Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 4995 of 2014 Md. A. Samad Ara and others

                                                     .....plaintiff-petitioners

        -Versus-

    Md. Hanif Mondal being dead his legal heirs         1(a) Most. Tohinur Begum and others

                                                                .....defendant-opposite parties

No one appears for the petitioners

    Mr. H. M. Borhan with

Ms. Sayada Shoukat Ara, Advocates

                                                           ......for opposite parties 1(a)-1(q)

Judgment on 01.07.2024

This rule at the instance of the plaintiffs was issued calling upon defendant-opposite party1 to show cause as to why the judgment and decree of the Joint District Judge, Chanpainawabganj passed on 11.03.2014 in Title Appeal No. 232 of 2007 dismissing the appeal affirmirming  the  judgment  and  decree  of  the  Assistant  Judge, Shibganj, Chanpainawabganj passed on 31.01.2007 in Other Class Suit No. 159 of 1990 dismissing the suit shall not be set aside and/or such other or further order or orders passed to this Court may seem fit and proper.

The plaintiffs instituted the suit stating that Tabjul Hoque was the original owner of the suit land measuring an area of 1.44 acres as described in the schedule to the plaint. On his death the plaintiffs, sister of them and the wife became the heirs. They used to possess the

land through bargader defendant 1 Hanif Mondal who disclosed on 01.09.1990 that he would sell the whole sugarcane grown in the land because  he  and  defendant  2  purchased  the  suit  land  through  two separate kabalas both dated 05.04.1988. The plaintiffs then collected the  certified  copies  on  09.09.1990  and  came  to  learn  about  the kabalas. Their maternal uncle was bed-ridden before his death and died on 07.06.1988. The disputed deeds were shown to have been executed and registered on 05.04.1988. The defendant prepared the deeds  in  the  name  of  Tabjul  Haque  by  false  personation.  Their maternal uncle Tabjul Haque also surrendered a part of the land to the Government  at  the  time  of  submission  of  return.  The  deeds  are collusive, forged and created only to grab the property. Hence, the suit for declaration that the kabalas as described in schedule ‘Kha’ to the plaint are forged, collusive and not binding upon the plaintiffs.

Defendant 1 contested the suit by filing written statement. In the written statement he denied the statements made in the plaint and further contented that the original owner Tabjul Haque by two kabalas transferred the land to him and defendant 2. The deeds were registered in the house of  Haji  Tabjul  Haque on  commission.  Defendants 2 subsequently transferred his share to this defendant, who exchanged the said land with defendant1 by another registered ewaz deed dated 10.10.1988. He has been enjoying the total land of two kabalas by growing crops therein. The suit, therefore, would be dismissed.

On pleadings, the Assistant Judge framed five issues. In the trial, the plaintiffs examined 3 (three) witnesses and their documents were produced as exhibits-‘1’-‘1Ka’. On the other hand, defendant 1 examined 4(four) witnesses and his documents were exhibit -‘Ka’- ‘Ga’. However, the trial Court considering the evidence and other materials on record dismissed the suit against which the plaintiffs preferred appeal before the District Judge, Chanpainawabganj. The Joint District Judge, Court No.1, Chanpainawabganj heard the said appeal  on  transfer  and  dismissed  the  same  which  prompted  the petitioner to approach this Court with this revision and the rule was issued.

No one appears for the petitioners although the matter has been appearing in the daily cause list for couple of days with the name of their learned Advocate for the petitiners.

Ms. Sayda Shoukat Ara, learned Advocate for opposite parties 1(a)-1(q) takes me through the judgments passed by the Courts below and submits that the plaintiffs claimed that the kabalas described in the schedule to the plaint was forged and collusive but they failed to prove it in evidence. It is settled principle that he who alleges forgery is to prove it but here the plaintiffs failed to discharge their onus. The defendant is in possession of the suit land as has been admitted by PW3  in  evidence  and  as  such  the  suit  in the  present  for praying declaration only without seeking consequential relief of recovery of possession is not maintainable. The Court of appeal below correctly assessed  the  evidence  of  the  parties  and  dismissed  the  appeal affirming the judgment passed by the Court below which may not be interfered  with.  The  rule,  therefore,  having  no  merit  would  be discharged.

I have considered the submissions of the learned Advocate for the opposite parties, gone through the judgments passed by the Courts below and grounds taken in the revisional application.

It is admitted by the parties that land described in the schedule ‘Ka’ to the plaint originally belonged to Haji Tabjul Haque. It is also admitted that he died on 07.06.1988. The plaintiffs alleges that their maternal uncle was bed-ridden before his death and was suffering from various old age diseases and taking its advantage defendant1 prepared those kabalas by false personation. The proof of the fact that defendant1 created those kabalas lies upon the plaintiffs. On perusal of the evidence of plaintiffs’ witnesses, I find that that they hopelessly failed  to  prove  that  defendant1  prepared  those  kabalas  by  false personation. The witnesses of the plaintiffs to that effect is found not corroborative. On the other hand, defendant 1 produced the kabalas exhibit-‘Ka’ and ‘Kha’. DW 2 Alhaj Md. Safiqul Alam is the scribe of the deed. He proved the execution and registration of the kabalas as per  law.  Although,  he  was  cross-examined  by  the  plaintiffs  but nothing came out adverse. Therefore, defendant1 proved the execution and registration of the kabalas by Tabjul Haque, the owner of the land.  The  possession  of  the  land  is  found  with  defendant1.  The witnesses of the defendant led corroborative evidence supporting his possession in the suit land. Moreover, PW3 Mahbul Haque, a witness to the plaintiffs in cross-examination stated that defendant1 Hamid possesses the suit land. Since defendant1 is found in possession of the suit land, the instant suit for declaration only without recovery of possession is not maintainable.

The trial Court found the report of the expert in respect of the thumb impression of executant Tabjul Haque against the plaintiffs and in favour of defendant1 and relied on it. But the Court of appeal below correctly did not admit the report of the expert as evidence because the expert was not examined on oath and the report was not exhibited. The findings and decisions of the Appellate Court to that effect is correct. But the appellate Court dismissed the appeal on the other aspects of the case and in doing so no error has been committed. 

However, both the Courts below found that the plaintiffs have failed to prove the case and as such dismissed the suit. The above concurrent findings of the Courts below should not be interfered with by this Court in revision unless there is gross misreading or non- consideration of the evidence and other materials on record. In the revisional application no such ground has been taken. I do not find any  misreading  of  evidence  or  any  error  on  point  of  law  in  the impugned  judgments  for  which  the  decision  taken  by  the  Courts below could have been otherwise.

Therefore, I find no merit in this rule. Accordingly, the rule is discharged. No order as to the costs. The judgment and decree passed by the Courts below is hereby affirmed.

Communicate the judgment and send down the lower Courts’

record.