3. The plaintiff's case, in short, is that suit jote of schedule 'ka' originally belonged
to Deyanat Ullah who died leaving behind his only son Delwar Sheikh; that suit
jote of schedule 'Kha' belonged to plaintiff and Delwar Sheikh; that the suit jote of
schedule 'Ga' and 'Gha' belonged to Maherunnessa, the predecessor-in-interest of
the plaintiff and defendant No. 1, that while they had been possessing the land of
schedule 'Ka' and 'Kha', Delwar Sheikh died before SA record leaving behind wife
Maherunnessa, one son, Nur Rahman, the defendant No. 1 and one daughter
Nurjahan, the plaintiff; that thereafter Maherunnessa died leaving behind only
one son and one daughter, the defendant No. 1 and the plaintiff respectively.
4. It is further contended that the plaintiff and the defendant No. 1 have been
possessing the suit land in ejmali; that SA record of some khatians have been
published correctly and some khatians have been published wrongly and
collusively at the instance of the defendant No. 1; that the plaintiff is entitled
to get an area of 2.14 acres of land out of 'ka' schedule, an area of 2.06 acres of
land out of 'kha' schedule, an area of 0.38 acres of land out of schedule 'ga'
and an area of 0.12 acres of land out of schedule 'gha' of the suit jote and
thereby the plaintiff has been possessing a grand total area of 4.70 acres of
land in ejmali out of the suit jote.
5. It is further set forth that Delwar Sheikh never transferred any
land out of the suit jote in favour of the defendant No. 1 and if
defendant No. 1 will show any such document of transfer, that
will be forged and void document; that the plaintiff does not find
it conducive to possess the suit land in ejmali and, therefore, she
claimed partition of the suit jote on 10-11-1992 to which the
defendant No. 1 denied and, as such, the plaintiff has been
constrained to file the suit for partition
6. The defendant Nos. 1, 16 and 18 also have contested the suit by filing joint written statement contending,
inter alia, that the land of lot No. 5 of schedule 'Ka' belonged 'to Deyanatullah whose father's name is
Bhwa Sheikh; that Deyanatullah had given estafa of the land of lot No. 5 of schedule 'ka' to the superior
landlord who subsequently had sold out the same land in favour of defendant No. 1 vide registered deed
dated 7-10- 1952 and since then the defendant No. 1 has been possessing the same; that Deyanatullah
transferred his rest land in favour of one Manazuddin by registered deed of sale dated 29-9-1955; that
Minajuddin sold out an area of 0.15 1/2 acres of land in favour of one Ashraful and an area of 0.15 1/2
acres of land in favour of one Rafiqul and Golam Rabbam by registered deed of sale both dated 4-1-
1978; that the land of lot Nos. 1 to 4 of schedule 'ka' and 'Kha' belonged to Deyanatullah who died
leaving behindhis only son Delwar Sheikh;
7. that the defendant No. 1 has purchased an area of 0.23 acres of land of schedule 'kha'; that
Delwar Sheikh has transferred an area of 11.82 acres of land only out of schedule 'ka' and 'kha' by
an unregistered deed of Heba dated 19-6-1948 and thereafter he died leaving behind no properties;
that the land of schedule 'ga' and 'gha' belonged to Maherunnessa, predecessor in interest of the
plaintiff and defendant No. 1, who has gifted out her entire properties orally in favour of the
defendant No. 1 and since then defendant No. 1 has been possessing the same It is further stated
that the defendant No. 1 has transferred an area of 2.68 acres of land out of the suit jote in favour
of different persons and has been possessing the remaining lands; that the plaintiff has no right,
title and interest over the suit land; that
SA record of the suit jote are correct and that the plaintiff's suit is liable to be dismissed.
8. Issues:
Issue :
Is the suit maintainable in its present form?
Is the suit properly valued and stamped?
Is the suit bad for defect of parties?
Is the unregistered Heba deed dated 19-6-1948 in respect of 'Ka' and 'Kha' schedule land genuine
and whether the same is binding upon the plaintiff ?
Is the plaintiff owner in the suit land as per claim?
Is the plaintiff entitled to get preliminary decree and other reliefs as prayed for ?
9. Rules of law
Section 101 of the Evidence Act
Section 115 code of civil procedure
Section 115 sub-section 1 Code of civil procedure
Section 35 of stamp Act
Section 90 of evidence Act
Case laws cited in Judgement:
Sadek ali vs Suruj Ali and others 7DLR 94
Parkash Chand vs Hans Raj AIR 1994HP 144
Santosh Kumar Chakroborthy vs Ma Motaleb Hossain 36 DLR(AD) 248
Government of Bangladesh vs Abdul Hoque Khan and others 3MLR255
10. Application of law
Issue-1:
Mr Rabi Shanker Chakraborty on behalf of Mr MA Latif Prodhan for the petitioner,
submits that both the Courts below have committed an error of law in giving the status
of an unregistered deed of gift dated 19-6-1948 into the status of a registered deed
simply because of the fact that the deed is 30 years old without entering into the
genuineness of the deed and that the learned Court below have committed an error of
law resulting in an error in shifting the burden of proof of the genuineness of the
unregistered deed of gift dated 19-6-1948 from the shoulder of the defendant onto the
shoulder of the plaintiff. He further submits that the learned Court below have decided
the suit on the basis of the findings given in Other Appeal No. 25 of 1995 which was
decided only on some preliminary points but both the Courts below did not enter into
the merit of the suit; that neither of the Courts below has given an independent
findings and observations, while passing the impugned judgment and decree but
reiterated the findings and observation given on preliminary points in Other Appeal No.
25 of 1995; that defendant No. 1 has failed to prove the
11. genuineness of the nonjudicial stamp and the execution of the deed of gift
dated 196-1948 and also failed to prove the fact as to why the said deed of
gift was not registered and that both the Courts below have misread,
misinterpreted and misconstrued the evidence and did not consider the
material evidence on record while passing the impugned judgment and
decree committing an error of law resulting in an error in the decision
occasioning failure of justice. The learned Advocate refers the decision in
the case of Sadek Ali vs. Suruj Ali and others reported in 7 DLR 94 in
support of his contention.
12. Issue 2
On the other hand, Mr Mahmudul Islam on behalf of Mr Md Shakawat Hossain for the defendant-opposite
parties, submits that the unregistered deed of gift dated 196- 1948 is genuine one through which the title of
the suit land has been passed to defendant No. 1; that the plaintiff has failed to prove her case; that the
learned Courts below considering the facts and circumstances of the case and evidence on record correctly
passed the judgment and decree; that the learned Courts below did not misread, misinterpret and
misconstrue the evidence and that the learned Courts below committed no illegality or material irregularity
in passing the impugned judgment warranting any interference by this Court.
The only point for determination is, whether the learned Additional District Judge has committed an error
of law resulting in an error in passing the impugned judgment and decree occasioning failure of justice.
The learned Advocate for the petitioner has placed before us the plaint and written statement, the
deposition of the witnesses and documents filed by both the parties and the judgments of the appellate
Court as well as of trial Court.
13. Issue 3
Law regarding burden of proof is envisaged in section 101 of the Evidence Act,
wherein it is stated that the burden of proof lies on the party who substantially
asserts the affirmative of the issue and not upon the party who denies it. Moreover, it
is reasonable and just that the suitor who relies upon the existence of a fact, should be
called upon to prove his own case. The party on whom the onus of proof lies must, in
order to succeed, establish a prima facie case. He cannot on failure to do so, take
advantage of the weakness of his adversary's case. He must succeed by the strength of
his own right and clearness of his own proof.
14. Issue 3
It appears that the unregistered Heba deed was impounded under section 35 of the Stamp Act and it was
taken into evidence under section 90 of the Evidence Act. The object of section 90 of the Evidence Act is
that when a document is or purports to be more than thirty years old, if it be produced from what Court
considers to be proper custody, it may be presumed (a) that the signature and every other part of such
document, which purports to be in the handwriting of any particular person, is in that person's handwriting
and (b) that it was duly executed and attested by the person by whom it purports to be executed and
attested. Thirty years old document, produced from proper custody, not looking ex facie suspicious,
presumption could be drawn in favour of the document. It is the general rule that an instrument thirty
years old proves itself, provided it be produced from a proper custody, then there is no necessity for
further proof. We find support of the above view in the case of Parkash Chand vs. Hans Raj,
MANU/HP/0025/1994: AIR 1994 HP 144.
15. Issue 4
It is an established principle of law that the revisional Court does not interfere in the
concurrent finding of fact save in exceptional circumstances. The decision of our apex
Court has set limit of the revisional power. Our Appellate Division in the case of
Santosh Kumar Chakraborty vs. MA Motaleb Hossain reported in 36 DLR (AD) 248
held that the High Court Division under section 115 of the Code of Civil Procedure only
can interfere in the concurrent finding of the Courts below where it is found glaring
misconception of law and non-consideration of material evidence.
16. Issue 5
Unless there is a case of misreading or non-consideration of material evidence on record resulting in an
error in the decision occasioning failure of justice, the revisional
Court cannot interfere with concurrent finding of facts of the trial Court as well as the appellate Court. As
the first two Courts concurrently found that the plaintiff has miserably failed to prove her allegation as to
falsity of the unregistered deed of gift dated 19-6-1948 and the defendant No. 1, on the other hand, has
proved its genuineness, as such, concurrent findings of the Courts below cannot be interfered. Moreover, the
learned Courts below have concurrently found the possession of the defendant No. 1 in 'Ka' and 'kha'
schedule land on the basis of unregistered deed of gift dated 19-6-1948. On scrutiny of the evidence, we
have also found that there is no misreading and non reading of material evidence on record or
misconstruction of any documents in the findings of the Courts below. The findings of the Courts below are
not perverse and contrary to law or evidence resulting in an error in the decision occasioning failure of
justice.
17. Issue 6
The impugned judgment and decree passed by the appellate
Court are well reasoned backed by sufficient oral and
documentary evidence and all issues involved in the suit have
rightly been settled, considered and decided by the trial Court as
well as by the appellate Court with reference to the evidence and
materials on record, which cannot be interfered.
18. Conclusion
claim of defendant No.1 as regard schedule 'ka' and 'kha' that he acquired same from his
mother by virtue of oral gift has not been substantiated Appellate Court in Appeal held
that oral gift has not been proved Defendant No.1 also failed to prove oral gift by evidence
of DW5 who deposed that he did not see mother of defendant No.1 and thus factum of
oral gift has not been proved - Both Courts below also concurrently found that oral gift
has not been proved - Since possession of defendant No. 1 has been proved for more than
12 years, defendant No.1 is entitled to get title even on basis of invalid title, though
defendant No.1 did not specifically claim title by adverse possession - It is an established
principle of law that revisional Court does not interfere in concurrent finding of fact save
in exceptional circumstances Order of subordinate Court whether right or wrong shall be
final unless such decision can be brought within three conditions provided in Section 115
CPC Where trial Court passed judgment and
19. decree on proper appreciation of evidence on record which have been affirmed by
appellate Court and revisional Court on perusing same refused to interfere with it - As
judgment and decree do not suffer from any legal infirmity, Appellate Division also
declined to interfere Unless there is a case of misreading or non- consideration of
material evidence on record resulting in an error in decision occasioning failure of justice,
revisional Court cannot interfere with concurrent finding of facts of trial Court as well as
appellate Court - As first two Courts concurrently found that plaintiff has miserably failed
to prove her allegation as to falsity of unregistered deed of gift and defendant No.1, on
other hand, has proved its genuineness, as such, concurrent findings of Courts below
cannot be interfered Thus, revision having no merit fails In result, Rule is discharged
without any order as to costs Impugned judgment and decree passed in other Appeal
dismissing appeal and affirming those of
