VICKCHAND MIAH Vs. KHURSHIDA KHATUN

JUDGEMENT

(1.) This appeal by leave arises out of the judgment and order dated 6 January 1992 passed by a Single Bench of the High Court Division, Dhaka making the Rule absolute in Civil Revision No. 268 of 1989 and thereby reversing the judgment and decree dated 13 February 1988 of the Subordinate Judge in charge of the Court of the Additional District Judge, Narsigndi in Title Appeal No. 14 of 1987 and restoring those dated July 1986 of the Munsif, Belabo in Title Suit No.6 of 1985. In this appeal, defendant Nos. 1-3 are the appellants while plaintiff Nos. 1 and 2 are the respondents.

(2.) The patent facts are that one Abdul Brake was the owner in possession of the suit land. He used to live with his wife plaintiff No. 1, khorsheda Khatun and her son plaintiff No. 2, Dhan Mia by her former husand. On 17 October 1983 Abdul Barek executed a deed of heba-bil-ewaz in respect of the said land in favour of Khorsheda Khatun and Dhan Mia in exchange of a Holy Quran. Upon a prayer made to the Registering Officer, Raipura under section 38(2) of the Registration Act Abdul Barek was examined on commission and the document was ultimately registered on 23 October 1983. Abdul Barek thereafter died. But a kabala being number 709 was registered on 12 February 1984 at Belabo Sub-Registry Office in respect of the self same land. The said kabala purported to have been executed by Abdul Barek on 14 October 1983 in favour of his consanguine brother's son-Vickchand Miah (defendant No. 1) and his consanguine sister's son-Abdul Motaleb (defendant No. 3), besides Vickhand Miah's son Habibur Rahman (defendant No. 2).

(3.) The defendants contested the suit by filing a joint written statement. Briefly put, their case was that Abdul Barek had no issue. Defendant No. 1 used to look after his property. Before his death Abdul Barek proposed to sell the suit land for his medical treatment. On receiving Tk. 500/- as consideration the impugned Kabala was executed on 14 October 1983. After two days of the execution of the sale deed Abdul Barek fell seriously ill and died. Subsequently the Kabala was registered by the heirs and legal representatives of Abdul Barek on 12 February, 1984 under the provisions of the Registration Act. Abdul Barek never executed any heba-bil-ewaz in favour of the plaintiffs.