IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

And

Ms. Justice Tamanna Rahman Khalidi

FIRST APPEAL NO.448 OF 2018 with CIVIL RULE NO.440(F) OF 2018

Sree Ballov Chandra Das being dead his legal heirs- Uttam Chandra Namo and others

.... Appellants

-Versus-

Abdul Motaleb and others

.... Respondents

Mr. Abul Fazal, Advocate with

Mr. Muhammad Rayhan Uddin, Advocate

…. For the appellants.

Mr. Taijul Islam Miajee, Advocate

…. For the respondent Nos.3-11.

Heard  on  06.05.2026,  12.07.2026  and  13.07.2026. Judgment on 16.07.2026.  

S M Kuddus Zaman, J:

This First Appeal is directed against the impugned judgment and decree dated 12.05.2016 passed by the learned Joint District Judge, 2nd Court, Chandpur in Money Suit No.2 of 2013 decreeing the suit.

Civil Rule Nos.440(F) of 2018 arose out of this First Appeal on an application filed by the petitioners for temporary injunction.

This First Appeal and above Civil Rule are heard together and being disposed of by this single judgment.

Facts  in  short  are  that  respondent  Nos.1  and  2  as  plaintiffs instituted  above  Money  Suit  for  Taka  7,31,664/-  alleging  that  the defendant  while  owning  and  possessing  37  decimal  land  B.  S.  Plot No.7415 transferred two decimal land to the plaintiffs- by registered kabla  deed  dated 22.08.2007. Due  to  shortage  of  time possession of above land could not be delivered on above date. The defendants took time on several pretexts for measurement and delivery of possession. It was revealed that the defendant transferred 20 decimal land to Abdur Rashid Bakaul by registered kabla deed on 15.03.2006. The boundaries of land of kabla deed of Abdur Rashid Bakaul also encompasses the boundary of land of the kabla deed of the plaintiffs. The defendant agreed to transfer double quantity of land and execute and register a correction  deed  but  the  defendants  did  not  comply  with  above assurances. Plaintiff No.2 as complainant has filed C. R. Case No.73 of 2011  against  the  defendant  for  above  occurrence.  The  plaintiffs  are entitled  to  get  Taka  7,00,000/-  as  consideration  money  and  Taka 31,664/-registration cost of above kabla deed from the defendant.

Despite service of process defendant did not enter appearance and  the  learned  Joint  District  Judge  fixed  above  suit  for  ex-parte hearing.  The  plaintiffs  examined  two  witnesses  and  produced  and proved documents which were marked as Exhibit Nos.1 and 2.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record the learned Joint District Judge decreed above suit ex-parte for Taka 7,31,664/-.

Being aggrieved by and dissatisfied with above judgment and decree of the trial Court above defendants as appellants moved to this Court and preferred this First Appeal.

Mr. Abul Fazal, learned Advocate for the appellants submits that now deceased defendant was defendants were the rightful owner and possessor  of  37  decimal  land  of  disputed  Plot  No.7415  and  he transferred 20 decimal land to Abdur Rashid Bakaul by registered kabla deed dated 15.03.2006 and disputed 2 decimal land to the plaintiffs by registered  kabla  deed  dated  22.08.2007.  The  defendant  had  no knowledge of above Money Suit and no summon of above suit was served upon the defendant. After above money suit was decreed the defendants  deposited  the  decreetal  money  in  Court  by  chalan  on 04.04.2018. The defendant also preferred this appeal in the High Court Division  and  obtained  an  order  of  stay  against  execution  of  above judgment and decree. But respondent Nos.1 and 2 most illegally put above decree into execution and sold undisputed 59 decimal land of the appellants in auction which was purchased by respondent Nos.3-11. Above 59 decimal land was previously transferred to several persons by  registered  kabla  deeds  and  the  defendant  did  not  have  any subsisting interest in above land. The plaintiff filed a false Criminal Case for above occurrence and the old and innocent defendant was convicted and after release from prison he died. The ends of justice will be met if the impugned judgment and decree is set aside and above suit is remanded to the trial Court for retrial after giving the defendants an opportunity to contest above suit.

On the other hand Mr. Taijul Islam Miajee, learned Advocate for the  respondent  Nos.3-11  submits  that  respondent  Nos.1  and  2  as plaintiffs filed above Money Suit which was lawfully decreed ex-parte and  in  execution  of  above  decree  59  decimal  land  of  the  judgment debtor was sold in auction which was purchased by above respondents. But above 59 decimal land was transferred by the judgment debtor before above auction sale and the respondents did not get any title and possession  in  above  land.  The  ends  of  justice  will  be  met  if  the impugned judgment and decree is set aside and above suit is remanded to the trial Court for retrial.

We have considered the submissions of the learned Advocates for the  respective  parties  and  carefully  examined  the  plaint,  evidence, impugned judgment and decree and all other materials on record.

It has been admitted at Paragraph No.3 of the plaint that now deceased  defendant  was  the  rightful  owner  and  possessor  of  37 decimals land of disputed Plot No.7415 and he transferred 20 decimals land to Abdur Rashid Bakaul by registered kabla deed dated 15.03.2006 and further transferred disputed 2 decimals land to the plaintiffs by a registered kabla deed dated 22.08.2007. As such the plaintiffs acquired valid title in disputed 2 decimal land by purchase from the defendant by  registered  kabala  deed  dated  22.08.2007.  The  plaintiffs  did  not abandon claim of title in above 2 decimals land either in the plaint or in the evidence as PW1. There is no allegation in the  plaint or in the evidence of PWs that the defendant fraudulently transferred above 2 decimal land to the plaintiffs.

The  plaintiffs  have  alleged  that  the  possession  of  above  land could not be delivered on the date of execution of above sale deed due to shortage of time. It has been claimed that on various pretexts the defendant took time for measurement and delivery of possession of above  land.  But  there  is  no  claim  that  the  defendant  did  not  have possession in above land or defendant denied to deliver possession of above land.

Above Money Suit was filed for recovery of consideration money and registration cost of registered kabala deed dated 22.08.2007. As mentioned above the plaintiffs did not abandon above kabla deed nor designated above kabla deed as a fraudulent and unlawful deed but on the  contrary  retains  their  lawful  claim  in  above  deed.  As  such  the plaintiffs had no scope to claim return of consideration money and registration cost of above kabla deed.

The plaintiffs are the recipients and a party to above kabla deed dated 22.08.2007. As such the plaintiffs cannot make any oral claim which is contrary to any term of above registered deed unless there is an allegation of fraud or error. As mentioned above the plaintiffs did not make any claim of fraud or error against above kabla deed dated 22.08.2007.  Plaintiff  No.2 Abdur  Razzaque while  giving  evidence as PW1 produced above kabla deed dated 22.08.2007 which was marked as  Exhibit  No.1.  It  turns  out  from  the  recital  of  above  deed  that possession  of  2  decimal  land  was  delivered  to  the  plaintiffs  by  the defendants. As such in the absence of an allegation of fraud or error the oral claim of the plaintiffs that the possession of above 2 decimal land was not delivered to them is barred by Section 92 of the Evidence Act, 1872.

The learned Advocates for both the parties concurrently stated that in execution of decree of above Money Suit undisputed 59 decimal land  of  the  defendant  was  sold  in  auction  and  was  purchased  by respondent Nos.3-11. But the defendant sold above 59 decimal land long before filing of above Money Suit and respondent Nos.3-11 did not get title or possession of above land. It is to be mentioned that disputed 2 decimal lands of the plaintiffs was not sold in auction.

It is admitted that the plaintiff No.2 as complainant filed C. R. Case No.73 of 2011 against the defendant for his alleged inability to execute and register a correction deed or delivers possession of above 2 decimal land and the defendant was convicted in above case and after release from the prison above ill fated old man died.

On consideration of above facts and circumstances of the case and materials on record we hold that this case is a glaring example as to how an innocent old man was subjected to untold sufferings by filing an  unfounded  Money  Suit  but  the  learned  Joint  District  Judge unfortunately failed to realize above materials on record and relevant laws  correctly  and  most  illegally  decreed  above  suit  which  is  not tenable in law.   

In above view of the materials on record we find substance in this First Appeal which deserves to be allowed.  

In the result, this First Appeal is allowed.

The impugned judgment and decree dated 12.05.2016 passed by the learned Joint District Judge, 2nd Court, Chandpur in Money Suit No.2 of 2013 is set aside and above Money Suit is dismissed ex-parte against defendant No.1 with cost.

The connecting Civil Rule No.440(F) of 2018 is discharged. 

Send down the lower Court record immediately.

Tamanna Rahman Khalidi, J:

I agree.

MD. MASUDUR RAHMAN

    BENCH OFFICER