IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3338 OF 2015

In the matter of:

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

And

Md. Ekramul Haque

....Petitioner

-Versus-

Mst. Majeda Begum and others

….Opposite parties

Mr. Ahmed Nowshed Jamil with

Ms. Syeda Showkat Ara, Advocates

.... For the petitioner.

None appears

…. For the opposite parties.

Heard and Judgment on 06.11.2024

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 11.05.2015 passed by the learned Additional District Judge, Chapai Nawabgonj in Title  Appeal  No.194  of  2012  dismissing  the  appeal  and  thereby affirming  the  judgment  and  decree  dated  05.08.2012  passed  by  the learned  Joint  District  Judge,  1st  Court,  Chapai  Nawabgonj  in  Other Class Suit No.17 of 2010 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 in short are that the opposite party as plaintiff instituted above suit for rectification of registered deed No.907 of 2009 executed

by the defendant in favour of the plaintiff for sale of a shop described in the schedule to the plaint.

It has been alleged that defendant was the rightful owner and possessor  of above  shop and  he  declared  to sale  the same and  the plaintiff who was the tenant of above shop agreed to purchase the same and on receipt of consideration of Taka 3,00,000/- defendant executed and registered above deed dated 03.03.2009. But the defendant illegally and unlawfully gained over the scribe of the deed and inserted term No.7 providing that the roof of the shop shall remain in the ownership and possession of the defendant and he would be entitled to construct additional floors over above roof.

Defendant contested the suit by filing a written statement alleging that above deed was written on the basis of the agreement reached between the parties and the defendant did not insert anything in above document beyond the knowledge and consent of the plaintiff.

At  trial  plaintiff and  defendant  examined  1 witness  each. The documents  produced  and  proved  by  the  plaintiff  were  marked  as Exhibit  No.1  and  2  but  defendant  did  not  produce  and  prove  any document.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record the learned Senior Assistant Judge dismissed the suit.

Being aggrieved by above judgment and decree plaintiff preferred Title Appeal No.194 of 2012 to the District Judge, Chapainabwabgoj which  was  heard  by  the  learned  Additional  District  Judge  who dismissed the appeal and affirmed the judgment and decree of the trial Court.

Being aggrieved by above judgment and decree of the Court of Appeal below above appellant as petitioner moved to this Court and obtained this Rule.

Mr. Ahmed Nowshed Jamil, learned Advocate for the petitioner submits that the plaintiff purchased disputed shop from the defendant by registered deed of sale on 03.03.2009. Since the plaintiff became the absolute owner of above shop by virtue of above purchase the question of granting title and right of the defendant on the roof of above shop does not arise at all. The defendant inserted impugned clause in the above  deed  providing  that  the  defendant  shall  have  right  and ownership over the roof and he would construct additional floors on the  same  with  the  aid  of  the  scribe  beyond  the  knowledge  of  the plaintiff. A plain reading of above clause shows that the same was unusual and against the spirit of transfer of immovable property by sale. But the learned Judges of the Courts below have miserably failed to appreciate above facts and relevant law properly and most illegally dismissed the suit and the appeal respectively which is not tenable in law.

No one appears on behalf of the opposite parties when the Rule

was taken up for hearing although this matter appeared in the list for

hearing on several dates.

I have considered the submissions of the learned Advocate for the

petitioner and carefully examined all materials on record.

It  is  admitted  that  defendant  was  the  rightful  owner  of  the

disputed shop and plaintiff was his monthly tenant and the defendant

wanted to reconstruct above shop but he had no money for the same

and he executed the impugned deed of sale deed dated 03.03.2009 with

the plaintiff.  

The plaintiff while giving evidence as PW1 produced and proved

a  certified  copy  of  above  deed  of  sale  dated  03.03.2009  which  was

marked as Exhibit No.1. A plain reading of above document shows that

the document was not a deed of out and out sale and there are some conditions  attached  to  above  transfer.  The  relevant  part  of  above conditions are reproduced below:

""fËL¡n b¡−L ®k, EJ² ®c¡L¡e Ol¢Vl ¢ejÑ¡Z L¡S BN¡j£−a öl¦ q−h

Hhw c¡a¡ ®c¡L¡e Ol¢V ¢eS Ml−Q pÇfæ ®~a¢l L−l ¢c−he ®c¡L¡e O−lll Ešl c¢rZ f§−hÑl ¢c−Ll Ju¡m J p¡j¡−el clS¡ Hhw Ef−ll

R¡c pÇf§ZÑi¡−h NË¢qa¡l Ae¤L¨−m ®qg¡Sa b¡¢L−hz H−a c¡a¡ h¡ c¡a¡l i¡h£ −L¡e fËL¡−l h¡d¡ ¢hOÀ pª¢ÖV L¢l−a f¡¢l−he e¡z E−õMÉ

b¡−L ®k, c¡a¡ R¡−cl Ef−l Ol ®~al£ L−l hÉhq¡l L¢l−h R¡−cl Efl

c¡a¡l pÇfªZÑ A¢dL¡l b¡−L ®k, H−a NË¢qa¡l ®L e c¡h£ c¡Ju¡ b¡¢L−h e¡ BlJ fËL¡n b¡−L ®k, ¢hH²£a ®c¡L¡e O−lll p¡j−el ¢c−L AbÑÉ¡a f¢ÕQj ¢c−L BV ¢gV S¡uN¡ gy¡L¡ l¢qmz HC S¡uN¡ gy¡L¡ l¢qmz HC S¡uN¡ öd¤ j¡œ l¡Ù¹¡l L¡−S hÉhq¡l q−h c¡a¡ h¡ NË¢qa¡l i¡h£ −L¡e Ju¡¢lnNZ ¢eS L¡−S hÉhq¡l L¢l−a f¡¢l−h e¡ öd¤j¡œ l¡Ù¹¡l L¡−S hÉhq¡l q−hz (3 f¡a¡) −j¡x −j¡S¡q¡l −q¡−pez''

It appears that the defendant although sold above shop to the plaintiff but both parties agreed that reconstruction of above shop shall

be done by the defendant not by the plaintiff who purchased the same.

The  plaintiff  did  not  challenge  the  legality  of  above  clause  of  the

impugned deed.

It  has  been  further  provided  that  the  constructed  shop  shall remain in the ownership of the plaintiff but the roof of the shop shall remain in the ownership of the defendant and he shall have the right to construct  additional  floors  on  above  roof.  If  above  document  is considered in its entirety then it does not appear that above clause as to ownership of the roof of the shop was unusual or unreasonable.

The plaintiff is a party to above registered document and the plaintiff admits due execution and registration of the document. It is well settled that a party to a registered document can challenge any tremor clause of the document and give evidence against above term clause of the document only on the grounds of fraud or error. In the plaint or in his evidence as DW1 the plaintiff could not make out and prove a specific case of fraud or error. There is no allegation that the defendant fraudulently inserted above clause in above deed in collusion with the scribe or witnesses nor there is any allegation that above clause was inserted erroneously.

PW1 has stated that at the time of talk of above sale there was no agreement for inclusion of above clause as to ownership of the roof. But to substantiate above claim the plaintiff did not examine any witness who was present at the time of above talk of the sale or execution of the impugned  deed.  As  such  above  claim  of  the  plaintiff  remains uncorroborated and unsubstantiated.

In above view of the materials on record I hold that the learned Judges of the Courts below on correct appreciation of the materials on record rightly held that the defendant did not commit any fraud nor there was any error in the preparation, execution and registration of above deed of sale and the learned Judge of the Court of Appeal below rightly dismissed the appeal and affirmed lawful judgment of the trial Court which calls for no interference.

I am unable to find any substance in this revisional application under Section 115(1) of the Code of Civil Procedure and the Rule issued in this connection is liable to be discharged.

In the result, the Rule is hereby discharged.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER