HARUNAR RASHID SHEIKH Vs. DR. BADIUZZAMAN MALLIK

JUDGEMENT

(1.) This petition for leave to appeal arises out of the judgment dated 20.4.2004 passed by a Single Bench of the High Court Division in Civil Revision No. 2020 of 1995 discharging the Rule obtained against the judgment and decree dated 3.9.1994 of the learned Subordinate Judge (now Joint District Judge), First Court, Bagerhat passed in Title Appeal No. 65 of 1986 affirming those of dated 28.1.1986 of the learned Assistant Judge, Bagerhat Sadar passed in Title Suit No. 106 of 1972 decreeing the suit.

(2.) Noor Mohammad Mallik, the predecessor of the respondents, instituted Title Suit No. 533 of 1968 which was subsequently renumbered as Title Suit No. 106 of 1972 praying for declaration of title, confirmation of possession and for perpetual injunction with alternative prayer for recovery of possession stating, inter alia, that the suit land, which belonged to Ramjan Sheikh in occupancy right, was auction purchased by Alep Hawlader in a rent sale; subsequently for arrears of rent the suit land was again put in auction when the plaintiff auction purchased the same on 15.6.1942 in Rent Execution Case No. 362 of 1942 in the benami of Atahar Ali Khan, the proforma defendant No.4; after the said sale was confirmed on 7.7.1942 the plaintiff took delivery of possession on 10.9.1942 through court; subsequently the plaintiff in Non-Judicial Miscellaneous Case No.46 of 1943 annulled all the encumbrances upon the suit land after due service of notice under section 167 of the Bengal Tenancy Act 1885; as the ex-tenants did not give up possession the plaintiff filed Title Suit No. 106 of 1953 and got a decree and in execution of the said decree got possession through court; at that time the defendant No. 1-3, the heirs of Ramjan Sheikh, on arriving at a compromise, wanted to purchase the suit land from the plaintiff and accordingly the plaintiff, through his benamdar the proforma defendant No.4, by several registered kabalas sold some lands in favour of the above defendants on receipt of the entire consideration money which he spent for the education of his son Dr. Badiuzzaman Mallik MRCP; in course of time enmity cropped up between Atahar Ali Khan, the proforma defendant No. 4 and Arshad Mallik, the second son of the plaintiff, relating to their business and then out of grudge and enmity the proforma defendant No. 4 created the disputed kabala in favour of defendant Nos. 1-3 in respect of the suit land without the knowledge and consent of the plaintiff; the proforma defendant No. 4 had no right, title or possession in the suit land but on the strength of the above kabalas the defendant Nos. 1-3 denying the title of the proforma plaintiff in the suit land threatened to dispossess him from the suit land and hence the suit. The defendant Nos. 1-3 contested the suit by filing written statement contending, inter alia, that the suit is barred by limitation; the proforma defendant no. 4 is the real owner of the suit land and he was not the benamder of the plaintiff and the defendants acquired title to the suit land by their purchase from proforma defendant No.4; the defendant Nos. 1-3 being not in good terms with the brother of the plaintiff, the proforma defendant No.4, at the instance of the plaintiff, got the custody of the title deed of the defendants and that the plaintiffs have no title or possession in the suit land. The learned Assistant Judge, after hearing, decreed the suit. On appeal the learned Subordinate Judge (now Joint District Judge) dismissed the appeal. On revision the High Court Division, after hearing, discharged the Rule.

(3.) The learned counsel for the defendant petitioner submitted that the High Court Division did not at all consider that the suit is barred under section 66 of the Code of Civil Procedure; the plaintiff could not prove even the specific year of dispossession not to speak of the specific date but even then the trial court decreed the suit; the High Court Division failed to consider that all the documents relating to the suit land including the kabalas executed by the proforma defendant No.4 in favour of the defendant Nos. 1-3 prove the ownership of the proforma defendant No.4 in the suit land and the plaintiff is thereby not permitted to deny this fact by oral evidence; the trial court as well as the appellate Court applied erroneous mode of appreciation of evidence in arriving at their conclusion as to the existence of benami transaction notwithstanding the fact that the plaintiff could not prove elements of benami transaction i.e. (a) motive of the transaction, (b) the dealing with the property and the (c) relationship between the parties; the proforma defendant No.4 executed 3 kabalas in the year 1958 in respect of the homestead of the defendants and 2 kabalas in the year 1959 in respect of the suit land against consideration; even if the proforma defendant No.4 is considered as ostensible owner even then the rights of the defendant Nos. 1-3 are protected by law; the S.A. record of right finally published in the year 1956 were prepared in the name of the defendants and the instant suit has been filed in the year 1968 and S.A. Record, being evidence of possession, the suit is also barred by limitation; since P.W. 1 admitted his knowledge about the disputed kabala from the time of its execution he waived his right, if any, by acquiescence as he filed the suit long after 10 years; the trial court believed the evidence of P.Ws. merely because of the financial and social status of the plaintiff.