Code of Civil Procedure [V of 1908]
Section 115(1) read with
Evidence Act [I of 1872]
Section 90
Mere filing of a rent receipt or a private document without formal proof thereof and without proving the contents of such documents cannot fulfill the requirements of law.
The patta Ext.2 is more than 30 years old document has come before the Court from proper custody and certainly carried a legal presumption of due execution and correctness under section 90 of the Evidence Act.
A Court of revision under section 115(1) CPC can interfere with the findings of fact, as has been arrived at by the appellate court below as being the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading and misreading of the material evidence or misconstruction of any important documents affecting the merit of the suit.
It appears to the Appellate Division that the trial Court appointed an Advocate Commissioner who inspected the suit land and submitted a report on 31.10.2000 which has been accepted by the trial court on 05.05.2003 in a modified form after rejecting the objection raised by the defendants. The Advocate Commissioner reported that there are as many as four shops on the suit land. The plaintiff Nur Jamal while deposing as PW1 stated that he constructed four shops and rented them out to four persons, namely, Asharf, Aminul, and Jogodish for performing their. business as shopkeepers. Thus, it appears that the Commissioner's report corroborated the oral evidence of PW1 which directly supported the plaintiff's title and possession. But the learned Judge of the Single Bench of the High Court Division without adverting those evidence on record made the Rule absolute holding that the plaintiffs have hopelessly failed to prove their case. The Appellate Division hold the view that the finding of the learned Judge of the Single Bench of the High Court Division and as well as the trial Court below are shockingly perverse and those are vitiated by non reading of the material evidence and misconstruction of evidence on record affecting the merit of the cases. Thus, it appears that the learned Judge of the Single Bench of the High Court Division without properly assessing the evidence on record arrived at a wrong decision and thereby set aside the finding of the appellate Court below, which is liable to be interfered with. Accordingly, the Appellate Division finds merit in the appeal. Thus, the appeal is allowed without any order as to costs. The impugned judgment and order delivered by the learned Judge of the Single Bench of the High Court Division is set aside and the judgment and order passed by the appellate Court below is restored...(27-30) [(2022) 25 ALR (AD) 43]
Code of Civil Procedure [V of 1908]
Section 115(1) read with
Specific Relief Act [I of 1877]
Section 42 -Declaratory suit
Where the plaintiff is not a party to the impugned deed, he can sue only for a declaration that the deed is not binding upon him and such a suit would be purely a declaratory one and where the plaintiff is in possession of the land covered by such deed, a suit for mere declaration that the deed is inoperative is quite maintainable without any consequential relief. [2023] 27 ALR (HCD) 32
Consequential Relief must be sought
When the plaintiff himself is a party to some kabalas a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds. Md. Nazir Hossain Khan vs Md. Mujal Mollah, Shahida Begum (Mustafa Kamal J)(Civil) 2ADC 822
For declaration of title and recovery of khas possession
Lower appellate Court rightly sent the case on remand to the trial Court for ascertaining the claim of the parties on the basis of their respective original deeds after determining their genuineness and as such the High Court Division ought to have remanded the case to the trial Court for deciding the matter in controversy between the par- ties. So the findings and decisions of the High Court Division cannot be sustained in law. Bhulu Miah and others vs-Begum shakhina Khatun and oth- ers(Syed J.R. Mudassir Husain CJ) (Civil) 3ADC 914