Md. Ismail Hossain Tarafder and others Vs. Sree Binoy Mondal and others 2017 (2) LNJ 171

Case No: Civil Revision No. 2189 of 2013

Judge: Kashefa Hussain. J.

Court: High Court Division,

Advocate: Mr. Bivash Chandra Biswas,

Citation: 2017 (2) LNJ 171

Case Year: 2017

Appellant: Md. Ismail Hossain Tarafder and others

Respondent: Sree Binoy Mondal and others

Subject: Civil Law

Delivery Date: 2017-10-18

HIGH COURT DIVISION

(CIVIL REIVISIONAL JURISDICTION) 

Kashefa Hussain, J.

Judgment on

28.02.2017

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Md. Ismail Hossain Tarafder and others

. . .Petitioners

-Versus-

Sree Binoy Mondal and others

. . .Respondents

Code of Civil Procedure (V of 1908)

Section 115

Rule 3 of Order 32

Specific Relief Act (I of 1877)

Sections 9 and 42

It is well settled principle that limitation is immaterial when any order obtained by practicing fraud upon court as decided in leading case Mokles Uddin Vs. Robi Chowdhury, 64 DLR (2012) 471. Being a simple declaratory suit, Sole decree is void, illegal and not binding upon plaintiff mainly on grounds of false impersonation, limitation and minority. Possession is not relevant as the suit was filed only to decide the legality of Sole Decree. Furthermore, in absence of violation of law; revisional court may not interfere in Revision.           . . .(7, 13 to 17)

None appears

. . . For the Petitioners.

Mr. Abdullah-Al-Mamun, Advocate

. . . For the opposite party Nos. 1-11.

Mr. Bivash Chandra Biswas, Advocate with

Mr. Md. Dider Ali Fakir, Advocate

. . .For the opposite party Nos. 12-15.

JUDGMENT

Kashefa Hussain, J: Rule was issued in the instant Civil Revision calling upon the opposite-parties No. 1-15 to show cause as to why the impugned judgment and decree dated 30.06.2013, passed by the learned Joint District Judge, 2nd Court, Satkhira, in Title Appeal No. 91 of 1998, affirming those dated 28.06.1998, passed by the learned Assistant Judge, Kaligonj, Satkhira, in Title Suit No. 126 of 1991, should not be set aside and/ or such other or further order or orders passed as to this court may seem fit and proper.

2.            Facts of the case is that the present opposite parties instituted Title Suit No. 126 of 1991 in the Court of learned Assistant Judge, Kaligonj, Satkhira seeking a decree for declaration to the effect that the judgment and decree dated 10.04.1972  in Title Suit No. 71 of 1970 is void, illegal and not binding upon them.

3.            The facts relevant for disposal of the Rule in short is that the plaintiffs instituted the Title Suit No. 126 of 1991 against the opposite parties for the said declaration which arose in pursuance of sole decree arising out of Title Suit No. 71 of 1970. The plaintiffs inter alia alleged in the plaint that summons was never served upon them when the solenama was made and the suit was decreed based on the solenama which was made by false impersonation. They further stated in the plaint that S.A record is in the name of the plaintiffs. It is also alleged in the plaint that most of the plaintiffs were minor at that time and were falsely impersonated beyond their knowledge. They gained knowledge of the sole decree dated 10.04.1972 in Title Suit No. 71 of 1970, after a lapse of 20 years in 1991 and upon receiving knowledge of the sole decree and other formalities dated 10.04.1972 they took steps to institute Title Suit No. 126 of 1991 the suit which is in declaratory form. The plaintiffs also claimed in the plaint that they are in possession of the suit land.

4.            The defendants in Title Suit No. 126 of 1991 entered appearance by filing written statement denying the materials allegation in the plaint and claims that the predecessor of the defendant had obtained settlement of the suit land duly by patta deed. They further claimed in the written statement that due to wrong record of the suit land they filed the Title Suit No. 71 of 1970 and duly obtained a sole decree. They further stated in the written statement that eventually in pursuance of the sole decree they filed a Civil Suit No. 514 of 1973 against the Government of Bangladesh and obtained decree in pursuance.

5.            The matter appeared in the cause list for hearing for 3(three) days including today with the name of the learned Advocates but yet none appears for the petitioners.

6.            However learned Advocate Mr. Abdullah-Al-Mamun appeared on behalf of the opposite parties No. 1-11 and learned Advocate Mr. Bivash Chandra Biswas along with learned Advocate Mr. Md. Dider Ali Fakir represented opposite party Nos. 12-15.

7.            Learned Advocate Mr. Abdullah-Al-Mamun appearing for the opposite party Nos. 1-11 submits that the Title Suit No. 126 of 1991 was filed as a simple declaratory to the effect that the sole decree in Title Suit No. 71 of 1970 dated 10.04.1972 is not binding upon them. He elaborates his contentions upon averments that both the courts below gave concurrent findings of fact upon careful scrutiny of the evidence on record. Regarding the ground of limitation taken by the petitioners in the Civil Revisional application, he contends that the respondent opposite parties gained knowledge about the falsely personated sole decree for the first time in the year 1991 after a gap of 20 years. He further submits that the trial court in his judgment quite elaborately discussed the deposition of the witnesses. He in course of his submissions takes me through the records including the deposition of D.W-5 wherefrom he points out that from the inconsistent and self contradictory deposition of the D.W-5 it is quite evident that the sole decree was obtained fraudulently beyond the knowledge of the plaintiff most of whom were minors at that time. He further contends that the issue of minority of the plaintiff the said sole decree was given has not been controverted anywhere, in the written statement neither in the deposition and trial nor anywhere else by the defendant appellant petitioners. He further asserts that the D.W-5 Tahosilder in his deposition admits that the plaintiff have been in possession of the suit land. He also argues that in pursuance of the sole decree in Title Suit No. 71 of 1970 the defendant appellant opposite parties never took any steps for the correction of the S.A record which till date stands in the name of the plaintiff respondent opposite party. Regarding his submission on the ground of limitation he argues that the plaintiffs were not barred by any limitation. In pursuance of his submissions on not being barred by limitation, in filing the suit he asserts that since the decree was obtained though fraud and deception beyond their knowledge and they gained knowledge of the sole decree after a lapse of 20(twenty) years, therefore they are not barred upon the ground of limitation. In this context, the learned Advocate for the opposite party Nos. 1-11 draws support from a decision of this court reported in 64 DLR (2012) 471 in the case of Mokless Uddin Vs. Rabi Chowdhury where the High Court Division expressed its opinion that: “It is well settled principle that the limitation is immaterial when any order obtained by practicing fraud upon court.”

8.            He persuades that in the instant case it is quite evident specially from the deposition of the D.W-5 that fraud was actually practiced upon the plaintiff who were minors at that time and they gained knowledge of the sole decree after a lapse of 20(twenty) years under the circumstances. He also draws my attention to the fact that the present opposite parties No. 5-11 though they were plaintiffs initially but eventually during pendency of the suit they bought a portion of the suit land from the defendants. In pursuance of this incident of such purchase, he submits that the said purchase is in violation of the provisions of Section 52 of the Transfer of Property Act, 1882.  

9.            In the light of his submissions and relying upon the concurrent finding of the courts below and a decision of this court on the point of limitation he persuades that the Rule does not bear any merit and ought to be discharged for ends of justice.

10.        Learned Advocate Mr. Bivash Chandra Biswas along with learned Advocate Mr. Md. Dider Ali Fakir appearing for the opposite parties No. 12-15 submits that the Title Suit No. 126 of 1991 being a simple declaration that the sole decree in Title Suit No. 71 of 1970 dated 10.04.1972 is void, illegal and not binding upon them, however does not reflect nor does it have bearing  upon the Title of the parties concerned, to the suit land, since the plaintiffs in Title Suit No. 126 of 1991 mainly sought for a declaration on the grounds of false impersonation, minority and not having knowledge of the sole decree.

11.        I have heard the learned Advocate for the opposite parties No. 1-11 and 12-15 and I have perused both the judgments courts below which have been given concurrent findings of fact. Upon perusal of the judgment and decree it transpires that both the judgments carefully scrutinized the materials on record as to findings of fact and there does not appear any procedural flaws. The courts below quite elaborately discussed the deposition of the witnesses from both sides before arriving at their findings. The Trial Court in its judgment well reflected the deposition of the D.W-5 who was also a party to the said solenama. Upon cross examination the D.W.5 deposed that:I ®j¡LŸj¡l pLm ¢hh¡c£­cl ¢Q¢ez B¢j ph¡l e¡j hm­®a f¡lh e¡z***** ®L¡e ®L¡e a¡¢l­M ®p¡­m qu Bj¡l j­e e¡Cz fÐbj ®p¡­®me¡j¡l La ¢ce fl ¢àa£u ®p¡­m e¡j¡ qu a¡ Bj¡l ®Mu¡m e¡CzD.W-5 again deposed upon cross examination to the effect that a person by the name of Obinash Chandra Chowdhury was also a signatory to the Solenama. D.W-5 deposed that: I ®p¡­®me¡j¡u Bj¡l j®a HLSe ü¡rl L­®l ¢R­me, a¡q¡l e¡j A¢he¡n Q¾cÐ ®Q±d¤l£zBut upon scrutiny it was revealed that nobody by the name of Obinash Chandra Chowdhury was a signatory to the solenama. The Trial Court also pointed out that the D.W-5 also made inconsistent and contradictory statement regarding his own educational qualifications and which of course adversely reflects upon the credibility of his signature in the sole decree dated 10.04.1972 strangely enough one of which is in Bangla and the other is in English.

12.        D.W-2 upon cross examination could not even recount the amount of the suit land. The other D.Ws including D.Ws 4-6 also failed to produce any credible evidence in support of the genuineness and inability of the sole decree dated 10.04.1972.

13.        I have also examined the depositions of D.W-5 of the witnesses including that and which in my considered opinion is actually inconsistent and self contradictory. The main contention of the plaintiffs that most of them were minors at that time and that they were falsely impersonated by some person resorting to fraud bears enough force and therefore it is evident that the plaintiffs being minors at the time when the sole decree was obtained the plaintiffs were actually falsely impersonated and they did not have knowledge of the sole decree. I have also perused the records upon the issue of minority of the plaintiffs at the time of sole decree and it is apparent that the issue of minority has not been challenged or otherwise controverted by the present petitioner as defendants appellants in the courts below. It is further divulged from the records that in pursuance of the sole decree in Title Suit No. 71 of 1970 the petitioners never took any steps for correction of the S.A record and to this day the S.A records bears the name of the opposite parties No. 1-11.

14.        Regarding the issue of minority, I am inclined to rely on the provision of order 32 of the Code of Civil Procedure which provides that a minor to be able to sue or be sued must be represented by a guardian. I have particularly examined order 32 Rule 3 of the Code of Civil Procedure which provides that guardian for the suit for minor defendant is to be appointed by the court and only after following the prescribed procedures as laid down in order 32 Rule 3 of the Code of Civil Procedure.  However, in this case I have not found any thing to that effect in the records, neither has it been averred by the defendant appellants petitioner that the minors were represented by any guardian, nor has it been any where controverted at any stage by the defendant, that the plaintiffs were not minors at the time. My considered view is that on this violation of law alone and non-compliance of provisions of Order 32 especially Order 32 Rule 3 of the Code of Civil Procedure, consequently the sole decree dated 10.04.1972 is not sustainable and is void.

15.        I am also in respectful agreement with the principle settled by this court in the case of Mokless Uddin Vs. Rabi Chowdhury, reported in 64 DLR (2012) 471 where it has been stated:

   “It is well settled principle that the limitation is immaterial when any order obtained by practicing fraud upon court.”

16.        In this case the fact that the sole decree was actually false impersonation and beyond knowledge of the opposite parties being minors at the time of the said sole decree, is quite evident from the finding of facts by the courts below. Furthermore there is no gain saying that by now it is a well settled principle of law specially by several decisions of our Apex court and this court that concurrent findings of fact arrived at by two courts in absence of violation of law may not be interfered with in Revision. On the issue of possession, it appears from the records that the D.W-5 Tahsilder upon cross examination admits the possession of the plaintiffs.

17.        However, my considered finding is that the instant case being a simple declaratory Suit that the sole decree dated 10.04.1972 is void, illegal and not binding upon the plaintiffs, mainly on the grounds of false impersonation and minority, I don’t find much relevance of the issue of possession, since the suit was not filed to decide the Title of the parties to the Suit land but only to decide so far as it relates to the legality and effectiveness of the sole decree dated 10.04.1972 arising out of Title Suit No. 71 of 1970. Keeping this in mind, I also find merit in the submissions of the defendant Nos. 12-15 that the Title Suit No. 126 of 1991 arising out of a simple declaration to the effect that the sole decree is void, ineffective and not binding upon the plaintiffs mainly on the ground of limitation, false impersonation and minority of the plaintiff, therefore it does not have any bearing on the question of Title of parties to the suit land.

18.        I am also inclined to opine that the illegality and invalidity being mainly on ground of false impersonation and minority of the plaintiffs does not have bearing to the Title of the parties to the suit land or any dispute that may have arisen or may arise over the Title over the suit land.

19.        Be that as it may, in the light of the above observation and under the facts and circumstances and relying upon the concurrent finding of facts by the courts and upon hearing the learned Advocate for the opposite party Nos. 1-11 and the learned Advocate for the opposite parties No. 12-15 my considered finding is that the sole decree dated 10.04.1972 in Title Suit No. 71 of 1970 is void, illegal and not binding upon the plaintiffs in Title Suit No. 126 of 1991.

20.        Therefore, I do not find any merit in this Rule.

21.        In the result, the Rule is discharged without any order as to costs.

22.        The order of status-quo granted earlier by this court is hereby vacated.

23.        Send down the lower Court records.

24.        Communicate this judgment and order at once.

Ed.