Present:

Mr. Justice A.K.M. Asaduzzaman

Civil Revision No. 3592 of 2007

Gadu Miah and others

……………Petitioners.

-Versus-

Md. Chan Miah

…….Opposite party.

Mr. Md. Abdul Haque, Advocate

…….For the petitioners.

Mr. Md. Shah Alam Sarker, Advocate

…….. For the opposite party.

Heard and judgment on 20th February, 2024. A.K.M.Asaduzzaman,J.

This rule was issued calling upon the opposite party to show

cause as to why the impugned judgment and decree dated 15.04.2007 passed by the Additional District Judge, 4th Court, Mymensingh in Other Class Appeal No. 258 of 2004 reversing those dated 10.10.2004 passed by the Senior Assistant Judge, Fulbaria, Mymensingh in Other Class Suit No. 12 of 2004 decreeing the suit should not be set aside.

Petitioner as plaintiff filed Other Class Suit No. 12 of 2004 against the opposite parties for cancellation of deed.

Plaint case in short, inter alia, is that suit property is the paternal property of the plaintiff. Osman Ali, Asor Ali and Makrom Ali are three brothers of the plaintiff and each of them has son and daughter. The defendant is the son of nephew of the plaintiff (grandson of Osman Ali and son of Rostom Ali). The brothers of the plaintiff are not alive. The plaintiff and her brothers children live in the same mess. The paternal property of the plaintiff are in ejmali. In the paternal property of the plaintiff Abul Basir, Tasimuddin, Kader, Amena Osimuddin Sekander Ali and the defendant are in ejmali possession. The plaintiff had no desire to transfer or to gift her property and she had no necessity to do so. Since the brothers and nephews has no other land except the homestead and the plaintiff considering the financial anomalous condition of the brothers and nephews of the defendant, the plaintiff did not partition her paternal property. The plaintiff resides at her husbands house, she is illiterate pardanshin lady aged about 70 years old. The defendant is a dishonest man. In the year 1410 in the month of Sravan, while the plaintiff was seriously ill, the defendant (Chan Miah) in order to have treatment of the plaintiff, took her to Fulbaria on 03.08.2003 and gave saline and took her thumb impression and at the afternoon brought her at home, later on it was disclosed that the defendant created a deed on 13.08.2003. Son of the plaintiff obtained certified copy of the deed and came to know that the defendant in connivance with the deed writer and the witnesses of the deed fraudulently created the deed. The plaintiff did not give proposal to sale the land, she did not receive any price for the land, she never went to the Fulbaria Sub Registrar Office to execute and register the deed. The writer is the identifier of the deed, the witnesses, mentioned in the deed are resident of Baiddabari village which is at a distance of 10 mile away from the house of the plaintiff and all of them are of same seresta. The plaintiff is a pardansin lady, she is not familiar with the identifier and witness of the deed. The deed is void, it has been created fraudulently.

Opposite party contested the suit by filing written statement denying the plaint case alleging, inter alia, that plaintiff is the aunt of the defendant Asgor Ali Fakir, who was her husband, he was very poor man. Since her husband was poor she was taken away from her paternal property and transferred her share to her brothers, plaintiff resides at her husband’s house at village Baruka. She has three son and four daughters. Due to poverty plaintiff sold the suit land to the defendant at a price of Tk. 14,000/- in the month of July 2003. The defendant paid the price by taking loan of Tk. 6000/- from his father in law and the deed was done on 03.08.2003 and the defendants got possession of the land. The plaintiff went to the sub-registrar office on 03.08.2003 with her son Nurul