Sree Jamini Ranjan Chakraborty & ors. Vs. Bazlur Rahman & ors., 2018(1) LNJ 283

Case No: Civil Revision No. 365 of 1993

Judge: Soumendra Sarker, J.

Court: High Court Division,

Advocate: Mr. Surojit Bhattacharjee, Advocate, Mr. Mustafa Kamal Pasha, Advocate, Mr. Md. Abdul Hai, D. A. G.,

Citation: 2018(1) LNJ 283

Case Year: 2017

Appellant: Sree Jamini Ranjan Chakraborty and others

Respondent: Bazlur Rahman and others

Subject: Land Reforms Ordinance, Evidence Act

Delivery Date: 2018-06-04

have endorsed the view that because of the guarantee secured under Article 31 it may not now be possible for Parliament to exclude its application (see, Razia Sattar vs. Azizul Huq reported in (2007) 1 BLC 357 as discussed in Mahmudul Islam’s “Constitutional Law of Bangladesh” 3rd Edition: May, 2012 at para 2.107) and that any action taken under such law will be void and not merely voidable. In the present case, happily, this Court finds no express exclusion of the right to be heard, thereby, making it all the more incumbent upon the Respondent No. 6 to have extended the Petitioner a due opportunity of being heard prior to arriving at the impugned decision of 23.7.2014. That element of basic fairness is found to be clearly absent in the facts. Such denial of access to fair procedure and subscription to the audi alteram partem rule, this Court finds, amounted in the facts both to a rejection of the first principles of eternal justice (see, observations by Lord Kenyon CJ in R vs. Goskin reported in (1799) 8 Term Rep. 200 and by Lord Campbell CJ in Ex parte Ramsay reported in (1852) B. 173) and a blatant disregard of the “essentials, of justice” (see, Osgood vs. Nelson reported in (1891) 2 Ch. 84). Such denial in the Court’s view further aggravated the prejudice caused to the Petitioner in the facts and circumstances and is, therefore, duly taken into account by this Court in declaring the impugned Order to have been passed without any lawful authority and, consequentially, to be of no legal effect.

17.          In light of the above, this Court finds no ground whatever to opine on the legal sustainability of the impugned Order.

18.          Accordingly, finding merit in the Petitioner’s Application and the substance in the Rule Nisi issued, the said Rule is, hereby, made absolute.

There is no Order as to costs.

Communicate this Order at once.

Ed.

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J.

 

Judgment on

06.11.2017

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Sree Jamini Ranjan Chakraborty and others

. . . Plaintiff-Respondent- Petitioners

-Versus-

Bazlur Rahman and others

. . . Defendant-Appellant- Opposite Parties

Land Reforms Ordinance (X of 1984)

Section 5(1)

Evidence Act (I of 1872)

Sections 102 and 103

The pleading’s case of the plaintiffs is such that in the year 1945 A.D. all the deeds were executed and registered. Therefore, it is obvious to note that the transfer deeds are not within the mischief of section 5 (1) of the Land Reforms Ordinance, 1984, but the fact remains that under the law of Benami Transaction the onus of proof entirely lies under section 102 and 103 of the Evidence Act is on the person claiming to the real owner. Therefore, it is the plaintiffs, who are required to prove by tangible evidence that their father Kali Kumar Chakroborty in the name of his daughter Liamoyee Debi purchased the land–in-dispute after payment of consideration money from his own fund. In the instant case; we have come across from the evidence on record that the deeds in question lies in the custody of their father Kali Kumar as alleged from the side of the plaintiffs, but the fact remains that, in the instant case; there is no evidence which can be trustworthy and competent to prove other criterions of Benami Transaction. It is evident that the plaintiffs to the suit in order to establish that the transaction was in fact a Benami Transaction have hopelessly failed to discharge their onus of proof. Furthermore; our Apex court held in several decisions that the person claiming to be the real owner on the basis of   Benami Transaction , is to discharge the onus of proof under the ambit of sections 102 and 103 of the Evidence Act. In the instant case there is no evidence either oral or documentary, that there was any intension or motive from the side of the plaintiff’s-predecessor to obtain this alleged Benami Transaction in the name of his eldest daughter Lilamoyee Debi. With regard to Benami Transaction the determining factors as I have already cited to above not at all proved in this case by any cogent evidence. Moreover, father would buy land in the name of his daughter even after her marriage is not the normal human conduct.  . . .(18 and 20)

36 DLR 37; AIR 1974 (SC) 171; 4 BLD (AD) 307; AIR 1965 (SC) 271, 49 DLR (AD) 73 and 17 BLD (AD) 66 ref.

Mr. Surojit Bhattacharjee, Advocate with

Mr. Mohammad Nurul Huda Ansary, Advocate

. . . For the petitioners.

Mr. Mustafa Kamal Pasha, Advocate

… … For the opposite party No. 01.

Mr. Md. Abdul Hai, D. A. G. with

Mr. Md. Shahidul Islam Khan, A. A. G.

. . .For the Government

JUDGMENT

Soumendra Sarker, J. The Rule issued calling upon the opposite parties No. 1 & 2 to show cause as to why the impugned judgment and decree dated 23.09.1992 and 30.09.1992 respectively, passed by the learned Additional District Judge, 3rd court, Chittagong in Other Appeal No. 182 of 1991 reversing the judgment and decree dated 30.01.1991 and 06.02.1991 respectively, passed by the learned Assistant Judge, Additional Court, Patia, Chittagong in Other Suit No. 145 of 1990 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.            The facts leading rise to this Rule are as follows: the present-petitioner as plaintiff instituted the Original Other  Suit  No. 36 of 1984 in the 1st court of the then Munsif, Patia, Chittagong against the opposite party-defendants for declaration that the 3rd party defendant is the benamdar of the plaintiffs and the suit property is not vested and       non-resident property and the lease deed executed by the 2nd party-defendant in favour of the 1st party is illegal, without jurisdiction and not acted upon.

3.            The case of the plaintiffs to the suit in a nutshell can be stated thus, the suit land measuring 2.54 acres of land described in the schedule of the plaint originally belonged to one Chandra Kumar Pathok and others.  The R. S. record was rightly prepared in their names. Chandra Kumar left his share in favour of other co-sharers on compromise. Among the co-sharers one Lakshmi Charon died leaving behind 02(two) sons namely Saroda and Kumud Bondhu. Nalini Died issue less and his share deveolved upon his brothers Ramoni and Jamini. Jamini died leaving behind 01(one) son Shashanko and his wife Surjo Bala. The further case of the plaintiffs is such that; Saroda, Kumud Bondhu, Ramoni and Shashanko along with Surjo Bala proposed to sell their property infavour of Kali Kumar Chakroborty, father of the plaintiffs. Accordingly; Kali Kumar purchased the suit land in the Benami of his daughter Lilamoyee. The consideration amount was fixed at Tk. 1,200/-out of which; Tk. 400/- was paid as part performance. Thereafter; the vendors Saroda, Kumud Bondhu, Ramoni Mohon and Surjo Bala executed kabala deeds on different dates after taking the remaining entire consideration money from the father of the plaintiffs. In this way; by the aforesaid kabala deeds the father of the plaintiffs, Kali Kumar became the owner of the suit land. It is the positive case of the plaintiffs that; Lilamoyee, whose name stands in the kabala deed was the Benamdar of plaintiff’s father. Lilamoyee never paid any consideration amount of the sell deeds and did not possess the suit land and Kali Kumar after purchasing the suit land possess the same through borgaders. At the demise of Kali Kumar the plaintiffs inherited the suit land from his father. Lilamoyee in the year 1963 migrated to India forever and before her migration; she executed a nadabinama deed in the name of ‘muktinama’ and the property-in-dispute had been owning and possessing by the plaintiffs since the time of their father. The defendant    No. 01 illegally enlisted the property as vested and non-resident property in collusion with the Government and took lease therein. In fact; the lease paper in the name of the defendant No. 01 is illegal, collusive and not acted upon. On the basis of lease from the Government, the defendant No. 01 claimed the suit property, which constrained the plaintiffs to institute the original suit. 

4.            The contrary case of the contesting defendant No. 01 in short is thus, that the suit is not maintainable and barred by limitation. The further case of defendant-opposite party is such that the suit filed by the plaintiffs is not tenable in the eye of law and Lilamoyee was not the benamdar of Kali Kumar, father of the plaintiffs. Lilamoyee while owning and possessing the suit property left this country and use to reside in India since long. The suit property was un-cared for, and in due course of law it has become vested and non-resident property in Enemy Property Miscellaneous Case No. 362 of 1966-67. The defendant No. 01 being deserving person prayed for taking lease from the Government and Government being satisfied gave him lease after completion of all legal formalities. The defendant No. 01 after payment of lease money obtained possession from the Government and possessing the suit land. It was contended by the defendant No. 01 in his written statement that the father of the plaintiffs, Kali Kumar never purchased the suit land by his own money in the benami of his daughter Lilamoyee and Lilamoyee never executed a muktinama on 06.05.1963 and it is a forged and ante dated document.

5.            In the original suit the Government of Bangladesh contested after filing a separate written statement and in the written statement it was contended by the Government that the property-in-dispute belonged to the Government and it has become enemy property in Enemy Property Case No. 362 of 1966-67. The defendant No. 05 Lilamoyee Debi after filing a separate written statement through notary public of India supported the case of the plaintiffs and contended in her written statement the she was benamdar of her father Kali Kumar and her father purchased the suit land by a registered kabala in the year 1945 and after the death of Kali Kumar the plaintiffs being the legal heirs of Kali Kumar possess the suit land.

6.            The learned trial court during trial of the original suit after examining the witnesses from the sides of the respective parties and taking documentary evidences decreed the suit on contest by it’s judgment and decree dated 30.01.1991. 

7.            Being aggrieved the defendants preferred an Other Appeal being No. 182 of 1991 in the court of the learned District Judge, Chittagong, which was transmitted to the 3rd court of the learned Additional District Judge, Chittagong for hearing and disposal. The learned appellate court hearing the appeal, by the impugned judgment and decree dated 23.09.1992 allowed the appeal and set aside the judgment and decree passed by the learned trial court.

8.            Being aggrieved by and dissatisfied with the impugned judgment and decree the plaintiffs have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule.

9.            During hearing of the rule Mr. Surojit Bhattacharjee, the learned Advocate along with Advocate Mr. Mohammad Nurul Huda Ansary, appeared on behalf of the plaintiff-respondent-petitioners while Mr. Mustafa Kamal Pasha, the learned Advocate appeared on behalf of the defendant-appellant-opposite party No. 01 and Mr. Abdul Hai, the learned Deputy Attorney General along with Mr. Shahidul Islam Khan, the learned Assistant Attorney General appeared on behalf of the Government-Opposite party.

10.        The learned Advocate appearing on behalf of the petitioners submits that the learned appellate court below during disposal of the appeal committed illegality and irregularity. The learned Advocate further submits that, admittedly the suit property originally belonged to Surja Bala and others. The learned Advocate submits that the court of appeal below during disposal of the appeal on merit failed to realize that the main question involved in the original suit is as to whether the predecessor of the plaintiffs, Kali Kumar purchased the suit land in the benami of his daughter Lilamoyee. The learned appellate court without proper consideration of the evidence on records fail to appreciate that the ingredients of  Benami Transaction  lies in favour of the plaintiffs, since Lilamoyee in whose name the sub-kabala deeds were executed and registered, did not pay the consideration  amount in favour of the vendors, rather; the father of the plaintiffs, Kali Kumar from his own fund and source paid the entire consideration amount and the possession was delivered in favour of the father of the plaintiffs Kali Kumar Chakraborty. The defendants during trial of the original suit have failed to prove that Lilamoyee had any source of money and in contrary; the plaintiffs by sufficient evidence proved that Lilamoyee had no source of income from which she paid the consideration money. Besides this, through a notary public Lilamoyee after filing a written statement from India admitted the case of the plaintiffs. In the written statement she has categorically mentioned that her father Kali Kumar Chakroborty in the benami of her, purchased the suit land. She also executed a ‘nadabi muktinama’ in favour of the plaintiffs. The learned Advocate also submits that in the year 1963, Lilamoyee left this country for India and as she did not migrate to India after 03.12.1965, the property-in-dispute can not be declared vested or enemy property. The learned Advocate after submitting the relevant law of  ‘Arpito Sompotty Prottarpon Ain, 2001    (Act XVI of 2001)’ argued that, in the gazette; the suit property has been included as ‘Kha’ schedule  land and for that reason by the act of law the property described in schedule ‘Kha’ of the official gazette cannot be treated as vested and non-resident property. The defendants are now barred by law in treating the property as vested or non-resident property and as because the property is not vested property or enemy property, the lease-holder defendant No. 01 has no case and he has no leg to stand in this suit. The learned Advocate lastly submits that the trial court during disposal of the original suit considering all the facts and circumstances of the case and evidence on record decreed the suit on contest rightly and legally, but the learned appellate court below subsequently without assessing the evidence on records and without proper appreciation of law in its true perspective, decided the merit of the appeal in favour of the defendant-appellants, which is not proper and legal and the learned appellate court violating the provision laid down in Order XLI, Rule 31 of the code of civil procedure passed the impugned judgment and decree. In support of the submissions the learned Advocate referred some decisions of our Apex court.

11.        On the other hand; the learned Advocates appearing on behalf of the opposite parties opposing the Rule controverted the arguments advanced from the side of the petitioners and submits that the learned appellate court below during disposal of the appeal committed no illegality or irregularity. The learned Advocate further submits that there is no misreading and non-reading of evidence and non consideration of material facts resulting in an error in the decision occasioning failure of justice, by which the impugned judgment and decree can be interfered with.  The learned Advocates also submits that the plaintiffs to the suit in their plaint specifically alleged that their so called title document viz. the sub-kabala deed has been executed and registered in the name of Lilamoyee Debi and Lilamoyee Debi as an Indian citizen by a ‘nadabi muktinama’ specifically contended that she is the benamdar of her father Kali Kumar Chakroborty. The learned Advocate submits that the alleged ‘muktinama’ has no legal value in the eye of law and it does not confer any title or interest in favour of any body. The learned Advocate also submits that admittedly this ‘nadabi muktinama’ is an unregistered paper and that is why also it becomes a valueless paper in the eye of law. It is an admitted position vide “Exhibit-9” that Lilamoyee Debi never obtained possession of the suit property and she has migrated to India forever. The learned appellate court below was justified and legal in passing the impugned judgment and decree on the basis of evidence on records and the trial court inasmuch as without consideration of the evidence on records properly passed his judgment and decree, the court of appeal set aside the same by the impugned judgment and decree. The learned appellate court complying the provisions laid down in Order XLI, rule 31 of the code of civil procedure decided the merit of the appeal after proper assessment of evidence and appreciation of law in its true perspective.  The learned Advocate lastly submits that the findings of the appellate court which is the final court of facts, is immune from interference in the revisional jurisdiction as there is no misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice from the side of the learned court of appeal.

12.        The learned Deputy Attorney General referring the Land Reforms Ordinance of 1984 submits that the Benami Transaction as alleged from the side of the plaintiffs is barred by law and Section 05(1) of the said Land Reforms Ordinance, 1984 has imposed a legal embargo upon the plaintiffs, since no person shall purchase any immovable property for own benefit in the benami of another person. The learned Deputy Attorney General further submits that section 09 of the code of civil procedure is also a legal bar on the case of the plaintiffs and as such the case of plaintiffs as instituted is barred by law.

13.        Considering the submissions of the learned Advocates I have perused the impugned judgment and decree passed by the learned Additional District Judge, 3rd court, Chittagong in Title appeal No. 182 of 1991 and also perused the judgment and decree passed by the learned trial court in Other Suit No. 145 of 1990. I have also perused the evidence adduced from the side of the respective parties and all other connected papers.

14.        On perusal of the case record it transpires that the plaintiffs to the original suit in order to obtain a decree in the original suit prayed for the declaration that the 3rd party proforma-defendant is the benamder of the plaintiff’s father. In the prayer portion of the original plaint there was a recital in the following way:   AZGe ev`xMY cÖv_©bv K‡ib t-

(K) bvwjkx wb¤œ Zckx‡ji Rwg m¤ú‡K© 3q c¶ weev`xwb ev`xM‡Yi wcZvi webvg`vi nIqv, Zckx‡j Rwg ev`xM‡Yi wcZvi wbR nB‡Z UvKv w`qv wbR ¯^v‡_© I A‡_© Lwi` nIqv I Zvnv‡Z 3q c¶ weev`xwbi †Kvb ¯^Z¡ `Lj bv _vKv mve¨¯’ nq|

(L) bvwjkx Zckx‡ji Rwg kΓ m¤úwË ev AbvevwmK Awc©Z m¤úwË bv nIqv I 1g c¶ weev`xi eive‡i 2q c¶ KZ©„K cª`Ë jxR †eAvBbx AbwaKvi fv‡ei AKg©b¨ I Aejer nIqv D”PvwiZ nq|

15.        Having gone through the deposition of the witnesses I find that the plaintiff No. 02 as witness No. 01 deposed before the trial court for himself and on behalf of his elder brother, the plaintiff No. 01. This witness tried to corroborate the case of their pleading and at a stage of deposition alleged that, Lilamoyee on 06.05.1963 A. D. executed a ‘muktinama’ in their favour. P. W. 1 in his examination-in-chief at a stage contended that they want to get a declaration that Lilamoyee is the benamdar of his father and the lease in favour of the defendant is illegal. P. W. 1 admitted in his deposition that the relevant P. S.  Khatian in respect of the disputed property has been recorded in the name of Lilamoyee, which has been marked as “Exhibit-8”. He also admits that he use to reside at a distance of 05 miles from the suit land in different mouza with that of the suit property. P. W. 1 in his deposition stated that in the year 1964/65 Lilamoyee migrated to India and after 1963 they did not take any afford to mutate their names. P. W. 1 also admits in his testimony that the suit property is situated 5/6 miles away from his residence. He does not know, in whose name the land has been recorded during B. S. operation. The land was possessed by his father through borgadars and he does not know the name of the borgadars. This witness testified at a stage that in the year 1960, he gave borga of the land to one Harun. Subsequently, this witness testified that after the year of liberation, one Motaleb; since 1972 use to possess the suit property and this Motaleb is a resident of Potia, but live at ‘Keli shahor’ and from Potia he possess the suit property. P.W.- 1 expressed his inability to state that as to whether the suit property went under possession of the Government in V. P. Case No. 362/66-67 and as to whether the defendant No. 01 obtained lease. The witness No. 02 of the plaintiff is Abdul Motaleb, is the borgadar under the plaintiffs and deposed in favour of plaintiff’s possession in his examination-in-chief. But during cross-examination this witness admits in his testimony that the suit land is 04/05 miles away from his (P.W. -02) residence. The witness   No. 03 of the plaintiffs is one Netro Paul Nandi. This witness in his testimony testified that the parties are his neighbors and he knows Lilamoyee who gave the ‘muktinama’ in favour of the plaintiffs after putting her signature in his presence. During corss-examination this witness No. 03 testified at a stage that Lilamoyee has migrated to India in the year 1964 or 1965 and he does not know who purchased the stamp of ‘muktinama’ and also cannot recollect the deeds, finding which; the ‘muktinama’ was written.

16.        On the other hand; the defendants in support of their case examined 04 witnesses. The witness No. 01 is the defendant No. 01 Bozlur Rahman who has deposed before the court in support of their pleadings. The witness No. 01, the defendant in his testimony testified at a stage that the suit property is being possessed by them and after obtaining the lease from the Government they are cultivating the suit land. The witness No. 02 Md. Jashim Uddin is a Government official, who is a Tohsilder of vested and non-resident property department. This witness testified at a stage of his testimony that the property-in-dispute being a vested and non-resident property,  has been leased out in favour of the lease-holder. During cross-examination the witness No. 02 of the defendants testified at a stage that they did not file any census list in support of their contents that the suit property is vested and non-resident property. The witness No. 03 of the defendants is one Baloram Dey who in his deposition deposed on behalf of the lease-holder and claimed himself a contiguous land owner of the suit property. This witness in his deposition also testified that the land is being possessed by the defendant No. 01 and he(D.W.-03) does not know the plaintiffs or Lilamoyee. The last witness of the defendants is one Ahmmad Miah. This witness in his testimony testified that he knows the defendant Bazlur Rahman and the suit land for the last 40 years but he does not know the plaintiffs and the suit land is being possessed by the defendant Bozlur Rahman.

17.        In the original suit it was a case of the plaintiffs that the sub-kabala deeds were executed and registered in the name of Lilamoyee Debi which is the basic documents i.e. the title papers of the plaintiffs and it is their case that Lilamoyee was benamdar. It was further contended from the side of the plaintiffs that the benamdar Lilamoyee Debi executed a ‘nadabi mukinama’ in favour of them and the learned appellate court in it’s observation and findings opined that the deed of alleged ‘muktinama’ under the ambit of law does not create or extinguish any title and interest of any body. It further appears that the concernd    S. A. khatian in respect of the suit property has been prepared in the name of Lilamoyee and the corresponding B. S. khatian has been prepared in the name of Government.   

18.        Having gone through the original plaint of the suit filed by the plaintiff-petitioners I find that the plaintiffs to the suit in their pleading alleged that the original owners of the suit property Saroda Moyee and others to pay their arrear debt, for want of money proposed to sell the suit property and it is the case of the plaintiffs that their father Kali Kumar Chakroborty agreed to purchase the land in dispute. It was further contended by the plaintiffs in their plaint that Kali Kumar was a service holder and he served at Chittagong Collectorate. For the sake of service he purchased the suit property in the benami of his eldest daughter Lilamoyee Debi at a consideration of Tk. 1,200/= (twelve hundred). The pleading’s case of the plaintiffs is such that in the year 1945 A. D. all the deeds ware executed and registered. Therefore, it is obvious to note that the transfer deeds are not within the mischief of section 5 (1) of the Land Reforms Ordinance, 1984, but the fact remains that under the law of   Benami Transaction  the onus of proof entirely lies under section 102 & 103 of the Evidence Act is on the person claiming to the real owner. Therefore; it is the plaintiffs, who are required to prove by tangible evidence that their father Kali Kumar Chakroborty in the name of his daughter Lilamoyee Debi purchased the land-in-dispute after payment of consideration money from his own fund. The test for examination of benami character of transaction are as follows: (I) The source from which the purchase money came; (II) the nature and possession of the property, after the purchase; (III) motive, if any, for giving transaction a benami colour (IV) the position of the parties and the relationship between the claimant and the alleged benamdar; (V) the custody of title deed after the sale; (VI) the conduct of the parties concern in dealing with the property after sale [Ref. 36 DLR 37, AIR 1974 (SC) 171]. In the instant case; we have come across from the evidence on record that the deeds in question lies in the custody of the plaintiffs at present and prior to them those were under the custody of their father Kali Kumar as alleged from the side of the plaintiffs, but the fact remains that, in the instant case; there is no evidence which can be trustworthy and competent to prove other criterions of  Benami Transaction .

19.        The plaintiffs to the suit in order to prove their specific case have examined 03(three) witnesses. P. W. 1 who is the plaintiff No. 02 himself practically testified nothing about the criterion of Benami Transaction as stated earlier and he frankly admitted in his deposition that he has got no practical knowledge about the aforesaid instruments. Beside him; the witness No. 02 Abdul Motaleb tried to state about the possession of the case land but in the cross examination it transpires that he is a man of 4/5 miles distance from the disputed property. He claimed himself a borgadar under the plaintiffs by dint of 20 borga kabuliyats as alleged, but it is curious to note that he has totally failed to produce any kabuliyat to that effect. Thirdly; the witness No. 03 Netra Paul Nandi is an alleged attesting witness of the ‘muktinama’ executed by Lilamoyee and he has no concern about the deeds of plaintiffs, or of their predecessor Kali Kumar Chakroborty of the year 1945. From his cross-examination it transpires that the executant of the “mukti nama” is a resident of India and this witness who is a man of 6/7 miles distance from the residence of the plaintiffs, failed to state about the stamp purchase of alleged ‘muktinama’ and also failed to state that as to how and finding what; the alleged ‘muktinama’ was written and what are the contents of that ‘mukti nama’.

20.        From the foregoing narrative, it is evident that the plaintiffs to the suit in order to establish that the transaction was in fact a Benami Transaction have hopelessly failed to discharge their onus of proof. Furthermore; our Apex court held in several decisions that the person claiming to be the real owner on the basis of   Benami Transaction , is to discharge the onus of proof under the ambit of section 102 and 103 of the Evidence Act vide 4 BLD(AD)307, AIR 1965(SC)271. In the instant case there is no evidence either oral or documentary, that there was any intension or motive from the side of the plaintiff’s-predecessor to obtain this alleged Benami Transaction in the name of his eldest daughter Lilamoyee Debi. With regard to Benami Transaction the determining factors as I have already cited to above not at all proved in this case by any cogent evidence. Moreover, father would buy land in the name of his daughter even after her marriage is not the normal human conduct [Ref. 49 DLR (AD) 73, 17 BLD (AD)66].

21.        The learned court of appeal below by the impugned judgment and decree rightly held as to the possession of the suit land that from the evidence of witness No. 02 of the plaintiffs it appears that this witness claimed himself a borgader from 1970, but we find that the father of the plaintiff allegedly purchased the suit land in the year 1945. The learned appellate court disbelieved the possession of the plaintiff’s-predecessor from 1945 and also held that, it is doubtful to believe that Kali Kumar really purchased the suit property in the year 1945 inasmuch as there is no dependable evidence from the side of the plaintiffs that after purchase, the purchaser possessed the land from the year 1945.

22.        On meticulous consideration of the evidence on records along with the impugned judgment and decree passed by the appellate court I find that the learned court of appeal below during disposal of the appeal thoroughly assessed and evaluated the evidence on record in its true perspective and also arrived at a conclusive decision as to the nature of the suit and the pleading’s case of the plaintiffs.

23.        Be that as it may; in view of the discussions and findings referred to above I am constrained to hold such a view that there is no misreading or non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice, by which the impugned judgment and decree can be interfered with in this revisional jurisdiction.

24.        In the result; the Rule is discharged without any order as to costs. The impugned judgment and decree dated 23.09.1992 and 30.09.1992 respectively, passed by the learned Additional District Judge, 3rd court, Chittagong in Other Appeal No. 182 of 1991 reversing the judgment and decree dated 30.01.1991 and 06.02.1991 respectively, passed by the learned Assistant Judge, Additional Court, Patia, Chittagong in Other Suit No. 145 of 1990 is hereby up held.

25.        Communicate the judgment and order and send back the lower court’s record immediately.

 

         Ed.