(Civil Revisional Jurisdiction)
Md Rais Uddin J
Judgment
November 12th, 2015
Sheikh Jahangir and
others …….Petitioners
vs
Sheikh Ali and others
……..Opposite-Parties
Code of Civil Procedure (V of 1908)
Section 115(1)
Finding of fact reached by court of appeal below being last and final court of facts are not open to interference by this court in revision unless it is shown that decisions have been based upon gross misreading of evidence or those have been founded on misconception or misinterpretation of any material document or otherwise perverse being contrary to law, evidence and materials on record .
…… (l8)
Mohammad Ali with Abdullah Abu Sayeed, Advocate–For the Petitioners.
Md Afzal Hossain, Advocate–For the Opposite Parties.
Judgment
This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 20-3-2004 passed by the learned Joint District Judge, 5th Court, Dhaka in Title Appeal No. 184 of 2003 dismissed the appeal affirmed th~ judgment and decree dated 30-3-2003 passed by the learned Senior Assistant Judge, Dohar, Dhaka in Title Suit No.3 of 1998 decreeing the suit, should not be set-aside.
2. The relevant fact giving rise to this Rule, in short, is that the opposite party Nos. 1-3 as plaintiffs instituted a suit for declaration of title and partition of the suit land contending, inter-alia, that Shamser Khan, Surjaban Bibi were owner of 0.22 acre of land in plot No. 1381 khatian No. 739. Sheikh Hossain Ali predecessor of the plaintiffs and the defendants were the owner 0.27 acre of land in plot No. 2379 khatian No. 615. Shamser Khan and Surjaban Bibi transferred 0.22 acre of land in plot No. 1381 in favour of Dhaymon Nessa mother of the plaintiffs by a registered deed dated 5-7-1967. Sheikh Hossain Ali died leaving 3 sons namely, Janab Ali, Sheikh Ali, Seraj and 2 daughters, namely, Julekha and Jahanara and wife Dhaymon Nessa as his heirs and each son became owner of 0.058562 and half ajutangsa and each daughter became owner of 0.0292812 and half ajutangsa and Dhaymon Nessa became owner of 0.03337-1/2 ajutangsa. In the aforesaid manner Dhaymon Nessa owner 0.22 acre in plot No. 1381 by purchase and 0337 and half ajutangsa in plot No. 1379 by inheritance. Dhaymon Nessa transferred 0.18 acre land in plot No. 1381 and .02 and half acre land in plot No. 1379 totaling .20 and half acre land to the plaintiffs and the defendant No.2 by a registered heba-bil-ewaj deed which was executed on 2-8-1992 and registered on 9-11-1992. The plaintiffs have been possessing the land of plot No. 1381 by inheritance and by heba-bil- ewaj deed and the defendant No.1 owner 25 and half acre land in suit plot by a registered deed dated 17-2-1993. Thereafter, defendant No. I filed a suit for declaration before the learned Assistant Judge, Dohar and subsequently the suit was withdrawn. On 17-2-1993 the defendant No.1 refused to partition the suit land and hence the plaintiffs filed the present suit for declaration that the heba-bil-ewaj deed dated 17-2-1993 was not binding upon them and for partition of ejmali property.
3. The defendant No.1 contested the suit by filing written statement denying the material allegations made in the plaint contending, inter-alia, that Dhaymon Nessa owned 0.25 and half acre of land by purchase and inheritance.
Dhaymon Nessa transferred 0.25 and half acre of land in favour of Sheikh Jahangir, Sheikh Alamgir and Sheikh Monir on 10-7-1992 by executing a heba-bil-ewaj deed and she registered the said deed on 17-2-1993. Sheikh Jahangir and others have been possessing the said property and hence the suit be dismissed. Defendant Nos. 4-6 contested the suit by filing written statement contending inter-alia, that Sheikh Hossain Ali the predecessor of the plaintiffs and the defendants were owner of 0.27 acre of land in suit plot No. 1379 and Dhaymon Nessa owned 0.22 acre land in plot No. 1381 leaving 3 sons namely, Janab Ali, Sheikh Ali, Sheikh Seraj and 2 daughters namely, Jeleka Khatun, Jahanara Begum as her heirs and that in plot No. 1379 Dhayrnon Nessa became owner of 0.0337 and half Ajutangsa and each son became owner of 0.059012 Ajutangsa and each daughter 0.02951/2 Ajutangsa. In the aforesaid manner Dhaymon Nessa became owner of 0.2537 and half Ajutangsa in the suit plots and she transferred 0.25 and half acre land in favour of her grandsons the defendant Nos. :4-6 on 10-7-1992 by executing a heba-bil-ewaj deed and surrendered vacant possession to them. After executing of the said deed Dhaymon Nessa became ill seriously and could not register the same within time and that having cured from disease Dhaymon Nessa filed an application before the District Registrar, seeking permission to register the heba-bil-ewaj deed executed earlier. The District Registrar allowed her prayer vide memo No. 268 dated 14-2-1992 imposing fine of Taka 450 under Section 25 of the Registration Act and accordingly Dhaymon Nessa registered the said heba-bil-ewaj deed on 17-2-1993. The defendants having owned and possessed 0.25 and half acre of land in the suit plot they constructed houses, kitchen, bathroom, latrine and sinking a tube well therein have been living in the suit land since 10-7-1992.
Jeleka Khatoon plaintiff No.3 transferred 0.29 and half Aujutangsa land in favour of defendant Nos. 4-6 in plot No. 1379 by a oral gift on 22-12-1997 and surrendered vacant possession to them and thereafter on 16-5-2002 Jeleka Khatoon executed an affidavit recognizing the said oral gift of land. The defendants got mutated their names in the government sheresta and paying rents and the defendants have been possessing the suit land and the suit of the plaintiffs be dismissed.
4. At the trial, the plaintiffs examined 2(two) witnesses and the defendants examined 1(one) witness in support of their respective cases.
5. The learned judge of the trial court on conclusion of trial after hearing the parties, considering the evidence and other materials on record decreed the suit by his judgment and decree dated 30-3-2003. Against the said judgment and decree the defendant Nos. 4-6 preferred appeal before the learned District Judge, Dhaka. On transfer it was heard and disposed of by the learned Joint District Judge, 5th Court who after hearing the parties, considering the evidence and materials on record dismissed the appeal and affirmed the judgment and decree of the trial court by his judgment and decree dated 20-3-2004.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and decree the defendant Nos. 4-6 as petitioners moved this court and obtained the instant Rule.
7. Mr Mohammad Ali, the learned Advocate appearing for the petitioners has placed the revisional application, pleadings, evidence, judgment and decree of the courts below and submits that both the courts below failed to consider that the deed which was executed earlier shall prevail over the latter on. He lastly submits that decisions of registrar for extension of time for registration cannot be challenged in civil court. In support of his contention he has referred the decision reported in (1) 44 DLR(AD) 176, (2) 12 BLC 177 and (3) 7 DLR 235(DB).
8. Mr Md Afzal Hossain, the learned advocate appearing for the opposite parties opposed the rule and submits that the heba deed of the defendants was made collusively is not binding upon the plaintiff and as such both the courts below rightly passed the judgment and decree.
He submits that the courts below failed to frame any issue in point of collusive which was stated clearly in the plaint of the plaintiffs but the courts below failed to frame any issue on this point in accordance with law and as such he prayed for the case may be sent on remand to the trial court for framing proper issues in point of collusively made the heba deed by the defendants.
9. In order to appreciate the submissions made by the learned advocates for the parties, I have gone through the revisional application, pleadings, evidence, exhibits, judgment and decree of the courts below very carefully.
10. Now the question calls for consideration whether the learned Judge of the court of appeal below has committed any error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and decree.
11. On perusal of the record it appears that the plaintiffs brought a suit for declaration of title and partition claiming the suit land by heba dated 19-11-1992.
The defendant claimed the suit land on the basis of heba deed dated 17-2-1992 and both the heba deed executed and registered by Dhaymon Nessa who was mother of the plaintiff and grandmother of the defendant-petitioners. In the instant case all other-facts are admitted.
(To be continued)
12. On persual of the judgment of the trial court it appears that the learned Judge of the trial court considering the evidence and materials on record decreed the suit with the findings — “???????????? ?????? ??-?-?????? ??????? ????????????? ??????, ???????? ???????? ??-??-???? ?? ??????? ???????? ??????? ????? ??-?-???? ??????? ???? ?????????? ????? ??????? ?? ????? ????????? ???? ????” ??? ??????? ????? ?? ??? ????????? ????? ??????????? ??? ???????? ??? ????????? ?? ??????, ????????? ??? ??????????? ??? ???????? ????????? ??? ?????? ??? ???????? ??? ???????? ??? ?????? ?? ??? ????? ????? ???? ??? ???????? — ” ?????????? ?????????-? ??? ???????????? ?????????-? ??? ????? ??????? ????? ????? ??? ???? ????? ???? ???? ???? ?????? ??? ?????¯’ ???? ?????????-? ??????????? ???? ???, ?? ???? ?????? ???????? ????? ?-?-???? ?? ?????? ??? ?????????? ????? ??-??-???? ?? ??????? ??????? ?????? ????????? ?????????-? ??????????? ???? ??? ??, ???? ?????? ??-?-???? ?? ?????? ???????? ??? ??-?-???? ?? ?????? ?????????? ?????? ???? ?????????–? ? ?????????-? ???? ????? ??????? ????? ????? ???? ??????????? ???? ??? ??, ?????????-?, ??-??-???? ?? ?????? ?????????? ????? ??? ?????????-? ??-?-???? ??? ?????? ?????????? ?????? ??? ??????? ????? ????-?, ????? ?????? ??? ?????? ?? ????? ??-??-???? ?? ??????? ?? ?????????-? ?????? ?????????? ????? ??? ?????? ??-?-???? ?? ?????? ?????????-? ????????????? ??????? ?????? ??????? ????? ??? ?? ??? ???? ??? ?????????? ?? ????? ?????? ????? ?????? ????? ?????????? ??-??-???? ?? ??????? ????????????? ?????? ????????? ??????? ??????????? ??š’ ?????? ???????? ???? ??? ????? ?????? ?????? ???????? ??, ???? ???? ?????????-? ???????? ?? ??-?-???? ?? ??????? ?????????? ?????????-? ?? ???????? ?????????-? ?? ????? ?????? ???????? ???????? ???? ?????? ???????? ??, ??-?-???? ?? ?????? ?????? ???????????? ??????? ???????? ??????? ????? ???? ???? ???? ????? ????????? ????? ????? ?????????? ???? ???? ???-?????????? ????? ??¯’??? ????? ?? ????? ????? ??? ?????????? ???? ???? ?????? ??????? ???? ????? ??-?-???? ?? ?????? ?????????? ?? ????? ?????? ????? ??š’ ????? ?”?????? ?????????-? ?? ????? ?????????-? ?? ?????????? ?????? ???? ?????? ?????????-? ?? ????? ????? ?????? ?????????? ????? ???????? ???”
??. ?? ??????? ???? ??? ??????? ????? ?? ??? ????? ????? ???????? ???? “??????????, ???????????? ???? ??-?-???? ?? ?????? ??????? ????? ?? ?? ????? ????? ????????? ????? ????? ?????????? ???? ?? ????? ??????? ???????????? ??? ?????”
14. On perusal of the judgment of the appellate court it appears that the petitioner filed an application under Section 25 of the Registration Act and paid Taka 450 as penalty and district registrar extended time for registration and accordingly registration was completed in accordance with law and therefore observation of the trial ‘court is not sustainable in law.
15. Now only dispute the heba deed of the plaintiffs dated 19-11-1992 and heba deed dated 17-2-1993 of the defendant which one will be prevail. In this point both the courts below concurrently found that the plaintiff heba deed_registered earlier than the heba deed of the defendant.
16. In this point, I feel it is necessary to quote the relevant provisions of law of Section 47 of Registration Act:
‘Time from which registered document operates- A registered documents shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.”
17. From a plain reading of the above I find a clear proposition of law that registered document operates from the date of execution not from the date of registration. This view finds support in the case of:
(1) Rafiqul Islam (Md) vs Mir Abdul Ali, reported in 44 DLR (AD) 176, wherein their lordships held:
“Sale deed executed earlier but registered later in point of time will prevail over sale deed executed later but registered earlier. The criterion in such cases for the purpose of determining when the sale takes effect is not the date of registration but the date of execution of the deed itself. ”
(2) Mokbul Ahmed Mia alias Moqbul Ahmed vs Md Golam Mostafa, reported in 12 BLC 177, wherein their lordships held:
“In the instant case it appears that the defendant No.1 executed four kabalas on 21-4-1982 but the same were registered on 18-8-1982 but defendants No.1 executed and registered kabala in favour of plaintiff on 23-4-1982, so, the kabalas which were executed on 21-4-1982 by the defendant No. 1 in favour of defendant Nos. 2-5 shall prevail.”
18. The law is by now well-settled that finding of fact reached by court of appeal below being last and final court of facts are not open to interference by this court in revision unless it is shown that decisions have been based upon gross misreading of evidence or those have been founded on misconception or misinterpretation of any material document or otherwise perverse being contrary to law, evidence and materials on record. In the instant case it appears to me that both the courts below concurrently failed to consider the relevant provisions of law and misinterpreted the relevant provision of law of Section 47 of the Registration Act and thereby committed illegality in the decisions occasioning failure of justice. This view find support in the decisions reported in 1) 44 DLR (ADJ176, (2) 12 BLC 177, and (3) 7 DLR 235 WB), referred by the learned advocate for the petitioners. Having regards to the discussions, reasons and decisions stated above, the judgment and decree of both the courts below cannot be sustained in law and are liable to be set aside. Accordingly, the rule is succeeds.
19. In the result, the Rule is made absolute.
The judgment and decree passed by both the courts below are set aside and the suit is dismissed.
20. However, there will be no order as to costs.
21. The order of stay granted earlier by this Court stands vacated.
Let the Lower Court Records along with a copy of the judgment be sent to the court concerned at once.
