The New Nation - Internet Edition

Mohammad Fazlul Karim-J.

Md. Joynul Abedin-J.

CIVIL PETITION FOR LEAVE TO APPEAL NO. 1356 OF 2005.

(From the judgment and order dated the 22nd March, 2005 passed by the High Court Division in Civil Revision No. 530 of 2001).

Panchalipara Ebtedaya Madrassa, represented by Secretary Rustom Ali tt.. Defendant-Petitioner

Vs.

Abdul Kader t.Plaintiff-Respondent.

For the Petitioner : Mr. Nurul Islam Bhuiyan, Advocate-on-Record.

For the Respondent : Mr. Kazi Siddiqur .

Rahman, Advocate-on-Re

Specific Relief Act, 1877-

Section 42- Suit for declaration of title and recovery of possession-

Deed of transfer alleged to have been executed by a minor the registration of which was refused by the Sub-Registrar on ground of the minority-of the executant is no document in the eye of law on the basis of which the defendant did not acquire any right, title and interest. The trial Court dismissed the suit while the appellate Court below decreed the suit and the High Court Division upheld the decision of the lower appellate Court. The Appellate Division having found no error in the decision of the High Court Division upheld the same and dismissed the leave petition.

It is on the record that the defendant petitioner Madrasha claimed the land on a deed executed by the plaintiff, Abdul Kader along with his uncle, Sirajuddin but the plaintiff denied the fact. On perusal of the Exhibit-'Ka' it appears that the plaintiff was a minor at the time of execution of the said deed for which the sub-registrar refused 'to register that deed. As such the same cannot be a deed in the eye of law and it has no value in the eye of law. So, the defendant could not claim that he has acquired any right, title and

possession in the suit land ttt..(Para 6)

JUDGMENT

MOHAMMAD FAZLUL KARIM-J: This application under Article 103 of the Constitution of the 'People's Republic of Bangladesh' is directed against the judgment and order dated 22.03.2005 passed by the High Court Division in Civil Revision No.530 of 2001 discharging the Rule arising out of the judgment and decree dated 0l.10.2000 passed by the Subordinate Judge, 1st Court, Kishorgonj in Other Class Appeal No. 154 of 1999 reversing those of the Assistant Judge, Katiadi, Kishorgonj in Other Class, Suit No.66 of 1997 dismissing , the Suit.

2. The facts in the revisional application in Civil Revision No.530 of 2001 are, inter-alia, that the plaintiff-responder1t instituted Other Class Suit No.66 of 1997 in the Court of the Assistant Judge, Katiadi for declaration of. title and recovery of khas possession.

3. The plaintiff's case, in short, is that 0.08 acres of land of Plot No. 1069 of C.S. Khatian No. 1287 originally belonged to Kalu Sheikh and Owed Ali in equal share. Kalu Sheikh transferred his 0.04 acres of land to Nawab Ali Munshi, the father of the plaintiff and Sirajuddin by deed of Hebabil-Ewaj dated 18:03.1942. Nawab Ali died leaving behind the plaintiff as the only son, Sirajuddin transferred his share in favour of Abdul Majid, Secretary of Madrassa by the deed of gift dated 18.11.1959. At that time plaintiff was minor and consequently the execution of deed of gift and its registration were refused in respect of share of the plaintiff on the ground of his minority. The plaintiff has been possessing his 0.02 acres of land and rented to the different persons by erecting shops on it; during the pendency of the suit he was, however, dispossessed from the suit land.

4. The suit was contested by the defendant contending inter-alia, that 0.08 (eight) acres of land of the suit Plot No. 1069 belonged to Kalu Sheikh who transferred the same in favour of his son-Nawab Ali and Serajuddin by the deed of Heba-bil-Ewaj dated 18.03.1942. Nawab Ali died leaving behind plaintiff as the only son; Serajuddin who transferred 0.04 acres of land in favour of Madrassa by registered deed dated 18.11.1959 in favour of Abdul Majid representing the Madrassa as Secretary. Possession of the suit land was delivered in favour of the Madrassa and the Madrassa has been possessing the same for more then 12 years by erecting shops thereon and thereby the defendant has acquired right and title over the suit land by way of adverse possession also.

5. Mr. Nurul Islam Bhuiyan, learned Advocate-an-Record, appearing for the defendant-petitioner submits that the High Court Division based its findings on surmise, conjectures' and extraneous circumstances for which the findings are liable to be struck down; that the High Court Division committed a grave error of law occasioning failure of justice in not holding to the effect that the appellate Court below on misreading and on misinterpretation of the evidence on record allowed the appeal and decreed .the Suit being failed to appreciate the evidences on record in its proper perspective and came to an erroneous finding; that the Appellate Court below reversed the judgment and decree of the trial Court without reversing the findings of the trial Court and came to wrong finding resulting in an error in decision occasioning failure of justice; that the High Court Division utterly failed to take into consideration that the appellate Court failed to appreciate that the plaintiff failed to prove his possession over the suit land and that the plaintiff failed to prove his dispossession from the suit land during pendency of the Suit; that the High Court Division committed error of law occasioning failure of justice' in not considering the fact that the appellate Court below utterly failed to notice that the claim of the defendant Madrassa is that the plaintiff along with his uncle Sirajuddin executed a deed of gift in favour of the Madrassa and the defendant has acquired right, title and interest on the disputed land on the basis of the said deed and also by way of adverse possession for over 12 years; that the High Court 'Division failed to detect that the lower appellate Court seriously lost sight of the clear and categorical finding of the trial Court to the effect Dc‡iv³ Av‡jvPbv I ch©v‡jvPbv †_‡K cÖZxqgvb nq †h, bvwjkx f~wg‡Z weev`x gv`ªvmv 40 ermi a‡i Av‡Q Ges eZ©gv‡b wewfbœ †jvKR‡bi wbKU fvov w`‡q fvov/K…Z A_© w`‡q gv`ªvmvi Pzb KvR Ki‡Q †h‡n‡Zz weev`x gv`ªvmv 40 ermi †fvM `L‡j Av‡Q, †m‡nZz cÖZxqgvb nq †h, bvwjkx f'wg‡Z weev`x gv`ªvmvi ¯^Z¡ `Lj Av‡Q Ges ev`x‡K †e`Lj K‡iwb| ZvB bvwjkx f~wg‡Z ev`xi †Kvb ¯^Z¡ bvB wKsev `Lj wQj bv| myZivs 3/4 bs wePvh¨© welq ev`xc‡i cÖwZKz‡j wb®úwË Kiv †Mj|Ó

6. It is on the record that the defendant petitioner Madrasha claimed the land on a deed executed by the plaintiff, Abdul Kader along with his uncle, 5irajuddin but the plaintiff denied the fact. On perusal of the Exhibit-'Ka' it appears that the plaintiff was a minor at the time of execution of the said deed for which the sub-registrar refused to register that deed. As such the same cannot be a deed in the eye of law and it has no value in the eye of law. So, the defendant could not claim that he has acquired any right, title and possession in the suit land.

7. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.

8. Accordingly, the application is dismissed.