(From previous issue) :
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 — “???????????? ?????? ??-?-?????? ??????? ????????????? ??????, ???????? ???????? ??-??-???? ?? ??????? ???????? ??????? ????? ??-?-???? ??????? ???? ?????????? ????? ??????? ?? ????? ????????? ???? ????” The learned Judge of the appellate court considering the evidence and materials on record, assessing and reassessing the evidence dismissed the appeal and affirmed the judgment and decree of the trial court with the findings — ” ?????????? ?????????-? ??? ???????????? ?????????-? ??? ????? ??????? ????? ????? ??? ???? ????? ???? ???? ???? ?????? ??? ?????¯’ ???? ?????????-? ??????????? ???? ???, ?? ???? ?????? ???????? ????? ?-?-???? ?? ?????? ??? ?????????? ????? ??-??-???? ?? ??????? ??????? ?????? ????????? ?????????-? ??????????? ???? ??? ??, ???? ?????? ??-?-???? ?? ?????? ???????? ??? ??-?-???? ?? ?????? ?????????? ?????? ???? ?????????–? ? ?????????-? ???? ????? ??????? ????? ????? ???? ??????????? ???? ??? ??, ?????????-?, ??-??-???? ?? ?????? ?????????? ????? ??? ?????????-? ??-?-???? ??? ?????? ?????????? ?????? ??? ??????? ????? ????-?, ????? ?????? ??? ?????? ?? ????? ??-??-???? ?? ??????? ?? ?????????-? ?????? ?????????? ????? ??? ?????? ??-?-???? ?? ?????? ?????????-? ????????????? ??????? ?????? ??????? ????? ??? ?? ??? ???? ??? ?????????? ?? ????? ?????? ????? ?????? ????? ?????????? ??-??-???? ?? ??????? ????????????? ?????? ????????? ??????? ??????????? ?????? ?????? ???????? ???? ??? ????? ?????? ?????? ???????? ??, ???? ???? ?????????-? ???????? ?? ??-?-???? ?? ??????? ?????????? ?????????-? ?? ???????? ?????????-? ?? ????? ?????? ???????? ???????? ???? ?????? ???????? ??, ??-?-???? ?? ?????? ?????? ???????????? ??????? ???????? ??????? ????? ???? ???? ???? ????? ????????? ????? ????? ?????????? ???? ???? ???-?????????? ????? ???????? ????? ?? ????? ????? ??? ?????????? ???? ???? ?????? ??????? ???? ????? ??-?-???? ?? ?????? ?????????? ?? ????? ?????? ????? ????? ????? ?”?????? ?????????-? ?? ????? ?????????-? ?? ?????????? ?????? ???? ?????? ?????????-? ?? ????? ????? ?????? ?????????? ????? ???????? ???”
??. ?? ??????? ???? ??? ??????? ????? ?? ??? ????? ????? ???????? ???? “??????????, ???????????? ???? ??-?-???? ?? ?????? ??????? ????? ?? ?? ????? ????? ????????? ????? ????? ?????????? ???? ?? ????? ??????? ???????????? ??? ?????”
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.
(Concluded)
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 — “???????????? ?????? ??-?-?????? ??????? ????????????? ??????, ???????? ???????? ??-??-???? ?? ??????? ???????? ??????? ????? ??-?-???? ??????? ???? ?????????? ????? ??????? ?? ????? ????????? ???? ????” The learned Judge of the appellate court considering the evidence and materials on record, assessing and reassessing the evidence dismissed the appeal and affirmed the judgment and decree of the trial court with the findings — ” ?????????? ?????????-? ??? ???????????? ?????????-? ??? ????? ??????? ????? ????? ??? ???? ????? ???? ???? ???? ?????? ??? ?????¯’ ???? ?????????-? ??????????? ???? ???, ?? ???? ?????? ???????? ????? ?-?-???? ?? ?????? ??? ?????????? ????? ??-??-???? ?? ??????? ??????? ?????? ????????? ?????????-? ??????????? ???? ??? ??, ???? ?????? ??-?-???? ?? ?????? ???????? ??? ??-?-???? ?? ?????? ?????????? ?????? ???? ?????????–? ? ?????????-? ???? ????? ??????? ????? ????? ???? ??????????? ???? ??? ??, ?????????-?, ??-??-???? ?? ?????? ?????????? ????? ??? ?????????-? ??-?-???? ??? ?????? ?????????? ?????? ??? ??????? ????? ????-?, ????? ?????? ??? ?????? ?? ????? ??-??-???? ?? ??????? ?? ?????????-? ?????? ?????????? ????? ??? ?????? ??-?-???? ?? ?????? ?????????-? ????????????? ??????? ?????? ??????? ????? ??? ?? ??? ???? ??? ?????????? ?? ????? ?????? ????? ?????? ????? ?????????? ??-??-???? ?? ??????? ????????????? ?????? ????????? ??????? ??????????? ?????? ?????? ???????? ???? ??? ????? ?????? ?????? ???????? ??, ???? ???? ?????????-? ???????? ?? ??-?-???? ?? ??????? ?????????? ?????????-? ?? ???????? ?????????-? ?? ????? ?????? ???????? ???????? ???? ?????? ???????? ??, ??-?-???? ?? ?????? ?????? ???????????? ??????? ???????? ??????? ????? ???? ???? ???? ????? ????????? ????? ????? ?????????? ???? ???? ???-?????????? ????? ???????? ????? ?? ????? ????? ??? ?????????? ???? ???? ?????? ??????? ???? ????? ??-?-???? ?? ?????? ?????????? ?? ????? ?????? ????? ????? ????? ?”?????? ?????????-? ?? ????? ?????????-? ?? ?????????? ?????? ???? ?????? ?????????-? ?? ????? ????? ?????? ?????????? ????? ???????? ???”
??. ?? ??????? ???? ??? ??????? ????? ?? ??? ????? ????? ???????? ???? “??????????, ???????????? ???? ??-?-???? ?? ?????? ??????? ????? ?? ?? ????? ????? ????????? ????? ????? ?????????? ???? ?? ????? ??????? ???????????? ??? ?????”
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.
(Concluded)
