The New Nation - Internet Edition

Appellate Division

(Civil)

Md Ruhul Amin J

Md Tafazzul Islam J

Awlad Hossain and

others ………Petitioners

vs

Ebadulla Dewan and others t Respondents

Judgment June 18th 2006

Specific Relief Act (I of 1877)

Section 39

Evidence Act (I of 1872)

Section 45

The High Court Division on consideration of the materials on record, particularly the evidence of PW 6, held that the kabala on the basis of which defendants claimed the land in suit was forged since the plaintiffs by reliable evidence have established that Kamaruddin Dewan died in 1962 and, as such, defendants' claim of execution of kabala by Kamaruddin Dewan in their favour in the year 1970 is not true. The plaintiffs have established that the kabala on the basis of which defendants claimed the land in suit was fraudulent since thumb impression said to be of Kamaruddin Dewan was found to be different from the thumb impression appearing in the undisputed kabala executed by Kamaruddin Dewan in 1959…………..(1)

AKM Shahidul Huq, Advocate-on-Record-For the Petitioners.

Md. Nawab Ali, Advocate-in-Record-For respondent No.2

Not represented-Respondent Nos1 and 3-15

Judgment

Md Ruhul Amin: This petition for leave to appeal has been filed against the judgment dated November 11, 2003 of a Single Bench of the High Court Division in Civil Revision No. 3736 of 1996 making absolute the Rule obtained against the judgment and decree dated September 1, 1996 of the 1st Court of Subordinate Judge (now Joint District Judge Munshiganj in Title Appeal No. 100 of 1994 allowing the same upon reversing the judgment and decree dated June 18, 1994 of the Court of Senior Assistant Judge. Munshiganj in Title Suit No. 77 of 1990 decreeing the suit.

2. The suit was filed seeking declaration of title as well as for a declaration that the kabalas bearing No. 5586, 799 and 3170 dated July 8, 1970, April 23, 1977 and September 22, 1990 respectively are forged, fraudulent and fabricated and not binding upon the plaintiffs. It was the case of the plaintiff that the land in suit belonged to Asgar Ali Dewan and the CS record was prepared in his name. Asgar Ali Dewan died leaving Kamaruddin Dewan as his heir, that Kamaruddin Dewan died in 1962 leaving 4 sons by name Habibullah Dewan, Ali Dewan, Siddique Dewan and Ebadulla Dewan 4 and daughters by name Kulsum, Mollika, Julekha, and Lalmoti Ali Dewan died leaving 5 sons and 2 daughters, Kulsum died leaving son, that the plantiffs as heirs of Kamaruddin Dewan are in possession of the land, that Kamaruddin Dewan sold 17 decimals of land of Dag No, 920 listed in khatian No, 88 of mouza Alodi in Tongibari police station to Umesh Chandra Paul on January 4,1959, that the said document was executed by Kamaruddin Dewan upon affixing his left hand thumb impression, that Umesh Chandra Paul sold the land purchased from Kamaruddin Dewan to the plaintiff No, 2, that the deed dated July 8, 1970 said to have been executed by Kamaruddin Dewan in favour of Khorsheda Begum is forged, that defendants made claim in respect of the land in suit on the basis of deed No, 799 registered on April 23, 1977 and deed No, 3170 registered on September 22, 1990, that the said demand of title by the defendants has created cloud over the title and possession of the plaintiffs. Hence the suit.

3. The suit was contested by defendant Nos, 1 and 2 by filing written statement denying the material averments made in the plaint and stating, inter alia, that Asgar Ali was the owner of the land in suit and in his name CS record was prepared, that Asgar Ali died leaving one son Kamaruddin Dewan and he upon receiving Taka 600 executed deed No, 5586 on July 8, 1970 in favour of Khorsheda Begum and Khorsheda Begum sold the land of the said deed to her husband Lokman Bepari by the deed dated April 23, 1977 who sold the land so purchased to defendant Nos, 1 and 2 on September 22, 1990 and since purchase defendants are in possession and enjoyment of the land on payment of tax, that Kamaruddin Dewan by the deed dated July 8, 1970 sold the land in suit to the', predecessor of the defendants and, as such, on the death' of Kamaruddin Dewan; his heirs did not acquire any interest in the land in suit, that Kamaruddin Dewan did not die in 1962 but he died after July 8,1970, that defendants lost the deed dated July 8, 1970 and taking advantage thereof plaintiffs have instituted the suit, that defendants are in possession of the land for more than 20 years and during this period, plaintiffs did net take any objection, nor made any protest.

4. The trial Court decreed the suit on the finding that the plaintiffs have been able to, establish their case, On appeal the appellate Court allowed the appeal on the finding that plaintiffs have failed to establish their case and thereupon, upon setting aside the judgment and decree of the trial Court dismissed the suit of the plaintiffs.

5. Thereupon, the plaintiffs moved the High Court Division in revisional jurisdiction The High Court Division on consideration of the materials on record, particularly the evidence of PW 6, held that the kabala on the basis of which defendants claimed the land in suit was forged since the plaintiffs by reliable evidence have established that Kamaruddin Dewan died in 1962 and, as such, defendants' claim of execution of kabala by Kamaruddin Dewan in their favour in the year 1970 is not true, that the plaintiffs have established that the kabala on the basis of which defendants claimed the land in suit was fraudulent since thumb impression said to be of Kamaruddin Dewan was found to be different from the thumb impression appearing in the undisputed kabala executed by Kamaruddin Dewan in 1959.

6. We have heard the learned Advocate on-Record and perused the materials in the petition for leave to appeal. From the materials on record we are of the view there is no error of the kind in the judgment of the High Court Division calling for interference by this Division.

Accordingly, the petition in dismissed.