(From previous issue)
9. During hearing of the rule Mr Surojit Bhattacharjee, the learned Advocate along with Advocate Mr. Mohammad Nurul Huda Ansary, appeared on behalf of the plaintiff-respondent-petitioners while Mr Mustafa Kamal Pasha, the learned Advocate appeared on behalf of the defendant-appellant-opposite party No. 1 and Mr Abdul Hai, the learned Deputy Attorney-General along with Mr Shahidul Islam Khan, the learned Assistant Attorney General appeared on behalf of the Government-Opposite party.
10. The learned Advocate appearing on behalf of the petitioners submits that the learned appellate court below during disposal of the appeal committed illegality and irregularity. The learned Advocate further submits that, admittedly the suit property originally belonged to Surja Bala and others. The learned Advocate submits that the court of appeal below during disposal of the appeal on merit failed to realize that the main question involved in the original suit is as to whether the predecessor of the plaintiffs, Kali Kumar purchased the suit land in the benami of his daughter Lilamoyee. The learned appellate court without proper consideration of the evidence on records fail to appreciate that the ingredients of Benami Transaction lies in favour of the plaintiffs, since Lilamoyee in whose name the saf-kabala deeds were executed and registered, did not pay the consideration amount in favour of the vendors, rather; the father of the plaintiffs, Kali Kumar from his own fund and source paid the entire consideration amount and the possession was delivered in favour of the father of the plaintiffs Kali Kumar Chakraborty. The defendants during trial of the original suit have failed to prove that Lilamoyee had any source of money and in contrary; the plaintiffs by sufficient evidence proved that Lilamoyee had no source of income from which she 'paid the consideration money. Besides this, through a notary public Lilamoyee after filing a written statement from India admitted the case of the plaintiffs. In the written statement she has categorically mentioned that her father Kali Kumar Chakroborty in the benami of her, purchased the suit land. She also executed a 'nadabi muktinama' in favour of the plaintiffs. The learned Advocate also submits that in the year 1963, Lilamoyee left this country for India and as she did not migrate to India after 3-12-1965, the property-in-dispute cannot be declared vested or enemy property. The learned Advocate after submitting the relevant law of 'Arpito Sompotty Prottarpon Ain, 2001 (Act XVI of 2001)' argued that, in the gazette; the suit property has been included as 'Kha' schedule land and for that reason by the act of law the property described in schedule 'Kha' of the official gazette cannot be treated us vested and non-resident property. The defendants are now barred by law in treating the property as vested or non-resident property and as because the property is not vested property or enemy property, the lease-holder defendant No. 01 has no case and he has no leg to stand in this suit. The learned Advocate lastly submits that the trial court during disposal of the original suit considering all the facts and circumstances of the case and evidence on record decreed the suit on contest rightly and legally, but the learned appellate court below subsequently without assessing the evidence on records and without proper appreciation of law in its true perspective, decided the merit of the appeal in favour of the defendant-appellants, which is not proper and legal and the learned appellate court violating the provision laid down in Order XLI, Rule 31 of the code of civil procedure passed the impugned judgment and decree. In support of the submissions the learned Advocate referred some decisions of our Apex court.
11. On the other hand; the learned Advocates appearing on behalf of the opposite parties opposing the Rule controverted the arguments advanced from the side of the petitioners and submits that the learned appellate court below during disposal of the appeal committed no illegality or irregularity. The learned Advocate further submits that there is no misreading and non-reading of evidence and non consideration of material facts resulting in an error in the decision occasioning failure of justice, by which the impugned judgment and decree can be interfered with. The learned Advocates also submits that the plaintiffs to the suit in their plaint specifically alleged that their so called title document viz. the sub-kabala deed has been executed and registered in the name of Lilamoyee Debi and Lilamoyee Debi as an Indian citizen by a 'nadabi muktillama' specifically contended that she is the benamdar of her father Kali Kumar Chakroborty. The learned Advocate submits that the alleged 'muktinama' has no legal value in the eye of law and it does not confer any title or interest in favour of any body. The learned Advocate also submits that admittedly this 'nadabi muktinama' is an unregistered paper and that is why also it becomes a valueless paper in the eye of law. It is an admitted position vide "Exbrbit-9" that Lilamoyee Debi never obtained possession of the, suit property and she has migrated to India forever. The learned appellate court below was justified and legal in passing the impugned judgment and decree on the basis of evidence on records and the trial court inasmuch as without consideration of the evidence on records properly passed his judgment and decree, the court of appeal set aside the same by the impugned judgment and decree. The learned appellate court complying the provisions laid down in Order XLI, rule 31 of the code of civil procedure decided the merit of the appeal after proper assessment of evidence and appreciation of law in its true perspective. The learned Advocate lastly submits that the findings of the appellate court which is the final court of facts, is immune from interference in the revisional jurisdiction as there is no misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice from the side of the learned court of appeal.
12. The learned Deputy Attorney-General referring the Land Reforms Ordinance of 1984 submits that the Benami Transaction as alleged from the side of the plaintiffs is barred by law and Section 5(1) of the said Land Reforms Ordinance, 1984 has imposed a legal embargo upon the plaintiffs, since no person shall purchase any immovable property for own benefit in the benami of another person. The learned Deputy Attorney-General further submits that Section 09 of the code of civil procedure is also a legal bar on the case of the plaintiffs and, as such, the case of plaintiffs as instituted is barred by law.
13. Considering the submissions of the learned Advocates I have perused the impugned judgment and decree passed by the learned Additional District Judge, 3rd court, Chittagong in Title appeal No. 182 of 1991 and also perused the judgment and decree passed by the learned trial court in Other Suit No. 145 of 1990. I have also perused the evidence adduced from the side of the respective parties and all other connected papers.
14. On perusal of the case record it transpires that the plaintiffs to the original suit in order to obtain a decree in the original suit prayed for the declaration that the 3rd party proforma-defendant is the benamder of the plaintiffs father. In the prayer portion of the original plaint there was a recital in the following way:
”অতএব বাদীগণ প্রার্থনা করেনঃ
(ক) নালিশী নিম্ম তপশীলের জমি সম্পর্কে ৩য় পক্ষ বিবাদীনি বাদীগণের পিতার বিনামদার হওয়া, তপশীলে জমি বাদীগণের পিতার নিজ হইতে টাকা দিয়া নিজ স্বার্থে ও অর্থে খরিদ হওয়া ও তাহাতে ৩য় পক্ষ বিবাদীনির কোন স্বত্ব দখল না থাকা সাব্য¯' হয়।
(খ) নালিশী তপশীলের জমি শক্র সম্পত্তি বা অনাবাসিক অর্পিত সম্পত্তি না হওয়া ও ১ম পক্ষ বিবাদীর বরাবরে ২য় পক্ষ কর্ত"ক প্রদও লীজ বেআইনী অনধিকার ভাবে অকর্মন্য ও অবলবৎ হওয়া উ"চারিত হয় ।”
15. Having gone through the deposition of the witnesses I find that the plaintiff No. 02 as witness No. 1 deposed before the trial court for himself and on behalf of his elder brother, the plaintiff No.1. This witness tried to corroborate the case of their pleading and at a stage of deposition alleged that, Lilamoyee on 6-5-1963 AD executed a 'muktinama' in their favour. PW 1 in his examination-in- chief at a stage contended that they want to get a declaration that Lilamoyee is the benamdar of his father and the lease in favour of the defendant is illegal. PW 1 admitted in his deposition that the relevant PS Khatian in respect of the disputed property has been recorded in the name of Lilamoyee, which has been marked as "Exhibit-8". He also admits that he use to reside at a distance of 05 miles from the suit land in different mouza with that of the suit property. PW 1 in his deposition stated that in the year 1964/65 Lilamoyee migrated to India and after 1963 they did not take any afford to mutate their names. P W 1 also admits in his testimony that the suit property is situated 5/6 miles away from his residence. He does not know, in whose name the land has been recorded during B. S. operation. The land was possessed by his father through borgadars and he does not know the name of the borgadars. This witness testified at a stage that in the year 1960, he gave borga of the land to one Harun. Subsequently, this witness testified that after the year of liberation, one Motaleb; since 1972 use to possess the suit property and this Motaleb is a resident of Potia, but live at 'Hali shahor and from Potia he possess the suit property. PW 1 expressed his inability to state that as to whether the suit property went under possession of the Government in VP Case No. 362/66-67 and as to whether the defendant No. 1 obtained lease. The witness No. 2 of the plaintiff is Abdul Motaleb, is the borgadar under the plaintiffs and deposed in favour of plaintiffs possession in his examination-in-chief. But during cross-examination this witness admits in his testimony that the suit land is 4/5 miles away from his (PW 2) residence. The witness No. 3 of the plaintiffs is one Netro Paul Nandi. This witness in his testimony testified that the parties are his neighbors and he knows Lilamoyee who gave the 'muktinama' in favour of the plaintiffs after putting her signature in his presence. During cross-examination this witness No.3 testified at a stage that Lilamoyee has migrated to India in the year 1964 or 1965 and he does not know who purchased the stamp of 'muktinama' and also cannot recollect the deeds, finding which; the 'muktinama' was written.
16. On the other hand; the defendants in support of their case examined 4 witnesses. The witness No. 1 is the defendant No. 1 Bazlur Rahman who has deposed before the court in support of their pleadings. The witness No.1, the defendant in his testimony testified at a stage that the suit property is being possessed by them and after obtaining the lease from the Government they are cultivating the suit land. The witness No. 2 Md Jashim Uddin is a Government official, who is a Tohsilder of vested and non-resident property department. This witness testified at a stage of his testimony that the property- in-dispute being a vested and non-resident property, has been leased out in favour of the lease-holder. During cross-examination the witness No.2 of the defendants testified at a stage that they did not file any census list in support of their contents that the suit property is vested and non-resident property. The witness No. 3 of the defendants is one Baloram Dey who in his deposition deposed on behalf of the lease-holder and claimed himself a contiguous land owner of the suit property. This witness in his deposition also testified that the land is being possessed by the defendant No.1 and he (DW 3) does not know the plaintiffs or Lilamoyee. The last witness of the defendants is one Ahmmad Miah. This witness in his testimony testified that he knows the defendant Bazlur Rahman and the suit land for the last 40 years but he does not know the plaintiffs and the suit land is being possessed by the defendant Bazlur Rahman.
17. In the original suit it was a case of the plaintiffs that the sub-kabala deeds were executed and registered in the name of Lilamoyee Debi which is the basic documents i.e. the title papers of the plaintiffs and it is their case that Lilamoyee was benamdar. It was further contended from the side of the plaintiffs that the benamdar Lilamoyee Debi executed a 'nadabi muktinama' in favour of them and the learned appellate court in its observation and findings opined that the deed of al1eged 'muktinama' under the ambit of law does not create or extinguish any title and interest of any body. It further appears that the concerned SA khatian in respect of the suit property has been prepared in the name of Lilamoyee and the corresponding BS khatian has been prepared in the name of Government.
18. Having gone through the original plaint of the suit filed by the plaintiff-petitioners I find that the plaintiffs to the suit in their pleading alleged that the original owners of the suit property Saroda Moyee and others to pay their arrear debt, for want of money proposed to sell the suit property and ids the case of the plaintiffs that their father Kali Kumar Chakroborty agreed to purchase the land in dispute. It was further contended by the plaintiffs in their plaint that Kali Kumar was a service holder and he served at Chittagong Collectorate. For the sake of service he purchased the suit property in the benami of his eldest daughter Lilamoyee Debi at a consideration of Taka 1,200 (twelve hundred). The pleading's case of the plaintiffs is such that in the year 1945 AD all the deeds ware executed and registered. Therefore, it is obvious to note that the transfer deeds are not within the mischief of Section 5(1) of the Land Reforms Ordinance, 1984, but the fact remains that under the law of Benami Transaction the onus of proof entirely lies under section 102 & 103 of the Evidence Act is on the person claiming to the real owner. Therefore; it is the plaintiffs, who are required to prove by tangible evidence that their father Kali Kumar Chakroborty in the name of his daughter Lilamoyee Debi purchased the land-in-dispute after payment of consideration money from his own fund. The test for examination of benami character of transaction are as follows:
(i) the source from which the purchase money came;
(ii) the nature and possession of the property, after the purchase;
(iii) motive, if any, for giving transaction a benami colour;
(iv) the position of the parties and the relationship between the claimant and the alleged benamdar;
(v) the custody of title deed after the sale;
(vi) the conduct of the parties concern in dealing with the property after sale [Ref. 36 DLR 37, AIR 1974 SC 171]. In the instant case; we have come across from the evidence on record that the deeds in question lies in the custody of the plaintiffs at present and prior to them those were under the custody of their father Kali Kumar as allaged from the side of the plaintiffs, but the fact remains that, in the instant case; there is no evidence which can be trustworthy and competent to prove other criterions of Benami Transaction.
19. The plaintiffs to the suit in order to prove their specific case have examined 3 (three) witnesses. PW 1 who is the plaintiff No. 2 himself practically testified nothing about the criterion of Benami Transaction as stated earlier and he frankly admitted in his deposition that he has got no practical knowledge about the aforesaid instruments. Beside him; the witness No.2 Abdul Motaleb tried to state about the possession of the case land but in the cross examination it transpires that he is a man of 4/5 miles distance from the disputed property. He claimed himself a borgadar under the plaintiffs by dint of 20 borga kabuliyats as alleged, but it is curious to note that he has. totally failed to produce any kabuliyat to that effect. Thirdly; the witness No. 3 Netra Paul Nandi is an alleged attesting witness of the 'muktinama' executed by Lilamoyee and he has no concern about the deeds of plaintiffs, or of their predecessor Kali Kumar Chakroborty of the year 1945. From his cross-examination it transpires that the executant of the "muktinama" is a resident of India and this witness who is a man of 6/7 miles distance from the residence of the plaintiffs, failed to state about the stamp purchase of alleged 'mukti-nama' and also failed to state that as to how and finding what; the alleged 'muktinama' was written and what are the contents of that 'mukti nama'.
20. From the foregoing narrative, it is evident that the plaintiffs to the suit in order to establish that the transaction was in fact a Benami Transaction have hopelessly failed to discharge their onus of proof. Furthermore; our Apex court held in several decisions that the person claiming to be the real owner on the basis of Benami Transaction, is to discharge the onus of proof under the ambit of Section 102 and 103 of the Evidence Act vide 4 BLD (AD) 307, AIR 1965 SC 271. In the instant case there is no evidence either oral or documentary, that there was any intension or motive from the side of the plaintiffs-predecessor to obtain this alleged Benami Transaction in the name of his eldest daughter Lilamoyee Debi. With regard to Benami Transaction the determining factors as 1 have already cited to above not at all proved in this case by any cogent evidence. Moreover, father would buy land in the name of his daughter even after her marriage is not the normal human conduct [Ref. 49 DLR (AD) 73, 17 BLD (AD) 66].
21. The learned court of appeal below by the impugned judgment and decree rightly held as to the possession of the suit land that from the evidence of witness No. 2 of the plaintiffs it appears that this witness claimed himself a borgader from 1970, but we find that the father of the plaintiff allegedly purchased the suit land in the year 1945. The learned appellate court disbelieved the possession of the plaintiffs-predecessor from 1945 and also held that, it is doubtful to believe that Kali Kumar really purchased the suit property in the year 1945 inasmuch as there is no dependable evidence from the side of the plaintiffs that after purchase, the purchaser possessed the land from the year 1945.
22. On meticulous consideration of the evidence on records along with the impugned judgment and decree passed by thy appellate court I find that the learned court of appeal below during disposal of the appeal thoroughly assessed and evaluated the evidence on record in its true perspective and also arrived at a conclusive decision as to the nature of the suit and the pleading's case of the plaintiffs.
23. Be that as it may; in view of the discussions and findings referred to above I am constrained to hold such a view that there is no misreading or non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice, by which the impugned judgment and decree can be interfered with in this revisional jurisdiction.
24. In the result; the Rule is discharged without any order as to costs. The impugned judgment and decree dated 23-9-1992 and 30-9-1992 respectively, passed by the learned Additional District Judge, 3rd court, Chittagong in Other Appeal No. 182 of 1991 reversing the judgment and decree dated 30-1-1991 and 6-2-1991 respectively, passed by the learned Assistant Judge, Additional Court, Patia, Chittagong in Other Suit No. 145 of 1990 is hereby up held.