Present:

    MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO. 3484 OF 2016. IN THE MATTER OF:

An application under Section 115 (1) of the Code of Civil Procedure.

- AND -

IN THE MATTER OF:

Most.  Shamsunnahar  alias  Samchhia  Khatun being dead his heirs:

1(ka) Md. Chan Mia and others 

...... Defendant-Petitioners

-Versus -

Mosammat Samsunnesa being dead her Heirs: 1(ka) Md. Nasu and others

 …… Opposite parties.

Mr. Abdur Rahman, Advocate

     ….. For the petitioner.

Mr. Md. Salahuddin, Advocate

    …..For the opposite parties.

Heard on: 26.05.2024 and judgment on: 28.05.2024.

On  an  application  of  the  petitioner  Most.  Shamsunnahar  alias Samchhia Khatun being dead his heirs: 1(ka) Md. Chan Mia and others under section 115(1) of the Code of Civil Procedure the Rule was issued calling upon the opposite party Nos.1(ka)-1(Cha) to show cause as to why the  impugned  judgment  and  order  dated  19.07.2016  passed  by  the learned  Additional  District  Judge,  Bhola  in  Title  Appeal No.05  of  2012 disallowing the application for reviewing the order dated 21.09.2015 in respect of examination of the registered deed in question being No.2991 dated  10.06.1981  with  a  non-suited  registered  deed  No.183  dated 13.01.1982 by handwriting ex-part should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper. 

Facts  necessary  for  disposal  of  the  Rule,  in  short,  is  that  the opposite party No.1 now deceased Most. Shamsunnahar alias Samchhia Khatun as plaintiff instituted a Title Suit No.22 of 2006 in the Court of Assistant Judge, Daulatkhan, Bhola for a declaration of title and further declaration that the impugned deed No.2991 dated 10.06.1981 is illegal, fraudulent and not binding upon the plaintiffs.

The suit was contested by the defendant Nos.1-3 by filing written statement denying all the material assertions made in the plaint.

The  trial  Court  after  hearing  the  parties  and  considering  the evidence on record dismissed the suit by its judgment and decree dated 24.09.2011.

Against the said judgment and decree of the trial Court the plaintiff petitioner  preferred  a  Title  Appeal  No.05  of  2012  before  the  learned District Judge, Bhola.

At  the  appellate  stage  the  plaintiff  side  filed  an  application  for comprising a deed No.183 dated 13.01.1982 with the thumb impressions of the executants present in the deed No.2991 dated 10.06.1981 of late Mamela Khatun.

The  appellate  Court  after  hearing  the  parties  allowed  the  said application by its order dated 21.09.2015.

Thereafter, the defendant side filed an application for recalling the said order dated 06.10.2015. The learned Additional District Judge, Bhola rejecting the said application by its judgment and order dated 19.07.2016.

Being aggrieved by and dissatisfied with the impugned judgment of the  appellate  Court  the  defendant-petitioner  filed  this  revisional application under Section 115(1) of the Code of Civil Procedure before this Court and obtained the Rule.

Mr. Md. Salahuddin Talukder, the learned Advocate enter appeared on behalf of the opposite party No.1(ka)-1(cha) through vokalatnama to oppose the Rule.

Mr. Abdur Rahman, the learned Advocate appearing on behalf of the  petitioner  submits  that  the  learned  Additional  District  Judge committed serious error of law in allowing the application for comprising the thumb impressions of the executants Mamela Khatun present in the deed  being  No.183  dated  13.01.1982  with  the  deed  No.2991  dated 10.06.1981. He further submits that not mentioning regarding the said deed in the plaint not only that the deed was not been exhibited as a evidence. In such a case without any prayer for considering the said deed the Court should not pass such order. He also submits that the signature or the thumb impressions admitted to be proved to the satisfaction of the Court  provided  under  Section  73  of  the  evidence  Act  whereas  the

appellate Court allowed the application for comprising the impugned deed with the deed which was not the subject matter of the instant case at all. In support of his argument the learned Advocate cited the decision of the case of Shawkat Hossain (Md) and another Vs. Golam Mohammad and another reported in 20 BLC (AD)-27.

He  then  submits  that  in  the  instant  case  the  plaintiff  did  not produce the said documents with the plaint, even in the application as a admitted documents and without any application for taking the said deed as evidence the Court should not pass such order for comprising of the thumb impressions present in two deeds. He further submits that the petitioner  purchased  the  land  by  registered  deed  No.2991  dated 10.06.1981  and  the  plaintiff  has  challenged  the  said  deed  but  the subsequent deed which was also executed by said Mamela Khatun being deed No.183 dated 13.01.1982 should not be taken for comprising the thumb impressions of the said two deeds since the defendant petitioner purchased the land in the Year 1982 and subsequently transferred some portion of the land to the daughter of said Mamela Khatun who executed the deed in favour of defendant and the plaintiff purchased some portion of the land from the daughter of said Mamela Khatun who purchased the land  from  the  defendant  and  which  clearly  proves  that  the  plaintiff admitting the transfer by executant Mamela Khatun as such the appellate Court committed serious error in law resulting in an error in the decision occasional failure of justice. He prayed for making the Rule absolute.

Mr.  Md.  Salahuddin  Talukder,  the  learned  Advocate  for  the opposite party submits that since the deed No.183 dated 13.01.1982 also executed  by  Mamela  Khatun  and  in  such  a  case  there  is  no  bar  to comprising the thumb impressions of Mamela Khatun present in the deed being No.2991 dated 10.06.1981. He prayed for discharging the Rule.  

I have heard the learned Advocates of both the sides, perused the impugned judgment and order of the Courts below and the papers and documents as available on record.

It  appears  that  plaintiff  side  challenging  the  impugned  deed No.2991 dated 10.06.1981 as it was illegal, fraudulent and not binding upon the plaintiff. It also appears that the trial Court after considering of the evidence on the record adduced by the parties dismissed the suit.

Against  the  said  dismissal  order  the  plaintiff  opposite  party preferred Title Appeal No.5 of 2012. Wherein the plaintiff opposite party filed  an  application  for  comprising  the  thumb  impressions  of  the executants Mamela Khatun present in the impugned deed with the deed No.183  dated  13.01.1982.  It  appears  that  the  defendant-petitioner purchased the land through registered deed No.2991 dated 10.06.1981 from Mamela Khatun and thereafter the defendant-petitioner transferred some portion of the land in favour of the daughter of the executants Mamela Khatun from the said land and the plaintiff also purchased the land from the said daughter of Mamela Khatun.

 It  also  appears  that  the  plaintiff  in  their  application  dated 07.04.2015  prayed  for  comprising  the  thumb  impression  of  Mamela Khatun present in the deed No.2991 dated 10.06.1981 with the signature present in the deed No.183 dated 13.01.1982.

But  it  appears  that  the  plaintiff  did  not  produce  the  same  for evidence even no application for considering the said deed for Additional evidence, in such a case it is my view that without filing any application for taking additional evidence of the deed being No.183 dated 13.01.1982 the plaintiff  opposite  party  filed  an  application  for  comprising  the  thumb impressions of the executant Mamela Khatun whereas the same is not admitted  documents,  as  such  it  is  my  view  that  the  impugned  order passed by the appellate Court is erroneous one.

In  the  case  of  Shawkat  Hossain  (Md)  and  another  Vs.  Golam Mohammad and another reported in 20 BLC (AD)-27 our Apex Court held:

“where other evidence produced before court are sufficient to prove the genuineness of any disputed signature or document the court may not insist for expert's opinion, but where the evidence adduced before court are not sufficient for proving a disputed  signature  or  document  the  court  should  obtain

expert's opinion.”

However, if the plaintiff filed an application for taking additional evidence of the said deed being No.183 dated 13.01.1982 and if the Court allowed the same then the plaintiff can file application for comprising the thumb impression present in the said two deeds.  

Having considered the facts and circumstances of the case I find merit in the Rule.

In the result, the Rule is made absolute. The impugned judgment and  order  dated  19.07.2016  passed  by  the  learned  Additional  District Judge, Bhola in Title Appeal No.05 of 2012 is hereby set-aside.  

However,  the  Court  may  consider  the  application  if  file  by  the parties if so advised in accordance with law.

Since this is a long pending case the appellate Court is directed to dispose of the appeal as early as possible preferably within 06 (six) months from the date of receipt of this order in accordance with law.  

The order of stay granted earlier by this  is  hereby recalled and vacated.

 Communicate the order at once.

B.O, Obayedur.