IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 2686 OF 2004

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure. (Against Decree)

-And-

IN THE MATTER OF:

Sree  Rabindra  Nath  Mandal  and  other {(Petitioner  No.  2,  died  leaving  behind  his legal heirs: 2(a)-2(d)}

--- Defendant-Respondent-Petitioners. -Versus-

Jatindra Nath died leaving behind his legal heirs and others

--- Plaintiff-Appellant-Opposite Parties. Mr. Md. Abdur Rouf, Advocate

--- For the Defendant-Respondent-Petitioners. Mr. Prabir Halder, Advocate

---For the Plaintiff-Appellant-Opposite Parties.

Heard  on:  19.07.2023,  24.07.2023, 01.08.2023,  03.08.2023,  07.08.2023  and 09.08.2023.

Judgment on: 09.08.2023.

At  the  instance  of  the  present  defendant-respondent- petitioners, Sree Rabindra Nath Mandal and others (petitioner No. 2 deceased and substituted), this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil  Procedure  calling  upon  the  opposite  party  Nos.  1(Ka), 1(Kha), 1(Ga), 1(Uma), 2, 3, 4, 5, 7 and 10 to show cause as to

why the judgment and decree dated 11.07.2004 passed by the learned Additional District Judge, Court No. 2, Satkhira in the Title Appeal No. 133 of 2000 reversing the judgment and decree dated  03.04.2000  passed  by  the  learned  Assistant  Judge, Kaliganj, Satkhira in the Title Suit No. 78 of 1992 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party, namely, Jatindra Nath being dead his legal heirs: 1(Ka)-1(Ja) and others as the plaintiffs filed the Title Suit No. 78 of 1992 in the court of the learned Assistant Judge, Kaliganj, Satkhira praying for declaration of title of the case land and confirmation of possession along with a prayer for a declaration of the certificate proceeding and the auction thereof are collusive and fraudulent. The plaint contains that the land measuring 1.55 acres out of the total land measuring 5.62 acres of C. S. Khatian No. 50, S. A. Khatian No. 41 at Mouza- Dariala, Police  Station-  Kaliganj,  District-  Satkhira  described  in  the schedule of the plaint more precise originally belonged to Shyam Charan, Purna Charan and Sarada Charan in equal shares who purchased total land measuring 1.87 acres. Sharada Charan sold the land by a registered deed dated 25.09.1943 as a Benami of Sailendra  Nath  to  avoid  Income  Tax  intentionally.  After registration  of  the  said  original  sale  deed  in  Benami's  share which was kept under his own custody and the vendee, namely, Ponchanon. In the meantime, Sarada Charan got the possession of the suit land. The plain reading of the deed it would be clearly stated as the Benami in the name of the above 3 brothers. The above-mentioned purchasers all are dead leaving behind plaintiff Nos. 1-3. Kalicharan died leaving behind the plaintiff No. 7 and the defendant Nos. 4-5 who went to India. However, Sailendra Nath died leaving behind defendant No. 6 as his only son as an owner. From which they were owned and possessed with the family  arrangement  with  the  defendant  Nos.  1  and  7  by  a Certificate Case No. 2300 of 86-87 was created/started in the year of 1943 in Benami of Sailendra Nath by the relation to avoid Income Tax. Ponchanon kept the Kabala in his custody by obtaining  it  from  the  sub-registry  office.  They  remained  in possession of the case land from Sarada Charan and had been possessing the same. Ponchanon died leaving behind plaintiff Nos. 1-3 as sons and Kalicharan died leaving behind plaintiff No. 7 and defendant Nos. 4-5. Sailendra Nath died leaving behind defendant  No.  6.  Thereafter,  the  land  was  recorded  in  their

The present petitioners as the defendant Nos. 2, 5 and 8 contested the suit by filing a written statement contending, inter alia, that Sailendra Nath purchased the suit land with his own money on 25.09.1943 and Sailendra got possession thereof and S. A. Record was prepared in his name. He died leaving behind the defendant No. 6 as the only son who mutated the land in his own name and for defaulting rent there was a rent suit being Certificate Case No. 2300/86-87. From the said case the land was put on auction on 22.11.1988 and the defendant Nos. 2 and 5 purchased the land on auction and got the delivery of auction land on 18.03.1989. Sailendra Nath received the original Kabala Deed from the Subregistry Office and kept the same under his own custody and after his death his son the defendant No. 6 kept the  original  document  in  his  custody.  However,  the  present plaintiff-opposite  parties  could  get  the  original  deed  very tactfully to show Benami.

The learned Assistant Judge, Kaliganj, Satkhira heard the suit and considered all the evidence adduced and produced by the parties in the suit. Thereafter, he came to a conclusion to dismiss the suit by his judgment and decree dated 30.04.2000. Being aggrieved the present plaintiff-opposite parties as the appellants preferred the Title Appeal No. 133 of 2000 in the court of the learned  District  Judge,  Satkhira  which  was  subsequently transferred to the learned Additional District Judge, Court No. 2, Satkhira who after hearing the parties came to a conclusion to allow the appeal and thereby reversing the judgment and decree dated  30.04.2000  passed  by  the  learned  Assistant  Judge, Kaliganj,  Satkhira  in  the  Title  Suit  No.  78  of  1992  by  his judgment  and  decree  dated  11.07.2004.  This  revisional application has been filed by the present defendant-petitioners challenging the legality of the impugned judgment of the learned appellate court below and this Rule was issued thereupon.

Mr. Md. Abdur Rouf, the learned Advocate appearing on behalf  of  the  petitioners  submits  that  the  learned  trial  court dismissed  the  suit  on  the  ground  that  the  suit  was  not maintainable  due  to  cause  of  action  and  the  plaintiffs  have measurably  failed  to  produce  any  scrap  of  paper  in  the Misc./Certificate Case No. 2300 of 86-87 for auction purchase and delivery of possession through court which resulted in an error in the decision occasioning a failure of justice, therefore, the learned  appellate  court  below committed  an  error  of law resulting in an error in the decision occasioning failure of justice by  not  holding  that  plaintiff-opposite  parties  cannot  take advantage of the witness of the defense case rather it is the duly of the plaintiffs to prove their case but in the instant case the appellate court came to a wrong finding only on discussing the weak point of the defense case.

The learned Advocate further submits that although there is no elaborate discussion by the learned appellate court with reference to the evidence adduced by the PWs and the findings arrived at by the learned appellate court below are not based on material  and  evidence  on  record  and  the  trial  court  made elaborate discussion with reference to the materials on record which has caused a miscarriage of justice, as such, the Rule should be made absolute.

The  present  Rule  has  been  opposed  by  the  present plaintiff-opposite parties.

Mr. Probir Halder, the learned Senior Advocate, appearing for the present plaintiff-opposite parties submits that the learned trial court failed to take into consideration that the original deed was under the custody of the opposite parties and there was no evidence to hand over possession after the auction purchase, as such, the auction purchase dated 19.02.1989 and handing over possession are false and fabricated, as such, the learned trial court committed an error as to the facts and circumstances of the case, whereas, the learned appellate court below could properly examine the documents and lawfully came to a conclusion to allow the appeal preferred by the present opposite parties as the plaintiffs and therefore, came to a lawful conclusion to decree the  suit  but  the  present  petitioners  obtained  this  Rule  by misleading the court which is liable to be discharged.

The  learned  Advocate  further  submits  that  the  alleged purchase deed dated 25.09.1943 was executed in the name of Sailendra Nath in order to avoid Income Tax, as such, the deed was a Benami transfer, therefore, the present plaintiff-opposite parties and their successors were entitled to get the title and confirmation of possession on the basis of the said Benami deed as there was no auction sale of the suit property by any rent suit, thus, the learned appellate court below properly and lawfully passed  the  impugned  judgment  and  decree  in  favour  of  the plaintiff-appellant-opposite parties.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering the revisional application filed under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court below and also perusing the documents adduced  and  produced  by  the  respective  parties  by  way  of depositions as PWs and DWs in the learned courts below which have been included in the lower courts records, it appears to me that the present opposite parties as the plaintiffs filed the title suit claiming right of title and confirmation of possession upon the suit  land  measuring  1.87  acres  of  land  situated  at  Mouza- Dariala, J. L. No. 64, Former Khatian No. 50, S. A. Khatian No. 41, Several Dags, Police Station- Kaliganj, District- Satkhira. The  plaintiffs  claimed  their  entitlement  on  the  basis  of  the registered deed dated 25.09.1943 which was executed in the sole name of Sailendra but the purchaser money was given by the present  plaintiff-opposite  parties,  as  such,  the  property  was purchased  in  Benami,  therefore,  their  entitlement  to  the  suit property.

On  the  other  hand,  the  present  defendant-petitioners claimed that the suit property was purchased by the registered deed dated 25.09.1943 which has been exhibited as Exhibit- 3 in the name of Sailendra Nath alone which was purchased at his own price money earned by his own labour. The said purchaser Sailendra has to keep the document in his own custody after registration with the concerned registry office, the then-District- Khulna/Satkhira. After his death, his son Bimol Kumar Bormon defendant  No.  6  kept  the  original  deed  in  his  custody  and tactfully got custody to show Benami but they did not make a property in the Benami. In view of the above 2 conflicting claims and counterclaim as to the suit land, I have carefully examined the document itself which has been exhibited as Exhibit- 3 which clearly shows that the deed was executed in the sole name of Sailendra Nath Borman which was sold by Sree Sharada Sarker.

I  have  examined  the  deed  in  question  which  does  not contain any words as to the others including the plaintiffs in order to claim the deed as a Benami transaction. In a Benami transaction,  there  are  some  settled  principles  to  identify  a document as Benami including the custody, source of income, purpose of making a deed Benami and original papers relating to the land and possession of the land among others. The above conditions do not prove that the plaintiff could prove the deed as a Benami transaction by providing evidence. In particular, the deed itself clearly shows the title of the defendant-petitioners but the learned appellate court below committed an error of law and misconceived the deed itself as the vital evidence or ownership of Sailendra and his successor alone. However, the learned trial court came to a conclusion lawfully to dismiss the suit on the finding which reads as follows:

…“AeÉ¢c­L Ešlc¡uL ¢hh¡c£ fr c¡h£ L­le ®k, e¡¢mn£

S¢j ®~n me ¢eS A bÑ J ü¡®bÑ M¢lc L l ®i¡N cMmL¡l b¡ Lez a¡l

jªa¥Él fl f¤œ ¢hjm Ju¡ ln ¢qp¡ h ®i¡N cMm Ll¡ L¡m£e M¡Se¡ h¡L£ fs m e¡x S¢j ¢em¡j qu 2300/86-87 ¢jp ®Lp j§ mz Hhw lh£¾cÐ J

Bx Jq¡h ®pC e£m¡j M¢lc L lez ¢hh¡c£fr a¡ cl c¡h£l pjbÑ e

pw¢nÔø e£m¡ jl hue¡j¡ fËcx M J cMme¡j¡ fËcx M(1) Bc¡m a c¡¢Mm L l Rez fËcx M q a ®cM¡ k¡ µR e¡¢mn£ S¢j h¡hc 2300/86-87

¢jp ®Lp j§ m e£m¡j qu Hhw Bc¡ma LaѪL 19/02/1989 a¡¢lM

¢em¡j hq¡m quz fËcx M(1) q a ®cM¡ k¡ µR Bc¡ma LaѪL ¢em¡j qh¡l fl e¡x S¢jl cMm ¢em¡j M¢lŸ¡l Jq¡h J lh£¾cÐ hl¡hl Na

18/03/89 Cw a¡w cMm fËc¡e Ll¡ quz HR¡s¡J 2300/86-87 ¢em¡j

®L pl j§m eb£ q aJ ®cM¡ k¡u Bc¡ma LaѪL kb¡kb ¢euj Ae¤k¡u£ ¢em¡j X¡L¡ qu Hhw p hÑ¡µQ X¡LL¡l£ lh£¾cÐ J Bx Jq¡h hl¡hl ¢em¡j

fËc¡e Ll¡ qu Hhw a¡ cl hl¡hl Bc¡ma LaѪL e¡x S¢jl cMm qÙ¹¡¿¹l Ll¡ quz”…

On the other hand, the learned appellate court below came to a wrongful conclusion on the basis of the following findings and observations:

…“that the plaintiffs were possessing the case land. Also, he deposed that the plaintiffs have been possessing the case land. In the light of evidence & the production of the original Kabala from the custody of

the plaintiffs it appears that the plaintiffs purchased the case  land  from  Sarada  Charan  in  the  Benami  of Sailendra Nath Barmon got possession of the case land

and  received  the  original  Kabala  from  the  Sub- Rregistry Office & have been possessing the same in assertion of their own right since September 25/1943. Writ of delivery of possession Ext. Kha(I) exposes the

fact that on March 18/1989, Sheikh  Ansar Ali (the process  server).  Tulsi  Sardar  (the  flagman)  & Dhirendra  Nath  Rishi  (the  dram  beater)  delivered possession of the land of the jote in the possession of the auction purchasers.”…

In view of the above 2 conflicting decisions regarding the vital  document,  which  is  exhibited  as  Exhibit-  “3”  and  also Exhibit- “Kha” regarding the certificate case on auction, I am of the opinion that this is not a proper case of Benami transaction as the evidence clearly produced by the defendant-petitioner and the plaintiff-opposite  parties  regarding  the  entitlement  of  the  suit land of the defendant-petitioners as the deed clearly shows in a sole name of Sailendra Nath which was subsequently inherited by his successors and there was an auction on default of the Khajna, as such, the learned appellate court below committed an error of law by reversing the judgment and decree passed by the learned trial court by dismissing the suit filed by the plaintiff- opposite parties.

On the basis of the above discussions and consideration of the evidence contained in the lower court records and the other documents, I am of the opinion that this is a proper case for making the Rule absolute.

Accordingly, I find merit in the Rule.

In the result, the Rule is hereby made absolute.

The judgment and decree dated 11.07.2004 passed by the learned Additional District Judge, Court No. 2, Satkhira in the Title Appeal No. 133 of 2000 is hereby set aside.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  this  Rule  staying  the  operation  of  the  impugned judgment and decree dated 11.07.2004 passed by the learned Additional  District  Judge,  Court  No.  2,  Satkhira  in  the  Title Appeal No. 133 of 2000 is hereby recalled and vacated.

The judgment and decree dated 30.04.2000 passed by the learned Assistant Judge, Kaliganj, Satkhira in the Title Suit No. 78 of 1992 is hereby upheld.

The concerned section of this court is hereby directed to send down the lower courts records along with a copy of this judgment and order to the learned courts below immediately.