IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

Mr. Justice Hasan Foez Siddique,

                                    Chief Justice             Mr. Justice M. Enayetur Rahim

Mr. Justice Jahangir Hossain

CIVIL APPEAL NO. 518 OF 2017.

(From the judgment and decree dated 18.06.2013 passed by the High Court Division in First Appeal No.59 of 2010)

Shafika Chowdhury and others              :   Appellants.

=Versus=

Badrul Amin @ Manu Sardar and others  :  Respondents.

For the Appellant     : For the Respondent No.1:

For the Respondent No.2 : Respondent No.3 :

Mr.Nozrul  Islam  Chowdhury, Senior Advocate, instructed by  Mr.  Md.  Zahirul  Islam, Advocate-on-Record.

Mr. Md. Nurul Amin, Senior Advocate, instructed by Mr. M. Soyeb Khan, Advocate- on-Record. Mr. Waliul Islam, Advocate- on-Record.

Not represented.

Date of hearing : 04.01.2023 & 10.01.2023

Date of judgment : 17.01.2023.

J U D G M E N T

Hasan Foez Siddique, C. J: This civil appeal is directed against the judgment and decree dated 18.06.2013 passed by the High Court Division in First Appeal No.59 of 2010 reversing those dated 25.11.2009 passed by the Joint District Judge, First Court, Dhaka in Title Suit No.187 of 2008.

The relevant facts, for the disposal of this appeal, are that the respondent No.1 filed Title Suit No.187 of 2008 in the First Court of Joint District Judge, Dhaka, praying for declaration of his title in respect of the suit land stating that one Nurur Rahman Chowdhury took lease of suit land by lease deed No.1104 dated 08.07.1976 from the then DIT, at present, RAJUK. He constructed structure thereon. He sold the suit land to the plaintiff at a consideration of Tk.3,70,375.00 by a registered deed dated 18.4.1978. He got sale permission from the RAJUK on 26.9.1977. The plaintiff got his name mutated in 2006 and paid rents and taxes. The defendants claimed that Nurur Rahman Chowdhury did not sell the suit property. Accordingly, the plaintiff lodged G.D. No.83 dated 01.11.2007 with Uttara Police Station. The plaintiff came to know from the RAJUK that the defendants applied for mutation of their names though their predecessor Nurur Rahman Chowdhury had sold the suit land to the plaintiff. Hence, the plaintiff has filed this suit. 

The defendant appellants contested the suit

contending that Nurur Rahman Chowdhury got lease

of the suit land from D.I.T (now RAJUK). He died on 20.05.1986 leaving behind wife, three sons and two daughters, who, on 11.06.2006, applied to the RAJUK for mutation of their names and, accordingly mutation was made in their names. One Abu Sayeed Bepari made an attempt to grab the property by force. The matter was referred to the law enforcing authority and Abu Sayeed Bepari, on 26.9.2005, executed a “nadabipatra” in favour of the defendants admitting the title of the defendants in the suit land. One Hosne Ara Daud, on 17.01.1993, instituted a suit for specific performance of contract stating that Nurur Rahman Chowdhury came to an agreement for sale of the suit land with her which was dismissed. The defendants came to know that, on 26.06.2003, one Sardar Abdur Rahman filed Title Suit No.65 of 2005 for declaration of his title in the suit land. The said suit was dismissed on 26.06.2007. The instant suit has been filed by forging sale permission from the RAJUK. The defendants made boundary wall and constructed tin-shed in the suit land. The suit should be dismissed.   

The trial Court dismissed the suit. The plaintiff preferred First Appeal No.59 of 2010 in the High Court Division. The High Court Division, upon ex-parte hearing of the plaintiff, by its judgment and decree dated 18.06.2013 allowed the appeal upon setting aside the judgment and decree

of the trial Court.

Against the judgment and decree passed by the

High Court Division the defendants have preferred

this appeal upon getting leave.

 Mr. Nozrul Islam Chowdhury, learned Senior

Counsel appearing for the appellants, submits that

the respondent has obtained an ex parte decree in

appeal by practising fraud upon the Court

suppressing the notices upon the present defendant

appellants, so the judgment and decree of the

appellate Court is liable to be set aside. He

further submits that the positive finding arrived

at by the trial Court, upon consideration of the

evidence and materials, was, inter alia, that;‘‘D³

gvgjvi avivevwnKZvq KzPµxgn‡ji cÖ‡ivPbvq eZ©gvb ev`x RvwjqvwZ P‡µi m`m¨ nBqv GKwU

Rvj `wjj m„Rb Kwiqv Av`vj‡Zi mvg‡b bvwjwk m¤úwËi gvwjKvbvi Kvwnbx m„Rb Kwiqv‡Qb|ÕÕ which has not been reversed by the Appellate

Court. He submits that the impugned judgment and

decree passed ex parte by the High Court Division

is violative of the provisions of Order XLI Rule

31 of the Code of Civil Procedure and as such, the

same is liable to be set aside. He, lastly,

submits that the plaintiff being out of possession

of the suit land, suit for mere declaration was

not maintainable.

Mr. Md. Nurul Amin, learned Senior Counsel

appearing for the respondents, submits that

original lessee Nurur Rahman Chowdhury, at first,

executed a bainanama in favour of the plaintiff on

20.01.1978 and, thereafter, executed and

registered a sale deed dated 18.04.1978 in his

favour, thereby, his right, title, interest and

possession in the land, in question, has been

divested to the plaintiff, the High Court Division

upon proper appreciation of the evidence  on

record, decreed the suit.

It appears that the plaintiff Badrul Amin @

Manu Sardar, represented by his power of Attorney

Md. Helal Uddin, filed instant Title Suit No.187

of 2008 on 09.01.2008 stating that Nurur Rahman

Chowdhury got the suit land from DIT, at present

RAJUK. The plaintiff purchased the same from him

by registered sale deed dated 18.04.1978 upon

payment of consideration of a sum of taka

3,70,375/-. Before sale, Nurur Rahman Chowdhury

took permission from the then DIT by letter

communicated under Memo No.DIT.Estate/3169 dated

26.09.1977. Thereafter, the plaintiff purchaser

mutated his name in the khatian as well as in the

office of the RAJUK. It is the case of the

contesting defendant-appellants that the aforesaid

kabla deed of the plaintiff is forged one and

their predecessor Nurur Rahman did not execute and

register any such sale deed in favour of the

plaintiff. The trial Court, upon consideration of

the evidence on record, held that,Ò ‡mB K_v weev`x c‡¶i

bvwjkx m¤úwË AvZ¥mvr Kivi KzgZj‡e ev`x B‡Zvc~‡e© Ab¨ †jvK w`qv gvgjv `v‡qi Kiv nBqvwQj Ges  D³ gvgjvq civwRZ nBqvwQj| D³ gvgjvi avivevwnKZvq KzPµxgn‡ji

cª‡ivPbvq eZ©gvb ev`x RvwjqvwZ P‡µi m`m¨ nBqv GKwU R¦vj `wjj m„Rb Kwiqv Av`vj‡Zi

mvg‡b bvwjkx wb¯úwIi gvwjKvbvi Kvwnbx m„Rb Kwiqv‡QbÓ . Thereafter, the

trial Court observed that,  ÒmyZivs R¦vj `wjj Gi gva¨‡g ev`x

Av`vj‡Z gvgjv Kwiqv R¡vj `wjj e‡j bvwjkx m¤úwˇZ gvwjKvbv cªwZôv Kivi cªkœB Av‡m bv|Ó The High Court Division, while reversing the

finding as to the creation of the title deed of

the plaintiff by way of forgery, has stated, “It

is true that seal in sale deed appeared with

spelling as ‘Sadar Sub-Register’ but signature of

the Sub-Register was with each of the seal of the

deed”.  The trial Court observed that it is difficult to accept that a responsible office of Sub-Registrar shall prepare and use its seal as

“Office of the Sub-Register”. The word “ Sub-

Register” in the official seal of Sub-Registrar

created a doubt about the genuineness of the deed

itself. Since it is the case of the defendants

that the said deed is forged one it was the duty

of the plaintiff to prove his deed upon calling

the volume book from the concerned Sub- Registrar’s office but he did not take any such

step.

It further appears from the materials on

record that the plaintiff Badrul Amin earlier came

to an agreement with admitted owner Nurur Rahman Chowdhury on 20.01.1978. In his examination- in-

chief P.W.1 Md. Badrul Amin @ Manu Sardar has

said, Òbyi“i ingvb †PŠayixi mwnZ evqbv 20/1/78 Bs Zvwi‡L nq Dnvi Kwc Av`vj‡Z `vwLj Kwijvg| (cª`t 8) Ó that is, it is definite claim of

the plaintiff (P.W.1) that he came to an agreement

on 20.01.1978 with Nurur Rahman Chowdhury. In his pleading, the plaintiff has said Nurur Rahman Chowdhury filed an application for getting permission for sale of the suit land to the plaintiff and, accordingly, he got permission for

sale from the then DIT vide Memo No.DIT/Estate/3169 dated 26.09.1977. That is, according to pleading and evidence of the plaintiff Nurur Rahman Chowdhury got permission from the then DIT on 26.09.1977 and executed “bainanama” with the plaintiff on 20.01.1978. According to the plaint case, Nurur Rahman Chowdhury took permission from RAJUK to transfer

the suit land on 26.09.1977 but the Exhibit-8, the alleged “bainanama” dated 20.01.1978, shows that

it was recited, inter alia,  ÒB¤úªyf‡g›U óªvó wWAvBwU feb nB‡Z AbygwZ cvIqvi ci evqbvbvgv `wjj MªwnZv‡K wjwLZfv‡e Zvnv Rvbv‡bv nB‡e| Z‡e B¤úªyf‡g›U óªv‡ói AbygwZ wb‡Z hw` †Kvb µ‡g †`wi nq Zvnv nB‡j 90 w`‡bi ¯n‡j Avjvc-Av‡jvPbvi wfwˇZ mgq e„w× Kiv hvB‡e|Ó If story of getting permission to transfer the suit land on 26.09.1977 was true then, at the time of execution of alleged “bainanama” dated 20.01.1978 the above quoted statement in the “bainanama” would not be mentioned. It further appears from the Exhibit-8

that price of the property, in question, was settled at tk.3,70,375/ and Nurur Rahman, receiving tk. 1,00,000/-, executed the same and there was a stipulation that the plaintiff should

pay the rest amount of taka 2,70,375/- within 90

days but the plaintiff in his evidence did not say

so. 

It further appears from the Exhibit-6 to 6(Ka) Nurur Rahman Chowdhury had allegedly filed application for getting permission on 26.09.1977, the contents of the said application for permission run as follows:

Òcª`k©bx bs-6-6(K)t 26/09/1977 Zvs Gi Av‡e`b I

8/1/78Bs Zvs Gi Aby‡gv`b cÎ|

eivei,

Dc-cwiPvjK (G‡óU) wW,KAvB,wU, feb, XvKv-2|

welqt DËiv g‡Wj UvD‡bi 13bs †m±‡ii 4bs †iv‡Wi Aew¯nZ 9bs c­ ‡Ui BgviZ mn        n¯—vš—i cªms‡M|

g‡nv`q,

mwebq wb‡e`b GB †h, Avwg DËiv g‡Wj UvD‡bi 13 bs †m±‡ii 4bs †iv‡W Aew¯nZ 9bs c­ ‡Ui eivÏ MªwnZv Ges weMZ 30/10/69 Bs ZvwiL †iwRwóªK…Z -11004 jxR `wjj g~‡j

D³ c ­ ‡Ui gvwjK| wW,AvB,wU KZ…©K Aby‡gvw`Z bKmv Abyhvqx D³ c­ ‡U GKLvbv GKZjv

BgviZ wbg©vb Kiv nBqv‡Q| eZ©gv‡b Avgvi Avw_©K cª‡qvR‡b BgviZ mn D³ c­ U Lvbv †gvU

UvKv 3,70,375/- (wZb j¶ mËi nvRvi wZbkZ cuPvËi UvKv ) gy‡j¨ Rbve †gvt e`i“j Avwgb Ii‡d gby mi`vi, wcZv Ave`yj nvw` Gg,Gg 33 †K we †Nvl óªxU , _vbv- †KvZqvjx,

†Rjv- XvKv Gi wbKU n¯—vš—i Kwi‡Z gb¯— KwiqvwQ| D‡j­ wLZ Ae¯nvi cwi‡cªw¶‡Z cªv_©bv

GB †h, BgviZ mn Dc‡ivwj­ wLZ c­ U Lvbv Rbve e`i“j Avwgb Ii‡d gby mi`vi, wcZv

Ave`yj nvw`, Gg,G, 33 bs †K,we, óªxU †Nvl, _vbv- †KvZqvjx, †Rjv- XvKv Gi wbKU n¯—vš—i

Kivi Rb¨ AbygwZ cª`vb Kwi‡Z AvÁv nq|

ZvwiLt 26/09/1977Bs

Avcbvi wek¡¯—

¯^vt A¯có

26/9/77

(byi“b ingvb †PŠayix)

wcZv nvRx †gvZvnvi Avjx †PŠayix

mvs-Mvbcvov, _vbv- RvwKMÄ, ‡Rjv-wm‡jU| Ó

Exhibit-6(Ka) shows that a letter was issued from the Deputy Director, Estate to Nurur Rahman Chowdhury, the contents of the said letter run as follows:

Òcª`k©bx bs-6(K)t

¯^viK bs- wW, AvB,wU/G‡óU/3169/26/9/77B , ZvwiLt 08/01/78Bs ‡cªiKt Dc-cwiPvjK (G‡óU)

wW,AvB,wU feb

XvKv-2|

cªvcKt byi“b ingvb †PŠayix (jxR MªwnZv) ,

wcZv- nvRx †gvZvnvi Avjx †PŠayix mvs-Mvbvcvo, _vbv-RvwKMÄ, ‡Rjv- wm‡jU|

welqt DËiv AvevwmK GjvKvq 13bs †m±‡ii 4bs iv¯—vi BgviZ mn 9bs c­ ‡Ui        n¯—vš—i cªms‡M|

Avcbvi weMZ 26/9/77 Bs Zvwi‡Li Av‡e`b cÎ AÎ Awd‡mi ¯^viK bs-

3161 ¯’vt ZvwiL 26/9/77 Bs †gvZv‡eK wbg¥ ¯^v¶iKvix Avw`ó nBqv RvbvB‡ZwQ †h, Dc‡ivwj­ wLZ BgviZ mn c­ U wU Rbve †gvt e`i“j Avwgb Ii‡d gby mi`vi, wcZv

†gvt Ave`yj nv`x Gg,G, 33, †Kwe †Nvl wóªU, †cvt evey evRvi, _vbv-†KvZqvjx, †Rjv-

XvKv Gi wbKU n¯—vš—i we‡ePbv mv‡c‡¶ n¯—vš—i wd eve` 30,8,548/- (wÎk j¶

AvU nvRvi cvuPkZ AvUPwj­ k) UvKv gvÎ Ges 18/11/68 Bs nB‡Z 18/01/78 Bs

ch©š— mvwf©m PvR© eve` 2,489/- (`yB nvRvi PvikZ DbbeŸB) UvKv †mvbvjx e¨vsK , wW,AvB,wU feb, kvLvq AvMvgx 8/2/78 Bs Zvwi‡Li g‡a¨ Rgv w`qv RgvK…Z UvKvq e¨vsK iwk` cª‡qvRbxq Kvh©Kix e¨e¯nv Mªn‡bi Rb¨ wbg¥ ¯^v¶iKvixi wbKU `vwLj Kwi‡Z nB‡e| D‡j­ wLZ Zvwi‡Li g‡a¨ UvKv Rgv w`‡Z e¨_© nB‡j †Kvb cªKvi †bvwUk e¨wZ‡i‡KB D³ evwZj ewjqv MY¨ nB‡e|

¯^vt A¯có

(Dc-cwiPvjK G‡óU) wW,AvB,wU feb, XvKv| Ó

The RAJUK allegedly gave permission with certain terms and conditions which run as follows:

Òcª`k©bx bs- 7t- 15/1/78 Zvs wd Rgvi Kwc|

Zvs-15/01/78

XvKv B¤úªf‡g›U U«vó

wW, AvB, wU feb, XvKv-2|

¯^viK bs- wW, AvB,wU/G‡óU/3169/26/77B , ZvwiLt 15/01/78Bs

‡cªiKt Dc-cwiPvjK (G‡óU)

wW,AvB,wU feb XvKv-2|

cªvcKt byi“b ingvb †PŠayix (jxR MªwnZv) ,

wcZv- nvRx †gvZvnvi Avjx mvs-Mvbvcvo, _vbv-RvwKMÄ, ‡Rjv- wm‡jU|

welqt DËiv AvevwmK GjvKvq c­ U bs 9, †m±i bs-13, †ivW bs-4, BgviZ mn

c­ UwU

       n¯—vš—i cªms‡M|

Rbve,

Avcbvi 26/9/77 Bs Zvwi‡Li Av‡e`‡bi cwi‡cªw¶‡Z I AÎ Awd‡mi m¥viK bs-wW,AvB,wU/G‡÷U/3169 ZvwiL 26/9/1977Bs †gvZv‡eK wbg¥ ¯^v¶iKvix Avw`ó nBqv RvbvB‡ZwQ †h, Dc‡ivwj­ wLZ c­ U wU Rbve †gvt e`i“j Avwgb Ii‡d gby

mi`vi, wcZv -g„Z †gvt Ave`yj nv`x Gg,G, 33 †K,we, †Nvl wó«U, †cvt evey evRvi,

_vbv- †KvZqvjx, †Rjv- XvKv....... Gi eive‡i wbg¥ wjwLZ kZ© I wbqgvejx m¤ú~Y©i“‡c KviY ¯^v‡c‡¶ wbg¥i“‡c Aby‡gv`b Kiv nBj|

cª¯—vweZ n¯—vš—i MªwnZv KZ…©K mshy³ Pzw³ bvgv I AsMxKvi bvgvi bgybv †gvZv‡eK 1.50 (GK UvKv cÂvk) UvKv bb RywWwkqvj óv‡¤úi Dci wjwLZ mwnZ

KiZt Rgv Kwi‡Z nB‡e|

Avcbvi 26/9/77Bs Zvwi‡Li Av‡e`‡bi D‡j­ wLZ n¯—vš—i g~j¨ 3,70,375/-

(wZb j¶ mËi nvRvi wZbkZ cuPvËi) UvKv Gi Dci n¯—vš—i MªwnZv/MªwnÎxi mwnZ  

n¯—vš—i `wjj m¤úv`b I †iwRwóª Kwi‡Z nB‡e|

wW AvB wU I g~j eivÏ MªwnZvi/ MªwnÎx g‡a¨ mswk­ ó c­ ‡Ui m¤úvw`Z jxR

`wjj G D‡j­ wLZ kZ© I wbqgvejx cª¯—vweZ n¯—vš—i MªwnZv/ MªwnÎx gvwbqv Pwj‡Z

eva¨ _vwK‡eb| GB g‡g© n¯—vš—i kZ© Av‡ivc Kwi‡Z nB‡e Ges D³ n¯—vš—i

`wj‡ji mwn †gvni bK‡ji g~j Kwc cª¯—vweZ MªwnZv/MªwnÎxi bvg Rvixi Rb¨ AÎ `߇i

`vwLj Kwiw‡Z nB‡e|

GB wPwV Bmy¨i ZvwiL nB‡Z 4(Pvi) gv‡mi g‡a¨ Dc‡i D‡j­ wLZ kZ© I

wbqgvejx m¤ú~Y© Kwi‡Z e¨_© nB‡j n¯—vš—i Av‡`k evwZj ewjqv we‡ewPZ nB‡e|

¯^vt A¯có

15/1/78

(mnKvix cwiPvjK G‡óU) wW,AvB,wU feb, XvKv-2| Ó

From those documents of the plaintiff it is clearly proved that those documents are created

for the purpose of instant suit since those had no consistency with the plaint case.

Plaintiff Badrul Amin in his cross examination

has said, Òbyi“i ingv‡bi evox wm‡j‡U †Rjvi RvwKM‡Ä Z‡e Zvnvi Mªv‡gi bvg

Avgvi g‡b bvB| by‡ii ingv‡bi Avmj Mªv‡gi bvg Avwg Rvwb bv|Ó Thereafter, he

said, ÒAvwg by‡ii ingv‡bi evox‡Z hvB bvB| Avwg wm‡j‡U by‡ii ingv‡bi mwnZ †÷k‡b †`Lv Kwiqv wQjvg|Ó He further admitted that, ÒAvgvi `vwLj `wj‡j

mve †iwRó«v‡ii bv‡gi evbvbwU fzj fv‡e †jLv Av‡Q|Ó  P.W.1, has failed to

say the year of the execution and registration of

the sale deed. Aforesaid evidence clearly indicates that there was no previous acquaintance

of the plaintiff with Nurer Rahman, admitted owner

of the suit land. Which also made the execution of

the alleged “bainanama” and sale deed and payment

of consideration doubtful. 

It further appears that in examination-in- chief the plaintiff claimed that there are three tin-shed in the suit land. But in his cross- examination he has said ÒAÎ gvgjvi AviRxi Zcwm‡j m¤úwËi weeiY nBj bvwjkx m¤úwË eZ©gv‡b Lvwj Av‡Q|Ó  P.W.2 in his evidence has said,  Òbvwjkx m¤úwË Lvwj RvqMvq|Ó The plaintiff did not examine any other witness to prove his possession. That is, the plaintiff has failed to prove his possession in the suit land. In such view of the matter, the instant suit, without the prayer for recovery possession, was not maintainable.

In view of the nature of the evidence  as adduced by the plaintiff, it appears that the conclusion arrived at by the trial Court is more acceptable. While reversing the finding of the trial Court, the High Court Division ignored those evidence, thereby, erroneously set aside the well

reasoned judgment of the trial Court.

The High Court Division committed an error while deciding the first appeal in a cursory manner without meeting the requirements of Order XLI Rule 31 of the Code of Civil Procedure. The appeal has been decided without following the procedure prescribed for deciding the first appeal, thus, the impugned judgment is liable to be set aside.

Considering the aforesaid facts and circumstances, we find substance in the appeal

Thus, the appeal is allowed. The Judgment and decree of the High Court Division in First Appeal No.59 of 2010 is, hereby, set aside.

 C.J.

J. J.

The 17th March, 2023. /words- 2674/