MD. NAZIR HOSSAIN KHAN Vs. MD. MUJAL MOLLAH

JUDGEMENT

(1.) The defendant-appellants have obtained leave to appeal from the judgment and order of a learned Single Judge of the High Court Division dated 29-6-94 in Civil Revision No. 459 of 1992, making the Rule absolute and thereby setting aside the judgment and decree dated 21-1-91 passed by the learned District Judge, Joypurhat in Other Class Appeal No. 1 of 1996 dismissing the appeal preferred from the judgment and decree dated 30-7-85 passed by the learned Subordinate Judge, Joypurhat in Other Class Suit No. 36 of 1985, dismissing the suit.

(2.) The plaintiff-respondent Md. Mujal Mollah (substituted by his heirs and successors since his death) instituted the suit for a declaration that four kabalas are null and void and not binding upon him. He averred that the suit land originally belonged to him. Defendant No. 1 had been residing in his house as a Jaygir since long. The plaintiff trusted defendant No. 1 in managing his affairs. Defendant No. 1 obtained an employment at Dhaka and attained solvency. In such a climate of mutual trust the plaintiff mortgaged one bigha of land to defendant No. 1 and got a sum of Tk. 1,000/-. The mortgage was for 6 years and the registered deed of mortgage is dated 1-3-79. On 15-6-83 defendant No. 1 began to excavate a pond in the suit land comprising a total area of 1.41 acres. The plaintiff resisted when defendant No. 1 disclosed that he had purchased the suit land from the plaintiff. The plaintiff came to know for the first time that on 1-3-79 defendant No. 1 collusively manufactured two deeds in his own name and another two deeds in the name of his wife, defendant No. 2, showing purchase of the entire 1.41 acres of land from him. The plaintiff never executed and registered those four deeds. He did not receive any consideration money for those deeds. Defendant No. 1 collusively created those four deeds for wrongful gain and hence the suit with the prayer for a declaration that registered deed Nos. 2405, 2407, 2412 and 2419 dated 1-3-79 executed by the plaintiff in favour of the defendants are null and void and are not binding on him.

(3.) Defendant Nos. 1 and 2 contended in their written statement that the suit is not maintainable in law and that the suit was false and concocted. Defendant No. 1 resided in the house of the plaintiff's father as Jaygir only for one year in 1948 when he was a student of Madrasha. At that time the plaintiff was only 8/9 years old. In 1978 the plaintiff expressed his desire to sell some property and entered into a contract with him for sale of .82 acres of land for a consideration of Tk. 20,000/- and this contract of sale was executed and registered on 17-7-78. The plaintiff took advance consideration money of Tk. 8,000/- at the time of the contract. Subsequently the plaintiff needed more money and wanted to sell his entire 1.41 acres of land to defendant No. 1 at a total consideration of Tk. 34,000/-. Defendant No. 1 agreed and as per the new agreement the plaintiff executed a deed of sale on 27-2-79 in favour of defendant No. 2 in respect of. 33 acres of land and in favour of defendant No. 1 on 28-2-79 in respect of .42 acres of land. The plaintiff agreed to execute two other documents on 1-3-79 and register all the four deeds on the same date. The plaintiff kept the two kabala deeds dated 27-2-79 and 28-2-79 in the custody of defendant No.1 and executed two other deeds of sale on 1-3-79, one in favour of defendant No.2 in respect of .33 acres and another in the name of defendant No. 1 in respect of .33 acres. The plaintiff registered all the four deeds of sale on the same day on 1-3-79. The plaintiff is a literate person. He purchased the stamps etc. through his scribe Madhuri and had the deeds written by Madhuri after receiving the entire consideration money of Tk. 34,000/-. After purchase defendant Nos. 1 and 2 have mutated their names in respect of 1.41 acres of land as well as some other lands which defendant No. 1 purchased from the plaintiff's mother and sister. The khatian numbers are 226 and 227.Defendant No. 1 has installed tube-well, constructed toilet and homestead and is living in the suit land with his family members.