Md. Daud Hossain and others Vs. Md. Habibur Rahman and others, 2 LNJ (2013) 362

Case No: Civil Revision No. 4821 of 2001

Judge: F. R. M. Nazmul Ahsan,

Court: High Court Division,,

Advocate: Mr. A.k. Monjurul Hoque,,

Citation: 2 LNJ (2013) 362

Case Year: 2013

Appellant: Md. Daud Hossain and others

Respondent: Md. Habibur Rahman and others

Delivery Date: 2013-05-20

HIGH COURT DIVISION
(CIVIL)
 
F.R.M.Nazmul Ahasan, J.

Judgment
20.05.2013
 
Md. Daud Hossain & others
.... Petitioners.
-Versus-
Md. Habibur Rahman & others
...Opposite-parties.
 

Registration Act (XVI of 1908)
Section 28
The learned Assistant Judge after considering the evidence adduced by the parties has found that the defendants included 2(two) decimals of land at Sharsha Upazila which is fictitious and non-existent and the same was affirmed by the appellate Court. The plaintiff is a third party and being affected by the disputed deed of the defendant filed the suit. According to Section 28 of the Registration Act the deed in question is illegal and void. . . . (20, 24 and 25).

Syed Kawsar Ali Vs. Gahar Kazi and others, 1985 BCR (AD) 309 ref.

None appears
...For the petitioners.

Mr. A.k. Monjurul Hoque, Advocate
...For the opposite-parties.

Civil Revision No. 4821 of 2001
 
JUDGMENT
F. R. M. Nazmul Ahasan, J:
 
This rule was issued calling upon the opposite party No.1 to show cause as to why the impugned Judgment and decree dated 6.6.2001(decree signed on 13.6.2001) passed by the Subordinate Judge, 1st Court, Jessore in Title Appeal No.32 of 1994 affirming those dated 29.11.1993 (decree singed on 4.1.1994) passed by the Assistant Judge, Sadar, Jessore in Title Suit No.222 of 1991 should not be set-aside.
 
Opposite party No.1 as plaintiff filed Title Suit No.222 of 1991 in the Court of the Assistant judge, Sadar, Jessore for declaration of title and also for a declaration that the kabala deed No.10609 dated 31.12.1990 is illegal, collusive and void.

The short fact of the plaint is that the land of plot No. 570 belonged to Abdus Sobhan who transferred the same to his sons defendant Nos.3-5 by kabala dated 22.7.1990; that defendant No.3 rented his portion to defendant No.4 and subsequently the defendant No.3 entered into a contract with the plaintiff to sell his share with Tk.60,000/- only out of which Tk.20,000/- was paid as earnest money; that on 15.12.1990 and on 13.2.1991 the defendant No.3 executed and registered kabala by receiving the rest amount of Tk.40,000/-.
 
Thereafter on 01.9.1999 plaintiff asked to the defendant No.4 to pay the rent but the defendant No.4 disclosed that the defendant No.3 has sold the suit land to the defendant Nos.1 and 2 against which the defendant No.4 has filed pre-emption case.
 
The defendant No.3 intentionally registered kabala on 27.12.1990 in Sharsa Sub-Registrar Office inserting the false land in the scheduled only to give jurisdiction for registration for which the plaintiffs title has been clouded and hence the suit.
 
Defendant Nos.1-2 contested the suit by filing written statement denying all the material allegations made in the plaint contending inter alia that the suit is not maintainable in it’s present form. The defendants case is that the defendant No.3 proposed to sell the suit land to defendant Nos.4 and 5 but they refused to purchase but the defendant Nos.1-2 agreed to purchase with Tk.75,000/- and date was fixed on 27.12.1990 for registration of the deed but due to non-availability on the consideration money it was not registered; that the Sub-registrar was absent due to leave for some days and as such the deed was registered at Sharsa Sub-registrar office and some land of defendant No.3 was written in the schedule of the deed and the defendant nos.1-2 got possession. The alleged kabala deed of the plaintiff is false, collusive and illegal. Thus, the suit is liable to be dismissed.
 
It is stated in the revisional application that the defendant No.4 being pre-emptor filed pre-emption case No.10 of 1993 against the kabala dated 27.12.1990 and both the case was heard and disposed of analogously by the trial Court.
 
That the learned Assistant Judge framed three issues in the suit:-
  1. Is the Kabala 27.12.1990 collusive, illegal and void?
  2. Has the plaintiff title and possession to the suit land?
  3. Is the plaintiff entitled to get the relief as prayed for?
After hearing the parties learned Assistant Judge, Sadar, Jessore by his judgment and decree dated 29.11.1993 decreed the suit of the plaintiff.
 
Being aggrieved by and dissatisfied with the aforesaid judgment and decree the defendant Nos.1 and 2 filed Title Appeal No.32 of 1994 before the District Judge, Jessore which was transferred to the Subordinate Judge, 1st Court, Jessore who by his judgment and decree dated 6.6.2001 dismissed the appeal.
 
Being aggrieved by the aforesaid judgment and decree dated 6.6.2001 passed in Title Appeal No.32 of 1994 defendant petitioner preferred this Civil Revision before this Court and obtained the present Rule.
 
No one appears on behalf of the petitioner at the time of hearing of the Rule.
 
On the other hand Mr. A.K. Monzurul Haque, the learned Advocate appeared on behalf of the opposite party No.1.
 
I have perused the revisional application, impugned Judgment and decree passed by both the Courts below and other documents on record. I have also heard the learned Advocate for the opposite party No.1.
 
It is stated in the revisional application that both the Courts below did not apply their judicial mind to consider the oral and documentary evidence produced by the defendants in support of this case rather have misread and misconstrued the same and thus committed error of law resulting in an error in the decision occasioning failure of justice.
 
It is further stated that 2 decimals land of S.A. Plot No.973 of Mouza Tengrali of Police Station Sharsa under District jessore was maternal property of the vendor of the kabala deed dated 27.12.1990 and as such Section 28 of the registration Act does not create any bar against the said kabala and non-considering the fact both the courts below committed error of law resulting an error in the decision occasioning failure of justice. It is also asserted that the land of schedule was not inserted in the schedule of the kabala dated 18.12.1990 only to give the jurisdiction but it was sold to the defendant Nos.1-2 with valuable consideration and the defendant Nos.1-2 have been possess-ing the same as their own and non-considering the aforesaid fact both the courts below committed error of law resulting an error in the decision occasioning failure of justice.
 
It is also asserted in the application that after due execution and registration of the kabala dated 27.12.1992 in favour of the defendant Nos.1-2, Vendor the defendant No.3 in collusion with his nephew plaintiffs falsely created the alleged kabala dated 13.2.1991 claiming a concocted story of the bainanama dated 22.7.1990 and moreover the full brother of the vendor defendant No.3, the defendant No.4 admitting the validity of the kabala dated 27.12.1990 filed the pre-emption Miscellan-eous Case No.10 of 1993 against the said kabala and the plaintiffs and their full uncle the defendant Nos.3-4 are taking all roots to deprive the defendant Nos.1-2 from the suit land which is against the natural justice and non-considering the fact both the courts below committed error of law resulting an error in the decision occasioning failure of justice.
 
Mr. A.K. Monzurul Haque, the learned Advocate for the opposite party No.1 submits that both the courts below concurrently found that the alleged kabala dated 27.12.1992 was registered at the Sharsha Upa Zila, District Jessore which is out of jurisdiction and there is no existence of such land. He further argued that the defendants in their cross-examination admitted that they have no knowledge and possession in the aforesaid 2 decimals of land. Finally he argued that Section 28 of the Registration Act is barred in such type of insertion in the schedule to create jurisdiction to a different Sub-registrar office and the plaintiff was not a party of that kabala of that registration rather he is a  third party. As such the learned District Judge as a last court of fact found that the learned Assistant Judge on considering of the evidence on record and also considering Section 28 of the Registration Act lawfully passed the decree in favour of the plaintiffs and there is no illegality in the impugned judgment. Thus, the Rule is liable to be discharged.
 
One Abdul Sobahan was the owner of the suit land of plot No.570, who transferred the same to his sons defendant Nos.3-5 by kabala dated 22.7.1990; plaintiff entered into a contract with the defendant No.3 to purchase his share with Tk.60,000/- only out of which Tk.20,000/- only was paid as earnest money on 15.12.1990 and thereafter the defendant No.3 executed and registered kabala by receiving the rest of Tk.40,000/- only; that the plaintiffs asked to pay the rent on 1.9.1991 to the defendant No.4 who disclosed that the defendant No.3 has sold the suit land to defendant Nos.1-2 against which the defendant No.4 has filed pre-emption case and thereafter the plaintiff opposite party No.1 filed the suit.
 
The defendant Nos.1-2 in their written statements stated that the defendant No.3 proposed to sell the suit land to defendant Nos.4 and 5 but they refused to purchase but the defendant Nos.1-2 agreed to purchase with Tk.75,000/- and date was fixed for registration on 27.12.1990 but due to non-availability of the consideration money it was registered later on and due to absence of the sub-registrar, deed was registered at Sharsha Sub-registry Office.
 
The learned Assistant Judge after considering the evidence adducing by the parties found that the defendants included 2 decimals of land at Sharsha Upa Zila which is fictitious and non-existence. In support of his aforesaid findings the learned Assistant Judge found that: “ ডি,ডব্লিউ (১) মো: দাউদ হোসেন জেরাতে বলেন যে, টেচয়ারী মৌজার ৯৭৩ ও হাল ৪৪৭ দাগের জমি আমি চিনি না এবং ঐ জমি জীবনে দেখিনাই। ঐ জমি সংক্রন্ত কোন কাগজপত্র বা দলিল আমি দাখিল করিনাই এবং দাখিল করতে পারবো না। ৯৭৩ দাগটি আমি দখল করি না।”
 
On its turn appellate court found that the learned Assistant Judge lawfully decided the matter in favour of the plaintiffs.
 
In the case of Syed Kawsar Ali…Vs. Gahar Kazi and others reported in BCR 1985 AD 309. Wherein it is decided that, “ Inclusion of a fictitious plot situated in a different place to give jurisdiction to a different Sub-Registrar office for the purpose of registration of the kabala within the jurisdiction of that Sub-Registrar office affecting the interests of a third party-If the affected party is bound by the fraud-Whether the inclusion of fictitious land in a deed of sale is a fraud in the law of registration-Whether the inclusion of a fictitious plot in the kabala invalidates the registration of the kabala.”
 
Considering the aforesaid decision appellate Court found: “ উক্ত রুলিং এর সারমর্ম হইল কোন অলিক, অকিঞ্চিতকর বা আদৌ অবস্থিত নহে এইরুপ কোন সম্পত্তি কোন সাব-রেজিষ্ট্রারের এলাকা ভুক্ত দেখাইয়া কোন দলিল জালিয়াতি করিয়া রেজিঃ করিয়া লইলে সেইরুপ দলিলের বৈধতা সম্পর্কে সংশ্লিষ্ট পক্ষগণ আপত্তি তুলিতে পারিবে না, তবে ৩য় পক্ষ সংক্ষুব্ধ হইলে তঞ্চকির বিষয় উত্থাপন করিতে পারিবে। তর্কিত দলিলে শার্শা থানাধীন ৯৭৩ দাগের জমি কাল্পনিক জমি বলিয়া সাক্ষী সাবুদে প্রমানিত হইয়াছে। ফলে তর্কিত দলিলটি অবৈধ। বিজ্ঞ নিম্ন আদালত উভয়পক্ষের সাক্ষী সাবুদ বিচার বিবেচনা করিয়া সিদ্ধান্ত দিয়াছেন যে, ৩১-১২-৯০ ইং তারিখের ৩ নং বিবাদী দত্তা ১/২  নং বিবাদী গ্রহীতা ১০৬০৯ নং দলিলটি বেআইনী অবৈধ। বিজ্ঞ নিম্ন আদালতের উপরোক্ত সিদ্ধান্ত আইনত: হস্তক্ষেপ যোগ্য নয়।"
 
It is further found that the plaintiff is a third party and being affected by the disputed deed of the defendant filed the suit. It has been mentioned that the disputed deed was registered at Sharsha Upa Zila but D.W.1 in his cross-examination stated that he has no knowledge about the aforesaid land and he is not possessing the same.
 
For the reasons stated above and considering that the courts below concurrently decided the matter in favour of the plaintiff and found that according to Section 28 of the Registration Act kabala deed dated 31.12.1990 is illegal and void. I do not find any illegality in the impugned judgment and decree. Thus, the Rule fails.  
 
In the result, the Rule is discharged without any order as to cost.
 
The judgment and decree dated 6.6.2001 passed by the Subordinate Judge, 1st Court, Jessore in Title Appeal No.32 of 1994 affirming those dated 29.11.1993 passed by Assistant Judge, Jessore, Sadar in Title Suit No.222 of 1991 is hereby upheld.
 
Send down the lower court records along with a copy of this judgment at once.
 
Ed.