FAZLUR RAHMAN SIKDER Vs. ABDUL HASHEM HOWLADER

JUDGEMENT

(1.) Division in Civil Revision No. 3893 of 1999 discharging the Rule obtained against the judgment and decree dated 12.8.1999 passed by the learned Subordinate Judge (now Joint District Judge), 1st Court, Jhalakati in Title Appeal No. 99 of 1997 reversing those of dated 19.8.1997 passed by the learned Assistant Judge, Rajapur, Jhalakati in Title Suit No.59 of 1996 decreeing the suit.

(2.) The plaintiff filed the above suit seeking for declaration that sale deed No.3277 executed on 5.7.1962 and registered on 5.11.1962 in respect of the 'Kha' schedule land is null and void and not binding upon the plaintiff on the averments that he, as the only son of Lehajuddin, became owner of the land described in 'Ka' schedule of the plaint and during R.S. operation his name was recorded in Khatian No.1834. On 22.6.1962 Lehajuddin executed and registered sale deed No.2613 selling 16 decimals of land to the defendant No.1 and also delivered to him the possession of the land sold and thereafter the defendant No.1 fraudulently created the above sale deed executed on 5.7.1962 and registered on 5.11.1962 which is under challenge; there was no need for Lehajuddin to execute the above sale deed on 5.7.1962 just after 12 days of the registration of the earlier sale deed dated 22.6.1962; Lehajuddin did not at all go to the Sub-Registrar's Office nor received any consideration against the sale deed under challenge; Lehajuddin died on 19.7.1962 and so the defendant No.1 fraudulently showed execution of the above sale deed under challenge; the defendant No.1 never claimed the suit land but during the last settlement operation he for the first time produced the sale deed under challenge to claim title to the suit land on recording Ka schedule land in his name and hence the suit. The defendant No.1 contested the suit by filing written statement contending, inter alia, that the plaintiff has no cause of action and the suit is also barred by limitation; the father of the plaintiff on 22.6.1962 sold 16 decimals of land to him from his homestead land and since the plaintiff fled away from the house with the proceeds of the above sale Lehajuddin, for necessity of money, executed the sale deed under challenge and also delivered possession of the same to the defendant No.1 and thereafter Lehajuddin became bedridden and then died; after his death the sale deed under challenge was registered and then the defendant No.1 mutated his name and obtained dakhila by paying rent and since then he is possessing the suit land for over 35 years; the plaintiff earlier brought a criminal case being C.R. Case No. 19 of 1971 against the defendant No.1 on the allegation that the defendant No.1 fabricated the sale deed under challenge and the above criminal case was dismissed on 2.2.1973. The learned Munsif (now Assistant Judge) after hearing decreed the suit. On appeal the learned Subordinate Judge (now Joint District Judge), allowed the appeal. The plaintiff then moved the High Court Division and obtained Rule in Civil Revision No.3839.of 1993 and the High Court Division, after hearing, discharged the Rule.

(3.) The learned counsel for the petitioner submitted that the High Court Division committed error of law in not holding that Lehajuddin did not execute the sale deed, the defendant No.1 did not acquire any right title and interest in the suit land by the sale deed under challenge which is fabricated; the High Court Division did not at all consider that though Abdul Hashem Hawlader and Abdul Wahed Howlader were shown as vendees of the sale deed under challenge but Abdul Wahed Hawlader did not contest the suit; the thumb impression of Lehajuddin, who died on 19.7.1962, was taken by 'Ba Kalam' but when it was placed for registration of the sale deed under challenge the Sub-Registrar did not register the said deed as he was not satisfied as to whether the same was actually executed by Lehajuddin but then the defendant No.1 fraudulently got the above deed registered by the District Registrar beyond the knowledge of the plaintiff without any enquiry and notice.