District: Rajshahi
In the Court of the Assistant Judge, Mohonpur, Rajshahi
Present: Md. Abdul Malek, Senior Assistant Judge
Other Class Suit No. 134/2013
(Plaintiff) Versus (Defendant)
Mr. Md. Osman Deoyan (Plaintiff) Vs Mr. Md. Abdul Korim (Defendant).
And having stood for consideration to this day, the Court delivered the following judgment: This is a suit for deed cancellation
The Plaint in the nutshell:
The recorded tenant
of the suit lands described in the schedule to the plaint one Golam Deowan, who
died leaving behind a wife, a daughter, and a son. This son is the plaintiff
Osman Dewan. RS record was prepared and published in the heirs of Golam Dewan.
In addition, SA khatian No. 107 was also prepared in the name of the
plaintiff’s father, Golam Dewan. Likewise, after the demise of their father,
the plaintiff and other heirs become the owners of that property. Defendant No.
01 is the plaintiff's sister's son. To establish a rice mill in a joint venture
with defendant No. 01, the plaintiff conveyed 38 decimal of lands from Sinduri
Mouza via two deeds. Defendant No. 01 was an identifier of those two deeds.
Plus, he was orally authorized to deal with all matters regarding the sale and
registration process. The plaintiff signed all stamped paper taken from
defendant No. 01. Suddenly, defendant No. 01 demanded the suit lands by
expressing that his mother purchased the suit lands from me on the day when I
conveyed 38 decimal of lands via two deeds. Being surprised by the facts, he
obtained the certified copy of the deed in question and became informed of the
same. The plaintiff claims that he never transferred the suit lands to the
mother of the defendant Karim. The suit deed is a deed executed by practicing
fraud on them. The suit lands are not transferred as per the deed at all, and
thus, the Plaintiff has been in possession of the suit property since the
demise of their father, Golam Dewan. The plaintiff has a field of betel leaf
now on the suit lands. Hence, the suit comes of.
The Written Statements in Brief:
The defendants contested the suit by filing a written statement denying the material averments made in the plaint. He contended, inter alia, that Plaintiff lacks in locus standi, the impugned facts are fabricated and fanciful, and the very suit is legally untenable and unjustifiable; defect of parties, barred by limitation, and dismissible in law. The recorded tenant of the suit lands described in the schedule to the plaint one Golam Deowan, who died leaving behind a wife, a daughter, and a son. This son is the plaintiff Osman Deowan and this daughter is one Marium Bibi. The defendants are heirs of Marium Bibi. The plaintiff has transferred almost all of his landed property. The defendants’ mother Morium Bibi purchased the suit lands from the plaintiff by paying consideration money via the suit deed. But due to the shortage of stamp paper, only 2000 taka was written down on the deed as the value of the suit property. The defendants claim that the suit deed is a genuine deed, which is duly executed, and now, the defendants are in exclusive possession of the suit property over more than 12 years. Hence, the suit is liable to be dismissed with costs.
Issues:
In cognizance of the parties’ pleadings and the matters in
controversy, the issues are reframed under R. 05 of Or. 14
of the 1908 Code of Civil Procedure in the following way:
1. Whether the suit is maintainable in the present form and manner.
2. Whether the suit is barred by limitation.
3.
Whether the suit deed is liable
to be canceled.
4.
Whether the plaintiffs may get relief as prayed for.
Discussions and Decisions:
During the trial, the plaintiff examined 04 witnesses and produced documentary pieces of evidence marked as exhibits No. 1-6. The defendants examined 04 witnesses and produced a document marked Exhibit No. Ka. Arguments were heard from both parties after the conclusion of the trial of the suit.
Issue No. 02:
As per the provision of Article 113 of the 1908 Limitation Act, the period of limitation for a suit seeking relief of cancellation of the sale deed is three years, which commences from the date when the right to sue first accrues. On perusal of the suit record, it appears to the Court that the plaintiff claims that the cause of action of the suit first arose on 01/11/2013 and then on 13/03/2013 upon obtaining the certified copy of the suit deed. The instant suit was instituted on 28/11/2013. In evidence, the PW-01 asserted the same in the same sense. Conversely, the Defendants pleaded as DW-01 that this suit is instituted after 25 years of the registration of the suit deed. But they did not prove anything contrary to the plaintiff’s fact of the alleged cause of actions. Because of the above propositions of law and facts, it is, therefore, held that the suit has been filed within the period prescribed in law. Hence, this issue is decided in favor of the plaintiff.
Issue No. 03:
It is both parties' case that the plaintiff Osman Deowan is admittedly an heir of the RS recorded tenant Golam Dewan. it is trite to say that the moot point encompasses the fact of execution of the suit deed through which the defendants allegedly claim the suit lands from the plaintiff. On perusal of the Pleadings of the parties, it is found that the Plaintiff claims that he neither conveyed the suit land to the defendant’s mother through the suit deeds nor delivered possession therein to her or her heirs- the defendants. Conversely, the defendant side based its’ defence on the plea that the impugned deed in the name of their mother Morium Bibi was duly executed and possession delivered by them and thus, now is out and out a valid deed. Consequently, it is high time we examine whether the suit deed is liable to be canceled on the ground that the instrument is now void or voidable at the option of the plaintiff.
04. Now questions arise about whether the written instrument (deed in question) is void or voidable. In evidence, the plaintiff as PW-01 claims that he never transferred the suit lands to the mother of the defendant Karim. The plaintiff thus claims that the suit lands are not transferred as per the deed at all, and now, the Plaintiff has been in possession of the suit property since the demise of their father, Golam Deowan, and thus, the suit deed is a deed executed by practising fraud on them. Accordingly, two cardinal questions are whether fraud was practiced in executing the deed and whether the suit deed is ever acted upon.
05. First thing first, concerning fraud, the plaintiff as PW-01 stated that defendant No. 01 is the plaintiff's sister's son. To establish a rice mill in a joint venture with defendant No. 01, the plaintiff conveyed 38 decimal of lands from Sinduri Mouza via two other deeds. Defendant No. 01 was an identifier of those two deeds. Besides, he was told to deal with all matters regarding the sale and registration process of those two deeds and as such, the plaintiff signed all stamped papers placed by defendant No. 01 before him, the plaintiff added. He also justified that he transferred only the lands from Shinduri Mouza via the other two deeds, and never intended to transfer any lands of Shoipara Mouza via the suit deed. He also underscored that he never took any consideration money from the transferee of the suit deed.
06. In cross-examination, the PW-01 reiterated his position regarding the fraud practice of executing the suit deed, and nothing got unearthed contrary to the plaintiffs' robust assertion. Conversely, the defendants as DW-01 also claim that their mother Morium Bibi purchased the suit lands from the plaintiff by paying two lakh Taka as consideration money; but, due to the shortage of stamp paper, only 2000 taka was labeled on the deed as the value of the suit property. However, it becomes clear to the court that although the defendants in their pleading disclosed a certain source of finance for consideration money for the deed, defendant No. 01 as DW-01 retracted from their earlier position by stating that their mother managed money for the suit deed out of the sale of her ornaments. Accordingly, the defendants are not found in juxtaposition about how their mother paid money to the plaintiff for the suit deed.
07. Surprisingly, it also transpires on the record that the suit deed and the other two deeds were executed on the same date between the parties but the deed writers of the suit deed are different from that of the other two. Moreover, the PW-04 is an identifier of the suit deed, but he denied his signature on the suit deed, even in his cross-examination. One Noimuddin was shown to be a deed writer but he has admittedly died. But PW-04 is still alive and deposed and denied his signature as such standing in the witness box. But the defendant side neither took resorted to expert evidence nor discharged their burden of proof in this regard by any means. As a consequence, it would be a platitude to put that there is a clear innuendo of fraud practiced in the execution of the suit deed if the whole evidence is carefully considered.
08. Now consider whether the suit deed was acted upon after the same was registered. In the determination of this issue, it is opportune to determine who is in possession of the suit lands. The plaintiff claims in pleading that he has a field of betel leaf now on the suit lands, and he has been doing so since the demise of his father. In cross-examination, the plaintiff as PW-01 stated that he has a field of betel leaf on the three plots in question. The PW-02 and 03 supported the plaintiff’s assertion about his current position. The PW-02 and 03 are convincing for they are the most adjacent to the suit lands, and they are found to be identical in describing the boundary of the suit lands.
09. On the contrary, the defendants as DW-01 claim that the deed was acted upon and possession was delivered thereafter to them, and now they are in possession therein. But they did not describe how they are using the same. DW-02 utterly states that he knows nothing about the current possession of the suit land. Although the DW-03 claims that he has landed property just adjacent to the suit lands, he is failed to identify the suit lands in his cross-examination. More astonishingly, DW-04 just walks in the shoe of the plaintiff. He (DW-04) unambiguously supported the plaintiff’s possession in all sense and manner; even, as the judges’ note on his testimony goes, he identified the plaintiff before the court while deposing standing in the witness box and disabused the defendant that the plaintiff is now in the possession of the suit lands. Here goes the shred of evidence in relation to the possession of the land in question. Having such background discussion, it would be verbose to retell that the plaintiff is in a better position to ascertain his exclusive possession of the suit lands, and the defendants' footsteps carry them nowhere.
10. Pertinently, the defendants also admitted as DW-01 that they don’t open separate khatian to date as a result of the suit lands. No doubt, any record of rights is evidence of present possession. It is merely a record of physical possession at the time when it is prepared (vide 59 DLR 207; 07 ADC 945). So, it is cogent to opine that such a failure for a long time also gives rise to a presumption that they are not in possession of the suit land. Therefore, it is not unreasonable to hold that the pieces of evidence as to the defendants' possession in the suit lands lack practical certainty and reasonable propriety. Hence, the balance of preponderance as to the possession of the suit lands goes in favor of the plaintiff in this respect.
11. Furthermore, no doubt the suit deed is a registered deed. Under sections 59-60 of the Registration Act read with sections 79 and 114 (illustration e) of the Evidence Act, there arises a presumption that the very deed was duly presented and registered. Here is the general rule of law that [a] registered document carries the presumption of correctness of the endorsement made therein and that one who disputes the said presumption is under the law required to dislodge the correctness of the endorsement in the registered document (vide 55 DLR AD 39). Since it becomes decisive to the court that the suit deed was not acted upon and the plaintiff is now in the possession of the suit lands, and the deed in question was provably executed and registered by way of practicing fraud upon the plaintiff, it is the court’s view that the presumption of correctness of the endorsement of the suit deed is rebutted with convincing and sufficient evidence. Again, considering the above relevant discussion, it appears to the court that the plaintiff has also become successful in rebutting presumption under section 90 of the 1872 Evidence Act.
In dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter into a detailed discussion of the question of onus. The reason is simple: the whole fabric of the evidential edifice is before the court; which finds no difficulty in arriving at a conclusion with regard to the issues in discussion. So, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that the plaintiffs have been successful in establishing their case. So, this issue at hand is settled in favor of the plaintiff.
Issue No. 01 & 4:
For brevity, convenience and interrelation, these issues are taken together in discussing the case matter. These issues are certainly crucial in point of laws and facts for being related to the questions of eligibility for getting relief as sought for. The general principle of evidence law is that “the burden lies on the Plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary” [vide 3 BLC 6], and the weakness of the defence case does not entitle the plaintiff to get a decree [vide 06 BLC AD 2001]. In respect of the instant suit, the cumulative effect and cogency of legal inference help the court hold that since the plaintiff has proved that the facts of the deed were reduced into the deed through active concealment of the transfer of lands to the plaintiff, and consequently, the deed in question was not acted upon to date and thus, the plaintiff is still in exclusive possession of the suit lands.
Since the plaintiff’s case has been proved by evidence as well as sufficient implications that the defendant executed the suit deed by practicing fraud upon the plaintiff who never intended the same to be executed, the court holds that the plaintiff stands on his own standing to discharge his burden of proof so far. It is well settled that a fraudulent deed is voidable at the option of the person upon whom such fraud is practiced. The plaintiff prays here for the cancelation of the suit deed. As per provision of section 39 of the 1877 Specific Reliefs Act, the instant suit appears to be a good fit for exercising the Court’s discretion in decreeing the same. So, because the plaintiff has proved his case, the suit deserves to be decreed. As such, it is decided that the plaintiff may get the relief as prayed for.
The court
fee paid is sufficient.
Hence,
it is ORDERED
that the suit is
decreed on the contest against the
defendants with costs. The suit deed scheduled to the plaint is hereby
canceled.
Let a copy of this order be sent to the Sub-Registry Office concerned at once. The concerned Sub-Registrar is directed to take note of its cancellation on the copy of the suit deed contained in the concerned volume of his office.
(Composed and corrected by)