IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3801 OF 2002

In the matter of:

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

And

Md. Nurul Islam

.... Petitioner

-Versus-

Abdus Sattar and others

.... Opposite parties

Mr. Purubi Saha, Advocate

.... For the petitioners.

Mr. Sherder Abul Hossain, Advocate

…. For the opposite No.1.

Heard on 01.12.2024 and Judgment on 02.12.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 28.04.2002 passed by the learned Joint District Judge, 1st Court, Habigonj, in Title Appeal No.112 of 1997 dismissing the appeal affirming the judgment and  decree  dated 23.03.1997  passed by  the  learned  Senior  Assistant Judge, Habigonj in Title Suit No.166 of 1980 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 the petitioner as plaintiff instituted above suit for specific performance of bainapatra dated 04.02.1976 executed by defendant No.1 for sale of 26 decimal land. It has been alleged that the defendant No.1 as the owner of possessor of above 26 decimal land

declared to sale the same and the plaintiff agreed to purchase the same

at Taka 5,000/- and on receipt of Taka 4,000/- defendant No.1 executed

a bainapatra on 04.02.1976 and delivered possession. Defendant Nos.2

and 3 were aware about above bainapatra. Defendant No.1 refused to

execute and register a sale deed to the plaintiff and he has fraudulently

transfer above land to defendant Nos.2 and 3.

Defendant No.1, 2 and 3 contested above suit by filing a joint

written statement alleging that defendant No.1 did not enter into any

contract to sale disputed 26 decimal land to the plaintiff and above bainapatra  dated  04.02.1976  is  a  forged  and  ineffective  document. Defendant No.1 did not receive any consideration money and deliver possession  of  the  disputed  land  to  the  plaintiff.  Defendant  No.1 transferred  above  land  to  the  defendant  No.2  on  receipt  of consideration of money and delivered possession to him and after his

demise his heirs are in possession in the above land.

At trial plaintiff examined 5 witnesses and defendants examined

6. Documents of the plaintiffs were marked as Exhibit Nos.1 and 2                and those of the defendants were marked as Exhibit No.A.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record the learned Senior Assistant Judge dismissed above

suit.

Being aggrieved by above judgment and decree of the trial Court

plaintiff preferred Title Appeal No.112 of 1997 to the District Judge,

Hobigonj which was heard by the learned Joint District Judge, 1st Court who dismissed above appeal and affirmed the judgment and decree of the trial Court.

Being aggrieved by above judgment and decree of the Court of Appeal below above appellant as petitioner moved to this Court and obtained this Rule.

Ms. Purabi Saha, learned Advocate for the petitioner submits that defendant  No.1  on  receipt  of  Taka  4,000/-  executed  impugned bainapatra  dated  04.02.1976  (Exhibit  No.1)  for  sale  of  disputed  26 decimal land to the plaintiff for Taka 5,000/-. Defendant No.2 was fully aware about above contract and possession of the plaintiff in above land and collusively purchased above land from defendant No.1 by registered  kabala  deed  dated  05.02.1980.  Defendant  has  refused  to execute and register a sale deed on receipt of remaining Taka 1,000/- and since the defendant No.2 was fully aware about above bainapatra he is also bound to execute a sale deed for above land to the plaintiff. But the learned Judges of both the Courts below have miserably failed to appreciate above aspect of the facts and law and most illegally the trial Court dismissed the suit and the Court of Appeal below most illegally affirmed above flawed judgment and decree of the trial Court which is not tenable in law.

On the other hand Mr. Sherder Abul Hossain, learned Advocate for the opposite party Nos.2, 4 and 5 submits that admittedly plaintiff is the  nephew  of  defendant  No.1 and  they  have  their  joint  properties which they possess jointly and they have disputes with regard to above property.  Now  deceased  defendant  No.2  was  a  third  party  and bonafide  purchaser  for  value  of  disputed  26  decimal  land  from defendant No.1 for valuable consideration on 05.02.1980 before filing of this suit. As such defendant No.2 was not bound by above bainapatra between the uncle and nephew and the learned Judges of the Courts below on correct appreciation of materials on record rightly dismissed the suit and the appeal respectively which calls for no interference.

I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

It  is  admitted  that  disputed  26  decimals  land  belonged  to defendant  No.1  and  he  has  sold  the  same  to  defendant  No.2  by  a registered kabala deed on 05.02.1980 and the plaintiff filed the suit for specific performance of bainapatra dated 04.02.197 on 31.03.1980. It is also admitted that defendant No.1 is the paternal uncle of the plaintiff. But defendant No.2 is a third person. Plaintiff himself gave evidence as PW1 and produced the impugned deed of bainapatra dated 04.02.1976. He stated that his uncle defendant No.1 executed above bainapatra on receipt of Taka 4,000/- out of Taka 5,000/- which was the consideration for  above  26  decimal  land.  PW2  Atar  Ali  is  the  scribe  of  above bainapatra  and  he  has  given  consistent  evidence  in  support  of  due execution of above bainapatra. On consideration of above evidence on

record I hold that the plaintiff succeeded to prove that defendant No.1

executed above bainapatra dated 04.02.1976 for sale of above 26 decimal

land. But as to non execution of a sale deed and possession of above

land PW1 has stated as follows in his evidence:

""3/4 j¡p fl V¡L¡ ¢e−u Lhm¡ ®cJu¡l Lb¡ aMe Bj¡l

L¡−R pÇf§ZÑ V¡L¡ ¢Rm e¡z f−l V¡L¡ ¢e−u Lhm¡ ¢c−a h−m¢Rz 1 ew h¡c£ Bj¡l Q¡Q¡z g¢lc¡h¡−c Bj¡l S¢j Bj¡l Q¡Q¡

HC ¢hh¡c£l cMm L−l ¢hd¡u B¢j a¡q¡ ®gla Q¡Cz ®p Lhm¡ ¢c−a Aü£L¡l L−lz''

Above  evidence  of  PW1  shows  that  it  was  the  latches  of  the

plaintiff who failed to pay the remaining consideration money of above

bainapatra during the period as was agreed upon and obtained a kabala

deed  from  defendant  No.1.  Above  evidence  further  shows  that  the

plaintiff was not in possession of disputed 26 decimal land pursuant to

above bainapatra. As mentioned above defendant No.1 has transferred

above 26 decimals land to defendant No.2 by a registered kabala deed

on 05.02.1980 before filing of this suit. As such defendants kabala deed

dated 05.02.1980 is not subject to lis pendse.

As far as the claim of the learned Advocate for the petitioner that

defendant  No.1  was  fully  aware  as  to  the  above  bainapatra  dated

04.02.1976 is concerned there is no specific averments in this regard in

the plaint or in the evidence of the plaintiff witnesses. In the plaint it

has been merely stated that defendant No.2 was aware about the above

bainapatra dated 04.02.1976. But there is no mention as to the source of

knowledge of defendant No.2 about above bainapatra or the date or place from where he got above information. In his evidence as PW1 plaintiff has merely stated that defendant No.2 was aware about above sale and purchase from the very beginning. But there was no sale of the disputed  land  to  the  plaintiff  by  defendant  No.1  and  PW1  did  not mention that defendant No.2 was aware about above bainapatra before his purchase.

On consideration of above facts and circumstances of the case and materials  on  record  I  hold  that  the  learned  Judges  of  the  Court  of Appeal below on correct appreciation of evidence on record has rightly dismissed the appeal and affirmed the judgment and decree of the trial Court which calls for no interference.

As such I find no substance in this civil revisional application under Section 115(1) of the Code of Civil Procedure and the Rule issued in this connection is liable to be discharged.

In the result, the Rule is hereby discharged. The order of status- quo granted at the time of issuance of the Rule is hereby vacated. 

However, there is o order as to costs.

Send down the lower courts record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER