Md. Abdus Sobhan @ Md. Suvan Ali & anr. Vs. Md. Abul Kashem & others [4 LNJ (2015) 165]

Case No: Civil Revision No. 3402 of 2009

Judge: A. N. M. Bashir Ullah,

Court: High Court Division,,

Advocate: Mr. Md. Abdul Khaleque,Mr. Md. Alamgir Mustafizur Rahman,,

Citation: 4 LNJ (2015) 165

Case Year: 2015

Appellant: Md. Abdus Sobhan @ Md. Suvan Ali & another

Respondent: Md. Abul Kashem & others

Subject: Declaration of Title,

Delivery Date: 2013-09-30

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
A. N. M. Bashir Ullah, J.
 
Judgment on
30.09.2013
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Md. Abdus Sobhan @ Md. Suvan Ali and another
. . . Defendant-Petitioners
-Versus-
Md. Abul Kashem and others
. . . Plaintiff-opposite parties
 
 
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 96(10)(c)
Heba-Bill-Ewaj cannot be avoided by another registered deed but it can be avoided by a decree from the competent civil Court.
Whenever a Heba-Bil-Ewaj is registered and acted upon the same cannot be avoided by another registered deed and the only proper way to avoid the same to have a decree from the competent civil Court on any proper allegation or reason.  . . .(16)
 
Code of Civil Procedure (V of 1908)
Order 1, Rule 9
In a suit for declaration of title, all the co-sharers of the suit holding are the necessary parties. If the objection as to non-joinder of parties is waived at the earliest opportunity, the defendants cannot raise such objection at this stage.
The main arguments of the petitioners as has been advanced that since the suit was for declaration of  title of the plaintiff in to the suit land, all the co-sharers of the suit holding were the necessary parties. I find it difficult to show any disagreement with the proposition advanced by the  learned Advocate for the petitioners but if the objection as to the non-joinder of parties is waived at the earliest opportunity of the suit,  the defendants can not get any advantage of the same at this stage. ...(18)
 
28 DLR (AD) 5,  Abu Saber Aziz Mohammad and others Vs. Government and others, 31 DLR(AD) 218, Matilal Sikder and others Vs. Benodini Dasi and others 28 DLR(AD) 5 ref.

Mr. Md. Abdul Khaleque, Advocate
. . . For the petitioners.
Mr. Md. Alamgir Mustafizur Rahman, Advocate
. . . For the Opposite Party.

Civil Revision No. 3402 of 2009

JUDGMENT
A. N. M. Bashir Ullah,  J:
 
This Rule, was issued on an application under Section 115(1) of the Code of Civil Procedure (in short, the CPC) filed by the defendant- petitioners calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 25.3.2009 passed by the learned Additional District Judge,  Thakurgaon in Other Appeal no. 74 of 2007 reversing the judgment and decree dated 6.6.2007 passed by the learned Senior Assistant Judge, Pirgonj, Thakurgaon in Other Class suit no. 19 of 2005 dismissing the suit should not be set aside and /or pass such other or further order or orders as to this Court may seem fit and proper.
 
The facts leading to the issuance of the Rule, in short, is that the present opposite party no. 1 Md. Abul Kashem as plaintiff instituted the above numbered suit in the Court of Assistant Judge, Pirgonj, Thakurgaon for declaration of plaintiffs title in to the suit land averring inter alia that .80 acres of land appertains to plot no. 2045 of CS khatian no. 444 corresponding to SA khatian no. 157 originally belonged to Asiruddin, the father of the plaintiff and the defendant nos. 1 and 2. Asiruddin gifted the said land executing and registering heba-bil ewaj dated 10.03.1983 being deed no. 3161 of Sub-Registrar office Pirgonj to the plaintiff and possession of the said land was delivered in his favour. Asiruddin died on 21.3.2005. After the death of Asiruddin defendants were hatching plan to disposses the plaintiff from the suit land. On 8.4.2005 when the plaintiff took an  attempt to cut and takeaway the ripe  paddy of the field, the defendants threatened him with dispossession and they also claimed title over the suit land, hence the plaintiff has been  constrained to file the suit. It is to be noticed  here that at the initial  stage of the filing of the suit the plaintiff sought simple permanent injunction but later on through amendment of plaint declaration of title to the suit land was prayed for.
 
The suit was contested by the defendant nos. 1-6. Among others it was averred in the written statement that the suit is not maintainable in its present form and the suit is barred by Limitation etc.
 
The case of the defendants, in short, is that the plaintiff and defendant nos. 1 and 2 are the sons of Asiruddin. Asiruddin was a poor farmer. The defendant nos. 1 and 2 have been living in the separate mess while the plaintiff has been living with his father Asiruddin. Asiruddin had also 5 daughters who have been living with their respective husbands. Since the plaintiff had been living with his father he used to instigate his father to give the land to him and Asiruddin being influenced by the said instigation might have executed and registered a deed of heba-bil-ewaj  for .80 acres of land in favour of the plaintiff. At the time of heba-bil-ewaj Asiruddin was given a Jainamaj and Tasbi and the plaintiff made promise to give a Holy Quaran Sharif to his father but till today he did not give Holy Quaran Sharif to his father. At the old days of  Asiruddin, the plaintiff did not take his proper care and Asiruddin was dealt badly by the plaintiff and Asiruddin being annoyed of the misbehavior of the plaintiff cancelled the heba-bil-awaj executing and registering a deed on 27.07.1993 and Asiruddin was inducted into possession of the land through his other sons. On 20.8.2005 Asiruddin took an attempt to irrigate water through power pump in the suit land but the plaintiff resisted the same and at one stage there took place a quarrel between the plaintiff and his father and his father ultimately became sick and at hospital he died. The plaintiff has been possessing 1/3 portion of the suit land while the defendants have been possessing the rest of 2/3 portion of the suit land as the successive heirs of Asiruddin. The plaintiff has no right, title, interest and possession into the suit land through the heba-bil-ewaj in question. So the suit is liable to be dismissed with costs.   
 
Upon the above pleadings, the trial Court framed as many as 5 issues to dispose of the suit. The plaintiff examined 3 witnesses and submitted the original heba-bil-ewaj, marked as exhibit 2, while the contesting defendants examined 3 witnesses and filed the certified copy of the deed dated 27.7.1993 marked as exhibit ‘ka’. The trial Court on consideration of the evidence and other materials on record dismissed the suit. As against the said judgment, the plaintiff preferred Other Appeal no. 74 of 2007 in the Court of District Judge, Thakurgaon and ultimately the appeal was heard by the Additional District Judge, Thakurgaon who by his impugned judgment dated 25.3.2009 decreed the suit. The defendant-petitioners being aggrieved by and dissatisfied with the said judgment and decree of the appellate Court below moved this Court and obtained the present Rule. The Rule is resisted by the plaintiff-opposite party no. 1.
 
Mr. Md. Abdul Khaleque, the learned Advocate appearing for the petitioners supporting the Rule submits that the appellate Court below without considering the evidence and other materials on record decreed the suit in favour of the plaintiff, he failed to consider that the plaintiff had no possession into the entire land on the basis of heba-bil-ewaj and he misconstrued the evidence of PW 2 and thereby came to a wrong conclusion that the plaintiff has been possessing the suit land.
 
He further submits that initially the plaintiff filed the suit for permanent injunction against the defendants who allegedly threatened him with dispossession but later on through amendment of the plaint the plaintiff sought declaration of title into the suit land but he did not make any amendment in the line of defendants. In a suit for  permanent injunction, the person or persons who allegedly made threat of dispossession of the plaintiff in to the suit land are the necessary parties and in that view of the matter, the plaintiff rightly impleaded the defendants who allegedly threatened him with dispossession from the suit land but in a suit  for declaration of title all the co-sharers of the suit holding are the necessary parties but the plaintiff without impleading all the co-sharers of the suit holding proceeded in the suit but the appellate Court below without considering this important facts decreed the suit.
 
He lastly submits that if it is conceded for a moment that a registered deed can not be cancelled by another registered deed but in that event also the plaintiff can not get a decree for declaration of  title in a defective suit which was filed against some defendants who threatened the plaintiff with dispossession but the appellate Court below totally failed to consider this important question of law and thereby committed an error of law occasioning failure of justice to the defendant-petitioner. So the judgment and decree, complained of, is liable to be set aside.
 
On the other hand Mr. Md. Alamgir Mustafizur Rahman, the learned Advocate appearing for the plaintiff-opposite party no. 1 opposing the Rule submits that the crux point in this Rule as well as in the suit is to consider whether a registered deed can be avoided by another registered deed and the appellate Court below rightly considered that the heba-bil-awaj dated 10.03.83 was acted upon and  by any subsequent deed that can not be cancelled. 
 
He further submits that the plea of mis-joinder and non-joinder of parties must be taken at the earliest opportunity of the suit, so that the plaintiff can take proper step to address the said plea but in this particular suit the plaintiff did not raise any objection as to non-joinder of parties but at this stage the defendants surprisingly cannot raise the same  to embarrass the plaintiff-opposite-party. The learned Advocate in support of such contention refers the case of 28 DLR (AD) 5.  He also submits that since the pela of non-joinder of parties was not raised in the earliest stage of the suit, the same shall be treated as has been waived.
 
He further submits that there is no case in the hands of the defendants that the heba-bil-ewaj dated 10.03.1983 has not been acted upon and the deed of cancellation dated 27.07.1993 is the best evidence and proof that the heba-bil-ewaj was rightly acted upon and pursuant to the heba-bil-ewaj the plaintiff was inducted into the possession of suit land and there appears no event that the plaintiff was ousted from the suit land and the defendants themselves have admitted the possession of the plaintiff into the suit land but they technically  for their illegal  gain admits the  possession of the plaintiff  into  1/3 portion of the suit land. Infact the plaintiff has been possessing the entire .80 acres of the land pursuant to the heba-bil-ewaj dated 10.03.1983. The appellate Court below considering the evidence and other materials on record rightly decreed the suit infavour of the plaintiff which does not call for any interference from this Court.
 
I have considered the above arguments and submissions of the learned Advocates of both the parties with profound attention and  have gone through the materials on record.
 
In this Rule as well as in the suit it is admitted that Asiruddin being owner and possessor of .80 acres of land gifted the same infavour of his one of the son, the  plaintiff by a registered deed of heba-bil-ewaj dated 10.03.1983. In the written statement it has been told repeatedly that the plaintiff promised to give a Holy Quaran Sharif along with Jainamaj and Tasbi but later on the plaintiff did not give the Holy Quaran Sharif to his father and it is the definite case of the defendants that since the plaintiff did not give the Holy Quaran Sharif to his father as promised and also for non compliance some of the conditions of the  deed of gift, Asiruddin, the father of the plaintiff and defendant nos. 1 and 2 cancelled  the deed of gift by another deed  dated 27.7.1993.
 
On going to the exhibit 2, the deed of heba-bil-ewaj dated 10.03.1983 I find there was no any such promise in the deed that the plaintiff would give a Holy Quaran Sharif to his father. From the recital of the deed it is clear that father Asiruddin taking a Jainamaj and Tasbi gifted the land to his son, the plaintiff. Moreso, there appears no such condition in the deed which requires to be  obeyed by the plaintiff after the registration of the said deed. However, be that as it may, the crucial question in this Rule is whether a registered deed can be cancelled by another registered deed and the answer of this proposition is available in the Case of Jobeda Bewa and others Vs Md. Abdur Razzaque, 12 MLR(AD) 17. This type of question was raised in the reported case and the Appellate Division in their verdict hold that the law is well settled that a registered deed of gift duly acted upon by delivery of possession of the suit land can not be cancelled by a subsequent registered deed and a registered instrument can not be avoided except by a decree of competent Civil Court.  The appellate Division also held in the following manner.

“If such type of cancellation of a registered instrument is allowed  to continue, there will be no sanctity of any registered instrument.”(para 9 of the judgement)
 
In the case of Golam Mustafa and others Vs. Kazem Ali Khan @ Kazal Khan and other 50 DLR 544 it was held by this Court that since the deed of heba-bil-ewaj was validly made it was not liable to be cancelled by a donar by the deed of cancellation unilaterally except by filing a proper suit in this behalf.
 
Now, the preponderant views emerged from the above cited authorities that whenever a heba-bil-ewaj is registered and acted upon the same cannot be avoided by another registered deed and the only proper way to avoid the same to have a decree from the competent civil  Court on any proper allegation or reason and  as such,  it can safely be concluded that by the deed  of cancellation dated 27.7.1993 there is no scope to hold that the heba-bil-ewaj dated 10.03.1983 has been vanished.
 
From the materials on record there appears no event that after the cancellation of the heba-bil-ewaj Asiruddin was inducted into the possession of the land again evicting his  son, the plaintiff, rather there is a story that in the month of February 2005, Asiruddin took an attempt to get the land  in  his control and we find that in the same year the present suit was filed.
 
In this Rule, the main arguments of the petitioners as has been advanced that since the suit was for declaration of  title of the plaintiff in to the suit land, all the co-sharers of the suit holding were the necessary parties. I find it difficult to show any disagreement with the proposition advanced by the  learned Advocate for the petitioners but if the objection as to the non-joinder of parties is waived at the earliest opportunity of the suit,  the defendants can not get any advantage of the same at this stage.
 
On a meticulous perusal of the written statements it appears that the pela or objection as to the non-joinder of parties was never taken by the defendants, as such, the plaintiff did not get proper chance to  address the same pela. So the plaintiff-opposite-party can not be penalised at this stage of the proceeding.
In the case of Abu Saber Aziz Mohammad and others Vs. Government and others 31 DLR (AD) 218 it was held that objection as to non-joinder of parties ought to have been taken at the earliest possible opportunity and  if not taken it shall be treated as waived. The same view was also taken in the case of Matilal Sikder and others Vs. Benodini Dasi being dead her heirs Bepin Behari Das and others 28 DLR (AD) 5.
 
From the plaint it appears that all the co-sharers of the suit holding were not made parties in the suit and the heirs of Asiruddin were made defendants in the suit but at the same time there appears no objection in the written statements as to the non-joinder of parties. So in my consideration at this stage I find it difficult to give any premium or advantage to the defendant-petitioners. The appellate Court below on due consideration of the evidence and other materials on record rightly decreed the suit infavour of the plaintiff. I find no error of law or fact in the judgment of the appellate Court below, as such; there appears no merit in the Rule.
 
In the result, the Rule is discharged without any order as to costs.
 
The stay order passed earlier by this Court is hereby recalled and vacated.
 
Let a copy of the judgment and order along with lower Court’s records be sent to the concerned Court for information and necessary action.
 
Ed.