Decreeing judgment
District: Rajshahi
In the Court of the Senior Assistant Judge, Mohonpur,
Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
Thursday, April 28, 2022
Other Class Suit No. 23/2021
Mr. Md. Rafiq Deowan (Plaintiff) Vs Mr. Md. Dulal Hosen (Defendant).
The
suit's trial ended and the argument was heard.
In the presence of...
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 suit
lands described in the schedule to the plaint belongs to the plaintiff. Out of
love and close affinity, the plaintiff desired to make a gift deed for
transferring 07 decimal of lands to Defendant. Accordingly, a deed was
executed between the plaintiff and defendant. But, suddenly, the defendant
demanded the suit lands by expressing that he purchased the suit lands from the
plaintiff via the suit deed. Being surprised by the facts, the latter obtained
the certified copy of the deed in question and became informed of the same. He
never intended to execute and register a sale deed for the conveyance of the
suit lands. The plaintiff claims that he never transferred the suit lands to
the defendant, and he took no consideration money from the defendant for the
deed. 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, Plaintiff has
been in the possession of the suit
property to date. Hence, the suit comes off.
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 plaintiff has transferred the suit
landed property to the defendant. The defendant purchased the suit lands from
the plaintiff by paying consideration money via the suit deed. The defendants
claim that the suit deed is a genuine deed, which is duly executed as well as
acted upon, and now, the defendants are in exclusive possession of the suit
property. 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 02 witnesses and produced documentary pieces of
evidence marked as exhibits No. 01-02. The defendants examined 05 witnesses and
produced no document for the court’s inspection. 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 04/01/2013 and then on 14/01/2013 upon obtaining the certified copy of the suit deed. The instant suit was instituted on 15/07/2013. In evidence, the PW-01 asserted the same in the same sense. Conversely, the Defendants 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 was admittedly an owner of the suit lands. 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 through the suit deeds nor delivered possession therein to the defendant. Conversely, the defendant side based its’ defence on the plea that the impugned deed was duly executed and possession delivered by them and thus, now is out and out a valid deed. Consequently, it is high time to 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. As such, now a question arises 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 defendant, underscoring that the suit lands are not delivered as per the mandate of the deed at all, as well as, he (Plaintiff) has been in the possession of the suit property to date. The plaintiff also stated that “he took no consideration money from the defendant for the deed’ registration and execution”. And thus, he added that, the suit deed is a deed that is executed by practising fraud on him (plaintiff). Accordingly, two cardinal questions come into play whether any fraud was practiced in executing the deed, as well as whether the suit deed is ever acted upon by delivery of possession.
05. First thing first, concerning fraud, the plaintiff as PW-01 stated that defendant is the plaintiff's brother's son. There was close affinity and sincere love between them. Accordingly, the plaintiff wanted to convey to the defendant only 07 decimal of lands from via a gift deed. At the time of the execution and registration of the suit deed, the plaintiff signed all stamped papers placed by defendant himself, the plaintiff added. He then justified that he never intended to transfer the suit lands via the deed in question. The suit deed is also not acted upon as such. 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 gets unveiled contrary to the plaintiffs' robust assertion. If the whole evidence of the plaintiff side is weighted together, the court would not hesitate to opine that the plaintiff side is able to be discharge his burden of proof so far as the instant issue is the moot point. Conversely, in order to look into the defendant’s position as to how his defence case is set up against such claims of the plaintiff, the court tends to examine the relevant evidence adduced by the defendant. The defendant as DW-01 also pleaded that he purchased the suit lands from the plaintiff by paying “five lakh Taka” as consideration money. Having perused the defendant’s pleading, it becomes clear to the court that the defendant disclosed no source of finance for consideration money in terms of the deed.
07. Besides, neither the defendant himself nor other witnesses comes with convincing evidence before the court in this regard. Moreover, it also clearly appears that no witness of the defendant side gives an adequacy of testimony about how five lakh takas of the consideration money was managed by the defendant and paid the same to the plaintiff. Only, the DW-04 mentioned about Taka 50 thousand only and added that he heard of five lakh taka as consideration; but he did not clarify from whom he heard it. The general rule is that hearsay evidence is not admissible in a court of law, since hearsay evidence is not direct evidence, and thus, is no evidence. As per section 60 of the Evidence Act, oral evidence must be direct, meaning that the person under examination must directly hear, see, or sense the fact. Accordingly, the evidence of the defendant side in this respect is not found in congruent with how he paid five lakh Taka as consideration money to the plaintiff for the sake of the suit deed. Hence, it becomes banal to state that the defendant is found not to be able to discharge his burden of proof by way of adducing convincing evidence that demonstrates the standard of proof particularly in this respect.
08. Surprisingly, it also transpires on the record that the DW-05 claims in his cross-examination that he put his signature on the suit deed. But, the defendant does not submit the original or true copy of the suit deed before the court. Only the certified copy of the suit deed is submitted by the plaintiff side, which speaks out that it does not contain any sign of signature against his name. It would be convenient for court to inspect the matter if the original copy was submitted as such. Here, the defendant side is legally obliged to come up with that original copy, because he has the proper custodian of that deed as per his claims so far.
09. It is even more surprising that although the defendant pointed out in his pleading that one Salam was an identifier of the suit deed, he was not examined before the court. Even he (defendant) did not provide any explanatory exposition for such non-examination, nor provide the court with any further information as to whether he is still alive. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence as per section 103 of the 1872 Evidence Act. Since the defendant “particularly” claims that he paid five lakhs Taka for the suit deed, he was liable to discharge his burden of proof in this regard by any means. As a consequence, it would be a commonplace to put that there is a strong innuendo of fraud that is practiced in the execution of the suit deed, if the entire substance of evidence is carefully taken into consideration.
10. 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 also cultivating potato thereon and has been doing so as he did before. In cross-examination, the plaintiff as PW-01 reiterated the same and also clarified it by delineating the boundary of the suit lands. The PW-01 and 03 are convincing so far as they testified about the current possession of the suit lands. The PW-02 also supported the plaintiff’s assertion about his current possession.
11. On the contrary, the defendant as DW-01 stated that the deed was acted upon and possession was delivered to him, and now he has been in possession of the suit lands. The DW-01 states that he has betel field and paddy field on the suit lands. Although the DW-01 sated as such, he is fatally failed to identify the suit lands in his cross-examination with a sufficient clarification. It is a general perception that if the delivery of possession is completed in the defendant’s favour, the defendant is expected to expose more clearly as to his possession, but he has not been able to do so. More astonishingly, the DW-02 just walks in the shoe of the defendant DW-01. The DWs 03-05 are also found to be silent about the defendant’s possession. Having such background discussion, here goes the shred of evidence in relation to the possession of the land in question. So, it would be verbose to retell that the plaintiff is in a better position to ascertain his exclusive possession of the suit lands than that of the defendant, and thus, the defendant's footsteps carry them nowhere as such.
12. 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 suit lands’ possession goes in favour of the plaintiff in this respect.
13. Furthermore, it is without doubt that 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.
14. 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. Moreover, as aforesaid, the defendant is expected to have the original copy of the suit deed. But, he neither explains why he has not provided the same with the court. If the original copy is provided with the court, the court could have an opportunity to examine the deed on close scrutiny and enquiry. So, the court has good reasons to have adverse presumption under section 114(g) of the 1872 Evidence Act. 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 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 and report the same to the court without delay.
(Composed and corrected by)