P L D 1970 Dacca 763 (PLP)

Against that there was an appeal by the defendant and the First Appellate Court allowed the appeal and dismissed the suit. Against the said decision the plaintiff‑appellant has filed the present appeal. It may be stated that the trial Court has come to the following finding:‑ "From all these facts and circumstances of the case and the evidence on record I am unerringly of opinion that Razzaque Ali is not the son of Shagar Ali and that Hashmat Ali and Karam Ali inherited the property of Md. Rafi and that Jan Bibi, Sagar Ali and Abbas Ali predeceased their father and that plaintiff got the S. L. by inheritance as alleged in the plaint. It was not specifically stated in the plaint that Md. Rafi also left Jan Bibi, Sagar Ali and Abbas Ali for this omission the plaint case does not suffer in any way. It is further held that Exh. B is collusive and fraudulent document." . It may be stated that Exh. B is the deed of gift that has been created in favour of the defendant. The First Appellate Court has also come to a finding as follows:‑ ". . . I also agree with him on this point that the defendant totally failed to prove his possession in the same. We do not know for what reason, very recently in the year 1955 all of a sudden the D. W. 4 created a deed of gift Exh. B, in favour of his son the defendant and from there the dispute arose. I also agree with the findings of the learned Munsif that this is a document created for the purpose of claiming title in the disputed land and on the date of the document the D. W. 4 had no interest in the properties in question. It is true that the lands were not fallow for all the times after the death of Wazuddin. It was certainly in the care and possession of somebody. To judge as to who was in actual possession of the properties, if we consult the evidences of possession on the side of the plaintiff, that at once convince that the disputed lands were in possession of the plaintiff The First Appellate Court has further come to a finding as follows:‑ "In view of my foregoing discussion that the defendant totally failed to prove that Safar Ali, his grandfather was the son of Md. Rafi and that the son of Md. Rafi named Sagar Ali survived Hashmat Ali, I can at once say that there was none else save and except Wazuddin to succeed in the entire interest in the disputed properties." From the above findings of the Courts below, it is clear that both the Courts have come to a concurrent finding that Wazuddin was the sole surviving heir of Md. Rafi and that defendant had failed to prove that Razaq Ali had inherited anything in the suit property and, as such he has no title. There is also the concurrent finding that the document Exh. B, the deed of gift in favour of the defendant is a fraudulent and collusive document. I do not find any reason to disturb this concurrent findings of fact. The next point for discussion, therefore, is that whether Bhola Miah was the son begotten through the plaintiff or be?gotten through Manjura, the first wife of Wazuddin. On this point the trial Court has held that the plaintiff inherited through her son Bhola Miah. Accepting the evidence of the plaintiff, the First Appellate Court has reversed this finding not on the basis of the evidence on record but by first taking part of the evidence of the plaintiff and drawing a conclusion from there and then taking a part of the evidence of P. W. 6 and drawing a conclusion from there and, thereafter making these two conclusions on this basis he has drawn a third conclusion and has come to a finding that Bhola Miah was not the son of the plaintiff: I am afraid A that the second conclusion from his own conclusion cannot be drawn and it is both logically fallacious as well as not legally sustainable. On the other hand, we find that the plaintiff herself has categorically asserted that Bhola Miah was begotten by herself and she is corroborated by P. Ws. 2, 3 and

4. No doubt D. W. 3 has said that Bhola was the son of Manjura Khatun but unfortunately the Court of Appeal below has ignored this evidence on record and tried to base its conclusion on surmises and conjecture which is not sustainable in law. The admitted position, of course, is that the plaintiff was no doubt divorced by Wazuddin and that is why she is not claiming any property through Wazuddin. But the case of the plaintiff is that Wazuddin was survived by his son Bhola Miah. The only question is as to whether Bhola Miah was begotten either through the plaintiff or through Manjura Khatun and as I have already found, the finding of the First Appellate Court on this point B cannot be sustained because it has come to its conclusion ignored the evidence on record. The First Appellate Court has also found that the suit is bad for misjoinder of parties, in view of the fact that there was kabala made with regard to some of the suit lands in favour of Manjura Khatun but the case of the plaintiff is that this kabala was a benami document. The First Appellate Court has not discussed the.question of benami on the ground that two heirs of Manjura Khatun, namely Abdul Nabi and Abdul Manaf, have not been made parties to the suit. On this ground it has found that there is a defect of parties. It may be stated that if the document was itself a benami document, as alleged by the plaintiff and when there is no fight between the benamdar and the real owners, the heirs of the benamdars are proper and not necessary parties and on that ground the suit should not be dismissed. The First Appellate Court, however, categorically found, concurring with the finding of the trial Court, that the plaintiff was in possession of the suit land. But it was wrong in totally dismis?sing the suit when it found that the defendant had neither any title nor possession. It has been rightly urged on behalf of the plaintiff that an injunction should have been granted. But some of these points, in my opinion, require to be properly gone into upon the evidence on record. In that view of the matter, I allow this appeal in part and set aside the judgment and decree of the First Appellate Court. The findings of the Court below that Wazuddin was the sole surviving successive heir of Md. Rafi and he was survived by his son Bhola Miah, that Exh. B, the deed of gift in favour of the defendant, is a collusive and fraudulent document and the concurrent findings of the Courts below that the plaintiff is in possession are hereby confirmed and the rest of the finding of the 1st Appellate Court are set aside. The case is sent back on remand to the trial Court to consider (1) whether Bhola Miah was the son begotten through the plaintiff, as alleged by the plaintiff or through Manjura Khatun, as alleged by the defendant and (2) whether the kabala in. favour of Manjura Khatun relating to some of the suit properties is a benami document or that it has conferred valid title on Manjura so that there may or may not be any defect of parties so far as the suit is concerned. The parties are given liberty to amend their pleadings and to adduce evidence and the Court will consider that prayer; further evidence, if led by the parties over and above what is already on record, may be allowed and dispose of the suit in accordance with law and in the light of the observations made above. There will, however, be no order as to costs in this appeal. Appeal allowed partly.