(Civil Revisional Jurisdiction)
Soumendra Sarker J
Jamini Ranjan Chakra borty and others
Plaintiff-Respondent- ………………..……….Petitioners
vs
Bazlur Rahman and other ……….Defendant
Appelllant-Opposite-Parties………………..
Judgment
November 6th 2017
Land Reforms Ordinance (X of 1984)
Section 5 (1)
Benami Transaction-The test for examination of benami character of transaction are as follows:
(i) the source from which the purchase money came;
(ii) the nature and possession of the property, after the purchase;
(iii) motive, if any, for giving transaction a benami colour;
(iv) the position of the parties and the relationship between the claimant and the alleged benamdar;
(v) the custody of title deed after the sale;
(vi) the conduct of the parties concern in dealing with the property after sale.
[Ref. 36 DLR 37, AIR 1974 SC 171] . …… (18)
Surojit Bhattacharjee with Md Nurul Huda Ansary Advocates-For the Petitioners.
Mustafa Kamal Pasha, Advocate-For the Opposite-Party No. 1.
Md Abdul Hai DAG with Md Shahidul Islam Khan AAG-For the Government.
Judgment
The Rule issued calling upon the opposite parties Nos. 1 & 2 to show cause as to why the impugned judgment and decree dated 23-9-1992 and 30-9-1992 respectively, passed by the learned Additional District Judge, 3rd Court Chittagong in Other Appeal No. 182 of 1991 reversing the judgment and decree dated 30-1-1991 and 6-2-1991 respectively, passed by the learned Assistant Judge, Additional Court, Patia, Chittagong in Other Suit No. 145 of 1990 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts leading rise to this Rule are as follows: the present-petitioner as plaintiff instituted the Original Other Suit No. 36 of 1984 in the 1st court of the then Munsif, Patia, Chittagong against the opposite party-defendants for declaration that the 3rd party defendant is the benamdar of the plaintiffs and the suit property is not vested and non-resident property and the lease deed executed by the 2nd party-defendant in favour of the 1st party is illegal, without jurisdiction and not acted upon.
3. The case of the plaintiffs to the suit in a nutshell can be stated thus, the suit land measuring 2.54 acres of land described in the schedule of the plaint originally belonged to one Chandra Kumar Pathok and others. The R. S. record was rightly prepared in their names. Chandra Kumar left his share in favour of other co-sharers on compromise. Among the co-sharers one Lakshmi Charon died leaving behind 2 (two) sons namely Saroda and Kumud Bondhu. Nalini Died issue less and his share developed upon his brothers Ramoni and Jamini. Jamini died leaving behind 1 (one) son Shashanko and his wife Surjo Bala. The further case of the plaintiffs is such that; Saroda, Kumud Bondhu, Ramoni and Shashanko along with Surjo Bala proposed to sell their property infavour of Kali Kumar Chakroborty, father of the plaintiffs. Accordingly; Kali Kumar purchased the suit land in the Benami of his daughter Lilamoyee. The consideration amount was fixed at Taka 1,200 out of which; Taka 400 was paid as part performance. Thereafter; the vendors Saroda, Kumud Bondhu, Ramoni Mohon and Surjo Bala executed kabala deeds on different dates after taking the remaining entire consideration money from the father of the plaintiffs. In this way; by the aforesaid kabala deeds the father of the plaintiffs, Kali Kumar became the owner of the suit land. It is the positive case of the plaintiffs that; Lilamoyee, whose name stands in the kabala deed was the Benamdar of plaintiffs father. Lilamoyee never paid any consideration amount of the sell deeds and did not possess the suit land and Kali Kumar after purchasing the suit land possess the same through borgaders. At the demise of Kali Kumar the plaintiffs inherited the suit land from his father. Lilamoyee in the year 1963 migrated to India forever and before her migration; she executed a nadabinama deed in the name of ‘muktinama’ and the property-in-dispute had been owning and possessing by the plaintiffs since the time of their father. The defendant No. 01 illegally enlisted the property as vested and non-resident property in collusion with the Government and took lease therein. In fact; the lease paper in the name of the defendant No. 01 is illegal, collusive and not acted upon. On the basis of lease from the Government, the defendant No. 01 claimed the suit property, which constrained the plaintiffs to institute the original suit.
4. The contrary case of the contesting defendant No. 1 in short is thus, that the suit is not maintainable and barred by limitation, The further case of defendant-opposite party is such that the suit filed by the plaintiffs is not tenable in the eye of law and Lilamoyee was not the benamdar of Kali Kumar, father of the plaintiffs. Lilamoyee while owning and possessing the suit property left this country and use to reside in India since-long. The suit property was uncared for, and in due course of law it has become vested and non-resident property in Enemy Property Miscellaneous Case No. 362 of 1966-67. The defendant No. 01 being deserving person prayed for taking lease from the Government and Government being satisfied gave him lease after completion of all legal formalities. The defendant No. 1 after payment of lease money obtained possession from the Government and possessing the suit land. It was contended by the defendant No. 01 in his written statement that the father of the plaintiffs, Kali Kumar never purchased the suit land by his own money in the benami of his daughter Lilamoyee and Lilamoyee never executed a ‘muktinama’ on 6-5-1963 and it is a forged and ante dated document.
5. In the original suit the Government of Bangladesh contested after filing a separate written statement and in the written statement it was contended by the Government that the property-in-dispute belonged to the Government and it has become enemy property in Enemy Property Case No. 362 of 1966-67. The defendant No. 5 Lilamoyee Debi after filing a separate written statement through notary public of India supported the case of the plaintiffs and contended in her written statement the she was benamdar of her father Kali Kumar and her father purchased the suit land by a registered kabala in the year 1945 and after the death of Kali Kumar the plaintiffs being the legal heirs of Kali Kumar possess the suit land.
6. The learned trial court during trial of the original suit after examining the witnesses from the sides of the respective parties and taking documentary evidences decreed the suit on contest by it’s judgment and decree dated 30-1-1991.
7. Being aggrieved the defendants preferred an Other Appeal being No. 182 of 1991 in the court of the learned District Judge, Chittagong, which was transmitted to the 3rd court of the learned Additional District Judge, Chittagong for hearing and disposal. The learned appellate court hearing the appeal, by the impugned judgment and decree dated 23-9-1992 allowed the appeal and set aside the judgment and decree passed by the learned trial court.
8. Being aggrieved by and dissatisfied with the impugned judgment and decree the plaintiffs have preferred this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the Rule. (To be continued)
