Present :

Mr. Justice Ashish Ranjan Das.

Civil Revision No. 3015 of 2012 In the matter of:

Suruj Miah and another

                .....Defendants-Respondents- Petitioners

         -Versus-

Md. Ramjan Ali and others

......Plaintiffs-Respondents-Opposite parties.

Mr. A.B.M.Matiur Rahman, Advocate

                   ..... Defendant-Appellant- Petitioners. Mr. H. Humayun Kabir, Advocate

......Plaintiff-Respondent-Opposite parties.

Heard on: 31.10.2019,18.11.2019,  25.11.2019 and 01.12.2019. Judgment on: 05.02.2020

Ashish Ranjan Das, J:

By this application under section 115(1) of the Code of Civil Procedure, the propriety of the judgment and decree dated 06.06.2012 passed by the learned 2nd Court of Additional District Judge, Gazipur in Title Appeal No.272 of 2009 reversing those dated 29.09.2009 passed by the learned Assistant Judge, 3rd Court, Kapasia, Gazipur in Title Suit No. 3478 of 2008 has been called in question.

The plaintiff opposite parties No.1-2 filed Title Suit No.3478 of 2008 impleading the petitioners and opposite parties no.3-9 as defendants praying for a decree for declaration to the effect that the deeds under challenge were fraudulent and illegal.

Facts relevant for the purpose of disposal of the rule may be summarized as under: -

The suit land originally belonged to Pana Ullah Sheikh. He died leaving 2 sons, namely, Kusai Sheikh and Jafar Ali Sheikh. Their names were correctly recoded in C.S, khatian No.95 in equal shares. Thereafter, Kusai Sheikh died leaving 2 sons, namely, Nasiruddin and Rahimuddin.  During  S.A.  operation  their  names  were  correctly recorded in S.A. khatian No.161 and R.S. khatian No.105 was also correctly recorded in the names of aforesaid Rahimuddin and others.

Rahimuddin died in 1988 leaving behind wife, Ayesha Khatun, three sons, namely, Ramjan Ali, Lal Miah and Suruj Miah and two daughters, namely, Ajufa Khatun and Jayeda Khatun, who inherited aforesaid  Rahimuddin’s   left  out  property.  Ayesha  Khatun  died leaving her 3 sons, namely, Ramjan Ali, Lal Miah and Suruj Miah and one daughter Jayeda Khatun, all of them have been possessing their respective shares in accordance with amicable partition.

On 05.05.2004 the defendants claimed title over the scheduled land on the basis of some Heba bil ewaj deeds allegedly executed by their father Rahimuddin and mother Ayesha Khatun. They went to the local Sub-Registry Office and on search obtained certified copy of deed  Nos.9803  and  9804  dated  17.10.1987,  deed  no.6494  dated 08.08.2001  respectively.  On  17.10.1987 Rahimuddin  transferred 26.25 decimals of land in favour of defendant no.3, Jayeda Khatun by registered deed no.9803  of 52.50 decimals  land  was  gifted to Ayesha Khatun and defendant nos. 1-2  by registered Heba bil –ewaj deed no. 7804 and Ayesha Khatun gifted 10.5 decimals land in favour of  defendant  nos.1-3.  But  allegation  is  that  Rahimuddin  did  not execute the impugned deeds.

Defendant Nos.1 and 3 contested the suit by filing a written statement. Their case is that the father of the plaintiffs as well as of defendants no.1-3 transferred 17.5 decimals of land to Mst. Morzina Khatun  wife  of  plaintiff  No.1,  by  registered  deed  no.8006  dated 01.09.1987. On 17.10.1987 he again gifted 26.25 decimals of land to his daughter, Jayeda Khatun, defendant no.3 by registered Heba by heba bil ewaj deed No.9803 he gifted 52.5 decimals of land to his 2 sons, defendant nos.1 and 2 and his wife Ayesha Khatun by registered Heba bil ewaj deed No.9804 and handed over possession to them and they  have  been  possessing  the  same  in  accordance  with  their respective  shares.  After  the  death  of  Rahimuddin,  while  Ayesha Khatun was in possession of her share which she inherited from her husband  as  well  as  got  through  deed  No.9804,  transferred  10.5 decimals of land to defendants No. 1-3 by registered Heba bil ewaj deed No.6494 dated 08.08.2001 and handed over possession to them. The plaintiff No. 1 purchased 8.66 decimals land from defendant Nos. 2 by 3 separate registered deeds No.861 dated 28.01.2003, No. 4487 dated 21.06.2003 and deed No. 7192 dated 30.09.2003. Defendant No.3 got 77 decimals of land through aforesaid Heba bil ewaj deeds by inheritance and mutated the same and has been possessing there. The plaintiffs filed the suit after 17 years of the registration of the impugned deeds. Defendant No. 2 filed a separate written statement

but did not turn up in the court to prove his case.

The  learned  Assistant  Judge,  3rd  Court  (Kapasia),  Gazipur recorded evidences for the respective parties and upon full-fledged hearing, dismissed the suit by her judgment and decree on 29.09.2009.

Being  aggrieved  by  the  aforesaid  judgment  and  decree,  the plaintiffs  opposite  parties  preferred  an  appeal  and  the  learned Appellate  Court  allowed  the  appeal  and  decreed  the  suit  by  her judgment and decree dated 06.06.2012.

The plaintiffs initially filed the suit for declaration of title to the effect that registered Heba bil ewaj deeds no.9803 and 9804 dated 17.10.1987,  no.  8006  dated  01.09.1987  after  long  17  years  of execution  and  registration  of  those  deeds  were  not  genuine.  The defendants claimed title over the suit land on 05.05.2004 which is not supported by any other P.Ws. The learned Assistant Judge rightly found the suit hopelessly barred by limitation, but the appellate court without reversing the finding of the trial court allowed the appeal. Hence is this revisioanl application at the instance of the defendant- respondents– petitioner nos. 1 and 2.

Admitted position is that the plaintiffs are not in possession of the suit land and the defendant nos.1 and 2 have been possessing the suit land for more than 12 years.

I have gone through the materials annexed to the  file and heard the learned advocates for the contesting parties at length.

Mr.  A.B.M.  Matiur  Rahman,  the  learned  Advocate  for  the

petitioners pointed out that the plaintiffs filed the suit for declaration in respect of the property left behind by their father and mother along with challenging some registered deeds, as such the suit   is not maintainable without prayer for partition. He next submits that the suit is not maintainable in its present form without a prayer for partition of ejmali property. He lastly submits that the appellate court without adverting to the aforesaid findings illegally allowed the appeal and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.

Mr. H. Humayun Kabir, the learned advocate for the opposite party  pointed  out  that  Rahimuddin  did  not  execute  the  impugned deeds,  those  were  collusively  and  fraudulently  obtained  by  the defendants No.1-3. He next submits that the learned Appellate Court rightly allowed the appeal based on material evidences on record. He lastly submits that the plaintiff No.1 purchased 8.66 decimals of land from the defendant no.2 by 3 separate registered deeds on different dates, as such the Rule liable to be discharged.

It is admitted that Rahimuddin and  the plaintiffs were the owners of the suit land. The plaintiffs and the defendants are the heirs of Rahimuddin i.e the plaintiffs and the defendants are co-sharers by inheritance. The plaintiffs claimed that the defendant nos.1-3 created the deed nos. 9803 & 9804 dated 17/10/1987 AD from Rahimuddin fraudulently. P. W. 1 stated that the deed nos. 9803 & 9804 dated 17/10/1987 AD is inoperative and paper transaction only but did not

specifically mention as to why the impugned deeds are inoperative and void or what type of fraud the defendants have committed with the impugned deeds. The defendants further alleged that the impugned deeds have not been acted upon and the plaintiffs and defendant are in joint possession of their inherited property. The defendants possessed their share in the suit land by constructing house and planting trees there. But could not prove this by sufficient corroborative evidence. On  the  other  hand,  the  defendants  claimed  the  suit  land  through impugned deed nos. 9803 & 9804 dated 17/10/1987 AD, 6494 dated 08/08/2001 AD and submitted the original copies of the impugned deeds. The plaintiffs have completely failed to discharge their initial onus to prove that the impugned deeds are void inoperative and not binding upon the plaintiffs since the plaintiffs and defendants are co- sharer in the ejmali property.

In view of the facts and findings, I hold that the petitioners have totally failed to prove their case by documentary and oral evidence. I find force in the submissions of the learned advocate for the opposite parties  and it is in conformity with the narration of the plaint.

Thus, I find no merit in the Rule. Accordingly, the Rule is discharged and the judgment and decree dated 06.06.2012 passed by the learned 2nd Court of Additional District Judge, Gazipur in Title Appeal No.272 of 2009 is hereby set aside and the judgment and decree dated 29.09.2009 passed by the learned Assistant Judge, 3rd Court, Kapasia, Gazipur in Title Suit No. 3478 of 2008 is upheld

without any order as to costs.

The order of stay granted at the time of issuance of the Rule is hereby vacated.

Communicate the judgment and order to the concern Court at once.

Send down the Lower Court records at once.

Justice Ashish Ranjan Das.

Bashar, B.O.