Md. Afsar Ali Pramanik & others Vs. Md. Motalib Akanda & others 4 LNJ (2015) 515

Case No: Civil Revision No. 882 of 2008

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Ali Imam Khaled Rahim,Mr. Subrata Saha,,

Citation: 4 LNJ (2015) 515

Case Year: 2015

Appellant: Md. Afsar Ali Pramanik & others

Respondent: Md. Motalib Akanda & others

Delivery Date: 2015-04-20


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Borhanuddin, J

Judgment on
20.04.2015
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Md. Afsar Ali Pramanik and others
. . . Petitioners
-Versus-
Md. Motalib Akanda and others
...Opposite parties
 
 
Code of Civil Procedure (V of 1908)
Section 115
Under section 115 of the Code of Civil Procedure the High Court Division cannot re-appreciate the evidence and cannot set aside concurrent finding of the courts below. The High Court Division is empowered only to interfere with the findings of fact, if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the court below. . . .(16)
 
Shishir Kanti Pal and others Vs.  Nur Muhammad and others, 55 DLR (AD) 39; Abani Mohan Saha Vs.  Assistant Custodian (SDO) Vested Property, Chandpur and others, 39 DLR (AD) 223; Akrab Ali and others Vs.  Zahiruddin Kari and others, 30 DLR (SC) 81; Alkas Mia and others Vs.  The State, 25 DLR 398; Aftabuddin Fakir Vs.  Sowdagar Rabi Das and others, 43 DLR 42; Sufia Khanam Chowdhury Vs.  Faizun Nesa Chowdhury, 39 DLR (AD) 46; Sufia Khanam Chowdhury Vs. Faizun Nessa Chowdhury, 1987 BLD (AD) 55; Kaliappa Gownden, Minor, by next friend Mari Gownden Vs.  Delvasigamani Pillai and another, Indian Cases, Volume-XVIII, Madras 27; Ashish Chakraborty and others Vs. Md. Abdur Rob alias Mvi Md. Abdur Rob, 51 BLT (AD) 135; Rahimuddin and others Vs.  Abdul Malek Bhuiya and others, 20 DLR 689; Mari Gownden Vs. Deivasigamani Pillai and another, Indian Cases Volume-XVIII, Madras 27 and  Sree Chitta Ranjan Chakraborty Vs. Mr. Abdur Rob, 5 BLT (AD) 139 ref.
 
Mr. Subrata Saha, Advocate
. . . For the Petitioners

Mr. Ali Imam Khaled Rahim, Advocate
..... For the Opposite Party no.1 

Civil Revision No. 882 of 2008

JUDGMENT
Borhanduddin, J.
 
This rule has been issued calling upon the opposite party No. 1 to show cause as to why the judgment and decree dated 31.08.2006 (decree signed on 06.09.2006) passed by the learned Additional District Judge, Natore, in Title Appeal No. 147 of 2001 affirming the judgment and decree dated 15.04.2001 (decree signed on 22.04.2001) passed by the learned Assistant Judge, Bagatipara, Natore, in Other Class Suit No. 90 of 1999 decreeing 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.

Facts relevant for disposal of the rule as gathered from the revisional application are that the opposite party no.1 herein as plaintiff instituted Other Class Suit No. 90 of 1999 for declaration that the deed no. 5633 dated 18.09.1976 is illegal, void, collusive, fraudulent, not binding upon the plaintiff and also with a prayer for recovery of khas possession contending interalia that the suit schedule ‘Ka’ land as described in the plaint belonged to Soiman Bewa  who transferred the land in favour of plaintiff and defendant no.5 when they were minors by a deed of Heba bil Ewaz; the minors possessed the land through their father and legal guardian, defendant No.4, who transferred the land to defendant no.1 by a registered sale deed dated 15.06.1990 against the interest of minors; defendant no.1 transferred some portion of the land to defendant nos. 2 and 3; plaintiff after attaining majority came to learn about the said transfer on 15.06.1990; hence, the suit. 

Defendant no.1 contested the suit by filing a written statement denying material allegations made in the plaint and contending interalia that the suit is not maintainable; barred by the principles of estoppel, waiver and acquiescence; defendant no.4 as legal guardian sold the land in question for legal necessity of the minors and now filed this case through his son with malafide intention; the suit is barred by limitation inasmuch as the sale deed was registered on 18.09.1976 but the suit instituted on 14.08.1990, long after 14 years from the date of execution and registration of the sale deed; plaintiff attained his majority long before and filed this suit after the statutory period of limitation; as such, the suit is liable to be dismissed.

After hearing the parties and perusing the evidence on record, learned Assistant Judge decreed the suit vide his judgment and decree dated 15.04.2001 and 22.04.2001 respectively.

Being aggrieved, defendants as appellants filed Title Appeal No.147 of 2001 in the Court of learned District Judge, Natore. On transfer the appeal was heard and disposed of by the learned Additional District Judge, Natore, who after hearing the parties and reassessing the evidence on record dismissed the appeal vide judgment and decree dated 31.08.2006 and 06.09.2006 respectively and thereby affirmed the judgment and decree passed by the learned Assistant Judge.

Having aggrieved by and dissatisfied with the judgment and decree, defendant-appellants as petitioners preferred this application under Section 115(1) of the Code of Civil Procedure and obtained the present rule and also an order of stay.

Mr. Subrata Saha, learned advocate appearing for the petitioners submits that it is stated in the plaint that on 18.09.1976 defendant no.4 was forced to execute and register the kabala in favour of defendant no.1 on pressure of the army officials and plaintiff no.1 as PW.1 deposed that his father was taken away by the army and forced to execute and register the kabala in favour of the defendant no.1, which also corroborated by other PWs, defendant no.4 though alive but did not produce and examine by the plaintiff to prove the story of coercion and execution of the deed forcibly as such, the defendant-petitioners are entitled to get benefit of Section 114 (g) of the Evidence Act., and without considering this legal aspect both the courts below committed error of law resulting error in the decision occasioning failure of justice. He also submits that both the courts below committed an error of law resulting in an error in the decision occasioning failure of justice in not holding that the suit is barred by limitation inasmuch as the deed in question was executed and registered in the year 1976 but the suit instituted in the year 1990, long after attaining majority of the plaintiff.. He next submits that the appellate court below passed the judgment and decree without complying the provision of 0rder XLI rule 31 of the Code of Civil Procedure by reassessing the evidence on record. He further submits that both the courts below committed an error of law resulting in an error in the decision occasioning failure of justice in not holding that the suit is not maintainable inasmuch as the plaintiff did not pray for cancellation of the deed in question under Section 39 of the Specific Relief Act. He lastly submits that since there is no prayer in the plaint for cancellation of the deed in question under section 39 of the Specific Relief Act the registered deed carries presumption of correctness. In support of his submissions, learned advocate referred to the case of Shishir Kanti Pal and others-Vs- Nur Muhammad and others, reported in 55 DLR (AD) 39, the case of Abani Mohan Saha-Vs- Assistant Custodian (SDO) Vested Property, Chandpur and others, reported in 39 DLR(AD) 223, the case of Akrab Ali and others-Vs- Zahiruddin Kari and others, reported in 30 DLR (SC) 81, the case of Alkas Mia and others-Vs- The State, reported in 25 DLR 398, the case of Aftabuddin Fakir-Vs- Sowdagar Rabi Das & others, reported in 43 DLR 42 and the case of Sufia Khanam Chowdhury-Vs- Faizun Nesa Chowdhury, reported in 39 DLR (AD) 46.

On the other hand, Mr. Ali Imam Khaled Rahim, learned advocate appearing for the opposite party no. 1 submits that both the courts below mainly relies upon the principles of Muslim law in arriving at a finding that the suit land was not transferred for the benefit of minors which is also evident from the recital of the deed in question as such, there is nothing to interfere with the judgment and decree passed by the Court below. He also submits that adverse presumption under section 114(g) of the Evidence Act., is essentially a question of fact and not revisable under this jurisdiction. He next submits that a sale of minor’s property by the minor’s guardian is not binding on the minor if not followed by the principles of Muslim Law relating to transfer of minor’s property. He lastly submits that a document which is void ab initio need not required to be cancelled. In support of his submissions, learned advocate referred to the case of Sufia Khanam Chowdhury -Vs- Faizun Nessa Chowdhury, reported in 1987 BLD(AD) 55, the case of  Kaliappa Gownden, Minor, by next friend Mari Gownden-Vs- Delvasigamani Pillai and another, reported in Indian Cases, Volume-XVIII, Madras 27, the case of  Sree Chitta Ranjan Chakraborty, being deed his heirs. Ashish Chakraborty and others vs. Md. Abdur Rob alias Mvi Md. Abdur Rob, reported in 51 BLT (AD) 135 and the case of Rahimuddin & others-Vs- Abdul Malek Bhuiya and others, reported in 20 DLR 689.

Heard the learned advocates. Perused the revisional application, judgment of the courts below and the lower court records.

Admittedly, the suit land originally belonged to Soimon Bewa who transferred the land in favour of the minors plaintiff and defendant no.5 by a deed of Heba Bil Ewaj. It is also admitted that the defendant no.4, father of the minors, possessed the suit land on behalf of his minor sons and transferred the suit land to defendant no.1 by a registered sale deed dated 18.09.1976.

On perusal of the judgment passed by the courts below it appears that both the courts below arrived at a finding that the suit land was transferred by the defendant no.4 without following the principles relating to transfer of a minor property as guardian i.e. for absolute necessity or advantage of the minors.

Under the Muhammedan Law, the following persons are entitled in the order mentioned below to be guardians of the property of a minor:

“(1) father;
(2) the executor appointed by the father’s  will;
(3) the father’s father;
(4) one executor appointed by the will of the father’s father;” 

In this regard, I am quoting relevant portion relating to Guardianship or Tutelage from the book “Muhammedan Law Vol.11” authored by Mr. Syed Amir Ali.
With reference to the real or immovable property of the ward, the powers of guardians are more imited and circumscribed.
  1. A guardian may not sell his ward’s real property “into his own hands” or into the hands of anyone connected with him under any circumstance.
  2. He may sell it to a stranger for double its value, or where it is to the manifest advantage of the ward.
  3. He may also sell it when there are some general provisions in the wasiyet (will) of the testator, which cannot be carried into effect without the sale of the property.
  4. When the property is required to be sold for the purpose of paying off the debts of the testator, which cannot be liquidated in any other way.
  5. When the income accruing from the estate is not sufficient to defray the expenditure incurred in its management and the payment of the kharaj (land revenue).
  6. When it is in imminent danger of being destroyed or lost by decay.
  7. When the minor has no other property, and the sale of it is absolutely necessary for his maintenance.
  8. When it is in the hands of a usurper, and the guardian has reason to fear there is no chance of restitution.
In the case of Kaliappa Gownden, Minor, by next friend, Mari Gownden vs. Deivasigamani Pillai and another, reported in Indian Cases Volume-XVIII, Madras 27, their lordships held:
 
“A sale of minor’s property by the minor’s guardian will not be binding on the minor where the sale price has not been afterwards property invested, as where the guardian purchased other lands with only a part of the sale consideration. The vendee cannot seek protection on the ground that he duly paid the stipulated consideration to the guardian. He is at least bound to show that, after making due inquires, he believed that the purchase-money was intended to be used for a purpose which would make the sale beneficial to the minor. It is not enough that he believed the guardian’s statement or the recital in the deed of sale.”
 
In appears that both the courts below arrived at a finding that at the time of execution and registration of the sale deed transferring the minors property the conditions as described above were not in existence rather it appears other way around. Both the courts below also arrived at a finding that after attaining majority, the plaintiff instituted the suit within the statutory period of limitation.
 
Learned Advocate for the petitioner argued that the since there is no prayer in the plaint for cancellation of the deed under Section 39 of the Specific Relief Act., registered deed in question carries presumption of correctness as such, the suit is not maintainable . This point already settled by our apex court in the case of Sree Chitta Ranjan Chakraborty vs. Mr. Abdur Rob, reported in 5 BLT (AD) 139, holding that where a written instrument is abinitio void and the transaction is a nullity, the plaintiff is not required to have it cancelled or set aside.
 
Now it is settled that under section 115 of the Code of Civil Procedure the High Court Division cannot re-appreciate the evidence and cannot set aside concurrent finding of the courts below. The High Court Division is empowered only to interfere with the findings of fact, if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the court below. Going through the impugned judgment and decree, I do not find any findings of fact recorded by the court below are perverse and there has been non application of mind.

Under the facts and circumstances of the case and for the reasons stated above, I do not find any merit in the rule.

Accordingly, the rule is discharged.

Judgment and decree dated 31.08.2006 and 06.09.2006 respectively passed by the learned Additional District Judge, Natore, in Title Appeal No.147of 2001 affirming the judgment and decree dated 15.04.2001 and 22.04.2001 respectively passed by the learned Assistant Judge, Bagatipara, Natore, in Other Class Suit No.90 of 1999 is maintained.

The order of stay granted at the time of issuance of the Rule is hereby vacated.

Send down the lower court records alongwith a copy of this judgment to the court concern at once.

Ed.