Saleha Begum Vs Md. Delwar Hossain Bhuiyan and others

Case No: CIVIL PETITION FOR LEAVE TO APPEAL NO. 1013 OF 2010

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,Md. Nawab Ali,,

Case Year: 2014

Appellant: Saleha Begum

Respondent: Md. Delwar Hossain Bhuiyan and others

Subject: Gift,

Delivery Date: 2014-07-06

IN THE SUPREME COURT OF BANGLADESH

Appellate Division

 
PRESENT

Madam Justice Nazmun Ara Sultana

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali 

 

CIVIL PETITION FOR LEAVE TO APPEAL NO. 1013 OF  2010

(From the judgement and decree dated 25th of August, 2008 passed by the High Court Division in Civil Revision No. 3471 of 2007)


Saleha Begum

... Petitioner

  = Versus =

 

Md. Delwar Hossain Bhuiyan and others

... Respondents

For the Petitioner

 

:Mr. Khurshid Alam Khan,

Advocate, instructed by

Mrs. Madhumaloty Chowdhury Barua, Advocate-on-Record

For Respondent No. 1

:Mr. Md. Nawab Ali,

Advocate-on-Record

Respondent Nos. 2-5

:Not represented

Date of hearing & judgement

:The 6th of July, 2014




J U D G E M E N T

 MUHAMMAD IMMAN ALI, J:-

  This Civil Petition for Leave to Appeal is directed against the judgement and decree dated 25.08.2008 passed by a Division Bench of the High Court Division in Civil Revision No. 3471 of 2007 making the Rule absolute, thereby setting aside the the judgement and decree dated 24.7.2007 passed by the learned Additional District Judge, 8th Court, Dhaka in Title Appeal No. 323 of 2006 and decreed the Title Suit No. 188 of 1998.

Facts of the case, in brief, are that the suit shop bing No. 59 of Gulshan Kacha Bazar belonges to Dhaka City Corporation. The suit shop was allotted in favour of one Khandaker Liaquat Ali on 22.12.1983 and a lease deed was executed by the City Corporation on 11.4.1991. While Khandaker Liaquat Ali had been running his business at the said shop, he transferreed the possession of the same to defendant No. 2 on 19.11.1991. After purchase defendant No. 2 mutated his name with the Dhaka City Corporation and paid the City Corporation Tax and other dues. Subsequently, defendant No. 2 sold out the permanent possession of the suit shop in favour of the plaintiff on 02.09.1996 by executing document and also by swearing an affidavit before the Notary Public on 16.9.1996. The plaintiff duly took over possession of the suit shop. Defendant No. 2 filed an application to the Chief Revenue Officer, Dhaka City Corporation, Dhaka for mutating the suit shop in the name of the plaintiff. At the time of mutation proceedings the plaintiff came to know that defendant No.1 collusively created forged deed of gift on 02.1.1995 in respect of the suit shop though defendant No. 2 never transferred the same to her by way of gift. As defendant No. 1 created a false and fraudulent deed of gift in respect of the suit shop and thus clouded plaintiff’s title thereto he was compelled to file the suit for declaration of title to the shop and also declaration that the alleged deed of gift as described in schedule ‘Kha’ to the plaint and the affidavit were illegal, fraudulent, not regular and were not binding upon him.

The suit was contested by defendant No. 1 by filing a written statement denying the material statements made in the plaint and contending, inter alia that defendant No. 2, her husband transferred the suit shop in her favour on 02.1.1995 in lieu of her dower and inducted her into possession thereof. Defendant No. 2 also executed an undertaking on 08.02.1995 in favour of defendant No. 1 in respect of the suit shop admitting the said fact of transfer by way of gift and he paid rent of the suit shop on behalf of defendant No. 1 because of her other pre-occupation. Defendant No. 2 also swore an affidavit on 10.9.1996 before a Notary Public admitting the fact that he had transferred the suit shop to defendant No. 1. Defendant No. 1 being in possession of the suit shop as its rightful owner applied to the Dhaka City Corporation on 10.9.1996 for mutating her name. On the basis of the said application the Dhaka City Corporation asked defendant No. 1 to submit papers, which fact being informed to defendant No. 2, he in turn executed an Angikarnama as per the proforma of Dhaka City Corporation and also executed a document identifying the signature of the defendant before a Notary Public on 20.11.1996. In the said Angikarnama defendant No. 2 clearly mentioned that he had no objection if the name of defendant No. 1 was mutated in his place. As the plaintiff also filed an application for mutating his name while the process for mutating her name in respect of the suit shop was going on, some complication arose. The defendant came to know about the said fact of filing of the application by the plaintiff to mutate his name and was surprised. She perceived that taking the advantage of the fact of looking after the suit shop on her behalf, her husband, defendant No. 2 in collusion with the plaintiff created an undated deed in favour of the plaintiff in respect of the suit shop. As doubt cropped up in the mind of the defendant No. 1 after coming to know of the said fact, she decided to realize rent of the suit shop from the tenant and to that end went to the suit shop, but she did not find her tenant Shah Alam. After making query from the neighbouring shop owners the defendant No. 1 came to know that defendant No. 2 evicted the said tenant forcibly. Defendant No. 2 though evicted defendant’s tenant, yet he continued to pay her rent for the suit shop for which she could not know the fact of eviction of her tenant. Subsequently, the defendant No. 1 took possession of the suit shop and again let out the same to her tenant and her tenant is currently continuing his business in the shop under the name and style, “Shuapna Tailors and Cloth Store” and thus she is in possession of the suit shop through her tenant.

Defendant No. 2 filed written statement admitting the case of the plaintiff, asserting further the fact that he never transferred the suit shop to defendant No. 1 by way of gift. Defendant No. 1 created the deed of gift and the affidavit by forging his signature.

In the suit the plaintiff examined 5 witnesses to prove his case and defendant No. 1 also examined 5 witnesses including herself as D.W. 1.

After hearing the parties, the learned Joint District Judge, Dhaka by his judgement and decree dated 26.6.2006 decreed the suit declaring the plaintiff’s possession and title over the suit shop and also declaring the deed of gift and the other papers described in schedule “Kha’ to the plaint as illegal, fraudulent and not binding upon the plaintiff.

Being aggrieved by and dissatisfied with the aforesaid judgement and decree dated 26.06.2006 defendant No.1 filed Title Appeal No. 323 of 2006 before the District Judge, Dhaka. Subsequently, the learned Additional District Judge, 8th Court, Dhaka upon hearing the parties by his judgement and decree dated 24.7.2007 allowed the appeal reversing the judgement and decree passed by the learned Joint District Judge.

Against the said judgement and decree of the appellate Court the plaintiff preferred Civil Revision No. 3471 of 2007 before the High Court Division and obtained Rule.

By the impugned judgement and decree, the High Court Division made the Rule absolute and set aside the judgement and decree passed by the learned Additional District Judge in Title Appeal No. 323 of 2006 and restored the judgement and decree passed by the trial Court. 

The defendant No. 1, as petitioner, has filed the instant civil petition for leave to appeal challenging the impugned judgement and decree of the High Court Division.

Mr. Khurshed Alam Khan, learned Advocate appearing on behalf of the petitioner submitted that the appellate Court, as the last court of facts considered all the evidence and materials and upon elaborate discussion came to the finding that defendant No. 2, being the husband of defendant No. 1 transferred the disputed shop in favour of his wife by way of deed of gift dated 02.01.1995, which was supported by the evidence of DW 2 and DW 5, who are children of defendant No. 1 and defendant No. 2. He further submitted that the appellate Court found that the relationship of defendant Nos. 1 and 2 became strained and deteriorated and as such out of grudge and vengeance defendant No. 2 in collusion with the plaintiff subsequently created the document of transfer in the name of the plaintiff on 16.09.1996. The learned Advocate further pointed out that the City Corporation, being the owner of the shop admitted the possession of defendant No. 1 in their written statement. The learned Advocate submitted that the High Court Division erred in law in setting aside the judgement and decree of the lower appellate court, which is the last court of facts. In this connection he referred to the decession reported in 5 MLR (A.D.) 256 and 57 DLR (A.D.) 55. He finally submitted that the claim of defendant No. 1 that her husband transferred the suit shop to her by way of oral gift, which was supported by an affidavit and a deed of gift executed by her husband, which was proved by producing exhibits “A”, “B” and “C”, was not properly considered by the High Court Division.

We note from the impugned judgement that the High Court Division meticulously scrutinised all the evidence and materials on record and came to a finding that defendant No. 1 failed to prove her possession in the suit shop. In particular, the High Court Division observed that the appellate court did not at all consider the apparent fact that defendant No. 1 could not produce a single original document in respect of the suit shop, such as, letter of allotment, deed of agreement, rent receipt showing realisation of rents for the suit shop, whereas these original documents were produced by the plaintiff. The High Court Division also observed that the defendant No. 1 failed to prove that her tenant Shah Alam was forcibly evicted by examining a witness from the market. The High Court Division also noted that the appellate court did not consider the evidentiary value of PWs 2, 3 and 4 who supported the plaintiff’s case that after purchase of the possessory right of the suit shop he got possession thereof. The High Court Division highlighted the contradiction in the statement of defendant No. 1 in her written statement that her husband transferred the suit shop to her by way of oral gift, whereas in evidence in court she produced a written deed of gift, and added that a written gift by a person must be registered as provided in section 123 of the Transfer of Property Act and section 17 of the Registration Act. The High Court Division observed that the production of the documents exhibits “A”, “B” and “C” falsified the testimony of DWs 2 and 5.

Having carefully considered the evidence and materials before us, we are of the view that the defendant No. 1 could not satisfactorily prove the gift of the suit shop in her favour. She contradicted her own claim of an oral gift by producing in evidence written documents of gift. On the other hand, she did not prove the written deed of gift by producing any witness to the deed to support her claim. Moreover, as observed by the High Court Division, a written deed of gift of immovable property is required to be registered. It was the clear finding of the High Court Division that the deed of gift having not been registered, the transfer is void.

In view of the above discussion, we do not find any illegality or infirmity in the judgement of the High Court Division.

Accordingly, the civil petition for leave to appeal is dismissed, without, however, any order as to costs.