BANGLADESH
FORM NO. 3701
HIGH
COURT FORM NO. (J) 2
HEADING OF JUDGEMENT IN
ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of the Senior Assistant Judge, Mohonpur,
Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
14 July, 2022
Other Class Suit No. 63/2015
Mr. Md. Noimuddin Sardar (Plaintiff)
Vs
Mr. Md. Rofiqul Sardar (Defendant).
The
suit's trial ended and the argument was heard.
In
the presence of
1.
Mr……………..............................,
Learned
Advocate for the Plaintiffs.
2. Mr………….................................,
Learned
Advocate for the Defendants
And having stood for consideration to this day, the Court delivered the following judgment: This is a suit for deed rectification.
The Plaint in the nutshell:
The recorded tenants
of the RS khatian No. 106 were Poka Sardar, Thoirjon Bibi and Dukhi Beowa. Poka
Sardar transferred 48 decimal lands comprising in SA plot No 926/929 and 950 of
the RS khatian No. 106 via the deed No. 24492, and delivered possession
therein. When the plaintiff went for mutation at the local land office on
15.04.2015, he got informed of the fact that the number of a RS plot was
mistakenly written, that is to say, RS plot No. 299 has erroneously been
written in the disputed deed in the place of RS plot NO. 402. Being surprised
by these facts, he obtained the certified copy of the deed in question on 12.05.2015
and became well-informed of the same. The plaintiff claims that such an error
has resulted from mistakes, and hence, the suit comes of.
The Written Statements in Brief:
The defendantscontested
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 disputed 34 decimal lands comprising in the RS khatian No. 106, plot No. 402 belonged to the defendants father Poka Sardar, who died leaving behind a wife, a daughter and the defendants. The defendant No. 02 and the defendant’s mother Arejan Beowa transferred their shares of lands of 0.0525 Acres to the defendant No. 01 Rafiqul Sardar via deed No. 3934 dated 27.09.2011. The defendants claim that their father never transferred the lands involving the RS plot No. 402 via the suit deed. The defendants also claim that the suit deed is not a genuine deed, which is not duly executed, and now, the defendants are in exclusive possession of the suit property comprised in the RS plot NO. 402. 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 should be
rectified.
4.
Whether the plaintiff 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. 1-4. The defendants examined 03 witnesses and produced documents marked Exhibit No. Ka-Gha. 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 rectification of a deed is three years, which commences from the date when the right to sue first accrues. On perusal of the suit record, it appearsto the Court that the plaintiff claims that the cause of action of the suit, the discovery of the mistake that furnishes the starting point of limitation, first arose on 15/04/2015 and then on 12/05/2015 upon obtaining the certified copy of the suit deed. The instant suit was instituted on 20/05/2015. In evidence, the PW-01 asserted the same in the same sense. Conversely, it appears that 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:
In general, a party to a written instrument is not allowed to contradict the instrument, but where the instrument does not reflect the real intention because of fraud or mutual mistakes, party may get the instrument rectified under section 31 of the 1887 Specific Relief Act and such a relief is based on equity. The actual expression of a thought very often fails to express the whole thought; some times more may be expressed, some times less, sometimes something totally different may be expressed. So, the object behind section 31 of the 1887 Specific Relief Act is to see that the defect in expression should not be allowed to defeat the real intention of the parties.
04. It is also well settled that the condition precedent for claiming rectification is the existence of a valid and complete contract. It is equally settled that there can be no rectification where there is no prior agreement with reference to which the rectification has to be done. Here, it is the both parties’ case that the deed in question is an outcome of a valid and contract between them. Besides, either party to a contract or instrument, or his representative in interest can sue for rectification of instrument to protect his rights by proving the mistaken expression of the agreement. Even the parties who would be affected by such rectification are proper parties to the suit. They can apply to be impleaded as parties. Here, the plaintiff himself is a party to the disputed deed. So, it is decided that the plaintiff has locas standi to institute the suit.
05. As per provision of section 31 of the 1887 Specific Relief Act, there are two cardinal grounds upon which a plaintiff may seek a relief in the name of the rectification of deed. Of them, the plaintiff has invoked the court’s jurisdiction and prayed for rectifying the disputed deed on the ground of mutual mistakes. The term “mutual mistake” arises when the parties misunderstand each other. They may not make the same mistake but they may not understand what the other is offering or accepting. It is the legal position that a person who seeks to rectify a deed upon the ground of mistake must establish that the alleged intention to which he desires it to be made comfortable continued concurrently in the minds of all parties down to the time of its execution. On careful perusal of the materials on record, it occurs in pleading and testimony (PW-01) that the plaintiff contends that by reason of a common mistake of the two parties to the agreement, an agreement (deed in question) was drawn up in a manner inconsistent with their common intention, and ought therefore to be rectified. In such a situation, the burden of proof lies heavily on the plaintiff seeking rectification to prove that due to mutual mistake, such a deed failed to reflect the real intention of the parties.
06. Now consider the evidence available on the record. The deed in question contains two plots, and the plaintiff only seeks to rectify a mistakenly written plot number from the deed. That is to say, the number of a RS plot No. 299 has erroneously been written in the disputed deed in the place of RS plot NO. 402. In testimony, the plaintiff as PW-01 admitted that the defendant Rafiqul are currently possessing 0.0525 acres of lands comprising in RS plot No. 402 of RS khatian 106. Even, the exhibit Nos. Kh-Gha are found to be in support of the defendant’s de jure possession in the disputed Plot. Besides, the PW-02 also maintained that the plaintiff possesses only 14 decimal lands comprised in RS plot No. 402. Accordingly, there is no gainsaying that there appears contradiction in the evidence adduced by the plaintiff side relating to his possession in the RS disputed plot.
07. Surprisingly, the impugned deed was executed and registered in 1978. Considerable time is already spent after the same was brought into being. But, no mutation is pursued with regard to the suit lands. Even, the PW-01 in his cross-examination admitted that taxes are being paid by him till to date in the name of Poka Sardar [ext.: 03]. So, it becomes an innuendo that reflects the true intention of the parties to the suit deed [ext.: 04]. Moreover, on perusal of the evidence adduced by the DW 01-03, as well as PW01-02, the defendant side has categorically been able to identify the suit lands, whereas the plaintiff’s current defacto possession on the whole lands comprising in RS plot No. 402 has not been established with convincing evidence so far.
08. In arguments, Ld. Advocates for the plaintiff aptly pointed out that the measurement of the SA plot No. 926/929 is equal to the corresponding RS plot No. 402. But, as aforesaid, the defendant’s possession in the RS 402 is admitted by the plaintiff in his cross-examination. Moreover, there is no convincing evidence on the plaintiff’s favour on points that support a discourse of purchasing lands measuring 34 decimal in a single plot [Ext.: 01-02]. So, such a plea carries the plaintiff nowhere. 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. Accordingly, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that the plaintiffs have not been successful in establishing that there have been any mutual mistakes from the part of the parties to the deed in question. So, this issue is not settled in the plaintiff’s favor.
Issue No. 01 & 04:
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 the plaintiff’s case has not been proved by evidence as well as sufficient implications that the disputed deed was executed with mutual mistakes of the both parties, who never intended the same to be executed as it is in the deed now. And again, the relevant law dealing with the instant suit also suggests that the Court may not in its discretion rectify the instrument so as to express that intention, when prejudice may result to rights acquired by third persons in good faith and for value. As per provision of section 31 of the 1877 Specific Reliefs Act, the instant suit does not appear to be a good fit for exercising the Court’s discretion in decreeing the same. Consequently, because the plaintiff has not been able to prove his case, the suit deserves to be dismissed. As such, it is decided that the plaintiff may not get the relief as prayed for.
The court
fee paid is sufficient.
Hence,
it is ORDERED
that the suit be
dismissed on contest against the
defendants with costs.
(Composed and corrected by)