Appellate Division
Md. Humayun Kabir and another v A.M. Mahmud Chowdhury and others
Civil Appeal 117/2023 · Appeal dismissed · Decided 26 August 2025
The plaintiffs brought a title suit before the Joint District Judge, 2nd Court, Chandpur seeking declaration of title to the suit land, recovery of possession of part of it from defendants 2 to 4, and declarations that the deeds in the 3rd and 4th schedules were void. They claimed through a mortgage deed and a tripartite agreement with the original owner and the House Building Finance Corporation, while the defendants relied on sale deeds from the same owner. The trial court decreed the suit. In First Appeal No. 198 of 2011, the High Court Division allowed the appeal in part, modifying the decree as regards the 4th schedule deeds. The defendants appealed by leave, arguing that the 3rd schedule deeds should also stand. The Appellate Division held that the 4th schedule deeds prevailed because they were earlier in time and the purchasers were in possession, but the 3rd schedule deeds came after the plaintiffs' instruments and had been found fraudulent and void on the evidence. The appeal was dismissed.
- Whether the 3rd schedule deeds, executed after the mortgage deed and tripartite deed under which the plaintiffs claimed, should have been sustained along with the earlier 4th schedule deeds.
- Since the 4th schedule sale deeds were executed earlier in point of time than the plaintiffs' mortgage deed and the purchasers were in possession, the principle that earlier deeds prevail applied and the trial court's declaration that they were void could not be sustained.
- The High Court Division rightly modified the trial court's decree only in respect of the 4th schedule deeds, a position the respondents' counsel conceded.
- The 3rd schedule deeds, executed after the mortgage deed and the tripartite deed, cannot prevail over those earlier instruments creating rights in favour of the plaintiffs.
- The trial court's finding, on proper appreciation of the evidence, that the 3rd schedule deeds were fraudulent, void and not binding on the plaintiffs, left undisturbed by the High Court Division, disclosed no legal infirmity.
The argument of the appellants that the 3rd schedule deeds also should have been sustained is thus fallacious and devoid of merit, since later deeds cannot prevail over earlier instruments already creating rights in favour of the plaintiffs.
