The New Nation - Internet Edition

(From previous issue)

70 acre by a registered deed being No. 4030 on 24.09.1946 to one Sk. Hossainuddin son of late Kamatullah Sk. Hossainuddin died leaving Samiruddin and others as his heirs. Samiruddin and others sold two Pakhi on 12.09.1955 in plaintiff's name and benami and possession was handed over. Plaintiff was possessing the suit land since then. But the defendant Nos.1 to 8 dispossessed the plaintiffs by force on 09.01.1992 and illegally entered into the suit land and constructed some kucha houses on the suit land. Plaintiff AN.M. Obaidul Islam made a waqf of the land comprising of S.A khatian No.197 and S.A plot No.298/303 and he worked as Mutwalli of the said waqf Estate. Remaining .35 acre was recorded in the name of plaintiff Obaidul Islam. Subsequently the suit property was recorded under RS plot Nos.1207, 1208, 1209 and 1210 of RS Khcitian N0.2m. Upon application of the plaintiff R.S. plot No.1210 was separated from the R.S. Khatian and .33 acre was recorded in the plot Nos.1207, 1208, 1204. Other one bigha was purchased in the benami of his wife Gulshan Begum and recorded in her name after keeping .7 acre out of .35 acre in his name donated in favour of his wife, 4 sons and 3 daughters. The same was decreed on 06.08.1992 in Title Suit No. 303 of 1990. In the above way plaintiff was in possession of the suit property and for the dispossession, the plaintiff was constrained to institute the suit.

3. The petitioner as defendant No.14 contested the suit filing the written statement. The case of the defendant-petitioner, inter alia, is that one Abdul Kader was the C.S. recorded tenant and he made a gift in favour of his 3(three) sons namely, (1) Sheikh Elahi Bux, (2) Sheikh Abdul Karim and (3) Sheikh Abdul Nabi on 31.05.1917. Subsequently on 16.04.1943, Sheikh Elahi Bux and Sheikh Karim got the suit land in their favour by an amicable partition/family arrangement. Sheikh Elahi Bux died leaving two sons namely (1) Syed Hossi1in and (2) Siddiqul' Hossin. Syed Hossain died leaving one Son namely Arzu Mia. Arzu Mia died leaving his widow Tahera Khatun as his legal heir.

4. Siddique Hossain Son of Sheikh Elahi Bux died leaving his wife Aziza Begum, one son Sirajul Islam and daughter Tahera Begum. Sheikh Abdul Karim son of Abdul Kader died leaving his only son Mia Hossain and Mia Hossain died leaving wife Sonaban Bibi and 3 sons (1) Abdul Mutalib, (2) Abdus Shahid and (3) Abdul Hamid. Subsequently on 04.07.1995, all the heirs of Sheikh Elahi Bux and Sheikh Abdul Karim sold 4.50 acres out of 5.68 acres to the defendant petitioner and mutated his name and paid rents to the Government. Defendant No.14 petitioner is in possession of the suit property. In the above facts and circumstances the suit is liable to be dismissed.

5. The suit was decreed by judgment dated 22.11.2001 and the present petitioner preferred First Appeal No.68 of 2002 before the High Court Division against the judgment and decree dated 29.11.2001 and the High Court Division by the impugned judgment and order dismissed the appeal affirming the judgment and decree of the trial Court and also held that having full knowledge that Exhibit-Kha-dated 31.05.1917 was a forged document, D.W.I Abdul Awal Minto on behalf of the defendant No. 14 gave the deed into evidence and thereby committed serious offence making him liable for prosecution under Section 195(1) © read with Section 476 of the Code of Criminal Procedure and directed the deed in question to be impounded and also directed the Registrar to take the document in his custody and send the same in safe cover to the Fifth Court of Joint District Judge for prosecution of D.W.I Abdul Awal Minto in accordance with law and directed the Joint District Judge, Fifth Court, Dhaka to make a complaint against D.W.I Abdul Awal Minto under section 195(I)© read with Section 476 of the Code of Criminal Procedure for using said deed in the suit knowing it forged and fraudulent, for criminal prosecution.

6. We have heard Mr. Rafique-ul Huq, learned Counsel and Mr. Khondker Mahbubuddin Ahmed, learned Counsel appearing for the petitioner and perused the impugned judgment of the High Court Division and other papers on record.

7. The learned Counsels submit that the area of the suit plot is 5.68 acres and plaintiffs claim only 0.51 acre, as such, the High Court Division illegally and erroneously decreed the suit without prayer for partition.

8. The learned Counsels further submits that in view of the facts and circumstances of the case the High Court Division erred in law in giving the direction to the trial court for making a complaint against D.W.I Abdul Awal Minto under Section 195(1) © read with Section 476 of the Code of Criminal Procedure.

9. So far the first ground is concerned it appears that the same has been adequately addressed by the High Court Division which held as under:

"We find that the suit land was already recorded in the names of original plaintiff Obaidul Islam and his wife Gulshan Begum during survey under the State Acquisition and Tenancy Act, 1950 in plot Nos. 298/302 and 298/303 appertaining to S.A. Khatian Nos.l96 and 197. Such record of rights published some time in 1964. On the basis of such record of right the plaintiff possessed the suit land exclusively on payment of rents on proper receipt Exhibit 8 series. Similarly under the RS. survey the suit land was again recorded in the names of Obaidul Islam and his wife Gulshan Begum in RS. plot Nos. 1207, 1208, and 1209 appertaining to R.S. Khatian Nos. 202 and 225 and R.S. record of rights was published in 1980."

10. In view of the above finding of the High Court Division there is hardly any scope to argue that in absence of any prayer for partition the suit for declaration and recovery of possession was incompetent.

11. In view of the undisputed record of rights and payment of rent by that plaintiffs and oral and documentary evidence the High Court Division rightly found the plaintiffs in exclusive and specific possession of the suit land.

12. So far the second ground is concerned, it appears that both the trial court as well as the High Court Division found Exhibit-Kha to be a forged document.

13. Mr. Abdul Awal Minto as D.W.I deposed before the trial court as under:

14. In view of such evidence of D.W.I the High Court Division rightly found that D.W.I having full knowledge that the deed was forged and fraudulent, on behalf of the defendant No. 14, gave it into evidence. This is an attempt to make gain by using a forged document knowing the same to be forged and wanting the Court to believe the story of his title on the basis of such forged deed and therefore the High Court Division found him liable for committing offence of the kind making him liable for prosecution under Section 195(1)© read with Section 476 of the Code of Criminal Procedure.

15. If it is found at the trial that DWI fraudulently or dishonestly used Exhibit-Kha as genuine which he knew or had reason to believe to be a forged document he will be punished in the same manner as if he had forged such document.

16 . In a case like this private prosecution is barred under Section 195(1) © of the Code of Criminal Procedure and the procedure for prosecution has been laid down in Section 476 of the Code of Criminal Procedure.

17. Section 195(1) © contemplates a complaint a writing by the court before which such document is produced or given in evidence, "or some other court to which such court is subordinate". In the present case the trial court in which the Exhibit-Kha was given in evidence is subordinate to the High Court Division and therefore, the High Court Division itself was competent to make the complaint. In view of Section 476A of the Code of Criminal Procedure the High Court Division being the superior Court was competent to make the complaint. In view of Section 476A of the Code of Criminal Procedure the High Court Division being the superior court was competent to make the complaint since the subordinate court omitted to do so.

18. This apart the High Court Division acted as appellate Court and under Section 107 of the Code of Civil Procedure had all the powers of the trial court and the appellate court was not only competent to do what the trial court ought to have done but was duty bound to take steps for any offences affecting the administration of justice and Chapter XXXV of the Code of Criminal Procedure is meant for such proceeding and therefore the

High Court Division has done the very thing which the trial court ought to have done and in so doing the High Court Division has not committed any error nor has caused any failure of justice.

In view of our discussions as above, we find no merit in this petition which is accordingly dismissed.

(Concluded)