi Azizul Haque and D.W. No. 5 Reaz Ahmed.
14. The defendant side also produced some documents which were marked as Exts. Ext. ‘Ka’ certified copy of deed No. 5738, dated 11.10.1963, Ext. ‘Kha’ certified copy of deed No. 292 dated 27.1.1978, Ext. ‘ga’ certified copy of deed No. 1558, dated 20.6.1991, Ext. ‘Gha’ certified copy of deed No. 1352, dated 17.4.2000 Ext. ‘Uma-series’ paper cutting of Daily Ittefaq, Daily Inquilab and Jano kantha, Ext. ‘Cha’ certified copy of judgment of the Metropolitan Magistrate passed in Non F.I.R. Case No. 102 of 2000, Ext. ‘Chha’ certified copy of order sheet of the Criminal Revision of 5467 of 2001, Ext. ‘S’ certified copy of taking over the possession of the property, Ext. S -1, judgment of the High Court Division passed in Criminal Revision No. 5467 of 2001, Ext. ‘T’, certified copy of the letter dated 13.7.2000, Ext. ‘T -1’, certified copy of the letter dated 11.7.2000 Ext. ‘U’- ‘U-1’ certified copies of the order sheet of Misc. Case No. 36 of 2002 and Kanoongo report Ext. ‘V’ certified copy of holding of tax and tax receipt. Exts. ‘V’ series, copies of Dhaka Wasa and Sewerage bill, Ext. ‘W’ series, Electricity bill. Ext. ‘X’ series, copy of field Parcha of Khatian No. 2921, Ext. ‘Y’, certified copy of Parcha of Khatian No. 1243 Ext. ‘e’ , letter of authentication of Income Tax, Ext. ‘a’, Certified copies of Petition Case No. 221 of 2000 and Certified Copy of final report dated 31.12.2008 and Certified Copy of 164 of the Cr.Pc and order dated 27.05.2009 Ext. ‘b’ series, certified copy of the testimony of witness Monirul in the case of 102 of 2000 is Ext. ‘c’ (with objection)
15. The learned Joint District Judge, additional Court, Dhaka upon considering the materials on record, after appreciating the testimonies of all the P.Ws. and D.Ws. and discussing the exhibits documents at the trial arrived at a decision that the plaintiff has failed to prove his case. Hence, by the judgment and decree dated 22.5.2012 and 28.5.2012 respectively dismissed the suit.
16. Being aggrieved by the impugned judgment and decree dated 22.5.2012 and 28.5.2012 respectively the plaintiff as appellant preferred the instant first appeal before this Court.
17. Mr. Swapan Kumar Datta, the learned Advocate appearing for the appellant has submitted that the impugned judgment and decree dated 22.5.2012 passed by the learned Joint District Judge, Additional Court, Dhaka in Title Suit No. 31 of 2012 is bad in facts and law and, as such, the same is liable to be set aside.
18. He has added that the trial Court upon misconception of law and evidences on record has failed to consider the settled principle of law and most illegally put the burden of proof upon the plaintiff without considering the settled proposition of law that if both the parties lead evidences to prove their respective cases then the onus of proof becomes academic and, as such, arrived at an illegal conclusion.
19. According to Mr. Dutta, the trial Court misread and misunderstood the evidence of the contending parties specially the evidences of all the P.Ws. and D.Ws. though the P.Ws. are not only very much consistent to each other but also unequivocal and impartial in nature, but the trial Court most illegally disbelieved the same. On the other hand, though D.Ws. are inconsistent and equivocal in nature, but the trial Court most illegally relied on the same for the reason very much known to him. It is very much astonishing as well as surprising that how a Court of law can assess the things in the like manner.
20. He has argued that the Trial Court most illegally found that the plaintiff had never got possession in the suit property and for that reason no title has been conferred to him, on the basis of the sale deed dated 20.6.1991 (exhibit-13), without considering the evidence of the P.W.-2 Mr. Lutfar Rahman (who is the cousin of the vendor Hellal Uddin as well as the attesting witness of the exhibt-13) and P.W. 3 Md. Monirul Islam (who is the son of the vendor Helal Uddin as well as the witness of the exhbit-13) regarding execution and registration of the exhibit-13 itself along with its payment of consideration money and delivery of possession and, as such, arrived at an illegal conclusion. It is very much surprising that where the defendants did not even dare to cross examine the P.W. Nos. 2 and 3 on their unequivocal examination in chief regarding delivery of possession of the suit property in favour of the plaintiff then how a Court of law can disbelieve the same, as such, the trial Court arrived at an illegal conclusion. Therefore, it is required to interfere in the impugned judgment and decree.
21. The Court below also ignored the most important admission of D.W. 3 Md. Mortajur Rahman who, in cross, himself has admitted his signature in exhibit-14 (counter part of the rent receipt). So, in law, there is nothing left for the plaintiff-appellant to prove his possession in the suit property but the Court below without considering the same in its true perspective dismissed the suit and, as such, arrived at an illegal conclusion causing irreparable loss and injury to the plaintiff.
22. The Court below most illegally relied on the exhibit-Uma series, a report published in the Daily Janakantha, Ittefaq, Inquilab without considering the relevant provisions of law that the report of the News Papers has got no presumptive value after omission of the provisions of section 81 of the Evidence Act, 1872 and, as such, the Court below arrived at an illegal conclusion causing the serious misconception, hence, the impugned judgment is liable to be set aside.
23. The Court below upon misconception of facts and law misconstrued the original registered sale deeds of the plaintiff-appellants as such came into an erroneous conclusion in dismissing the suit against the clear provisions of law because the registered instrument always carries the presumption of its validity.
24. The Court below totally failed to consider the settled propositions of law as enunciated by the Apex Court in the case of “Sova Rani Guha Vs. Abdul Awal Mia and others” reported in 47 DLR (AD) 45 that the producing the secondary evidence of document is not relieved of the duty of proving the execution of the original, and most illegally relied on the certified copies of all the registered sale deeds including the sale deed No. 1352 dated 17.4.2000 by dint of which they claimed title in the suit property as such committed serious error of law in dismissing the suit. In that view of the facts the judgment and decree passed by the trial Court is liable to be set aside.
25. The Court below most illegally doubted the possession of the plaintiff in the suit property although he found the sale deed dated 20.06.1991 (exhibt-13) as a genuine one ignoring the long run maxim that “the Possession generally follows title” as such the Court below arrived at an illegal conclusion and that causes serious error in the impugned judgment and decree and, as such, the same is liable to be set aside.
26. The Court below did not utter a single word about the rent receipts (exhibit-11) of the plaintiff-appellants but illegally found possession against the plaintiff-appellant without considering the settled principles of law as laid down in the case of Erfan Ali Vs. Joynal Abedin as reported in 35 DLR (AD) 216 that the “rent receipts are the evidence of possession and may be used as collateral evidence of title” and, as such, the Court below committed serious error of law in dismissing the suit.
27. The Court below upon misconception of law most illegally found that the possession of the defendant-respondents in the suit property is legal and valid and should not liable to be interfered with because they obtained the same though the receiver, Officer-in-Charge of Dhanmondi Thana as per the direction of the High Court Division in Criminal Miscellaneous Case No. 5467 of 2001 exhibit-ja(1). Hence, found himself powerless to enter into the same for its handing over to the plaintiff-appellant without considering the facts and law that the question of title of the contending parties in the suit property must be decided by the Civil Court not by the Criminal Court. He has further argued that the validity of a registered sale deeds upon which both the parties relied and claimed title in the suit property has not been decided in the Criminal Court because no Criminal Court can do so and it is the Civil Court who only can decide the same. In that view of the fact, it is clear that the impugned judgment and decree passed by the Court below is illegal one and, as such, the same is liable to be set aside.
28. Mr. Md. Abdul Halim Biswas, the learned Advocate appearing for the respondent Nos. 1-4 has submitted that the instant suit was filed in the Court of Joint District Judge, 3rd Court on 5.1.2002 by the plaintiff for simple declaration of title by giving fixed Court fee at Tk. 100/- (One hundred). However, later on the plaintiff on an application under Order 6, Rule 17 read with section 151 of the Code of Civil Procedure on 21.4.2003 prayed for amendment of the plaint praying for recovery of khas possession which was allowed on 23.4.2003. He has further pointed that in the application for amendment of the plaint for the first time the plaintiff sought recovery of the suit land stating the cause that he has been disposed from the suit land during the pendency of the suit. So, he argued that the proposed amendment was ante dated and the events of the dispossession is totally concocted and manufactured only for the purpose praying for recovery of Khas possession of the suit property after filing the suit.
29. He has added that it is the settled principle in the cases of recovery of khas possession that the dispossession followed by the possession but in the instant suit the plaintiff in the averment of the plaint date of dispossession has been shown on 28.6.2002. However, from the judicial record it is proved that the officer- in-charge Dhanmondi Police Station by the order of the Metropolitan Magistrate through a non-F.I.R. case being No. 102 of 2000 took over the possession from the defendants on 13.3.2000 from which it is clearly evident that the date of dispossession of the plaintiff on 28.06.2002 by the defendants as has been claimed by the plaintiff by filing an application for amendment is not only false but it is contrary to the judicial order. The facts which have been narrated in the plaint proved that it is an after thought concocted story has only been created for the purpose to sought a prayer for recovery of the possession of the suit property wherein he had never in possession. More-so, the said ante dated and concocted story has been created only to harass the defendant respondents which clearly evident from the above facts.
30. However, he has further submitted that the plaintiff at the time of creating the manipulated date never thought that the given date of dispossession would clearly proved that it is manipulated and concocted story. The plaintiff by creating a false and concocted date of dispossession in the amendment application it is further proved that he is not only a fake person rather, he is a high profile swindler and expert making and creating the false and concocted story claiming the suit property for grabbing the property of the defendant respondents.
31. So, the plaintiff has only not failed to prove the dispossession of him by giving evidence rather, the defendant-respondents proved the facts of their possession though oral and documentary evidence and by the judicial record which had been upheld not only in the instant case, but also by Hon’ble High Court Division in the Criminal Miscellaneous Case No. 5467 of 2000.
32. He has further pointed that the plaintiff-appellant willingly was absent at the time of hearing of the Criminal Miscellaneous Case No. 5467 of 2000 as if he would have been present at the time of hearing of the aforesaid Miscellaneous Case in the High Court Division it would clearly proved that he was never in possession of the suit property.
33. Mr. Biswas has added that the defendants in their written statement categorically stated that on 21.02.2000 at 11:00 pm one Nazrul Islam Bhuyain son of Sarder Bhuyan with the help of some miscreants forcefully get out the Kabir Hossain who is the brother of Lutfor Rahman, the said Lutfor Rahman is the husband of the defendant No. 4 Mrs Beauti Rahman. On getting the such news Lutfor Rahman went to the suit house with all documents including the title deeds of the house. While Lutfor Rahman went to the house the Nazrul Islam in the mean time with his accomplice took the driver Abul Kasham with Car on the gun point inside of a narrow pathaway and snatched away all the deeds which was saw by the witness and thereafter informed the Mather to one Golam Mostafa Sub-Inspector of Tahal Police of Dhanmondi Police Station. Later on made a complainant against the Nazrul Islam to the Police Commissioner D.M.P. Dhaka but all the steps were in vain. However, later on Lutfor Rahman Husband of Beauti Rahman on 14.08.2000 lodged an ejhar against Nazrul Islam which was the case No. 20 of Katwali Police Station. The said Nazrul Islam Bhuyain by false personification took the name Masudur Rahman and opened a Bank account showing himself a Masudur Rahman which was proved before the Court at the time of hearing of Non-F.I.R. Case No. 102 of 2000. The said Nazrul Islam failing to capture the suit property hired Md. Azharul Islam hatching conspiracy and filed the instant suit pretending him as Md. Masudur Rahman who is a swindler and filed the suit.
34. Mr. Biswas, has argued that while the plaint was filed the plaintiff in the pleadings did not disclose that he was dispossessed from the suit through non-F.I.R. Case No. 102 of 2000 on 13.3.2000 by the order of the Court. So it is crystal clear that the averment of the plaint were totally false. He has further pointed that before dispossession of the defendant Respondents from the suit property by the order of the Court on 13.3.2000 there was a dacoity in the house of the defendant-respondents with the help of the unscrupulous police force of the Dhanmondi Police Station. Though at the time of dacoity the defendants sought help of the police of Dhanmondi Police Station but the police was not active or diligent helping the defendants-respondents though dacoity was committed by the miscreants not less than two hours. The news of the dacoity was published in the Daily Ittefaque, Daily Inqilab and other daily news papers by giving specific caption on 14.03.2000. At the time of dacoity the valuable papers of the defendants were looted by the looters. It is curious enough that the plaintiff after events of dacoity and lootings all the papers of the defendants stand as swindler Md. Masudur Rahman and started to claim the suit property as Md. Masudur Rahman however, before that none including the plaintiff claimed that they are the sole proprietor of the suit property. The learned Advocate for the respondents in support of his submissions refers the following exhibits on behalf of the defendants which were marked as Ext. Gha’ and ‘Umo to Uma-2.
35. Mr. Biswas referring exhibits Gha and Uma series the newspapers pointed that the appellant only after occurring the events of dacoity in the suit property came to the scene claiming that he is Md. Azahar Hossain @ Masudur Rahman. However, considering the documentary evidence i.e. Ext. 13 deed No. 1558 dated 20.6.1991 in the name of Md. Masudur Rahman and seller Haji Helal Uddin Dhali and his wife it is crystal clear that purchaser Masudur Rahman is the son of Ahmed Hossain of 95/C New Elephant Road, Dhanmondi. However, from the plaint it reveals that the plaintiff never used to reside specifically in the suit property or 95/C New Elephant Road at the time of purchase or later on as Masudur Rahman. He did not reside in the address of the deed. More-over, it further appears from the documentary evidence and plaint and deposition of the P.W. 1 i.e. the plaintiff is/was resident of 6 Waiseghat and an employee of the office of the Deputy Commissioner, Dhaka. However, he never, used or resides on the address of the deed. In the Ext. 13 deed No. 1558 dated 20.06.1991 purchaser profession was business and father’s name was Ahmed Hossain. But according to school certificate and his official record of the plaintiff it is clearly evident that he is not business man and his father name is/was not Ahmed Hossain rather, his father’s name is Shahjahan Bhuyain and his profession was service. It appears from the deposition and cross-examination of P.W.-1 he has admitted that neither in the school certificate of his children nor his office Masudur Rahman is his name. Rather, in his school certificate according to his admission his name is Azaher Hossasin. He has also admitted in cross-examination that he did not take any permission from his superior authority to purchase the property in benami. He has further admitted in his cross-examination that he did not reside in the suit property but allegedly claimed that rented the property to the tenants. He also admitted that defendant-respondents are in possession but claimed as tenant. He has also admitted that in the Birth Registration Certificates of his children the name of the father has not been written Masudur Rahman Bhuiyan. He has also admitted that before the year of 2000 he had purchased some lands, however, in those deeds he did not mention his name as Masudur Rahman Bhuiyan. He has further admitted in his cross-examination that the possession of the suit property was taken by the Officer-in-Charge, Dhanmondi Police Station through non-F.I.R. Case No. 102 of 2000 as receiver from the defendant Nos. 1-4. However, later on he claimed that they were tenants. So, from the above reply in cross it is crystal clear that this P.W. 1 i.e. the plaintiff has failed to prove his possession by giving credible testimony and reply in cross. Rather, the testimonies of the plaintiff as PW. 1 is not only inconsistent but full of contradiction and concocted story. Learned Advocate for the respondents has further very candidly argued that the plaintiff to prove his case examined 3 witnesses i.e. (1) the plaintiff himself as PW. No.1 ( 2) Lutfor Rahman as PW. No.2 and (3) Md. Monirul Islam as PW. No. 3. From the testimony of P.W. 1 it appears that in his deposition he has stated his wife is the owner of shop which is situated 95C New Elephant Road. But in his deposition he did not state that he submitted the deed of that shop showing the title of his wife nor he exhibited the said deed in the Court. Moreover, in his deposition he stated that he had married with one Sabina Yeasmin (Rakiba) on 7.3.1980 at the time of marriage he mentioned his name in kabinnama Md. Azaher Hossain (Masud) and father’s name Ahmed Hossain (Shahjahan). The learned Advocate referred the kabinnama Ext. 2 and pointed that the copy of the kabinnama neither certified nor original one. More-so, the plaintiff to prove the Kabinnama did not call for any attesting witness nor he produced his wife as a witness to prove the Ext. 2. So, this exhibit is nothing but a concocted and manufactured one, hence, the same has been created purposely only to use in the case. He has further argued that some certificates were produced which were marked as exhibit 3 and 4 to prove those certificate the plaintiff neither adduced any attesting witness or call for issuing authority. More-so he argued that the issuance authority as has been shown in those 2 exhibits i.e. 3 and 4 they have no legal and lawful authority to issue any such certificates without verification the actual name in violation of the law of the Birth Registration, school certificate and the official record of his public service and, as such, those certificates are nothing but manipulated and concocted piece of papers, however, have been created only for the purpose of the case. He has further argued that the plaintiff rather by giving those created and anti-dated papers proved that those have only been created for the purpose of the case after filing the suit. The learned Advocate for the respondents referring exhibit 6 has argued that Natarial certificate and affidavit before the Notary Public has been created showing date 28.8.1989 declaring that his actual name is Md. Azhar Hossain and nick name is Md. Masudur Rahman however, from the Ext. 13 deed No. 1558 dated 28.6.1991 it is crystal clear that the affidavit exhibit -6 has been created purposely giving ante date because if the exhibit 6 had actually been done on 28.08.1989 declaring his name Md. Azhar Hossain and nick name is Md. Masudur Rahman then later on in the exhibit 13 dated 28.06.1991 the plaintiff surely used his actual name Md. Azhar Hossain with nick name Md. Masudur Rahman. He has further referring the exhibit-1 argued that the contents of the affidavit has not been proved by the plaintiff. He fortifying his argument said that the exhibit has not been proved by the deponent who made it although deponent is none but the father of the plaintiff. So it has no evidential value. So, it is depicted from the Ext. 1,2,3,4 and 6 that those exhibits were created after thought by giving ante-date creating and inserting false name Masudur Rahman in those exhibits.
36. The learned Advocate for the respondents has further pointed that it is admitted by the plaintiff that he is an employee of the office of the Deputy Commissioner, Dhaka. So, there is a serious question of doubt why he went to make an affidavit before the Notary Public and before the Magistrate of the Metropolitan Court, Dhaka as there are so many First Class Magistrate in the office of the Deputy Commissioner, Dhaka for doing the same. More-so the plaintiff did not adduce any attesting witness i.e. the learned Advocate who identified him & his father and who solemnized both the affidavits. So, these exhibits neither bear any legal effect nor have any evidential value. He has further pointed that Ext. Nos. 7, 8, 9, 10, 11, 12, and 13 submitted by the plaintiff in the Court do not prove that he got those documents from the vendors and from the proper custody and possession rather, it is clear case of the defendants that while defendants was in the possession of the suit property all those papers were in their possession and those had been looted and snatched away by the Nazrul Islam and his accomplice. Thereafter, the plaintiffs with connivance of the Nazrul Islam obtained those papers and started claiming the ownership showing himself as swindler Masudur Rahman after filing non F.I .R. Case No. 102 of 2000. He has further added that if the plaintiffs purchased the suit property surely his actual certificate name and father’s name would have been written in the title deeds. Even if, for the argument shake if it is said that he had purchased the suit property in benami in that case he must produce the man in whose name he purchased the suit property. So, such type of claim is not sustainable in the eye of law.
37. Mr. Biswas very candidly submitted that another vital aspect of the case is that the defendants Nos. 5 and 6 filed the written statement, however, they did not contest in the suit, even, they were not adduced as witness although defendant No. 6 is alive. On the other hand the PW. No. 3 claimed to be a son of the defendants No. 5 & 6 but he without contesting in the suit as the heirs of the defendant No. 5 & 6 allegedly as son of them deposed in the Court as a witness of the plaintiff which is not only contrary to the settle maxim of law but superfluous and imaginary exercise of a witness supporting another’s case while the said witness himself has a legal right and status to contest in the case but he waiving the such right and status stand for other which caused serious doubt about his character as well as his identity.
38. Mr. Biswas has further added that the learned Advocate for the appellant argued that the defendants did not produce the original deeds of them, rather, produce they certified copies of the same and, as such, without proving the same by giving any proper evidence the secondary evidence can not be proved and the same has no evidential value nor they are relieved from proving the same by giving proper evidence. In reply of the said argument of the learned Advocate for the appellant, Mr. Biswas referred the testimony of the D.W. No. 4 Kazi Azizul Haque and argued that from the deposition of the said witness this point would be clear. The D.W. No. 4 in his deposition stated that “ he was the Manager of the City Bank, Islampur Branch. The original deed No. 1352 dated 17.04.2000 was deposited in the said Bank as mortgage deed. The said deed was seized by the Police Inspector of C.I.D in connection with Tejgaon Police Station Case No. 61(9) 2000. Now said deed is not lying with Bank. In reply of cross by the plaintiff he stated that the said deed was deposited by the Shamsul Alam and others. He also deposited the Photocopy of the seizure list of the case.”
39. Mr. Biswas quoting the deposition further fortified his argument and submitted that from the above deposition and cross examination of D.W. No.4 it is evident that the arguments put forwarded by the learned Advocate not tenable in the eye of law, rather, the story of the defence is genuine and more believable. So, according to him there is genuine explanation why the defendants produced the certified copy of their exhibits. He has further pointed that the other original deeds are on record on the exceptional way for which the defendants made out a clear case against the plaintiff that he with the connivance of Md. Nazrul Islam Bhuyain captured the said deeds from the possession of the defendants but that onus never disproved by the plaintiff.
40. Mr. Biswas has further raised the question of identity of the plaintiff referring his deposition and exhibits and cross examination and argued that the trial Court rightly found that he is not Md. Masudur Rahman, rather he is Mr. Azahar Hossain. Further more he argued that the plea of the plaintiff that his nick name is Md. Masudur Rahman also not proved before the Court. It is the plaintiff who claimed that he is Md. Azhar Hossain alias Md. Masudur Rahman this plea must be proved by him giving proper and credible evidence but the plaintiffs all the attempts went against his such plea that he is Md. Masudur Rahman which has clearly reflected and evident from his testimony and admission in cross.
41. Mr. Biswas quoting the prayer Ka, Kha and Ga of the plaint has argued that the plaintiff has not only failed to prove his case in the light of the above prayers, rather, it is proved that he is a swindler person and falsely tried to be claimed as Md. Masudur Rahman instead of Md. Azhar Hossain.
42. In support of his such argument he has referred to the deposition of the PW. No. 1 Wherein he made several material contradiction which are as follows:
“L¡¢he Bj¡l e¡j ®j¡x BS¡q¡l ®q¡pe Jlg (j¡p¤c)z h¡h¡l e¡j BqÇjc ®q¡pe Jlg n¡qS¡q¡e mM¡ z .................................. ®i¡V¡l a¡¢mL¡u Bj¡l e¡j ®j¡x j¡p¤c¤l lqj¡e (BSq¡l) ............... B¢j ®e¡V¡l£ f¡h¢mLl pÇj¤M H¢gXH¢iV L¢l ®pM¡e Bj¡l e¡j ®j¡x BS¡q¡l ®q¡pe Jlg j¡p¤c¤l lqj¡e ¢mM¢Rz”
43. In cross he has admitted that “B¢j EµQ j¡dÉ¢jL f¡nz fÐbj ®nÐZ£ qCa à¡cn ®nÐZ£ fkÑ¿¹ ®L¡e p¡¢VÑ¢gLV B¢j j¡p¤c¤l lqj¡e i¨Cu¡ e¡j hÉhq¡l L¢l e¡Cz a¢LÑa qmge¡j¡u e¡j f¢lhaÑe Ll Eq¡l L¢f Q¡L¥l£ ¢eu¿»eL¡l£ LaÑfr hl¡hl ®cC e¡Cz ............. Bj¡l 2 f¤œ 2 LeÉ¡ ®mM¡ fs¡ Llz ®Rm-®jucl i¢aÑ glj h¡ ®l¢SØVÌ¡l Bj¡l e¡j j¡p¤c¤l lqj¡e i¨Cu¡ ¢qph hÉhq¡l L¢l e¡Cz ®Rm ®jucl S¾j ¢ehåe ®l¢Sø¡l Bj¡l e¡j j¡p¤c¤l lqj¡e i¨Cu¡ ¢qph hÉhq¡l L¢l e¡Cz B¢j 2000 p¡ml BN S¢j M¢lc L¢lu¡¢Rz Iph c¢mm Bj¡l e¡j j¡p¤c¤l lqj¡e i¨Cu¡ ¢qph hÉhq¡l L¢l e¡Cz”
44. He in his cross regarding possession admitted that “¢l¢pi¡l ¢qph J/¢p d¡ej¢ä e¡¢mn£ h¡s£l cMm 1-4 ew ¢hh¡c£l L¡R ®bL ¢eu¢Rme” “ee, Hg, BC, Bl j¡jm¡ 102/ 2000 Hl f§hÑ 1-4 ew ¢hh¡c£l e¡¢mn£ h¡s£l cMm ¢Rm e¡z fl hm a¡l¡ i¡s¡¢Vu¡ ¢Rm” .............. “i¡s¡¢Vu¡cl e¡j Bj¡l je e¡Cz eSl¦m Eq¡ deal Llaz” ..............B¢j ®k L¡¢he c¡¢Mm L¢lu¡¢R Eq¡ original L¡¢hez HM¡e HC L¡¢he Bj¡l original ü¡rl BRz c¡¢MmL«a L¡¢he Bj¡l Hhw Bj¡l Ù»£l original ü¡rl BRz fl hm HC pC AeÉl¡ ¢m¢Mu¡ ¢cuRz c¡¢Mm£ L¡¢he e¡j¡ AeL BNlz La a¡¢lM Eq¡ pwNËq Ll¢R je e¡Cz HC L¡¢hel p¡¢VÑg¡CX L¢f c¡¢Mm Llh e¡z
45. He has further argued that the plaintiff never sought any prayer in the suit that his name is Md. Azhar Hossain alias Md. Masudur Rahman. Rather has made following prayer:
Lz (1) h¡c£ e¡¢mn£ pÇf¢šl 1(®o¡m) b¡e¡ j¡¢mL jjÑ ¢X¢œ² ¢caz
Lz (2) af¢pm h¢ZÑa pÇf¢š qCa 1-4 ew ¢hh¡c£NeL Bc¡ma j¡lga EµRcœ²j h¡c£L M¡p cMm ®cJu¡l ¢Xœ²£ ¢caz
(M) ¢hNa 17/04/2000 Cw a¡¢lM ®j¡q¡Çjcf¤l p¡h-®l¢S¢øÊ A¢gpl ®l¢S¢øÌL«a L¢ba ®j¡: j¡p¤c¤l lqj¡e LaÑªL j§m 1-4ew ¢hh¡c£Nel hl¡hl pª¢Sa 1352 ew ®l¢S¢øÌL«a c¢mm pÇf§ZÑ i¡š², a’La¡j§mL, S¡m fefÐhª¢š ¢hq£e Hhw j¤m j¡¢mL j¡p¤c¤l lqj¡e LaÑªL pÇf¡¢ca J ®l¢S¢øÊL«a eq jjÑ h¡¢aml ¢X¢œ² ¢caz
(N) Aœ j¡jm¡l k¡ha£u MlQ ev`xi hl¡hl ¢hh¡c£Nel ¢hl¦Ü ¢Xœ²£ ¢caz
46. He Referring the above prayer of the suit it has argued that unless from the Court of law it is declared that he is Md. Azhar Hossain alias Md. Masudur Rahman such a claim is nothing but fraudulent activities as he has failed to prove that according to his educational certificate and public service record that the Azhar Hossain is also Md. Masudur Rahman.
47. According to Mr. Biswas the plaintiff himself by his testimony and reply in cross he proved that he is not Masudur Rahman and, as such, the trial Court rightly found that the plaintiff has failed to prove his plaint case and rightly, legally and lawfully dismissed the suit.
48. Therefore, he has prayed for dismissal of the appeal.
49. We have anxiously considered the submissions of the learned Advocates of the respective parties. We have meticulously examined the plaint, written statement of the defendants Nos. 1-4 with testimonies of all the P.Ws. and D.Ws. and contents of the exhibits of the both sides.
50. In order to appreciate the materials on record and coming to a correct decision avoiding the repetation and the contradictory discussions as the facts of the case is exceptional in terms of claiming of recovery of possession, right and title of the suit property by the plaintiff side and counter claim by the defendant Nos. 1-4.
51. We are, thus, of the view at first look into the pleadings of both sides, thereafter the testimonies and cross examination of the all P.Ws. and D.Ws. with documentary exhibits and lastly the Judgment of the trial Court whether the same is justified or call for any interference by this Court.
52. Considering the records of the suit it appears that the suit was instituted on 05.01.2002 with a prayer L) the registered deed No. 1352 dated 17.04.2000 in the name of the principal defendants Nos. 1-4 register in Mohammadpur Sub Registry Office by so called Md. Masudur Rahman is null and void, forged, without consideration and executed and registered not by the real owner Masudur Rahman.
53. However, on 21.04.2003 filed an application with following prayers after filing the written statement by the principal defendants Nos. 1-4.
L (1) h¡c£ e¡¢mn£ pÇf¢šl 1 (®o¡m) Be¡ j¡¢mL jjÑ ¢X¢œ² ¢caz
L (2) To put the plaintiff in the possession after evicting the defendants No. 1-4 from the schedule property of the suit.
54. So, it is squarely necessary to discuss the averment of earlier plaint and averment after the amendment of the plaint. We have gone through the plaint after amendment and before amendment from which it is revealed that at the time of filing of the suit there is no averment that all the previous original deeds of the suit land laying with the plaintiff nor pleaded the facts that the plaintiff was dispossessed from the suit land by defendants nor by any of the tenants of the plaintiff. But it is revealed that by way of amendment of the plaint the plaintiff in the paragraph No. 9 on 21.04.2003 inserted the following averment: “jq¡j¡eÉ q¡CL¡VÑ ¢hi¡N ®g±Sc¡l£ ¢jp - 5467/2001 Hl öe¡e£L¡m h¡c£ frl ¢h‘ BCeS£h£ Ap¡hd¡ea¡hnax Ae¤f¢ÙÛa b¡L¡u ¢hNa 13.02.2002 Cw a¡¢lMl l¡u ¢œ²¢je¡m ¢jp ®Lp¢V j”¤l qu Hhw 1-4ew ¢hh¡c£NZ ¢hNa 28.06.2002 Cw a¡¢lM J.¢p. d¡ej¢ä b¡e¡l j¡dÉj e¡¢mn£ pÇf¢ša k¡Cu¡ h¡c£L ®hcMm ®cez 1-4 ew ¢hh¡c£NZ 17.04.2000 Cw a¡¢lMl 1352 ew p¡g Lhm¡ c¢mm j§m e¡¢mn¡ pÇf¢ša j¡¢mL¡e¡ c¡h£ Ll¡u e¡¢mn£ pÇf¢ša h¡c£l üaÅ L¡¢mj¡ cM¡ ¢cuR pC L¡lZ h¡c£fr Aœ ®j¡LŸj¡u üaÅ ®O¡oZ¡ J M¡p cMml fÐ¡bÑe¡ Llez”
55. On the other hand, from the order No. 11 dated 15.09.2002 it appears that the defendant No.1-4 had filed the written statement on that date. The defendants in paragraph No. 15(Ka) in the facts of the written statement categorically inscribed that on 13.03.2000 the Metropolitan Magistrate passed the order of attachment over the suit property and officer-in-charge of Dhanmandhi Police Station was appointed as receiver who took the possession of the suit property not from the plaintiff but from the defendants and their tenants. The officer-in-charge deployed the forces in the building to keep the possession of the suit property under the control of the receiver.
56. However, from the averment of the plaint it is crystal clear that the plaintiff filed the suit on 05.01.2002 at that time the suit was for simple declaration. At the time of filing the suit the plaintiff did not pray for recovery of the Khas Possession from the receiver, although it is apparent from the face of the record that the plaintiff contested in the non FIR case No. 102 of 2000. The plaintiff in the paragraph Nos. 6 and 7 of the plaint stated the following facts:
6) “Efl¡š² AhÙÛ¡u h¡c£ e¡¢mn£ pÇf¢ša a¡q¡l ®Lq¡lVL¡l eSl¦m Cpm¡j i¨Cu¡l j¡dÉj ®i¡N cMm f¢lQ¡me¡ L¢la b¡L¡ AhÙÛ¡u HL fkÑ¡u Eš² eSl¦m Cpm¡j i¨Cu¡ h¡c£l p¢qa ¢hnÄ¡p O¡aLa¡ L¢lu¡ ¢eSC ®j¡x j¡p¤c¤l lqj¡e p¡¢Su¡ i¡s¡¢Vu¡cl p¢qa Q¤¢š² fœ Ll J i¡s¡l V¡L¡ Bc¡u L¢la b¡Lez HjahÙÛ¡u Hm¡L¡l ¢LR¤ p¿»¡p£ ®m¡LSe Eš² ¢hou S¡¢ea f¡¢lu¡ Eš² h¡s£ cMm Ll¡l SeÉ ®Qø¡ L¢lm Eš² ®j¡x eSl¦m Cpm¡j i¨Cu¡ d¡ej¢ä b¡e¡u j¡jm¡ ew-35(3) 2000 J j¡jm¡ ew-39(3)2000 j¡jm¡ Llz Afl¢cL ¢hh¡c£ fr m¤vgl lqj¡e e¡¢mn£ h¡s£ j¡p¤c¤l lqj¡el ¢eLV qCa M¢lc L¢lu¡Re h¢mu¡ ¢jbÉ¡ L¡Òf¢eL S¡m c¢mm pªSe L¢lu¡ ®h-BCe£i¡h e¡¢mn¡ pÇf¢š ®S¡lf§hÑL h¡c£l ®Lu¡lVL¡l J i¡s¡¢Vu¡ J i¡s¡¢Vu¡NeL EµRc L¢lu¡ cMm L¢lh¡l SeÉ ®Qø¡ L¢lm d¡ej¢ä b¡e¡l i¡lfÐ¡ç LjÑLaÑ¡ Se¡h ®j¡x Cu¡L¥h Bm£ d¡ej¢ä b¡e¡l p¡d¡lZ X¡ul£ ew-745 a¡w-13/03/2000 j§m d¡ej¢ä b¡e¡l ee Hg.BC.Bl-102/2000 j¡jm¡ l¦S¤ L¢lu¡ e¡¢mn h¡¢s¢V c¡wN¡ q¡wN¡j¡l q¡a qCa lr¡ Ll¡l SeÉ j¤MÉ jq¡eNl q¡¢Ljl Bc¡ma ®g±Sc¡l£ L¡kÑ¢h¢dl 145 d¡l¡ ®j¡a¡hL fÐ¢p¢Xw XÊ L¢lu¡ ®g±Sc¡l£ L¡kÑ ¢h¢dl 146 d¡l¡u ®œ²¡L¡hå L¢lu¡ aªa£u frl hl¡hl ¢l¢pi¡l ¢eu¡Nl SeÉ fÐ¡bÑe¡ L¢lu¡ fÐ¢p¢LEne fÐ¢ahce c¡¢Mm L¢lm j¡jm¡¢V ¢h‘ jq¡eNl q¡¢Lj Se¡h ®jl¡S ®q¡pe jªd¡ ®g±Sc¡l£ L¡kÑ¢h¢d BCel 146 d¡l¡l ¢hd¡e ®j¡a¡hL hÉhÙÛ¡ NËqZ Ll¡ k¡u jjÑ EõM L¢lu¡ i¡lfÐ¡ç LjÑLaÑ¡ d¡ej¢ä b¡e¡ ®g±Sc¡l£ L¡kÑ¢h¢d BCel 146 d¡l¡ ®j¡a¡hL flhaÑ£ Bcn e¡ ®cJu¡ fkÑ¿¹ ¢hNa 17/03/2000 CwlS£ a¡¢lM ®œ²¡Ll Bcn fÐc¡e Llz
7) Eš² AhÙÛ¡u Q¢ma b¡¢Lm h¡c£ j§MÉ jq¡eNl q¡¢Ljl Bc¡ma fri¨š² qCu¡ k¡ha£u L¡NSfœ c¡¢Mmœ²j h¡¢s¢V a¡q¡l hl¡hl qÙ¹¡¿¹l L¢lh¡l SeÉ fÐ¡bÑe¡ Llez Afl¢cL L¢ba M¢lŸ¡l n¡qS¡q¡e Nw Eš² ®j¡L¡Ÿj¡u fri¨š² qCu¡ e¡¢mn£ h¡s£l j¡¢mL¡e¡ c¡h£ L¢lu¡ a¡q¡cl hl¡hl h¡s£l cMm R¡¢su¡ ®cJu¡l SeÉ Bhce Llez j¡jm¡¢V ¢eÖf¢šl SeÉ flhaÑ£L¡m ¢h‘ Hj. Hj Se¡h H. ®L. Hj Bë¥R R¡m¡j p¡qhl Bc¡ma ®fÐlZ Llez h¡c£ Eš² Bc¡ma q¡¢Sl qCu¡ k¡ha£u L¡NSfœ¡¢c fÐcnÑe f§hÑL h¡c£l ¢eLV ¢h¢œ²a c¢mml p¡r£NZL p¡r£ ¢qp¡h EfÙÛ¡fe Llez ¢L¿º ¢h‘ jÉ¡¢SØVÌV ï¡¿¹ d¡lZ¡l hnhaÑ£ qCu¡ e¡¢mn£ pÇf¢š ¢hh¡c£Nel hl¡hl qÙ¹¡¿¹l L¢lh¡l SeÉ ¢hNa 10/08/2001 CwlS£ a¡¢lM Bcn ®cez ”
57. Therefore, it is admitted by the plaintiff in the paragraph Nos. 6 and 7 of the plaint of the instant suit that he had also prayed for recovery of possession of the suit property in the Court of Metropolitan Magistrate in Non FIR case No. 102 of 2000 from the receiver i.e. Officer-in-Charge of the Dhanmondi Police Station which ended on 10.08.2001. However, the Metropolitan Magistrate by his order dated 10.08.2001 directed the receiver to handover the possession of the suit property to the defendants of this suit not to the plaintiff.
58. So, it is admitted facts from the averment of the plaint of the instant suit that when the plaintiff filed the suit he was not in possession of the suit property. However, he filed the suit without prayer for recovery of Khas possession but only for declaration of simplicitor. Later on 21.04.2003 the plaintiff filed an application for amendment of the plaint with a prayer for recovery of Khas possession alleging that he was dispossessed by the defendants on 28.06.2002 which has been reflected in the pleadings of paragraph No. 9 of the plaint. For better understanding and ready reference the pleadings of the paragraph No. 9 of the plaint of the instant suit has already been quoted herein above of this Judgment.
59. On considering the above discussions of the materials on records we are of the view that to finally determinate and unveil the facts of the question of possession and dispossession it is necessary to discuss the testimonies of the P.W.’s of the suit.
60. In the examination in chief the plaintiff as P.W.1 has stated that:
“ m¤vgl lqj¡e S¡m c¢mm Ll S¢j cMml ®Qø¡ Llz d¡ej¢ä b¡e¡l J¢p 13/3/2000 a¡¢lM 745 ew ¢S¢X Ll H ¢hou 102/2000 ew HL¢V ee Hg.BC.Bl j¡jm¡ quz d¡ej¢ä b¡e¡l J¢p ®jVÊ¡ Bc¡ma ®g±Sc¡l£ L¡kÑ¢h¢d 145 d¡l¡ ja fÐ¢p¢Xw Ll ¢l¢pi¡l ¢eu¡Nl Bhce Llez jÉ¡¢SØVÌV ®jl¡S ®q¡pe flhaÑ£ Bcn e¡ ®cJu¡ fkÑ¿¹ 17/03/2000 a¡¢lM ®œ²¡Ll Bcn ®cez B¢j I ®g±Sc¡l£ j¡jm¡l fri¨š² qCu¡ Bj¡l hl¡hl h¡s£¢V qÙ¹¡¿¹ll SeÉ Bhce L¢lz n¡qS¡q¡e Nw j¡jm¡l fr qh¡l SeÉ Bhce Llez jÉ¡¢SØVÌV 10/08/2001 a¡¢lM l¡u ®ce Hhw l¡u ®p ïj¡aÈLi¡h ¢hh¡c£cl hl¡hl h¡s£ qÙ¹¡¿¹ll ¢ecÑn ®cez I Bcnl ¢hl¦Ü 344/01 ew ®g±Sc¡l£ ¢l¢ine L¢lz ¢l¢ine ¢ejÀ Bc¡mal l¡u h¡¢am qu Hhw j¡¢mL p¡hÉÙ¹ e¡ qJu¡ fkÑ¿¹ ¢l¢pi¡l ¢eu¡N hmhv b¡Lz 5j A¢a¢lš² c¡ul¡ Bc¡mal l¡ul ¢hl¦Ü jq¡j¡eÉ q¡CL¡VÑ 5467/01 ew ®g±Sc¡l£ ¢jp ®LCp Llez Bf£m j”¤l qu Hhw 5j A¢a¢lš² c¡ul¡ SS Bc¡mal l¡ul L¡kÑL¡¢la¡ ÙÛ¢Na quz I j¡jm¡u Bj¡l BCeS£h£ pjuja Ef¢ÙÛa qCa f¡le e¡Cz 1ew ¢hh¡c£ 2000 p¡m Bj¡L ®hcMm Llez”
61. So, it is reflected from the testimony of the P.W No. 1 that he had not only admitted in the averment of the plaint but he has also admitted in examination in chief that the suit property was attached and receiver was appointed on 17.03.2000 by the order of Metropolitan Magistrate and possession of the suit property was taken over by the officer-in-charge, Dhanmandi, Police station from the defendants by the order of the Court long before the filing of the instant suit.
62. It is further evident from the disposition of the P.W. 1 dated 11.03.2008 that to prove his title and possession over the suit property he has stated that “the S.A. Khatian of the suit property was published in the name of Md. Faizullah Bhuyain. Md. Faizullah on 11.10.1963 transferred the suit land to Nabab Ali Sardar. On 27.01.1978 Newab Ali transferred the suit land to Helal Uddin and Kanchan Nahar. They got mutated their name and paid the rent. Helal Uddin obtained Rajuk Plan. Thereafter, on 20.06.1991 Helal Uddin and his wife sold the suit property vide No. 1558 and handed over the possession of the suit property to the plaintiff. Original papers were handed over to him. He possessed the suit property through caretaker Nazrul Islam. He betrayed with him and collected the rent from the tenant as Masudur Rahman. Nazrul Islasm lodged cases being Dhanmandi Police Station Case No. 35(3) 2000 and 39(3) 2000. Therefore, created forged deed and tried to take possession of the suit property. The Officer-in-Charge, Dhanmandhi Police Station on 13.3.2000 made a General Diary being No.747. Thereafter, started Non FIR case No. 102 of 2000. The officer in charge of the Dhanmandi Police Station proceeded with a proceeding under section 145 of the Code of Criminal Procedure and prayed for appointment of receiver. On 17.03.2000 Mr. Meraz Hossain Metropolitan Magistrate passed the order of attachment until further order. He was added party in the case and prayed for release of the property in his favor. Shahjahan and others also prayed for added party in the case. On 10.08.2001 Magistrate erroneously passed the order of release of the property in favor of the defendants. He preferred the revision No. 344 of 2001 against that order. The revisional Court set aside the order of the Magistrate Court and ordered to continue the receivership until decision of the title. Against that order Criminal Miscellaneous Case No. 5467 of 2001 was preferred to the Hon’ble High Court Division. Appeal was allowed and judgment of the Additional Sessions Judge was set aside. In that time his lawyer was absent in Court. The defendant No. 1 dispossessed him in the year 2000.’’
63. On the following day i.e. on 23.04.2002 in his deposition he stated that “Criminal Miscellaneous case was allowed because his lawyer was absent. On 28.06.2002 the defendant Nos. 1-4 dispossessed him through officer-in-charge Dhanmandi police station. His right and title over the suit property was clouded due to the deed No. 1352 dated 17.04.2000 created by the defendants No. 1-4. The deed of the defendants dated 17.04.2000 is forged. He is the land owner. He did not execute the deed dated 17.04.2000. The defendants created the said deed in connivance with his care taker Nazrul Islam. The cause of action of the case was arose on 28/06/2002 and 17/04/2000 at the time of his dispossession and creation of the deed. He prayed for cancellation of the deed dated 17.04.2000. Further prayed for decree of title and recovery of possession.
64. We have carefully scrutinized the above depositions of the plaintiff’s P.W. No. 1. Considering the above depositions as quoted above we have found some anomalies regarding the date of disposition. It is apparent from the testimonies of P.W. No.1 that on 11.03.2008 he stated in his deposition that he was dispossessed by the defendant No. 1 in the year of 2000. However, on 23.04.2008 in his deposition he stated that the cause of action for filing of the suit arose on 28.06.2002 and 17.04.2000 at the time of deed and when he was dispossessed. So, now question is what date of dispossession is correct i.e. in the year of 2000 and 28.06.2002. In such dubious situation we shall examine the deposition of the other P.W.s of the suit with documentary evidences to come in a just and proper decision.
65. The plaintiff has examined supporting witnesses in support of his case. P.W. No. 2 Lutfor Rahman who in his deposition stated that “he knows the plaintiff and the suit property. The plaintiff Masudur Rahman alias Azhar Hossain is present in Court. The suit land was sold by the Helal Uddin and Kancan Nahar to the plaintiff. He is the witness of the deed. Deed value is 15.00 lac (fifteen lac). The purchaser gave the money to the vendors. The vendors in presence of him signed in the deed. He identified the vendors. He signed in serial No. 1 as the witness of the deed (exhibit 13(Ka)) Monirul Islam and Nazrul Islam are the witnesses in deed. They signed in his presence. Abdul Bari as care taker signed in the deed. Monirul Islam and Nazrul Islam are the sons of the vendors. The deed was done in the month of June 1991. Possession was handed over to the Masudur Rahman after deed.” From the above testimonies it is apparently clear that this witness has not said anything about the dispossession of the plaintiff from the suit property by the defendants.
66. Now, we shall discuss the testimony of P.W. 3 Md. Monirul Islam who stated that he knows the plaintiff Masudur Rahman alias Azahar Hossain. He is present in the Court (identified the plaintiff). He knows the suit land. His parent was the owner of the suit property. His parents sold the suit property to the Masudur Rahman. He was present at the time of execution of the deed. The suit land was sold on consideration of Tk. 15,00,000/- (fifteen lac). The purchaser paid the consideration money to his parents. His parents had received the money and executed the deed in his present putting signature therein.
67. His parents were identified by the Lutfur Rahman who is the cousin of his parents. His parents signed in his presence. Seen the deed (exhibit 13). There is signature in each pages of the deed. He himself, his brother, Lutfur Rahman and Abdul Bari are the witnesses. The possession was handed over by his parents to the plaintiff. His signature in the deed is exhibit 13(Kha). Abdul Bari is a caretaker and his signature is in serial No. 4 of the witness column in the deed. From the above deposition it is crystal clear that this witness also said nothing about the dispossession of the plaintiff from the suit property.
68. Next we shall discuss about the name and identity of the plaintiff P.W. No.1 who in his deposition has stated that he is the plaintiff of the suit. There is a shop in the name of his wife situated at 95/C, New Elephant Road. The name of his wife is Sabina Yeasmeen (Rakiba). In the Kabinnama his name is Md. Azhar Hossain alias (Masud) father name Ahmed Hossain Shahjahan. The name of his member of Parliament is professor Rezaul Karim. On 02.09.2001 the Mosque committee issued a certificate, in the voter list his name is Md. Masudur Rahman (Azhar) father name Ahmmed Hossain Shahjahan. He made an affidavit before the Notary Public wherein he has written his name Md. Azhar Hossain alias Masudur Rahman. His father name has been written Ahmmed Hossain alias Shahjahan Bhuyain. On 20.07.2002 his father made an affidavit before the Metropolitan Magistrate and in that affidavit his father stated his name is Md. Azhar Hossain alias (Masudur Rahman).
69. Upon careful analytical evaluation of the above testimonies of P.W. No. 1 it is clearly divulged that according to Kabin nama his name is Md. Azahar Hossain alias (Masud). According to voter list his name is Md. Masudur Rahman Azahar. According to his affidavit his name is Md. Azahar Hossain alias Masudur Rahman. According to affidavit of his father dated 20/07/2002 before Metropolitan Magistrate his name is Md. Azahar Hossain alias (Masudur Rahman).
70. From the above analysis as the name of the plaintiff as has been stated in his testimonies it is clearly revealed that nowhere in his deposition he has stated that his name is only Md. Masudur Rahman and father name is Ahmmed Hossain. Rather, it is crystal clear that there are variances regarding his name which clearly suggestive not only uncertain rather, serious confusion in which a person’s sense of identity becomes insecure due to his frequent changes in his name.
71. Now to ascertaining the such dismal situation and to come in a definite conclusion regarding his identity we can further scrutiny the reply of cross examination. In cross he has stated that he passed the Higher Secondary Certificate. He does not use the name Masudur Rahman Bhuyain in his certificate from class 1 to XII. He is doing a government service. He did not used his name Masudur Rahman in his application for government service because the name is big. The alleged affidavits by which the name was changed did not submit before the appointing authority.
72. At the time admission of Kids in the school in the admission form and register of the school did not use the name as Masudur Rahman. He has used the name Azahar Hossain Masud. He has purchased land before 2000, however, in those deeds did not use the name as Masudur Rahman Bhuyain. So, from the above testimonies and reply of cross examination we are of the view that the plaintiff was not able to obliterate the dispute regarding the name nor proved that Masudur Rahman and Md. Azhar Hossain is the one and same person.
73. However, to settle the dispute once for all in respect of the name of the plaintiff we shall discuss now the deposition of the P.W. Nos. 2 and 3. To avoid the repetition of the discussion we are referring the depositions of the P.W.2 and 3 as have already been mentioned elsewhere in the instant judgment. It is clearly visible that the P.W. No. 2 and 3 are claiming the witnesses of the deed in question of Md. Masudur Rahman which was marked as exhibit 13. Lutfor Rahman P.W. 2 claimed himself as identifier of the vendors i.e. Helal Uddin and Kanchan Nahar. In examination in chief he stated he knows the plaintiff and suit land. The plaintiff Md. Masudur Rahman alias Azahar Hossain is present in the Court.
74. From the recital which the part of a written legal document and produced in the Court as exhibit 13 is not supportive to the verbal testimony of this witness in respect of the name quoted in the deposition as Masudur Rahman alias Azahar Hossain, rather, rigorously suggestive the inconvenience which must be disproved by the plaintiff because elsewhere in the instant judgment we have also discussed the testimony of the plaintiff as P.W. No.1 which does not reflected that the plaintiff is Md. Masudur Rahman @ Md. Azhar Hossain Bhuiyan and Md. Masudur Rahman both are same person.
75. However, the testimonies of P.W. 2 altogether supportive with respect of the name of the plaintiff as Masudur Rahman alias Azahar Hossain but in exhibit 13 there is no such name. So, it is not helpful to discard the dispute regarding the name and intentity of the plaintiff. Rather, it is revealed that the P.W.2 Lutfur Rahman contradicted his testimonies in cross examination. In reply of cross he stated that he could not recollect in which sub registry office the deed was registered. He could not say in which date deed was typed. He has read the deed. The profession of the plaintiff is business has been written in the deed. In deed the name Azahar Hossain not mentioned, however, there is Masudur Rahman. The vendor Helal Uddin is the cousin. He is no longer alive but his wife Kanchan Nahar is alive. He has deposed before the Chief Metropolitan Magistrate Court in respect of the house. He has gone to the Registrar Office at the time of Registration. He knows the purchaser before 4/5 days of the registration of the deed. However, he could not say who claimed the suit land by dint of the exhibition 13 if he is the clerk of Deputy Commissioner Office. The purchaser name is Masudur Rahman. He learned from the plaintiff that his name is Azahar Hossain Bhuyain. He could not recollect whether he stated in his deposition in the Court of Chief Metropolitan Magistrate that the Masudur Rahman has another name Azhar Hossain. The defense suggestion were denied by him stating that not a fact that he has identified the plaintiff as Masudur Rahman as being gained over, not a fact that he was not present in Registry Office, not a fact that he has not seen the Masudur Rahman, not a fact that the plaintiff to grab the suit house pretend as being Masudur Rahman, not a fact that he has stated falsely.
76. Considering the deposition and reply of cross examination we could not hold that those testimonies are apparently favored the plaintiff case. Rather, it could be seen from the reply of cross examination of the witness that he was not acquainted with plaintiff long before the events of deed nor he ascertained the identity of the plaintiff through any reliable source, but certainly he stated that he knows the plaintiff before 4/5 days of the deed, as the plaintiff himself introduced him as Masudur Rahman. He albeit did not know whether he is the clerk of the Deputy Commissioner Office or not.
77. According to submission of Mr. Dutta this P.W. is credible as he is the identifier and paternal cousin of the vendors. However, in this aspect it is very pertinent that the Helal Uddin no more but the Kanchan Nahar is alive. It is also asserted by Mr. Dutta that said Kanchan Nahar filed the written statement supporting the pleading of the plaintiff. So, very pertinent question is why the prosecution withheld such absolutely necessary person to support his plaint case or why instead of Kanchan Nahar to prove the identity of the plaintiff as Azahar Hossain alias Masudur Rahman produce his brother-in-law and son P.W. 3. So, we are of the view that if Kanchan Nahar would have come before the Court the presence of the P.W. No.1 and 2 not relieved rather, she would not have support the case of the plaintiff.
78. Now we shall scan the documentary evidence of the plaintiff sides. Exhibit-1 the affidavit dated 20.7.2002 made by one Md. Shahjahan Bhuiyan @ Ahmed Hossain Bhuiyan Exhibit-13 is the sale deed dated 20.6.1991 purchaser Md. Masudur Rahman son of Ahammod Hossain 95/C, New Elephan Road, Dhanmondi, Dhaka, Nationality- Bangladeshi, Religion- Islam, Profession-Business. Exhibit-6 dated 20.08.1989 made by the plaintiff himself.
79. On comparison between Exhibit-1, 6 and 13 it appears that the Exhibit-13, exhibited and registered on 20.6.1991 wherein name of the purchaser has categorically and specifically mentioned as Md. Masudur Rahman, son of Ahammod Hossain, 95/C, New Elephant Road, Dhanmondi, Dhaka, profession business however, Exhibit-6 dated 20.08.1989 made by the plaintiff declaring the name of his as Md. Azaher Hossain @ Md. Masudur Rahman, son of Ahmed Hossain @ Md. Shahjahan Bhuiyan from this 2 (two) Exhibits it is clearly depicted that the name and father’s name of the sole purchaser of the sale deed dated 20.6.1991 (Exhibit-13) and name and father’s name of the Exhibit-1 and 6 as declared by the deponents in the affidavits are not same and identical. There is a clear distinction that in the Exhibit-13 purchaser name is Md. Masudur Rahman, son of Ahmed Hossain and it is divulged from Exhibit-1 name of the deponent Md. Shahjahan Bhuiyan @ Ahmed Hossain Bhuiyan and his son name is Md. Azaher Hossain Bhuiyan @ Masudur Rahman and in exhibit 6 dated 20.08.1989 the plaintiff name is Md. Azahar Hossain alias Md. Masudur Rahman. So, the plaintiff by exhibiting Exhibit-1 and 6 were not able to prove that Md. Masudur Rahman as of Ext. 13 is the same person which has been stated in the Exhibit-1 and 6 as Md. Azaher Hossain Bhuiyan @ Masudur Rahman, the reasons is that the Exhibit-13 was registered earlier point of time on 20.06.1991 and Exhibit-1 made on 20.07.2002 later on but Ext. 6 made on more earlier on 20.08.1989. So, if the plaintiff is the purchaser of Exhibit-13 then surely at the time of making, declaring and sworn in the Exhibit-1 his father name must mentioned as per the deed, not only that when plaintiff claimed that he himself made an affidavit on 20.08.1989 then why later on at the time of registering the Exhibit -13 dated 20.06.1991 changed his name, father name, address and profession. There is no reply in any where of the plaint and his deposition. In the affidavit Exhibit No. 1 and in the Exhibit-13 the deponent could have given statement specifying the deed No. and others transactions wherein his son name were mentioned as Md. Masudur Rahman instead of Md. Azaher Hossain Bhuiyan @ Masudur Rahman. More-so, on perusal of the Exhibit-1 it appears that the deponent is none but the father of the plaintiff who in the affidavit neither mentioned the profession of his son nor given the address which has been used in the Exhibit-13 dated 20.6.1991.
80. On perusal of the Exhibit-2 which is the alleged registered Kabinnama of the plaintiff where in the name of the plaintiff Md. Azaher Hossain Bhuiyan (Masud Bhuiyan), fathers name Ahmed Hossain Bhuiyan (Shahjahan Bhuiyan) where as in Exhibit-1 and 6 his father name is Md. Shahjahan Bhuiyan @ Ahmed Hossain Bhuiyan and again Ahmed Hossain alias Md. Shahjahan Bhuiyan respectively. However, in the Exhibit-13 name of the purchaser Md. Masudur Rahman son of Ahmed Hossain. So, it is very much clear that in the Exhibits 1, 2 and 6 the name of the plaintiff nowhere likes Exhibit-13 Md. Masudur Rahman, rather, in those Exhibits name of the plaintiff clearly differs one to another. The plaintiff was not able to prove by producing Exhibits 1, 2 and 6 to dismal situation and such variances. Now, if we again go to the Exhibits-3, 4, 5, then, we find in Exhibit-5 Voter list the father name of the plaintiff Md. Shahjahan Bhuiyan in serial No. 194 in paper book page-293, on the other hand Exhibit-3 again his fathers name is Ahmed Hossain @ Shahjahan Bhuiyan and in Exhibit-4 his father name is Haji Ahmed Hossain on the such contrary statement it is proved that the plaintiff name, his father name and person are not similar and same as of Exhibit-13. On the other hand, from the Exhibit-6 which is the affidavit sworn by the plaintiff himself wherein we find the serious contradiction of the profession the purchaser of the exhibit-13. The plaintiff himself sworn in the Exhibit-6 on 20.8.1989 wherein he has stated that his actual, correct and accurate, name is Md. Azaher Hossain @ Md. Masudur Rahmand son of Ahmed Hossain Md. Shajahan Bhuiyan who is by profession government servant, the statement and declaration of Exhibit-6 and recital of Exhibit-13 in respect of profession is not only different but serious offence has been committed by the deponent claming that he is the purchaser of Exhibit-13 i.e. sale deed No. 1558 dated 20.06.1991.
81. He can state his nick name, sure name or original name including in the deed as of Exhibit-6 or 1 or 2, however, how the profession and name of a government servant can be changed in a register sale deed. So, from this dubious character it is crystal clear and proved that he is not the person Md. Masudur Rahman whose profession is business. Rather, he himself proved that the recital of the Exhibits 1,2,3,4,5 and 6 neither true nor genuine, claiming as the purchaser of the Exhibit-13.
82. On perusal of the Exhibit-7 S.A. Porcha in the name of Md. Foyjullah Bhuiyan and Exhibit-8 is the sale deed of Foyjullah Bhuiyan dated 13.8.1963, certified copy of the S.A. Purcha Exhibit-9, sale deed in the name Nawab Ali Akondo dated 27.01.1978 in fabour of the Helal Uddin Dhali, Exhibit-11 and 12 in name of the Helal Uddin Dhali and another there is no dispute from the averment of the plaint and written statement. This facts also not denied in depositions of P.W. 1 and D.W. 1.
83. So, the only question regarding possession and custody of exhibits 8-12 must be proved by the plaintiff.
84. From the averment of the written statement and deposition of D.W. 1 it appears that the defendants have alleged that the valuable papers and documents were looted by the dacoits and Nazrul Islam from the possession of the defendants. Thereafter, the plaintiff came into scene of action claiming the property for the first time during the pendency of the none F.I.R. Case No. 102 of 2000. However, the plaintiff has denied those facts in the form of denial at the time of deposition. So, we have to discuss about the possession and custody of the Exhibits 8-12 as both the party made contradictory statement at the time of their deposition. The P.W. No.1 Md. Azaher Hossain Hossain @ Masudur Rahman @ Masud Bhuiyan submitted the exhibits before the Court, however, in the cross it has been suggested that Exhibits 8,10,11,12 had gone in his hand after the dacoity in the suit property. However, he denied the suggestion, to come in a just proper and appropriate decision we thought that the deposition of P.W. 2 and 3 would be helpful to find out the actual facts but the averment of the plaint may be looked into about the statement of the plaintiff regarding handing over of the those Exhibits. Therefore, we meticulously perused the averment of the plaint and deposition of P.W.2 and 3. It appears from the statement of paragraph-5 that the plaintiff claimed those exhibits were in his hand at the time of filing of the suits albeit it was not in the 1st plaint when the suit was filed. However, the deposition of P.W.2 and 3 do not support the facts that those documents were handed over to the plaintiff at the time of registration of the deed or thereafter at any point of time. We find another history from the cross examination of P.W.2 that the vendors of the Masudur Rahman, Helal Uddin Dhali, died but his wife Kanchon Nahar is alive but the plaintiff did not examined nor the Kanchon Nahar herself came to support her written statement as witness or Court witness to prove averment of the paragraph 5 of the plaint regarding possession, control and handing over of the exhibits-8-12. From the above facts and circumstances we can not hold but surely doubt about the proper possession and control of the above exhibits 8-12 in favour of the plaintiff. Because the plaintiff withheld the vital and only alive vendor to produce in the Court.
85. P.W. No.1 in cross admitted that Officer-in-Charge, Dhanmondi Police Station as receiver took the possession of the suit house from the defendant Nos. 1-4 through None F.I.R Case No. 102 of 2000 later on he state that they were the tenant under him. However, in cross he further admitted that he could not say the name of the tenants. He further admitted that in deed No. 1558 dated 20.6.1991 he could not use the name of educational institute and service in the said deed. He could not say who type the deed, the deed in how many pages, from which stamp was purchase although he himself is the Assistant of Stamp branch of the Deputy Commissioner Office, Dhaka. He further admitted that he could not say in which date he was dispossess in the year-2000. He further admitted in the plaint that he could not say that defendant Nos. 1-4 dispossess him in the year-2000. He further admitted that he filed the Miscellaneous Case being No. 36 of 2002 for canceling of the mutation of the defendants. He further admitted that by dint of the above Miscellaneous Case there was a physical investigation regarding the possession. In the report of the physical investigation the Kanungo did not say the plaintiff was in possession at any time, however, he protested that the report was not correct, further admitting that he did not file any case against the report of the Kanungo. According to him city record was in his name but case is pending. He further admitted that Nazrul Islam collect the rent. He admitted that none of the tenants were known to him. He admitted that in his passport dated 30.3.2008 he did not use the address of the suit property and his father’s name was written Ahammad Hossain Bhuiyan. He further admitted that he never resides in the suit property. He also admitted that he did not get house rent after 1999. So, from the above cross examination we are of the view that the plaintiff has failed to prove his physical possession. However, Mr. Dutta argued that by dint of exhibit 14 it is proved that the plaintiff was in possession as per principle enunciated to the case of Erfan Ali Vs. Joynal Abedin reported in 35 DLR (AD) 216.
86. In the facts and circumstances we are of the further view that those document not in the name of Azaher Hossain Bhuiyan rather, all the exhibits are in the name of Md. Masudur Rahman. So, the principles of Erfan Ali’s case is not applicable in the case in hand. So, we cannot but of the opinion that the exhibit 13 does not support his possession, name and father’s name.
87. According to submission Mr. Dutta the learned Advocate of the plaintiffs the P.W. Nos. 2 and 3 categorically proved that the plaintiff is the purchaser Masudur Rahman. We elsewhere in the judgment discussed the evidence of P.W. Nos. 2 and 3. In view of the argument of the learned Advocate of the Mr. Dutta we find that P.W. 2 in cross admitted that in the deed dated 20.6.1991 exhibit 13 the purchaser name is Masudur Rahman. Azaher Hossain not mention in the date and profession of the purchaser business. Further admitted that in which Sub registry Office deed was registered he cannot recollect in which date and where the deed was type he cannot say. He further admitted that by dint of exhibit 13 who claimed the suit property in this suit he cannot know, whether, he is the clerk of the Deputy Commissioner Office.
88. P.W. No. 3 in cross admitted that he heard that who purchase the property, he is a service holder. He further in cross replied that possibly the address told me is Elephant Road and he introduce to me as Md. Masudur Rahman and in the Court of Magistrate he disposed as witness for the suit property. He identified the plaintiff as Masudur Rahman but not as Azaher Hossain and this plaintiff handed over the money to us and they sold the suit property to him. From this cross examination and deposition of P.W. No. 3 it appears that he did not prove that this Azaher Hossain is the Masudur Rahman. P.W. No. 3 also deposed in the Court of Magistrate earlier, the said deposition is available in the exhibit “Ta”. The Certified Copy of the deposition of Monirul Islam given in Non FIR Case No. 102 of 2000 is now as the P.W. No. 3 stated that
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89. From the above deposition it is crystal clear that he has improved his testimony in this case then that of the case of 102 of 2000. So, it is crystal clear that the testimony of the P.W.3 is not only doubtful rather, surely it is manipulated after thought as the plaintiff due to earlier deposition unsuccessfully filed the present suit. Because earlier they litigated for the same property up to the High Court Division.
90. More-so, in the deed dated 20.6.1991 exhibit 13 he did not use his father’s name. Address used as 7, 8 and 9 Bonongram Road, whereas in the Court of Joint District Judge he has used the address 7 Bangram Road. It is further more apparent from the list of the witnesses from the exhibit 13 none was cited on behalf of the plaintiff as witnesses including his brother, father, wife and other relatives i.e. also a question before us from the facts and circumstances of the instant suit. Mr. Dutta very candidly argued that P.W. Nos. 2 and 3 have orally proved that the plaintiff is the purchaser of the suit property which does not supportive through any documentary evidence as discussed herein above of the Judgment.
91. On the other hand D.W. No.1 Shahjahan Hawlader as defendant No. 2 has deposed on behalf of other defendant No. 1 and 4, defendant No. 1 is his brother, defendant Nos. 3 and 4 are co-purchaser. The defendant Nos. 1 and 3 present in the Court. He has stated that on 11.10.1963 vide deed No. 5738 Mr. Foyjullah purchased the suit property. He produced the Certified Copy of the said deed which is exhibit ‘Ka’ (with objection) Foyjullah sold the property to Nawab Ali Akond on 27.1.1978 vide deed NO. 392 he produced the Certified Copy of the said deed which is exhibit ‘Kha’. Nawab Ali Akondo sold the suit property to Helal Uddin who sold the suit property to Masudur Rahman. He produced the Certified Copy of the sale deed being No. 1558 dated 20.6.1991 in the name of Masudur Rahman. He produced the certified copy of the said deed exhibit ‘Ga’ (with objection). Masudur Rahman sold the suit property to defendant Nos. 1-4 vide deed No. 1352 dated 17.4.2000 which is exhibit ‘Gha’. On perusal of the deposition it appears that D.W. 1 deposed that all deeds and exhibit Ka,Kha, Ga, lies with plaintiff which was produced by the plaintiff in Court. He is further deposed that original copy of deed No. 1352 lying with bank. At the time of purchase of the suit property they got all the documents i.e. original copies of Exhibit Ka, Kha, Ga, Gha, however, a dacoity has been occurred. The Dacoits looted all the documents with goods. Goods have been taken with help of the police. The occurrence of dacoit was published in the Daily News paper. On 14.3.2000 news was published in Daily Ittefaque, Daily Inquilab and Daily janakontho the copy of those papers were produced in Court and marked as exhibit ‘Uma’ series. He filed the Criminal Case in Dhanmondi Police Station but investigation was not done properly. He produced the certified copy of the judgment and order dated 10.8.2000 passed by the Court of Chief metropolitan Magistrate in none FIR Case No., 102 of 2000 which is marked as exhibit ‘Cha’. The plaintiff against the said judgment preferred Criminal Revision in the Court of Metropolitan Sessions Judge which was allowed. The defendants against the judgment and order of the Sessions Judge preferred Criminal Revision in the High Court Division of the Supreme Court of Bangladesh. The High Court Division in Criminal Revision Case No. 5467 of 2001 passed the judgment and order in their favor. The certified copy of the said judgment is produced in Court and marked as exhibit ‘Chha’. The Court of Chief Metropolitan Magistrate by dint of judgment of High Court Division directed the O.C, Dhanmondi to handover the possession of the house to them. The Court of Chief Metropolitan Magistrate order dated 22.7.2002 produced in Court by which the Officer-in-Charge, Dhanmondi handed over the possession of the property to the defendants which was marked as Exhibit ‘S’. The certified copy of the Judgment and order dated 13.02.2002 passed in Miscellaneous Case No. 5467 of 2001 produced in Court and marked as Exhibit ‘‘S’-1’. The certified copy of the letter dated 13.07.2000 passed by the Additional Deputy Commissioner (General) produced in Court and marked as exhibit ‘T’. The Court wanted a report of the bank account of Masudur Rahman through a letter. He produced the certified copy of the letter dated 11.7.2000 in Court which was marked as exhibit ‘T-1’ The plaintiff filed the application before the Assistant Commissioner, Dhanmondi Circle praying for mutation of the land which was register as Miscellaneous Case No. 36 of 2002. The certified copy of Kanungo report dated 30.6.2003 produced in Court and marked as exhibit ‘U’. He produced the 6 copies of tax receipt of City Corporation and 1 certified copy of holding tax which were produced in Court and marked as exhibit ‘V’ series. He produced the 1 certified copy of the paid bill of Sewerage and 2 receipt which were produced in Court and marked as exhibit ‘W’. He produced the 8 copies of electricity bill and 8 copies of certificate of electric bill which were marked as exhibit ‘X’ series. He produced the original copy of City Jorip being Khatian No. 292 in Court which was marked as exhibit ‘Y’. He produced the rent receipt on DCR and on certified copy of mutation porcha which are Exhibit ‘Z’. He produced 1 copy of income tax certificate which was marked as Exhibit ‘‘a’’. He produced the certified copy of the final report dated 08.5.2001 and 31.12.2002 and ejahar of C.R. Case No. 221 of 2000 and certified copy of order dated 27.5.2009, the certified copy of 164 statement of Mr. M.A. Taher which was marked as exhibit ‘b’and he also produce the certified copy of deposition of Mr. Monirul Islam which was marked as Exhibit ‘c’. He also filed the 69 pages photocopies of income tax return for the year of 1991-1999 of Masudur Rahman. He denied the plaint Case and all the suggestions of the plaintiff side. In cross he stated that the address of the suit property 150 Crescent Road. In plaint the plaintiff has written the address of the plaintiff 150 Crisent Road at present 95/C New Elephant Road. He replied that they did not purchase the property from the plaintiff who is present in dock. He also replied the name of the vendor of them Masudur Rahman son of Ahmed Hossain. He further replied that they will not produced Masudur Rahman from which they purchased the land. He further replied that in the deed there is no mentioning when they paid how much money. He replied that money was withdrawn from bank but document was not produced. In deed 1.5 Katha got defendant No.1 two Katha got defendant No. 2, 1 (one) Katha got defendant No. 3 and - ½ Katha got the defendant No. 4.
92. P.W. No. 2 Md. Jalal he has deposed that he knew the house situated at 150 Crisent Road, Dhanmondi. He was tenant from July 1998-January 2000. Masudur Rahman was the owner of the house. He gave notice to vacate the house as he sold the house, then he left the house. Masudur Rahman sold the house to 4 person amongst them he knows the purchaser Shajahan. He was tenant under Masudur Rahman who had been residing in the 1st Floor of the house. He never saw the plaintiff Azaher Hossain in that house while he was tenant in the house. So, question does not arise to demand the house rent and paid to him.
93. P.W. No. 3, Murtazur Rahman has deposed that he knew the house of 158, Crisent Road, Dhanmondi. He was tenant there since 1997 to February-2000. He resided in 1st floor at right side’s flat. The owner Masudur Rahman resided in the left side’s flat on the same floor. There was a conflict between Masudur Rahman and income tax department, hence, he deposited the money to the department of the income tax for 2 (two) months in the February 2000. While he was residing in the suit house a dacoity has been occurred. His T.V. and Freeze were taken by the dacoits. He did not see the Masudur Rahman in Court under whom he was tenant. In cross he stated Masudur Rahman was the owner of holding No. 150. He was tenant under him. There are signatures of his in the house rent counter part of the rent receipt exhibit-14 dated 07.01.1999, 06.02.199, 07.03.1999, 06.04.1999, 07.5.1999. He was not tenant under the plaintiff Masudur Rahman who is stand in dock. Not a fact with connivance of the defendants he gained over and deposed in favour of the defendants. Not a fact that they are organized gang who deposed against the plaintiff.
94. D. W. No. 4 Kazi Azizul Huq, he has deposed that he is the Manager, City Bank, Islampur Branch, deed No. 1352 dated 17.4.2000 was deposited in the bank as a security of mortgage of the land which was seized in reference of Tejgaon Police Station Case No. 60(1) of 2009. The case is pending in the Court of Metropolitan Sessions Judge. In reference of that Case the Police Inspector CID, Mirpur Unite, Dhaka seized the deed. The photo copy of seized seizure list dated 27.11.2008 submitted in Court. He joined in the office on January 2010. Document not in the hand of the bank. He went twice in the Police Station at that time he could not knew the facts. Not a fact that he being influence did not produce the deed. He doesn’t know whether deed is given in the Jimma of bank.
95. D.W. No. 5 Reaz Ahmed has stated that he does not know the plaintiff. He knows the defendant Shahjahan Hawlader and know the suit house. The original owner of the suit house Masudur Rahman was known to him. He was tenant under Masudur Rahman at the time of purchase of the house. The defendant Shahjahan was present. He was the witness of the affidavit and purchase deed of Shahjahan. He could identified the signature of his if the original deed produced in Court. The seller Masudur Rahman in presence of him put the signature in the deed. He knows as the tenants of the house. However, he doesn’t know the plaintiff.
96. Considering and sifting the above depositions and cross of all the D.W.s it appears to us that the plaintiff side was not able to shift them from the defence case. Furthermore, from the deposition of the tenants D.W. No. 2, 3 and 5 it is revealed that the plaintiff was not known to them as landlord. More interesting events came out from the Exhibit 14 wherein the signature of the D.W. 3 admitted and identified by him, however, curious enough he did not recognize the plaintiff as land lord. In this regard Mr. Dutta has argued that the plaintiff by filing the said exhibit proved that he is the owner of the suit property. We have gone through whole deposition and cross of D.W. No. 3, however, we do not find that there is any suggestions to the D.W. 3 to the effect that he was tenant under the plaintiff or any of averment in the plaint stating the name of the tenants or explaining how the exhibit-14 came to the plaintiff hand. In this regard the plaintiff’s explanation is not only necessary but very much pertinent because in cross the plaintiff himself as P.W. No.1 admitted that he does not know any of the tenants. On the other hand, the defendants take the plea in their written statement that there papers were looted by the dacoits. So, without any proper explanation it can’t be said and established that the exhibit 14 was in his custody in due course of business rather, it is presumable that the defence version is more provable.
97. It further appears from the exhibit 13 deed No. 1558 dated 20.6.1991 Mr. Md. Masudur Rahman purchased the suit property wherein scribe was Md. Nazrul Islam Bhuiyan of 26, North Circular Road, Dhanmondi, Dhaka. Typist was Md. Owajed Ali of village-Khayabari, Savar, Dhaka. The plaintiff to prove his purchase and Execution of the deed did not examine the above witnesses. He also produced exhibit-14 which is the counter part of the rent receipt on 07.01.1999 to 10.01.2000 wherein the name of the tenants have been written amongst other Khondoker Abdul Kabir, Harunur Rashid, Oliur Rahman, Mizanur Rahman, Md. Murtajur Rahman, Mohshin Mia, Mrs. Amina Khanom. However, out of those tenants none was examined as witness on behalf of the plaintiff to prove his ownership and possession. On the other hand to prove the possession and ownership defendants examined 1 tenant namely Md. Murtajur Rahman as D.W. No. 3. The D.W. 3 categorically denied that he did not know the plaintiff as Masudur Rahman as the owner of the suit property. Another D.W. Md. Jalal was examined by the defendant side who also categorically denied that he did not know the plaintiff as Masudur Rahman and as the owner of the property. They further stated that the Masudur Rahman under whom they were tenants is not the same person as claim by the plaintiff himself as Masudur Rahman. D.W. 2 categorically stated that the land lord Masudur Rahman under whom he was tenant he has been residing in the 1st floor of the house. D.W. 3 Murtajur Rahman also categorically stated that he was tenant under Masudur Rahman from 1997 to February-2000. He was tenant under the landlord on the 1st floor and landlord Masudur Rahman had also resided on the left side of the 1st floor. He has further admitted that a dacoity was occurred while he had been living in the suit house.
98. D.W. 4 Kazi Azizul Hoque is a Bank Officer who proved that original deed being deed No. 1352 dated 17.4.2000 was in the custody of the Bank. The defendants by dint of the said deed mortgaged the suit property to the Bank and got the loan. So, from the testimonies of the D.W. Nos. 2,3,4 and 5 it is apparent that the defendants were in the possession of the suit property and they had mortgaged the suit property to the Bank.
99. How could we believe that while the plaintiff was in the possession of the suit property through purchase, the property was mortgaged to the City Bank, Islampur Branch by the defendants. More-so, if the defendants are the outsider and the persons named had been mentioned in the exhibit 14 are the tenants of the plaintiff why he did not produce those tenants as his witnesses ?. The crux question is except D.W. 2 and 3 there were name of some others tenants in the exhibit 14 who can come and dispose in favour of the plaintiff, in that case the suggestion of the plaintiff to the D.W. Nos. 2 and 3 would have been acceptable.
100. Furthermore, so many contradiction apparent from the exhibit 19 the passport of the plaintiff dated 13.3.2008 wherein the name of the plaintiff is Md. Azahar Hossain Bhuiyan (Masud) son of Alhaj Ahammad Hossain Bhuiyan. In exhibit 20 series the plaintiff’s Income Tax return Certified copies shows that the plaintiff filed the income tax return for the year 2003-2004, 2004-2005, 2005-2006, 2006-2007. It appears from those Exhibit that he filed the income tax returns for those year without showing the income of the house and without payment any tax. Wherein he had written his name Masudur Rahman @ Azahar Hossain. The Assessing Officer fixed the income as per statement showing zero tax. However, it is pertinent to mention here that the plaintiff did not show any living cost instead of that he has stated in Income Tax return form that he has been living in the village home as per order of assessee Officer. He has however, stated in his Income Tax return that he has been living in the suit plot i.e. 150 Criscent Road, Dhanmondi. Now, question is which statement is correct. In such peculiar situation it must be held that both the statement are false and fabricated. Besides these, how the exhibit 20 series would be believable in the Court of law wherein the plaintiffs himself as P.W.No.1 admitted in the cross that he never resides in the 150 Criscent Road, which is the suit plot. The plaintiff at the time of deposition has written his address 6, Wiseghat, Kotowali, Dhaka on 05.02.2008. Whereas exhibit 20 and 20(1) the income tax returns 2007-2008 used his residence as 150, Criscent Road, Dhanmondi. So, on such type of the anomalies of the address, name, father’s name and profession we can not hold that the plaintiff is the Md. Masudur Rahman who is the purchaser of the suit property.
101. However from the exhibit T it appears that the plaintiff is the office assistant of the stamp branch of the Deputy Commissioner, Dhaka wherein his name is Azahar Hossain Bhuiyan, son of Shahjahan Bhuiyan as per his service book there is no nick name. Therefore, it is crystal clear that he made the exhibit 19 (passport) stating that his father name Ahmed Hossain Bhuiyan instead of son of Shahjahan Bhuiyan. The plaintiff national ID Card exhibit 18 wherein his father’s name has written Haji Ahmed Hossain (Shahjahan) so, which name of his father is correct. In such dubious situation, obviously the presumption would be that in doing so he proved that he had also changed his father name as Ahmed Hossain instead of Shahjahan Bhuiyan. From exhibit ‘Niya’, ‘Niya(1)’ the order of the Assistant Commissioner and physical possession Report of Kanungo of Dhanmondi Circle it is clear that the plaintiff was not in possession of suit property. More-so it appears that from the exhibit U’ series he had filed the application before 2002 for mutation of the suit property which surely after starting the litigation and dacoity in the suit property though he claimed that he purchased the suit property on 20.6.19991. From the defendant side’s exhibit-Ta, T(1)-T(6), Thya, Thya(1), Thya(2), Doya, Doya(1)- Doya(15) the taxation receipt, notice in the name of all the defendants, tax payment receipt, the certificate from the Project Director of Revenue-June 3, Dhaka WASA and Water supply and Sewerage bill issued from the June-3, the certificate issued from the electricity department under the signature of the Executive Engineer and electricity bill of the holding apparent on the face of those exhibits in the name of the defendants. More-so, exhibit “Na’ the certified copy of the Khatian of mutation of the R.S. record shows that all the defendants got mutated their name on the basis of their register document. We are of the considered view that the defendants proved their possession beyond the doubt upon the deposition of the D.W. Nos. 2-5 with documentary evidences.
102. Therefore, we are of the considered view that the man can tell a lie but facts, circumst-ances and documents cannot. More-so, only on the basis of oral evidence in the peculiar facts