Md. Ashraful Alam Vs. Md. Nazrul Islam, VI ADC (2009) 305

Case No: Civil Petition for Leave to Appeal No. 1332 of 2007

Judge: Md. Hassan Ameen,

Court: Appellate Division ,,

Advocate: M. Farooq Ahmed,,

Citation: VI ADC (2009) 305

Case Year: 2009

Appellant: Md. Ashraful Alam

Respondent: Md. Nazrul Islam

Subject: Procedural Law,

Delivery Date: 2008-3-20

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J
 
Md. Ashraful Alam
.……………………Petitioner
Vs.
Md. Nazrul Islam
…………………….Respondents
 
Judgment
March 20, 2008.
 
Code of Civil Procedure, 1908
Section 115 (1)
Plaintiff was suffering from paralysis and was confined to bed. The defendant No.1 taking advantage of her illness, managed to create a deed in collusion with the scribe and the plaintiff was not acquainted with the fact of the existence of the deed and the defendant created the deed on taking left thumb impression on the plea of treatment. Thereafter, the plaintiff was sent to her father’s residence and subsequently the plaintiff came to know about the existence of the deed and hence the suit. …… (2)
 
That to meet the cost of treatment, the plaintiff sold the land in question in favour of the defendant No. 1 and the deed was executed and registered on receiving the consideration money and now the plaintiff cannot pray for a cancellation of the registered kabala deed and thus the suit is liable to be dismissed. …. (3)
 
Lawyers Involved:
Farooq Ahmed, Advocate, instructed by Bivash Chandra Biswas, Advocate-on-Record-For the Petitioner.
Not Represented- the Respondent.
 
Civil Petition for Leave to Appeal No. 1332 of 2007.
(From the judgment and order dated the 25-07-2007 passed by the High Court Division in Civil Revision No. 1837 of 2003).
 
JUDGMENT
 
Md. Hassan Ameen J.
 
The petitioner (defendant-appellant) seeks leave to appeal against the judgment and order dated 25-07-2007 passed in Civil Revision No. 1837 of 2003 by the learned Single Judge of the High Court Division making the Rule absolute by setting aside the judgment and decree dated 30-11-2002 passed in Title Appeal No. 251 of 2000 by the learned Joint District judge, 1st Court, Natore, reversing the judgment and decree dated 13-09-2001 passed in Title Suit No. 96 of 1994 by the Assistant Judge, Singra, Natore decreeing the suit.
 
2. The case of the plaintiff, in short, is that the plaintiff Jobeda Bewa, a widow, used to stay under the care of defendant No.1 and she was the owner of 3.55 acres of land and subsequently when the plaintiff was suffering from paralysis and was con­fined to bed. The defendant No. 1 taking advantage of her illness, managed to cre­ate a deed in collusion with the scribe and the plaintiff was not acquainted with the fact of the existence of the deed and the defendant created the deed on taking left thumb impression on the plea of treat­ment, thereafter, the plaintiff was sent to her father's residence and subsequently the plaintiff came to know about the existence of the deed and hence the suit.
 
3. The defendant No. 1 contested the suit by filling written statement, stating, that to meet the cost of treatment, the plaintiff sold the land in question in favour of defendant No. 1 and the deed was execut­ed and registered on receiving the consid­eration money and now the plaintiff can­not pray for a cancellation of the regis­tered kabala deed and thus the suit is liable to be dismissed.
 
4. The trial Court on consideration of the materials on record decreed the suit by judgment and decree dated 13-09-2001. Being aggrieved thereby, the defendant preferred appeal before the learned District Judge, Natore, which was trans­ferred to the court of the learned joint District Judge, 1st Court, Natore who by the judgment and decree dated 07-01-2003 reversing the judgment and decree of the trial Court, allowed the appeal and dis­missed the suit. Against which, the heirs of deceased, plaintiff Jobeda Bewa field a revisional application under Section 115 (1) of the Code of Civil Procedure before the High Court Division. The learned Single Judge of the High Court Division upon hearing the parties made the Rule absolute and set aside the judgment and decree dated 30-11-2002 passed by the Joint District Judge, 1st Court, Natore in Title Appeal No. 251 of 2001 and restored the judgment and decree dated 13-09-2001 passed by the Assistant Judge, Singra, Natore in other Class Suit No. 96 of 1994.  Hence this leave-petition has been filed by the petitioner.
 
5. Mr. Farooq Ahmed, the learned Advocate appearing for the petitioner, submits that the high Court Division com­mitted an error in making the Rule absolute considering that onus was upon the defendant to prove that the plaintiff as a pardanashin lady was aware of the deed by misreading and non-considering the valuable evidence of the plaintiff (P.W.1) which was not at all considered by the trial Court, inasmuch as, the plaintiff did not deny that she did not put her thumb impression on the deed rather she admit­ted the thumb impression on the disputed deed as her own thumb impression but she stated that those taken without under standing thereto. He then submits that the High Court Division failed to sift the evi­dence on record inasmuch did not consid­er that the plaintiff himself admitted in her examination in chief by saying that “দলিলে যেসব টিপ আছে তাহা আমাকে বুঝতে না দিয়ে নিয়েছে’’ and she further in cross examination said that “বিবাদী আমার সাথে কোন দিন বেয়াদপি, ঠকবাজ়ি বা প্রবঞ্চনা করেনি” which proves that no fraud was practised but the High Court Division failed to take any cognizance of such important matter.
 
6. We have heard the learned Advocate for the petitioner and perused the materials available in record. The arguments and reasoning so assigned by the learned Advocate for the petitioner found to have no merit and accordingly, the petition for leave to appeal is dismissed.
 
Ed.