IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 3184 OF 2001

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Md. Khabir Uddin and others

--- Defendant-Appellant-Petitioners. -Versus-

Mowlana Abdul Wahab {died leaving behind his legal heirs: 1(a)-1(v)}and others

--- Plaintiff-Respondent-Opposite Parties. Mr. Shihab Uddin Mahmood, Advocate

--- For the Petitioners. Mr. Mohammad Mizanur Rahman @ Sihab,

 Advocate --- For the Opposite Parties.

Heard  on:  27.08.2023,  16.10.2023, 18.10.2023, 29.10.2023 and 30.10.2023. Judgment on: 08.11.2023.

At  the  instance  of  the  present  defendant-appellant- petitioner, Md. Khabir Uddin and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party No. 1 to show cause as to why the judgment and decree of affirmance dated  07.02.2001  passed  by  the  learned  Additional  District

Judge, Court No. 2, Noakhali in the Title Appeal No. 61 of 2000 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite parties as the plaintiffs filed the Title Suit No. 123 of 1997 in the court of the learned Senior Assistant Judge, Sadar, Noakhali for a declaration that the 2 (two) deeds of the  gift  being  Heba  No.  1704  dated  27.03.1982  executed  in

favour of his brother Abdul Gani for the land measuring 0.41 1 2

acres of land and also claiming that another deed of the gift being No. 1705 executed same date in favour of the present defendant- opposite  parties  are  forged,  fraudulent,  without  any consideration,  void  and  not  binding  upon  the  plaintiffs.  The plaint also contains that the transfer by executed above 2 (two) deeds in favour of the full-brother of the executants are created and manufactured in favour of brothers of vendor or transferee of the 2 (two) lands were created without possession of the suit land was given. Further claims of the plaintiffs are that the plaintiffs were not aware of the above 2 (two) deeds but when they could know about the said deeds on 20.02.1995, the suit was filed in a limitation period from the date of cause of action.

The present defendant opposite parties contested the suit by filing a written statement denying all the claims/prayers in the plaint and it is further contended that the transfer was the serious ill  motive in  1982 and  his  brothers  looked  after  him  for  his treatment and looked after by them to be transferred, thus, he executed  deeds  of  gift  and  deed  of  Heba  in  favour  of  the defendants were voluntarily made. After executing the said deeds handed  over  the  possession.  The  defendant-petitioners  further contended that a compromise deed was executed after obtaining certified copy on 05.03.1998 by the plaintiff-opposite party No. 1 and the defendant No. 1 which was false and fabricated. In the meantime, defendant No. 1 died and the original documents were stolen from custody of the present defendant-petitioner No. 1.

Upon receipt of the said suit both the parties adduced and produced PWs and DWs before the court of the learned Senior Assistant Judge, Sadar, Noakhali in support of their respective cases.

During the pendency of the said suit the present defendant- petitioners sought an expert opinion as to the thumb impression upon  the  said  deeds  should  be  obtained  of  plaintiff  No.  1, Mowlana Abdul Wahab but the learned trial court passed an

order on 01.03.1999 but eventually the application for thumb impression from an expert opinion as to the thumb impression was rejected by his order dated 24.08.1999. After hearing the parties considering the evidence adduced and produced by the respective parties the learned trial court decreed the suit in favour of the present defendant-opposite parties by his judgment and decree dated 09.03.2000 declaring the deeds have been created by practicing fraud and fraudulent, as such, the said deeds are not operative against the plaintiff-opposite parties. Being aggrieved the present defendant-petitioners preferred the Title Appeal No. 61 of 2000 challenging the legality and propriety of the learned trial court’s judgment. The present appellant-petitioners filed an application for an expert opinion as to the thumb impression upon the deeds and the learned appellant court below rejected the said application by the order dated. 10.07.2000. On the basis of the evidence adduced and produced by the respective parties the learned  appellate  court  below  disallowed  the  appeal  by  his judgment  and  decree  dated  07.02.2001  thereby  affirming  the judgment and decree dated 13.03.2000 passed by the learned trial court.

This revisional application has been filed by the present defendant-petitioners under section 115(1) of the Code of Civil Procedure challenging the legality of the impugned judgment passed by the learned lower appellate court and this Rule was issued thereupon.

Mr.  Shihab  Uddin  Mahmood,  the  learned  Advocate appearing  on  behalf  of  the  defendant-appellant-petitioners submits that the strenuous efforts of the petitioners to bring into evidence the thumb impression register in respect of the disputed documents having turned down and the scope of having thumb impression purported to be of the plaintiff-opposite parties in thumb  impression  register  examined  and  compared  with  the specimen or admitted thumb impression of the plaintiff-opposite partis being consistently denied and the petitioners were highly prejudiced in their defense leading to the denial of justice to them.

The learned Advocate also submits that recording of the suit land in the name of the vendees and the evidence of DW Nos. 1-3 did warrant a finding that the suit land had been in possession of the petitioners, as such, the suit for declaration simplicity was not maintainable.

The present Rule has been opposed by the present opposite

parties.

Mr. Mohammad Mizanur Rahman, the learned Advocate, appearing  for  the  present  opposite  parties  submits  that  upon consideration of the entire facts and evidence on record both the courts below rightly held that both the deeds being Heba Deed No. 1704 and Gift Deed No. 1705 both dated 27.03.1982 were forged, fraudulent, without any consideration, null and void and not binding against the present opposite parties, as such, the Rule is liable to be discharged.

The learned Advocate also submits that the learned Senior Assistant  Judge,  Sadar,  Noakhali  considered  the  evidence presented by the parties and came to a conclusion to the suit and the learned appellate court below also considered the evidence and came to a lawful conclusion by disallowing the appeal and affirming the judgment of the learned trial court, as such, this court should not interfere upon the impunged judgment and the Rule should be discharged.

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 important 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 this court that the present plaintiff-opposite parties filed a title suit  praying  for  a  declaration  that  the  deeds  purported  and executed by the plaintiff No. 1, Mowlana Abdul Wahab (now deceased) registered Heba Deed being No. 1704 and the deed of gift No. 1705 both the dated 27.03.1982 are false, fabricated and not binding upon the plaintiff-opposite parties. It further appears that the plaintiffs filed the title suit for obtaining a decree that the deeds were created by the defendant-petitioners in order to grab the suit land on the basis of bearing cost of treatment of the plaintiff No. 1 and the defendant-petitioners could not produce the above mentioned 2 original deeds upon which the defendant- petitioners claimed to have in possession and the record of right was published in their names. In the trial the parties adduced evidence  but  the  plaintiff-opposite  parties  could  produce evidence that there was no necessity for executing the above 2 deeds  in  favour  of  the  brother  and  others  claimed  to  have executed voluntarily in their favour.

There are some admitted positions between the parties that the defendants and the plaintiffs are brothers/nephews whereas the  plaintiff  No.  1,  Mowlana  Abdul  Wahab  (now  deceased) could prove that there is no circumstance to execute the deeds and  the  plaintiff  No.  1  denied  depositions  that  such  kind  of deeds/documents  executed  by  him.  Most  importantly,  the executant PW-1, Mowlana Abdul Wahab in his depositions filed the suit along with the other plaintiffs for a declaration that the deeds were created by the defendants in order to grab the lands. The learned trial court decreed the suit as the plaintiffs proved its own case on the basis of the evidence, in particular, the thumb impressions  upon  the  deeds  could  not  be  proved  as  genuine because the learned trial court and the learned appellate court below rejected the application for expert opinion upon the thumb impressions. The present defendant-petitioners could not produce the original deeds in support of their claim and the deeds were stolen from their custody but there was no evidence that the defendant-petitioners had taken any steps when those documents claimed to have been stolen.

In view of the above, I consider that the learned trial and the learned appellate court below did not commit any error of law  by  passing  the  decree  which  the  learned  appellate  court below affirmed, as such, this is not a proper case of interference from this court.

Now I am examining the judgment and decree passed by the learned courts below.

The learned trial court came to a conclusion to decree the suit had been forged, fraudulent, null and void, and not binding upon the plaintiffs and found that the plaintiffs could prove their own case and decreed the suit on the basis of the following findings which reads as follows:

…“Hja¡hÙÛ¡u Aœ ®j¡LŸj¡l f¡¢lf¡¢nÑÅL AhÙÛ¡l ®fË¢r­a a¢LÑa c¢mm à ul “L¡ØV¢Xu¡e” ¢hh¡c£fr qJu¡ ü aÄJ a¢LÑa c¢mm

à­ul j§m c¢mm àu Bc¡m­a c¡¢Mm f§hÑL Eš² c¢m­ml pÇf¡ce

p¢WLi¡ h fËj¡Z L¢l a hÉbÑ qJu¡u Hhw h¡c£ ¢e S a¢LÑa c¢mm àu pÇf¡ce L­l e¡C j­jÑ c¡h£ Ll¡u Hhw p­hÑ¡f¢l a¢LÑa c¡efœ c¢m­ml AeÉaj NË¢qa¡ jªa 1 ew ¢hh¡c£ jªa¥Él f§ hÑC h¡c£l pw N ®R¡ m pÇf¡ce f§hÑL a¢LÑa c¡efœ­L S¡m, i¥u¡ j jÑ ü£L¡l Ll¡u Bj¡l ¢eLV HC

¢hnÄ¡p  S¾j¡Cu¡ R  ®k,  fËL«af rC  h¡c£ Bë¤m  Jq¡h  LaѪL  a¢LÑa

1704 ew J 1705 ew ®qh¡ J c¡efœ c¢mm pÇf¡ce Ll¡ qu e¡Cz

k¢cJ Cq¡ BC el e£¢aj¡m¡u h¡c£­LC a¡q¡l ü£u ®j¡LŸj¡ fËj¡­Zl

à¡l¡ ¢hSu£ qC­a qC­h ¢L¿º Aœ ®j¡LŸj¡l p¡¢hÑL AhÙÛ¡l B­m¡­L jq¡j¡eÉ EµQ Bc¡m al ¢e jÀ¡š² ¢pŸ¡¿¹¢V p¡j”pÉf§ZÑ h¢mu¡ Bj¡l

¢eLV fË¢auj¡e quz”…

The learned appellate court below concurrently found in

favour of the present plaintiff- opposite parties on the basis of the following findings which reads as follows:

…“Eš² c¢mm àu ®L¡e a¡¢l­M ¢hh¡c£l Ol qC a Q¥¢l qCu¡ R

a¡q¡l ®L¡e p¢WL a¡¢lM ¢hh¡c£fr E õM L¢l a R e¡z Hhw ü¡i¡¢hL

i¡ hC ®L¡e c¢mm Q¥¢l qC m Cq¡l fËL«a a¡¢lM E õM f§hÑL b¡e¡u ¢S. ¢X. H¢¾VÊ b¡¢L hz ÙÛ¡e£ui¡ h m¡LS el j dÉ ¢hou¢V S¡e¡-S¡¢e

qC hz ¢ejÀ Bc¡m a ¢hh¡c£l p¡r£ cl Sh¡eh¢¾c fkÑ¡ m¡Qe¡u ®cM¡

k¡u ®k, Ae¤l©f ®L¡e fËj¡Z h¡ ¢S. ¢X. H¢¾VÊ qu e¡Cz Cq¡ à¡l¡ ü¡i¡¢hLi¡­h d¡lZ¡ S­¾j ®k, ®L¡e fËL¡l œ¤²¢Vf§ZÑ c¢mm ¢hh¡c£fr

Bc¡m a EfÙÛ¡fe L¢l m ®g±Sc¡l£ j¡jm¡u Ss¡Cu¡ f¢s a f¡ l

H qe AhÙÛ¡l L¡l Z a¡q¡l¡ qu a¡ j§m c¢mmpj§q Bc¡m a Ef¢ÙÛa

L¢l a R e¡z S¡m c¢mm h¡¢a ml fË u¡Se e¡Cn Cq¡ S¡m c¢mm

¢qp¡­h ®O¡oZ¡S¢ea fË¢aL¡lC kb¡bÑz Cq¡R¡s¡, Aœ j¡jm¡u öe¡e£L¡­m Cq¡ fËj¡¢ea ®k, ®lpx h¡c£ Bx Jq¡ hl ¢e Sl ®R m-®j u l¢qu¡ Rz

¢e Sl ®R m-®j­u b¡¢L­a ®L¡e hÉ¢š² ®L¡e AhÙÛ¡uC ü£u pÇf¢š av

i¡C h¡ ï¡a¥Øf¤œ Hl e¡ j c¡e h¡ ®qh¡ L¢l h e¡z h¡c£l ®R m- j uNZ

h¡c£l Ah¡dÉ h¡ cÕQ¢lœ, ®aje ®L¡e fËj¡ZJ Bc¡m­al ¢eLV B­p

e¡Cz h¡c£ Ap¤ÙÛ b¡L¡u ¢hh¡c£N Zl ¢eLV qC a ¢Q¢Lvp¡l SeÉ V¡L¡ NËqZ Ae¤l©f ®L¡e fËj¡ZfœJ Bc¡m­al ¢eLV B­p e¡Cz”…

In view of the above concurrent findings by the learned courts  below  and  in  view  of  the  discussions  made  above,  I consider that the learned appellate court below did not commit any error of law by dismissing the appeal and thereby affirming the judgment and decree passed by the learned trial court.

In view of the above, I am not inclined to interfere upon the  impugned  judgment  and  decree  passed  by  the  learned appellate court below by affirming the judgment of the learned trial court concurrently.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  impugned  judgment  and  decree  dated  07.02.2001 passed by the learned Additional District Judge, Court No. 2, Noakhali in the Title Appeal No.  61  of 2000 dismissing the appeal and thereby affirming the judgment and decree of the learned trial court dated 09.03.2000 is hereby upheld.

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 07.02.2001 passed by the learned Additional District Judge, Court No. 2, Noakhali in the Title Appeal No. 61 of 2000 is hereby recalled and vacated. 

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.