ANU MIAH Vs. GAURANGA CHANDRA SHARMA

JUDGEMENT

(1.) This appeal by way of leave is from the judgment and order dated 4-5-1995 passed by the High Court Division making the Rule absolute in Civil Revision No. 3022 of 1992 upon setting aside the judgment and order dated 17-10-92 passed by the Additional District Judge, 4th Court, Comilla allowing the Title Appeal No. 284 of 1990 and reversing those of dated 20.10.1990 passed by the learned Assistant Judge, Sadar Comilla in Title Suit No. 448 of 1987 decreeing the same.

(2.) The relevant facts, in brief, are that Debendra Chandra Sharma father of the present respondents instituted the Title Suit No. 448 of 1987 in the Court of Assistant judge, Sadar Comilla for declaration that the kabala described in the schedule 1, 2 and 3 of the plaint are forged, illegal and void etc, and for further declaration of his title to the land described in the schedule 1(ka) and 3(ka) of the plaint stating to the effect that while said Debendra Chandra Sharma had been owning and possessing the land described in 1(ka) and 1(kha) of the plaint he exchanged schedule 1(kha) property on 19.10.82 by registered kabala with that of the defendant No. 1's property mentioned in schedule 3 (ka) of the plaint and got possession in their respective exchanged properties. The defendant No. 1 purchased some lands in the plaintiff's paternal homestead from the plaintiff's brother son Nagendra Chandra Sharma and by constructing hut thereon encroached the plaintiff's boundary in the said homestead plot that over the said incident a local salish was held, and in that salish defendant No.1 disclosed that said Debendra Chandra Sharma had sold the Schedule 1(ka), 1(kha), and 3(ka) land to them and the plaintiff denied those sales that by the decision of the salishder, the defendants agreed to recovery the scheduled lands but the defendants subsequently refused to do so. Hence, the suit.

(3.) The defendant respondent Nos. 1 and 2 the appellants herein contested the suit by filing joint written statement denying the case of the plaintiff. Their case is that Debendra Chandra Sharma, for the purpose of arranging the marriage of his grand daughter (the daughter of the present plaintiff respondent) had proposed to sale schedule 1(ka) property, in the month of Falgon, 1388 B.S. at a consideration of Tk. 18000/00 and for the purpose of avoiding preemption and to save stamp duty, he, on the advice of The scribe Ashraf Ali (D.W.3) created an exchange deed on 9.3.82 on receipt of taka 18000/00 as consideration money in respect of his schedule 1 (kha) of the plaint that by showing a sham transacting with that of schedule 3 (ka) property of defendant no. 1 and Debendra Chandra Sharma himself on the same date that is on 9-3-82 executed and got a sale deed registered at Chandina Sub-Registrar Office in favour of defendant no. 2, the wife of defendant no.1 in respect of Schedule 3(ka) property showing a normal price there in. According to the defendants the transaction in respect of the schedule 1(kha) being an out and out sale deed Debendra Chandra did never go into possession in Schedule 3 (kha) property. Their further case is that in Magh 1391 B.S. Debendra Chandra Sharma again proposed to sell schedule 1(ka) property to defendant No.1 at a consideration of taka 35,000/00 for the purpose of arranging the marriage of his daughters daughter and defendant No.1 accepted the same. But Debendra Chandra Sarma took a plea that his son Gouranga Chandra Sarma (the present plaintiff respondent) had been objecting to such sale and he would not go to Chandina for registration of the document and the document would be registered at Barura Sub-registry office. Accordingly Debendra Chandra Sarma along with his brother's son Nikunja Chandra Sarma (D.W.4) had gone to Barura Sub-Registrar Office wherein he executed and registered the deed on 2.2.86 and also as an exchange deed, as he had done earlier on 9.3.82 with that of schedule 1(kha) property. The defendants denied the right, title interest and possession of the plaintiff in schedule 1(ka) and 3(ka) properties.