Md. Sabuj Miah & others Vs. Md. Sultanuddin & others, (Md. Emdadul Haque Azad, J.)

Case No: Civil Revision No. 3802 of 2010

Judge: Md. Emdadul Haque Azad, J

Court: High Court Division,

Advocate: Mr. Md. Asharaful Alam with Mr. Md. Raisuddin ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Md. Sabuj Miah and others

Respondent: Md. Sultanuddin and others

Subject: Transfer of Property Act

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Emdadul Haque Azad, J

 

Judgment on

11.04.2017

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Md. Sabuj Miah and others

. . . Petitioners

-Versus-

Md. Sultanuddin and others

. . . Opposite Parties

Transfer of Property Act (IX of 1882)

Section 7

Transferors must have subsisting interest in the land transferred.     . . .(22)

Code of Civil Procedure (V of 1908)

Order VIII, Rules 3, 4 and 5

All material allegations of facts in the plaint must be specifically controverted and categorically denied and any such allegation not denied or denied evasively shall be deemed to have been admitted.          . . . (26)

Code of Civil Procedure (V of 1908)

Sections 99, 115 and 151

In exercise of revisional jurisdiction under Section 115(1) of the Code of Civil Procedure this Court is not only empowered and competent to undo the wrong done to them, but also it is imperative and obligatory on the High Court Division to rectify the mistake in the interest of justice, and as such Exhibit- 50 as submitted by the plaintiffs before the trial court is treated as being duly signed by trial judge.   . . . (33)

 

Jinnat Ali Muktear Vs. Abdul Majid 27 DLR 385; Pubali Bank Vs. Md. Selim 7 BLT 21; Sohiruddin Mondal being dead his heirs Mansur Ali and others Vs. Banu Bibi 2 ALR 385; Ibrahim and others Vs. Sardar Ahmad and others 7 DLR 62; Nurul Islam and others Vs. Jamila Khatun and others 53 DLR (AD) 45; and Zafela Begum and others Vs. Atikulla and others 16 BLC (AD) 46; Guru Charan Mondal and others Vs. Sree Bhaba Sindhu Sarkar and others 13 MLR (AD) (2008) 6; Abdul Mannan Bhuiyan and others Vs. Md. Nasir Hossain and others 6XP (AD) 54; Md. Kalam Molla and others Vs. Sheikh Samsu and others 23 BLT 320; Abdus Samad Khan and others Vs. Md. Wazed Ali Fakir and others 14 BLD 375; Md. Shamsul Huda being dead his heirs Hafez Mohammad Ismail and others Vs. Bangladesh and others 20 BLD (AD) 48 ref.

Mr. Md. Asharaful Alam with

Mr. Md. Raisuddin

. . .For the petitioners

Mr. Zakir Hossain Bhuiyan with

Mr. Wayesh-Al-Haroni     

. . . For opposite parties

JUDGMENT

Md. Emdadul Haque Azad, J. This Rule was issued at the instance of the defendant-respondent-petitioners calling upon the plaintiff-appellant-opposite party Nos. 1-5 to show cause as to why the judgment and decree dated 12.07.2010 (decree signed on 19.07.2017) passed by the Additional District Judge, Second Court, Gazipur in Title Appeal No. 133 of 2009 allowing the appeal and setting aside the judgment and decree dated 04.06.2009 (decree signed on 10.06.2009) passed by the Assistant Judge, Second Court, Gazipur in Title Suit No. 3256 of 2008 dismissing the suit should not be set aside.

2.             Facts giving rise to the emergence of the present Rule are that on 30.11.2006 the opposite party Nos. 1-5 as plaintiff instituted Title Suit No. 275 of 2006 (subsequently renumbered as Title Suit No. 3256 of 2008) before the Senior Assistant Judge, Second Court, Gazipur against the petitioners and proforma opposite parties praying for a declaration to the effect that the plaintiffs have title in the suit land to the extent of 39 decimals of land as specified in schedule ‘Ka’ to the plaint and for a further declaration that 9 (nine) registered sale deeds and hiba-bil-ewaj deeds as specified in schedule ‘Kha’ to the plaint are collusive, illegal and not binding upon the plaintiffs on the contention that the suit land originally belonged to one Sheikh Salam Uddin whose name was recorded in C. S. Khatian No. 114 in respect of 16.86 acres of land; that Sheikh Salam Uddin died leaving behind two sons, namely Usman Ali and Rusmat Ali; that each son got 270 decimals of land by inheritance from Plot No. 187, and 843 decimals from    C. S. Khatian No. 114 from their father by inheritance; that on 19.05.1937 Rusmat Ali transferred 843 decimals of land to his wife Alimon Nessa through registered sale deed No. 3419; that thereafter on 05.04.1943 Alimon Nessa transferred 21 decimals of land to five persons including one Hasen Ali; that thereafter on 14.06.1946 Alimon Nessa transferred 813 decimals of land to her husband Rusmat Ali by registered sale deed No. 6225; that on 06.02.2005 Rusmat Ali transferred land to Nur Mohammad, Insan Ali i.e. the father of plaintiff Nos. 3 and 4 and Ahamad Ali i.e. the father of plaintiff Nos. 1 and 2 through sale deed No. 1995 and in this way each transferee got 17 decimals of land and accordingly, the S.A. Khatian Nos. 290 and 291 were rightly recorded in their names; that on 05.05.1951 Rusmat Ali transferred 35 decimals of land to his sister in law Olimon Nessa through deed No. 1878 and the said 35 decimals of land was acquired through L.A. Case No. 23/67-68 and through acquisition the right and title of Olimon Nessa was extinguished over the land; that even after the above acquisition, on 21.11.1982 Olimon Nessa transferred 12 decimals of land to one Shahid Ullah through deed No. 8868, on 27.06.1983 transferred 8 decimals of land to Abdul Khaleque through deed No. 6976 and on the same date transferred 17 decimals  f land to defendant Nos. 1 and 2 through deed No. 6987 though there was no legal sanction of those deeds which also had no legal effect i.e. deed No. 4066 dated 27/06/93, deed No. 6802 dated 14/09/1997, deed No. 8792 dated 08/12/97, deed No. 4282 dated 05/06/98, deed No. 8392 dated 07/09/02 and deed No. 9444 dated 30/10/04; that Rusmat Ali, Usman Ali and Moslem Ali became extinguished in her title through transfer; that the plaintiffs became owner of 39 decimals of land on the strength of sale and inheritance; that the plaintiffs have been enjoying and possessing the suit land peacefully by planting trees and cultivating vegetables therein; that the defendants have no right, title, interest and possession in the suit land; that on 01.10.2005 the plaintiffs came to know about the wrong R. S. record in the name of Olimon Nessa they went to the local Tahshil office to pay the rent; that on 06.10.2005 the plaintiffs became fully aware of the wrong R. S. Khatian after collecting the certified copy of the same from the concerned office; that the wrong R. S. record of the suit land in the name of Olimon Nessa clouded the title of the plaint and in order to dispel that cloud, the plaintiffs earlier filed Title Suit No. 217 of 2005 but later on they withdrew the suit with a permission to sue afresh for material defects in the plaint, and that afterwards they filed this suit praying for a decree for declaration of title over the suit land with a further prayer for cancellation of the deeds as mentioned in Schedule ‘Kha’ to the plaint.

3.             That the defendant Nos. 1, 6 and 10 contested the suit by filing a joint written statement denying all the material facts of the plaint and contending, inter alia, that the suit is not maintainable in its present form and manner; that the suit is barred by waiver, estoppel and acquiescence; that the suit land originally belonged to C. S. recorded tenant Sheikh Saham Uddin in whose name C. S. Khatian No. 114 in respect of 16.86 acres of land was prepared and published; that Saham Uddin died leaving behind two sons named Usman Ali and Rusmat Ali and each of them got 270 decimals of land by inheritance from plot No. 187; that S.A Khatian No. 291 was recorded in the name of Usman Ali, and S.A Khatian No. 290 was recorded in the name Rusmat Ali who transferred 35 decimals of land to his wife Olimon Nessa by a registered sale deed being No. 1878 dated 05.02.1951; that on 21.11.1982 Olimon Nessa transferred 12 decimals of land to Shahid Ullah through deed No. 8868, on 27/06/83 transferred 8 decimals of land to Abdul Khaleque through deed No. 6976 and on the same date transferred 17 decimals of land to defendants Nos. 1 and 2 through deed No. 7987; that the defendants got title over the suit land through some deeds i.e. deed No. 4066 dated 27/06/1993, deed No. 4292 dated 05/06/98, deed No. 7042 dated 24/09/97 and deed No. 6802 dated 14/09/97; that only 3 decimals of land out of 35 decimals were acquired from the property of Olimon Nessa and she remained in possession of the rest 32 decimals of land and accordingly, the land was rightly recorded in  R. S. Khatian No. 354 in Plot No. 111 in her name; that on 23.12.1961 Shamsul Huq transferred 70 decimals of land through deed No. 5000 to Moslem Ali, the father of plaintiff Nos. 1-4; that the defendants No. 1 become the owner of land recorded in R. S. Plot No. 1112; that the suit land was correctly recorded in R. S. Khatian in the name of the defendants who have right, title, interest, possession and control over the suit land and the plaintiffs do not have any title and possession in the suit land; that the plaintiffs brought suits one after another in respect of the suit land to harass the defendants and hence, the suit is liable to be dismissed with cost.

4.             The suit was tried by the Assistant Judge, Second Court (Sreepur), Gazipur on 6 (six) issues.

5.             During trial the plaintiffs examined 3 witnesses including the plaintiff No. 4 Md. Azizur Rahman as P. W. 1, and the contesting defendants also examined 3 witnesses including the defendant No. 7 Abdul Khaleque as D. W. 1 and both the parties adduced documentary evidences in support of their respective claims.

6.             The trial Court by its judgment and decree dated 04.06.2009 dismissed the suit holding, inter alia, that the suit is barred by limitation, not maintainable in its present form and manner, and that the plaintiffs failed to prove their case by documentary and oral evidence.

7.             Feeling aggrieved by and dissatisfied with the aforesaid judgment and decree of the trial Court, the plaintiffs preferred Title Appeal No. 133 of 2009 before the District Judge, Gazipur and the appeal was eventually heard by the Additional District Judge, Second Court, Gazipur, who by the judgment and decree dated 12.07.2010 (decree signed on 19.07.2010) allowed the appeal decreeing the suit and declaring plaintiffs’ title to 34 decimals of land as against their claim of 39 decimals by setting aside the judgment and decree of the trial court holding, inter alia, that the plaintiffs successfully managed to prove their right, title, interest and possession in the suit land and that the defendants acquired no title to the suit land since their transferor Alimon Nesa became completely extinguished therefrom following the acquisition of her entire share to the extent of 35 decimals vide L. A. Case No. 23/67-68.

8.             Being aggrieved by and dissatisfied with the aforesaid judgment and decree dated 12.07.2010 (decree signed on 19.12.2010) passed by the Additional District Judge, Second Court, Gazipur in Title Appeal No. 133 of 2009, the petitioners moved an application under Section 115(1) of the Code of Civil Procedure and obtained the present Rule.

9.             Mr. Md. Ashraful Alam, the learned Advocate for the defendant-petitioners, instead of pressing any of the grounds taken in the revisional application, took me to Schedule ‘Kha’ to the plaint in the form of a table containing the particulars of the impugned deeds of hiba and sale deeds (Exhibits- 5-14) and submits that the schedules of the said deeds are not given in the plaint and as such, the suit being manifestly barred by Order VII Rule 3 of the Code of Civil Procedure due to lack of specification, the lower appellate court ought to have dismissed the suit as the trial court did albeit on different reasoning’s.

10.         Mr. Asharaful Alam next submits that the cause of action of the suit is not clear and discernible even upon a close scrutiny and perusal of the plaint, and as such the suit lacks a clear and meaningful cause of action for which the same is liable to dismissed.

11.         Mr. Alam lastly submits that the plaintiffs prayed for a decree for declaration of title vis-à-vis of 39 decimals of land whereas the lower appellate court decreed the suit in part by declaring their title to 34 decimals of land, and the instant suit being a suit for declaration simpliciter as opposed to a suit for partition, there is no scope to decree the suit in part and therefore, the impugned judgment and decree of the court of appeal below being illegal, perverse and beyond the standard norms of a declaratory decree, is liable to be set aside.

12.         Per contra, Mr. Zakir Hossain Bhuiyan, learned advocate appearing for the plaintiff-opposite party Nos. 1, 3-5 submits that the plaintiffs successfully managed to prove their right, title, interest and possession in the suit land by adducing sufficient oral and documentary evidence of convincing nature and as such the suit has been rightly decreed by the court of appeal below reversing the erroneous, illegal and perverse findings and decision of the trial court. In this regard Mr. Bhuiyan added that the defendants neither through their written statement nor evidence denied the accuracy and genuineness of the title deeds of the plaintiffs, which were duly produced, examined and used as evidence by putting exhibit marks thereon as Exhibits 26 and 34-43.

13.         Mr. Bhuiyan next submits that the plaintiffs successfully managed to prove that entire 35 decimals of land as specified in the registered sale deed being No. 1878 dated 05.02.1951 (Exhibit- 20) was lawfully acquired from its admitted owner Alimon Nesa Bibi vide L. A. Case No. 23/67-68 for the purpose of constructing Dhaka-Mymensingh Highway, and the said Alimon Nesa Bibi drew/received the compensation money/award against the said acquisition of her total quantum of land. Drawing my attention to Exhibits- 15 and 50.

14.         Mr. Bhuiyan submits that the defendant-petitioners miserably failed to prove by any minimum iota of evidence, oral or documentary, that only 03 decimals as opposed to 35 decimals of land was acquired from the said Alimon Nesa Bibi. Placing his reliance on Exhibit- 15 and 50, Mr. Bhuiyan submits that those exhibits were duly proved by the plaintiffs before the trial Court and the defendants did not raise any objection against those documents either before the trial court or the lower appellate Court although they got copy thereof or access thereto in the course of trial. In support of this submission Mr. Bhuiyan refers to the cases- Jinnat Ali Muktear vs. Abdul Majid 27 DLR 385 and Pubali Bank vs. Md. Selim 7 BLT 21.

15.         Mr. Bhuiyan further submits that entire 35 decimals of land belonging to Alimon Nesa Bibi having been acquired from her vide L. A. Case No. 23/67-68 and the compensation money against that acquisition having been drawn on 15.02.1971, she had no subsisting interest in the suit land and as such the impugned sale deeds and hiba-bil-ewaj deeds (Exhibits 5-14) having been executed and registered during the period ranging from 21.11.1982 to 30.10.2004, are illegal, forged, fraudulent, collusive and without any legal effect in view of the fact that no title passed either from Alimon Nesa Bibi or her transferees or successive transferees on the strength of the said impugned deeds and as such the transactions effected by the impugned deeds are mere paper transactions and ineffective for not being followed up by any consideration and delivery of actual/physical possession, rather the defendants in connivance with each other created the said documents with a sinister design to grab the suit land. In support of his submission Mr. Bhuiyan refers to the cases- Sohiruddin Mondal being dead his heirs Mansur Ali and others vs. Banu Bibi 2 ALR 385; Ibrahim and others vs. Sardar Ahmad and others 7 DLR 62.

16.         Mr. Bhuiyan also submits that out of 37 defendants, only the defendant Nos. 1 and 6-10 contested the suit by filing a joint written statement substantially admitting the case of the plaintiffs, and although the defendant Nos. 2-5 and 11-37 are the recipient/beneficiary of the impugned deeds as contained in Exhibits 5-14, they did not contest the suit by filing any written statement or adducing any evidence, oral or documentary, and as such the plaintiffs’ claim against the said non-contesting defendants stands unopposed, unassailed, uncontroverted and admitted within the meaning of law. On this point Mr. Bhuiyan continues to argue that the contesting defendants i.e. defendant Nos. 1 and 6-10 directly or indirectly admitted the claim of the plaintiffs as made in paragraph 1-9 of the plaint vide paragraph 8-16 of their written statement and as such the plaintiffs’ case stands proven on the admission of the defendants. Taking me to paragraph 19 (Ga) of their written statement, Mr. Bhuiyan submits that the contesting defendants categorically admitted that Alimon Nesa Bibi did not have title to the entire suit land.

17.         Mr. Bhuiyan goes on to add that the defendants signally failed to explain in paragraph 19 (Ga) of their written statement as to how Alimon Nesa Bibi lost her title to 17 decimals of land which was allegedly transferred in favour of the defendant Nos. 1 and 2 vide a registered deed of hiba-bil-ewaj being No. 6987 dated 27.06.1983 (although wrongly written as deed No. 7987 and the defendants’ lack of such explanation otherwise lends support to the plaintiffs’ contention that Alimon Nesa’s entire 35 decimals of land was acquired for the purpose of constructing Dhaka-Mymensingh Highway vide L. A. Case No. 23/67-68, and in spite of having specific knowledge about Alimon Nesa’s lack of title to the lands transferred to them vide the said deed of hiba-bil-ewaj being No. 6987 dated 27.06.1983 (Ext. 14), the defendant Nos. 1 and 2 collusively effected the execution and registration of the said deed in their favour with a sinister design to grab the suit land or a portion thereof in the garb of the said deed of hiba.

18.         On the point of plaintiffs’ acquisition of right, title, interest and possession in the suit land, Mr. Bhuiyan takes to paragraph 9 of the plaint and submits that the contention made in that paragraph having not been specifically denied and no counter version having been offered by the defendants vide paragraph 16 of their written statement, the plaintiffs’ right, title, interest and possession in the suit land stands admitted within the meaning of Order VIII Rules 3-5 of the Code of Civil Procedure. In this connection Mr. Bhuiyan placed reliance on Nurul Islam and others vs. Jamila Khatun and others 53 DLR (AD) 45; and Zafela Begum and others vs. Atikulla and others 16 BLC (AD) 46.

19.         On the defendants’ failure to prove their title to the suit land by producing all of their title deeds, Mr. Bhuiyan submits that only 2 (two) out of 10 (ten) deeds i.e. registered sale deed No. 6976 dated 27.06.1983 (Exhibit- 13) and registered sale deed No. 6802 dated 14.09.1997 (Exhibit- 6) were produced before the trial court in support of their contention and they offered no explanation as to the non-production of 8 (eight) other document for reasons best known to them. More so, Exhibit- 6 bears noticeable interpolations, which invite serious suspicions as to its accuracy and genuineness.

20.         Mr. Bhuiyan lastly submits that while decreeing the suit, the trial court unduly and illegally laid over emphasis on R. S. Khatian No. 354 erroneously prepared and published in the name of Alimon Nesa Bibi since she had no subsisting interest in the suit land at the time of preparation and publication of the same, and that the trial court recorded a gratuitous and unreasonably lengthy findings on the said R. S. Khatian without taking any issue thereon and thereby made out a third case in favour of the defendants, falling into an oblivion of the settled/entrenched principle of law that R. S. Khatian has got no presumptive value of correctness. In support of his submission Mr. Bhuiyan refers to the cases- Guru Charan Mondal and others vs. Sree Bhaba Sindhu Sarkar and others 13 MLR (AD) (2008) 6; Abdul Mannan Bhuiyan and others vs. Md. Nasir Hossain and others 6XP (AD) 54; Md. Kalam Molla and others vs. Sheikh Samsu and others 23 BLT 320; Abdus Samad Khan and others vs. Md. Wazed Ali Fakir and others 14 BLD 375; Md. Shamsul Huda being dead his heirs; Hafez Mohammad Ismail and others vs. Bangladesh and others 20 BLD (AD) 48.

21.         I have meticulously gone through the revisional application, the impugned judgment and decree, the pleadings of the respective parties, evidence led by them and other materials on record and also heard the learned Advocates for the contending parties at length for days together and perused the decisions relied upon by them with utmost circumspection and the relevant provisions of law wherefrom it transpires that Exhibit 15 and 50 are the sheet anchor of the instant suit and the ultimate outcome of the same hinges on the consideration thereof in their proper and true perspective. I will also endeavour to address all other connected issues involved in the Rule in proportion to their respective weight and importance.

22.         It transpires from Exhibit 15 and 50 that Alimon Nesa’s entire share to the extent of 35 decimals of land was acquired by the then East Pakistan Government for constructing Dhaka-Mymensingh Highway vide L. A. Case No. 23/67-68 and on 15.02.1971 she received compensation against that acquisition for which she lost her subsisting interest in the suit land and therefore, subsequent transfers of the same from 21.11.1982 to 30.10.2004 by the so-called transferees and successive transferees of Alimon Nesa by the impugned sale deeds and hiba-bil-ewaj deeds as contained in Exhibit 5-14 happen to be sham and mere paper transactions given the fact that the suit land having earlier been acquired for a public purpose, subsequent sale and delivery of possession thereof was impossible. Although the defendants contended that only 3 decimals of land was acquired from Alimon Nesa, they did neither produce any evidence to substantiate that contention nor did they raise any objection against Exhibit 15 and 50 before the either of the lower courts in spite of having ample opportunity to do so and as such their main contention falls through. In this regard, I think it would be profitable to quote the ratio decidendi of the cases relied upon by the plaintiff-opposite parties.

23.         In Jinnat Ali Muktear vs. Abdul Majid 27 DLR 385 it was held that “If objection to the formal proof of a document has not been taken at the earliest point of time, it cannot be taken subsequently and also not in appeal”.

24.         The view of the High Court Division in Pubali Bank vs. Md. Selim 7 BLT 21 runs as“Unless objection as to admissibility of a document was taken at the earliest opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage.”

25.         Although the defendant Nos. 1 and 6-10 out of a total number of 37 defendants contested the suit by filing a joint written statement, the rest i.e. defendant Nos. 2-5 and 11-37 didn’t feel any necessity to contest the suit by filing written statement or adducing evidence despite the fact that they are the recipient/beneficiary of the impugned deeds. Upon perusal of paragraph 8-16 of written statement filed by the contesting defendant Nos. 1 and 6-10, it appears that they substantially admitted the claim of the plaintiffs as raised vide paragraph 1-9 of the plaint. Again, the contesting defendants vide paragraph 19(Ga) of their joint written statement categorically admitted that their predecessor-in-title had no title to the entire suit land and the manner/mode of loss of title to the half of her share by Alimon Nesa as well as the purchase by the defendant Nos. 1-2 from the said Alimon Nesa in spite of her lack of title having althrough been unexplained, the case of the plaintiffs otherwise stands proven/supported by such lack of explanation on the part of the defendants. Paragraph 19(Ga) of the said written statement reads as follows:

ÓM) Dc‡iv³ Avwjgb †bQv wm Gm 187 `v‡M 35 kZvsk m¤úwˇZ Lwi`g~‡j gvwjK `LjKvi wbqZ nBqv ... ... weMZ 27/6/83 Zvwi‡Li 7987 bs `wjjg~‡j 17kZvsk m¤úwËi 1 I 2 bs weev`xi eive‡i n¯ÍvšÍi K‡ib| D³ `wjj 1 I 2 bs weev`x 17 kZvsk m¤úwËi 17kZvsk `vex K‡i bv| D³ Kvib D³ Awjgb †bQvi m¤úwË n¯ÍvšÍi Kivi gvwjKvbv wQj bv|Ó

26.         Admissions (arising out of non-denial and offering counter version) made by the contesting defendants in paragraph 8-19 of their written statement against the claim/contentions raised by the plaintiffs in paragraph 1-9 of the plaint ultimately support the plaintiffs’ acquisition of right, title, interest and possession in the suit land within the meaning of Order VIII Rules 3-5 of the Code of Civil Procedure. Although the admissions made by the defendants in their written statement are not discussed in extensor for the sake of brevity, the wording of Order VIII Rules 3-5 of the Code of Civil Procedure are reproduced below in verbatim:

R. 3 Denial to be specific. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

R. 4 Evasive denial. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance……..

R. 5 Specific denial. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability;

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise that by such admission.

27.         The above findings find support from a good number of judicial pronouncements by both the Divisions of this Court. Our apex court in the case of Zafela Begum and others vs. Atikulla and others 16 BLC (AD) 46 unanimously held that “…. The written statement must not only deal with specifically, the defendant must also answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such event, the admission itself being proof, no further proof is necessary.’’

28.         The trial court appears to have committed a patent illegality in laying over emphasis on R. S. Khatian No. 354 prepared and published in the name of Alimon Nesa who had no subsisting interest in the suit land at the time of R. S. operation. The trial court’s illegality is fortified by its uncalled for, unsolicited, gratuitous and unduly lengthy discussion and finding on the said R. S. Khatian in the absence of any plea taken or evidence adduced by the defendants or issue taken thereon and as such the same is in direct conflict with the entrenched legal principle that R.S. Khatian is without any presumptive value of correctness as our Appellate Division held in Guru Charan Mondal and others vs. Sree Bhaba Sindhu Sarkar and others 13 MLR (AD) 6 in the following terms:

“State Acquisition and Tenancy Act, 1950-

Section 144- Record of rights in S A. and R.S. Khatian do not confer any title- Kabala deed prevails over record of rights.”

29.         On the question of possession it is found that all the 3 (three) P. W. s in unison deposed that the plaintiffs have been enjoying and possessing the suit land by erecting dwelling houses and shops thereon and inducting tenants therein, and the defendants could not extract anything to the contrary by cross-examining them.

30.         Reverting to the submissions advanced from the defendant-petitioners as to the lack of schedule of the impugned deeds, lack of cause of action and partial decree passed in the instant suit for declaration simpliciter, I am constrained to hold that Schedule ‘Kha’ to the plaint contains all the necessary particulars of the impugned deeds i.e. the name of the parties; the date, number and nature of the deeds; and the volume number and the pages thereof in which those deeds are copied. It appears from paragraph 10 and 12 of the plaint and the testimony of the P. W. 1 Md. Azizur Rahman that the plaintiffs mentioned specific dates of cause of action of the suit. Moreover, the trial court itself found that “The cause of action narrated in the plaint is substantiated by PW1 and by other witnesses of the plaintiff”, but the defendants did not file any cross appeal against the said observation of the trial court. With regard to the partial decree passed by the lower appellate court, it is found that the appellate court took much pain in ascertaining the actual quantum of land the plaintiffs are entitled to, upon calculation of the shares of their predecessors subsequent to their transfer/s and thus, I am of the considered view that the submissions advanced by the petitioners’ Advocates are devoid of merit being directly contrary to the pleadings of the parties, evidence and other materials on record and the provisions of law holding the field and therefore, the said submissions being altogether new, fresh and unique in nature for having not been raised before the courts below earlier, do not deserve any consideration by or interference from this Court.

31.         In the course of hearing, on 28.03.2017 the defendant-petitioners filed a supplementary affidavit alleging that the signature of the trial judge in Exhibit- 15 does not match with his other signatures as appearing in Exhibits 1-24 and 16-49, and that Exhibit 50 is not signed by the said judge and as such the same is prepared as a second thought. Again, on 29.03.2017 the petitioners filed an application seeking a direction upon the Registrar of the Supreme Court of Bangladesh, High Court Division to send Exhibit- 15 to a handwriting expert for his opinion on the genuineness of the signature of the trial judge.

32.         I have compared the signature of the trial judge in Exhibit- 15 with his other admitted signatures available on record and upon such comparison, I found a very slight variation in the signature of the trial judge in the said exhibit and such trivial variation in varied situations being quite natural for any human being, does not affect the merit of the case or jurisdiction of the court. Coming to the question of lack of signature of the trial judge on Exhibit- 50, I hold that such an omission is a bona fide mistake of the court itself as opposed to any fault or laches on the part of the plaintiffs themselves and as such that mistake of the trial court is curable under Sections 99 and 151 of the Code of Civil Procedure. Section 99 of the Code reads as follows:

Section 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

33.         In the case of Arshed Ali Sikder (Md) vs Gourango Chanra Shil and others 57 DLR 635 it has been held that “Mere omission to sign and seal exhibits or deposition sheet does not affect the merit of the case nor the jurisdiction of the court and such omissions are mere defects or irregularities in the procedure and not an illegality when section 99 of the Code of Civil Procedure aims to prevent such procedural technicalities. Non-compliance of the procedure for marking the exhibits and to prepare the exhibits list does not destroy the validity of the Court Proceeding.”

34.         The Appellate Division in the case of Keramat Ali Bhuiyan being dead his heirs, Shahida Khanam and another vs. Ramizuddin Ahmed Bhuiyan 43 DLR(AD) 58 held that“When an injury is caused to a party due to any mistake or default committed by a court or its officers, it is not only the right but also the duty of the court to correct its own mistake.”

35.         In the case of Abdul Mannan Sikder vs Matilal Dhupi and others 18 BLD 318 it has been held that “The Court has inherent power to rectify its own mistake or any mistake committed by any Court official causing prejudice to any particular party for no fault of its own, by resorting to the provision of section 151 C.P.C. A party cannot be made to suffer for the mistake done by the Court and the aggrieved party cannot be pushed to take recourse to any ardourous, costly and time-consuming exercise for rectifying such a mistake. In Such circumstances, exercise of power under section 151 of the Code is not only permissible but also imperative for preventing an injustice.”

36.         In the wake of the above legal provision, principle and precedents, I cannot remain silent about the sufferings of the plaintiffs for no fault of their own, rather in exercise of revisional jurisdiction under Section 115(1) of the Code of Civil Procedure this Court is not only empowered and competent to undo the wrong done to them, but also it is imperative and obligatory on me to rectify the mistake in the interest of justice, and as such Exhibit- 50 as submitted by the plaintiffs before the trial court is treated as being duly signed by trial judge. This exercise of power also finds support from the decisions reported in 51 DLR 493, 53 DLR217, 49 DLR 414, and 19 BLC 649. In this connection I cannot resist myself from the temptation to quote the ratio given in the case of Abdus Sattar on being dead his heirs: Sayera Khatun and others vs. Abdun Noor and others 49 DLR 414:

“This Court in revisional jurisdiction is not powerless and can for the ends of justice rectify any illegality committed by the inferior court even if such defect is not pointed out by either party.

37.         Moreover, the objection raised before me to Exhibit 15 and 50 was never raised before the courts below although the defendants had ample opportunity to do so and they have not offered any explanation for their failure to raise such objection earlier and as such the supplementary affidavit dated 28.03.2017 is discarded from consideration and the application for expert opinion on Exhibit 15 is hereby rejected for the reasons stated above.

38.         Upon perusal of the judgment of the trial court it appears that it recorded certain wrong, illegal and perverse findings on the question of possession, limitation, maintainability of the suit and burden of proof in total disregard of the pleadings and evidence of the contending parties, other materials available in record and the provisions of law. Again, while dismissing the suit it failed to appreciate that the weight of evidence and preponderance of documents is in favour of the plaintiffs and against the defendants and as such it ought to have decreed the suit.  

39.         For the discussions made and reasons stated above, it appears to me that the lower appellate court as the final court of fact correctly allowed the appeal on some cogent, legal and well-founded findings and reasoning’s upon discussion of all the issues revolving round the suit and as such the impugned judgment and decree being a proper judgment of reversal, does not call for any interference.

40.         Accordingly, I find no merit in the Rule for which it fails. In the result, the Rule is discharged without any order as to cost and the impugned judgment and decree dated 12.07.2010 (decree signed on 19.07.2017) passed by the Additional District Judge, Second Court, Gazipur in Title Appeal No. 133 of 2009 allowing the appeal and setting aside the judgment and decree dated 04.06.2009 (decree signed on 10.06.2009) passed by the Assistant Judge, Second Court, Gazipur in Title Suit No. 3256 of 2008 dismissing the suit is hereby affirmed.

 

41.         Send down the lower Court record along with a copy of this judgment to the Court concerned at once.



Civil Revision No. 3802 of 2010