IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.4748OF 2022

In the matter of:

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

And

Akbar Ali Khan being dead his heirs: Sufia Begum and others

.... Petitioners

-Versus-

Panzu Shah and others

.... Opposite parties

Mr. Shasti Sarker with

Mr. Laxman Biswas, Advocates

.... For the petitioners.

None appears

…. For the opposite party parties. Judgment on 13.11.2024.

This Rule was issued calling upon the opposite party Nos.1-4f(3) to show cause as to why the impugned judgment and decree dated 13.09.2022 passed by the learned Additional District Judge, 2nd Court, Jhenaidah in Title Appeal No.84 of 2020 disallowing the appeal and affirming  the  judgment  and  decree  dated  02.09.2020  passed  by  the learned Senior Assistant Judge, Sadar, Jhenaidah in Title Suit No.19 of 2005 decree partly the suit 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 petitioner as plaintiff instituted above suit for partition seeking a separate saham for 32.50 decimal land and for further  declaration  that  the  registered  kabala  deed  No.5905  dated 22.03.1984  allegedly  executed  by  the  plaintiff  No.2  in  favour  of  the defendants is void, illegal and not binding upon the plaintiffs.

It was alleged that the plaintiffs acquired land in disputed S. A. Khatian  No.638  by  several  registered  kabala  deeds  and  they  also transferred some land to the defendants by several registered kabala deeds and they had title and possession in 32.50 decimal land. The plaintiff  No.2  Sufia  Khaton  did  not  transfer  21  decimals  land  to defendant Nos.1-3 by the impugned registered kabala deed No.5905 dated  22.03.1984.  Plaintiff  No.2  is  an  illiterate,  pardanshil,  village woman and she did not receive any consideration money for above kabala  deed  nor  she  executed  the  same  by  putting  her  left  thumb impression (LTI). Above document was created by the defendants by false  persuasion.  Above  plaintiff  did  not  have  any  land  in  Kushtia District but the defendants have registered above kabala deed for the disputed  land  of  Jhenaidah  District  in  the  Officer  Sub-Registrar  of Kushtia by including a fictitious land of Kushtia District. As such above kabala deed was a void document since the same was registered by a Sub-registrar who had no legal jurisdiction. Above land has not been partitioned by meets and bound and the defendant denied to effect an amicable partition.

Defendant  Nos.1-4  contested  the  suit  by  filing  a  joint  written statement  alleging  that  plaintiff  No.2  Sufia  Khatun  transferred  21 decimal  land  to  the  defendant  by  registered  kabala  deed  dated 22.03.1984  and  by  way  of  purchase  by  several  documents  from  the plaintiffs the defendants are in peaceful possession in 47.75 decimal land.  The  plaintiff  No.2  executed and  registered above  kabala  deed dated 22.03.1984 while she was living along with her husband in the house of her father in Kushitia. Plaintiffs claimed that plaintiff No.2 had property in Kushtia which she got from her father and plaintiff No.1 Ahmed supervised the preparation, execution and registration of above kabala deed dated 22.03.1984.

At trial plaintiff examined 1 witness and documents produced and proved by the plaintiffs were marked as Exhibit Nos.1-4 series and 6 series. On the other hand defendants examined two witnesses and the documents produced and proved by the defendants were marked as Exhibit Nos.Ka-Ta.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record the learned Senior Assistant Judge decreed the suit in part and granted separate saham for the plaintiffs for 17.25 decimal land.

Being aggrieved by above judgment and decree of the trial Court plaintiffs preferred Title Appeal No.84 of 2020 to the District Judge, Jhenaidah which was heard by the learned Additional District Judge, 2nd  Court,  Jhenaidah  who  dismissed  the  appeal  and  affirmed  the judgment and decree passed by the trial Court.

Being aggrieved by and dissatisfied with above judgment and decree  of  the  Court  of  Appeal  below  the  appellants  as  petitioners moved to this Court and obtained this Rule.

Mr. Shasti Sarker, learned Advocate for the petitioners submits that admittedly plaintiff and defendants are co-sharers in the above jama and the only dispute in this suit is that whether registered kabala deed dated 22.03.1984 executed by plaintiff No.2 in favour of defendant Nos.1-3  was  a  legal  and  effective  document  or  the  same  was  a fraudulent  and  void  document.  Above  document  was  allegedly executed by plaintiff No.2 who is an illiterate and pardanshil village woman. The defendants did not produce above original document at trial. It has been merely stated that above original document has been lost without providing necessary particulars as to when and how above document was lost. The defendants could not prove the due execution of  above  document  and  receipt  of  consideration  money  by  plaintiff No.2 Sufia Khatun by oral evidence of competent witnesses. It is not disputed that the disputed property is situated within the jurisdiction of  Sub-Registrar  of  Jhenaidah  Sadar.  But  above  document  was registered  by  the  Sub-Registrar  of  Kushtia  Sadar  and  1  decimal fictitious land of Kushtia was incorporated in above document to show the  jurisdiction  of  the  Sub-Registrar  of  Kushtia.  As  such  above document was a void document. In support of above submissions the learned counsel for the petitioners referred to Shefali Rani Vs. Makhan Chandra Das, reported in 50 DLR (1998) Page-349.

Inspite of the service of the process opposite party did not enter appearance and contest this Civil Revision.

I have considered the submissions of the learned Advocate for the petitioner and carefully examined all materials on record.

It is admitted that the plaintiffs and defendants are co-sharers of S.A. Khatian No.638 and the plaintiff Nos.1 and 2 have transferred land to the defendant Nos.1-3 by several registered kabala deeds. The subject of sole dispute of this suit is the registered kabala dated No.5905 dated 22.03.1984 allegedly executed by plaintiff No.2 to defendant Nos.1-3 for 21 decimal land of above khatian.

It is admitted that at the time of execution of above kabala deed plaintiff No.2 had subsisting interest in 15.25 decimal but by above kabala  plaintiff  No.2  allegedly  transferred  21  decimal land.  Plaintiff No.2 is a village women and she gave her LTI on the plaint and claimed that she is an illiterate and elderly woman and above claims have not been  denied  by  the  defendants.  Plaintiff  No.2  has  denied  to  have executed above kabala deed and receipt of any consideration for the same. She has claimed that above kabala deed was created fraudulently by false personation. Plaintiff No.4 gave evidence as PW1 and produced and  proved  a  certified  copy  of  above  kabala  deed  dated  22.03.1984 which was marked as ExhibitNo.2. Above witnesses stated in his cross examination that his mother plaintiff No.2 was sick and she went to the appointed Advocate at the time of drafting of the plaint.

Since plaintiff No.2 is an old and illiterate village woman and she has  denied  to  have  executed  above  registered  kabala  deed  (Exhibit No.2) the onus shifted upon the defendant to prove due execution of above document by legal evidence. Defendants could examine at trial the  scribe  and  other  witness  of  above  document  to  prove  proper execution of above document and receipt of consideration money by plaintiff No.2. But the defendants did not make any endeavor to prove due execution of above document.

Defendant No.4 gave evidence as DW1 but he did not claim that he was present at the time of the talk of sale of above land or execution and registration of above document by plaintiff No.2. DW1 produced a certified copy of above registered kabala deed dated 22.03.1984 which was marked as Exhibit No.Ja. In cross examination he stated that he was not a recipient of above kabala deed and above original deed has been lost in March 1956. No GD was entered in the police station. It is not understandable as to how above kabala deed of 1982 could be lost in 1956. The defendants could not prove the due execution of above kabala deed (Exhibit No.Ja) by plaintiff No.2 by legal evidence.

It is an admitted fact that above kabala deed (Exhibit No.Ja) was registered  in  the  Sub-Registered  Office  of  Kushtia  although  the disputed  land  is  situated  within  a  jurisdiction  of  Jhenaidah  Sub- Registrar Office. In the second schedule of above kabala deed 1 decimal land of Kushtia was shown to have been transferred. But plaintiffs have stated in the plaint that plaintiff No.2 did not have any title in above 1 decimal land of Kushtia District and the same was a fictitious land. As the recipient of kabala deed the onus the shifted upon the defendants to prove by legal evidence that plaintiff No.2 had title in above 1 decimal land of Kushtia district. But the defendant did not make any endeavor to prove the same by oral and documentary evidence.

As  such  I  find  substance  in  the  submissions  of  the  learned Advocate for the petitioner that above kabala deed was registered by the Sub-Registrar of Kushtia who had no legal authority to register the same  and  the  impugned  kabala  deed  is a  void  deed.  The case  law referred  to  above  by  the  learned  Advocate  for  the  petitioner  is applicable in the facts and circumstances of this case.

In  above  view  of the  facts and  circumstances  of  the case  and evidence on record I hold that the learned Additional District Judge, 2nd Court,  Jhenaidah  failed  to  appreciate  above  facts  and  materials  on record properly and most illegally dismissed the appeal and affirmed the flawed judgment and decree of the trial Court which is not tenable in law.

 I  find  substance  in  this  revisional  application  under  Section 115(1)  of  the  Code  of  Civil  Procedure  and  the  Rule  issued  in  this connection deserves to be made absolute.

Accordingly, this Rule is hereby made absolute.

The impugned judgment and decree dated 13.09.2022 passed by the  learned  Additional  District  Judge,  2nd  Court,  Jhenaidah  in  Title Appeal No.84 of 2020 and affirming the judgment and decree dated 02.09.2020  passed  by  the  learned  Senior  Assistant  Judge,  Sadar, Jhenaidah in Title Suit No.19 of 2005 are set aside.

Above  suit  is  decreed  on  contest  in  preliminary  form  against defendant Nos.1, 2 and 4 and ex-parte against the rest. Plaintiffs are granted saham for 32.50 decimals land.

Parties  are  directed  to  effect  partition  of  above  land  amicably within 60(sixty) days, in default, plaintiffs shall get the same through Court.

It  is  further  declared  that  the  registered  kabala  deed  No.5905 dated 22.03.1984 is an illegal and void document and the same is not binding upon the plaintiffs.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER