LEX/BDHC/0060/2007

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)

Civil Revision No. 3339 of 2002

Decided On: 29.01.2007

Mosharraf Hossain Mondol (Md)

Vs.
Md Elias Hossain Mollick and others

Hon'ble Judges:
SM Ziaul Karim, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Md Asaduzzaman with Md Raziuddin Sarwar, Advocates

For Respondents/Defendant: Abdul Quayum with Md Ali Reza, Advocates For Opposite Party
Nos. 1(a) - 1(K)

Subject: Land Laws

Catch Words

Mentioned IN

Acts/Rules/Orders:
Public Demands Recovery Act, 1913 - Section 23, Public Demands Recovery Act, 1913 - Section
23(2), Public Demands Recovery Act, 1913 - Section 46, Public Demands Recovery Act, 1913 -
Section 7; Specific Relief Act, 1877 - Section 42

Citing Reference:

Discussed
2

Mentioned
1

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 JUDGMENT

SM Ziaul Karim, J.

1. This Rule was issued, calling upon the opposite party Nos. l(a)-l(k) to show cause as to why the
impugned judgment and decree dated 23-3-2002 passed by the learned Additional District Judge,
First Court, Jhenidah, in Title Appeal No. 253 of 1995, allowing the appeal by reversing those
dated 14-9-1995 passed by the learned Senior Assistant Judge, Moheshpur, Jhenidah, in Title
Suit No. 155 of 1985, decreeing the suit, should not be set aside and or pass such other order or
further order or orders as to this Court may deem fit and proper. Short facts leading to this Rule
are that on 31-7-1985, the petitioner as plaintiff instituted Title Suit No. 155 of 1985 in the Court of
Senior Assistant Judge, Moheshpur, impleading the opposite parties as defendants for declaration
that all proceedings of certificate case No. 68370/60-61 are fraudulent, collusive, illegal, void and
inoperative.

2. The plaintiff s case, in brief, is that the suit property bad originally belonged to Debendra Nath
Dingi and his name was duly recorded; that during the partition of India, the schedule land was in
the territory of the then East Pakistan now Bangladesh and he was obstructed to use the land; that
at that time the father of the plaintiff and the father of the defendant lived in the territory of District
Bangaon within India; that in 1961 the father of the plaintiff decided to exchange his land with
defendant Nos. 2-11 and delivered the possession, that on 14-9-1964 a deed of exchange was
executed and registered by defendant Nos. 2-11; that, subsequently the father of the plaintiff also
executed and registered a deed of exchange on 6-10-1964; that the father of the plaintiff got the
schedule land by way of registered exchange deed and he was in possession thereon; that the
plaintiff inherited the suit property from his father and got the exchange deed registered in his
name on 17-6-1982; that the schedule property was recorded in SA Khatian in the name of the
plaintiff, thereby he was possessing the suit land; that on 10-4-1980 the plaintiff came to know that
the defendant No. 1 filed a suit by creating a false bainapatra in the Second Court of Assistant
Judge, Jessore; that, after dismissing the suit, the defendant No. 1 filed the Miscellaneous Case in
the Said Court; that the plaintiff sold out 33 decimals of land from the Plot No. 23 to one Ezahar
Hossain by a registered kabala deed who has been possessing the land; that the plaintiff
subsequently sold out 31 decimals of land to Chand Mia and delivered die possession thereon;
that the defendant No. 1 collusively instituted the Certificate Case No. 68370/60-61 and by
suppressing the notice under sections 7 and 46 of Public Demand Recovery Act, got the property
on auction and purchased the same at a price of Taka 40; that the defendant No. 1 was never in
possession in the suit land. On 10-4-1980 for the first time the plaintiff came to know about such
certificate' case which clouded his title over the properly. Hence, the suit.

3. That the defendant No.1 contested the suit by filing a written statement denying all the material
allegations made in the plaint contending, inter alia, that the suit is riot maintainable in the present
form; that the suit is barred by waiver, estoppel and acquiescence. Its case was that the then

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Pakistan Government initiated the Certificate Case No. 68370/60-61 due to non payment of rent
by the original recorded tenant Sree Pulin Behari; that the defendant No. 1 participated in the
auction sale and on 1-8-1962 purchased the suit property by auction; that subsequently his sale
was confirmed by the learned Court and possession was delivered to him in due course of law.
Thus, the suit is liable to be dismissed.

4. On the pleadings following issues were settled:

(a) Whether the suit was barred by limitation?

(b) Whether the suit was maintainable in the present form?

(c) Whether the suit was properly valued?

(d) Whether the auction was collusive, fraudulent, illegal, and void?

(e) Whether the plaintiff was entitled to get relief as prayed for?

(f) To what relief, if any, the plaintiff was entitled to?

5. In course of trial the plaintiff examined three witnesses namely PW 1 Mosharraf Hossain
(Plaintiff), PW 2 Kusai Mondol and PW 3 Md Ezahar Hossain, they were local witnesses. The
plaintiff proved his documents as Exhibits 1 and 2 in support of his case.

6. The defendant examined two witnesses namely DW1 Illias Hossain Mollick (defendant No. 1),
DW 2 Afzal Mondol. They proved their documents as in support of
their case.

7. Eventually, after hearing the learned Assistant Judge, Moheshpur by the judgment and decree
dated 27-6-1990 dismissed the suit on contest. On appeal the same was reversed by the Court of
appeal below in Title Appeal No. 167 of 1990 and the suit was sent back on remand to the trial
Court for retrial.

8. Thereafter, the suit was again heard by the learned Judge of the trial Court who after
considering the evidences on record, by the judgment and decree dated 14-9-l 985 decreed the
suit. On appeal, the learned Additional District Judge. First Court by judgment and decree dated
23-3-2002 allowed the appeal and reversed those of the trial Court. Hence, the Rule obtained by
the plaintiff petitioner.

9. Mr Asaduzzaman, the learned Advocate appearing with Mr Md Raziuddin Sarwar, Advocate for
the petitioner, supports the Rule and submits that the plaintiff successfully proved his right, title
and possession in the suit property and the learned Judge of the trial Court after considering the
evidence on record rightly decreed the suit, but the judgment of the Court of appeal below based

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on misreading and non consideration of the evidence on record caused serious miscarriage of
justice. He adds that the defendant only produced bainama (Exhibit ) in support of the auction
purchase but the defendant hopelessly failed to produce other documents viz, writ of delivery of
possession, chalan, deed, etc in support of the certificate case. So, the defendant failed to prove
his case. The learned Counsel adds that the suit property was collusively shown to have been
auctioned and the same was purchased by the defendant No. 1 at the low price of Taka 40 which
is not believable at all. The learned Counsel lastly submits that the court of appeal below failed to
weigh and sift the evidence on record as required by law and evidently fell in an error in coming to
his ultimate decision occasioning failure of justice.

10. Mr Abdul Quayum, the learned Advocate appearing with Mr Md Ali Reza, Advocate for the
opposite party Nos. l(a)-(k), opposes the Rule and submits that the auction was held on 1-8-1962
but the plaintiff accrued the interest in the suit property on 17-6-1982. He adds that the plaintiff had
a remedy to set aside the auction sale under section 23 of the Public Demand Recovery Act if his
interest was affected by the same. According to him as plaintiff's right was accrued after long
lapse of the auction sale. So, he is not personally affected by such sale. Mr Quayum submits that
the plaintiff had no legal character to institute the suit only, without praying for any declaration of
his own title. The suit itself was barred under section 42 of the Specific Relief Act arid the learned
Counsel further submits that the learned Judge of the trial Court repeatedly shifted the burden of
proof upon the defendant but in this case the plaintiff failed to prove his own case. In support of his
contention the learned Counsel referred the case of Md Naimuddin Sarder vs Md Abdul Kalam
Bisws reported in 39 DLR (AD) 237 wherein it is held:

Plaintiff in order to succeed must establish his own case to obtain a decree and weakness of
defendant's case is no ground for passing a decree in favour of the plaintiff.
11. The learned Counsel further submits that there is no evidence regarding the market price of
the suit land at the relevant time, so it cannot be presumed that Taka 40 was a small price. In
support of his contention, he referred the case of Srimati Nirode Bala Deb Roy vs Monmohan
Datta reported in 6 DLR 559. wherein it is held:

A sale not void, because of the shockingly low price

12. The learned Counsel lastly submits that the learned Judge of the Court of appeal below after
considering the materials on record rightly reversed the judgment of the trial Court which calls for
no interference by this Court.

13. In order to appreciate the submissions advanced by the learned Counsels for both sides. I
have gone through the revisional application, the plaint, written statement, deposition of the
witnesses, all Exhibits, other materials on record, judgments and decrees of the Courts below and
given my anxious consideration to the submissions of the learned Counsels.

14. Now the question which calls for consideration is, whether the plaintiff could prove that the
proceedings of the certificate case No. 68370/60-61 is false, collusive and inoperative and whether

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the learned Judge of the Court of appeal below committed any error of law, resulting in an error in
the decision occasioning failure of justice in passing the impugned judgment and decree dated 23-
3-2002 reversing those of the trial Court.

15. Admittedly, the suit property had belonged to Sree Pulin Behari. The plaintiff claims that he got
the suit property by registered exchange deed No. 11265 dated 17-6-1982. The contesting
defendant No. 1 disowned such facts, its case was that the property of Pulin Behari was auctioned
in Certificate Case No. 68370/60-61 for arrears of rent and the defendant No. 1 purchased the suit
land in auction on 1-8-1962.

16. It appears from the record that the defendant No. 1 purchased the suit land in auction on 1-8-
1962 and the plaintiff accrued the right, title and Interest over the suit property on 17-6-1982,
inasmuch as prior to such deed no other exchange deed was proved by evidence. A person
whose interest has been affected by auction, has the right to file an application under section 23 of
the Public Demand Recovery Act 1913, to set aside the auction sale.

17. For the convenience of understanding provisions of law described in section 23 it reads as
hereunder:

23-Public Demand Recovery Act, 1913 -Application to set aside sale of immovable property on
ground of non-service of notice or irregularity-

(1) Where immovable property has been sold in execution of a certificate, the certificate holder,
the certificate-debtor, or any person whose interests are affected by the sale, may, at any time
within sixty days from the date of the sale, apply to the Certificate-Officer to set aside the sale on
the ground that notice was not served under section 7 or on the ground of a material irregularity in
the certificate proceedings or in publishing or conducting the sale; Provided as follows:

(a) no sale shall be set aside on any such ground unless the Certificate-Officer is satisfied that the
applicant has sustained substantial injury by reason of the non-service or irregularity; and

(b) an application made by a certificate-debtor under this section shall be disallowed unless .the
applicant either deposits the amount recoverable from him in execution of the certificate or
satisfies the Certificate-Officer that he is not liable to pay such amount.

(2)Notwithstanding anything contained in sub-section (1), the Certificate Officer may entertain an
application made after the expiry of sixty days from the date of the sale if he is satisfied that there
are reasonable grounds for so doing.

18. As the auction was held on 1-8-1962, and the plaintiff accrued the right in the suit property on
17-6-1982, so, prior to that date, he was not a person, whose interest was affected by such
auction safe within the meaning of section 23 of the Public Demand Recovery Act.

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19. On close analysis of the materials on record, it appears that after long lapse of 22 years, the
plaintiff made an attempt to set aside the auction sale by filing Miscellaneous Case bearing No.
21/ 1984-85 under section23(2) of the Public Demand, Recovery Act for setting aside the auction
sale and the same was rejected on 17-1-1985 [Exhibit ] and the sale was confirmed. It
further appears that the defendant No. 1 mutated his name in Miscellaneous Case No. 67/XIII-82
and paid rent [Exhibit- ] in favour of the Government. Thereby the defendant No. 1
became the recorded tenant under the Government.

20. Moreover, in view of the provisions laid down under section 42 of the Specific Relief Act, I also
find that the, plaintiff had no legal character to institute the suit. Therefore, I hold that the suit itself
was not maintainable in the present form but the learned. Judge of the trial Court misconstrued the
principle enunciated in the case of Amina Khatun vs. Ansar Ali reported in 40 DLR 389 and
wrongly relied on it and came to an erroneous findings that the suit was maintainable.

21. It appears that the learned Judge of the trial Court disbelieved the auction sale on the ground
that the bid for auction was at a low price i.e. Taka 40 for 3.19 acres of land but on close analysis
of the evidence on record I do not find the actual price of the suit land prevailing at the relevant
time. Moreover, I hold that for such cause sale cannot be declared as void. In this regard I am in,
agreement with the principle enunciated in the case reported in 6 DLR 559 as referred by the
learned Counsel for the opposite party Nos. 1 (a)-1 (k).

22. On careful analysis of the judgment of the trial Court I also find that the learned Judge shifted
the burden of proof upon the defendant No. 1, which is absolutely incorrect. On the contrary, the
plaintiff failed to prove his case by producing document supporting his legal character to institute
the suit. So, I am also in agreement with the principle enunciated in the case reported in 39 DLR
(AD) 237 as referred by the learned Counsel for the opposite party Nos. 1(a)-l(k).

23. Therefore, the legal plea taken by the learned Counsel for the opposite party Nos. l(a)- l(k)
prevails and appears to have a good deal of force but I failed to discover any merit in the
submissions advanced by the learned Counsel for the petitioner, therefore, I am unable to accept
his submission.

24. Having regard to the facts I hold that the impugned judgment and decree dated 23-3-2002
passed by the Court of appeal below are well reasoned, backed by sufficient oral and
documentary evidence which cannot be interfered by this Court.

25. In view of the facts and circumstances of the case and foregoing narrative, I am of the view
that the impugned judgment and decree dated 23-3-2002 suffers from no illegality or impropriety,
which calls for no interference by this Court. Thus the Rule having no merit fails.

26. In the result, the Rule is discharged without any order as to cost. The impugned Judgment and
decree dated 23-3-2002 passed by the learned Additional District Judge, First Court, Jhenidah in

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Title Appeal No. 253 of 1995, reversing those dated 14-9-1995 passed by the learned Senior
Assistant Judge, Moheshpur; Jhenidah in Title Suit No. 155 of 1985 is hereby affirmed. The order
of status quo in respect of possession of the suit property granted earlier by this Court stands
vacated.

Send down the lower Court's record at once with a copy of Judgment for information.

Manupatra Information Solutions Pvt. Ltd.

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