High Court Division · Civil Revisional Jurisdiction
Jahanara Bibi and others v Abdul Hamid and others
Civil Revision 3058/2015 · Decided 7 July 2026
The plaintiff sued for cancellation of a registered sale deed dated 15.05.1993 in favour of defendant No. 1, alleging that it had been procured by impersonation and that she learnt of it only in 2010. The defendant said she had executed it for consideration and delivered possession. The Assistant Judge, Sreenagar, Munshiganj dismissed the suit and the Joint District Judge, 2nd Court, Munshiganj affirmed. In revision the plaintiff also sought a remand to obtain expert opinion on the signature and thumb impressions. The High Court Division noted that an attesting witness who took the thumb impressions and identified the executant was not shaken in cross-examination, and that the plaintiff had neither pleaded that the thumb impression was not hers nor sought expert examination below. Following Appellate Division authority, it held that remand cannot be ordered to fill gaps in a party's evidence, and that a plaintiff seeking cancellation must prove subsisting title and rebut the presumption attached to registration. The Rule was discharged.
- Q1
Whether a registered sale deed should be cancelled under section 39 of the Specific Relief Act on an unproved allegation of impersonation.
- Q2
Whether a suit may be remanded at the revisional stage to obtain handwriting and fingerprint expert opinion that the plaintiff never sought at trial or on appeal.
- A plaintiff seeking cancellation of a registered instrument under section 39 of the Specific Relief Act, 1877 must establish a subsisting title and rebut the statutory presumption attached to registration by cogent evidence.
- Mere allegations of fraud or impersonation, unsupported by convincing evidence, are insufficient to invalidate a registered instrument.
- Evidence cannot travel beyond the pleadings, so a plaintiff who did not plead that the thumb impression was not hers cannot build a case on it.
- A remand cannot be ordered at the revisional stage merely to enable a party to fill lacunae in evidence it failed to produce before the courts below.
- Relief under section 39 is equitable and discretionary, and long unexplained delay in challenging a deed weakens the allegations.
A litigant who has failed to seek expert examination or adduce necessary evidence before the trial Court or the appellate Court cannot, after concurrent adverse findings, invoke the revisional jurisdiction merely to secure a remand for filling up evidentiary lacunae.
In the court’s own words.
Civil Revision 3058/2015, as published by the Supreme Court of Bangladesh. 20 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION (CIVIL REVISIONAL JURISDICTION)
Present:
3MR. JUSTICE ABDUR RAHMAN
4Civil Revision No. 3058 of 2015
5In the matter of:
6Jahanara Bibi and others
…Petitioners
-Versus-
7Abdul Hamid and others
…Opposite Parties
8Mr Md. Abdus Sabur Khan, Advocate
…For the Petitioners
9Ms Umme Kulsum, Advocate
…For the Opposite Parties
10Date of Hearing: 18.06.2026, 22.06.2026 and
30.06.2026. A.D.
11Date of Judgment: 07.07.2026, A.D., Tuesday;
23 Ashar, 1433 B.S.
JUDGMENT
12Abdur Rahman, J:
13This revisional application, at the instance of the petitioner, has been filed under section 115(1) of the Code of Civil Procedure, 1908. At the time of issuance of the Rule, the following order was passed:
14“Let a Rule be issued calling upon the opposite parties
15to show cause as to why the judgment and decree dated
1623.07.2015 passed by the learned Joint Judge, 2nd
17Court, Munshigonj in Title Appeal No. 108 of 2013,
18dismissing the appeal by affirming the judgment and
19decree dated 08.09.2013 passed by the learned
20Assistant Judge, Sreenagor, Munshigonj in Title 103 of
212010, should not be set aside and for pass such other
22order or further order or orders as to this Court may
23seem fit and proper."
24Concurrently therewith, with the issuance of the Rule, this Court was also pleased to direct the parties to maintain status quo with respect to possession of the suit land for a period of 06 (six)
25months. Subsequently, the said order of status quo was no longer extended.
26The material facts, shorn of unnecessary details, are that the petitioner, as plaintiff, instituted Title Suit No. 103 of 2010 seeking cancellation of a registered deed of sale, alleging, inter alia, that the lands appertaining to S.A. Khatian Nos. 801, 802, 814, 422, 420, 410, 463 and 424 originally belonged to one Goizoddin, who died intestate leaving behind his heirs, namely, Abdul Hamid, Moriom Begum, Jahanara Bibi @ Janu Bibi, Samortho Bibi, Ayon Bibi and Saburon Nesha. Subsequently, Saburon Nesha also died, leaving the aforesaid heirs as her successors. According to the plaintiff, the cosharers amicably partitioned their ancestral properties by metes and bounds, and in the said partition the suit land exclusively fell to the share and allotment of Jahanara Bibi @ Janu Bibi.
27The plaintiff further asserted that defendant No. 1, who is his full brother, subsequently informed him that he had allegedly purchased the suit land by a registered deed of sale dated 15.05.1993, being Deed No. 2531, and demanded
delivery of possession thereof. Thereupon, the plaintiff obtained a certified copy of the impugned deed on 23.03.2010 and, upon examination, discovered for the first time the existence of the said conveyance. It was alleged that the deed had been fraudulently procured through false personation and impersonation of the true executant, rendering the instrument void, illegal and inoperative. On such allegations, the plaintiff instituted the suit praying for cancellation of the aforesaid deed.
28The contesting defendant No. 1 entered appearance and filed a written statement denying all the material averments made in the plaint. It was contended, inter alia, that the suit was hopelessly barred by limitation and disclosed no cause of action. The defendant asserted that the suit land admittedly belonged to Jahanara Begum @ Janu Bibi, who, being the lawful owner thereof, voluntarily executed and registered Deed No. 2531 dated 15.05.1993 in his favour for valuable consideration and simultaneously delivered vacant possession of the property. Since the purchase, the defendant has been in continuous, peaceful and uninterrupted possession of the suit
land, has cultivated the same, planted trees thereon, paid the requisite government revenue, and obtained the relevant Duplicate Carbon Receipt (D.C.R.) in support of his possession. The defendant further alleged that the plaintiff, having full knowledge of, and having acquiesced in, the execution of the deed, instituted the suit on false, frivolous, and fabricated allegations with a view to harassing him and, as such, the suit was liable to be dismissed with costs.
29After completion of all requisite procedural formalities, the learned Assistant Judge, Sreenagar, Munshiganj, upon an exhaustive appraisal of the oral and documentary evidence adduced by the respective parties, dismissed Title Suit 103 of 2010 by judgment and decree dated 08.09.2013 (decree drawn up thereunder and signed on 11.09.2013), holding that the plaintiff had utterly failed to establish that the impugned registered deed was forged, fabricated, fraudulent or otherwise liable to be cancelled under Section 39 of the Specific Relief Act, 1877.
30Being dissatisfied with the aforesaid judgment and decree, the plaintiff preferred Title Appeal 108 of 2013 before
the learned District Judge, Munshiganj. The appeal was subsequently transferred to the Court of the learned Joint District Judge, 2nd Court, Munshiganj, for hearing and disposal in accordance with law. Upon hearing the learned Advocates for both sides and after independently reappraising the entire evidence on record, the learned appellate Court, by judgment and decree dated 23.07.2015 (decree drawn up thereunder and signed on 02.08.2015), dismissed the appeal, thereby affirming the findings, conclusions and decree of the learned trial Court.
31Having suffered concurrent findings of fact before both the Subordinate Courts, the plaintiff invoked the revisional jurisdiction of this Court under section 115(1) of the Code of Civil Procedure, 1908, challenging the legality and propriety of the judgments and decrees of the subordinate Courts.
32At the outset, it is worth mentioning that during the pendency of the Rule, the petitioner filed an application praying for remand of the suit, with a direction to obtain the opinion of a handwriting and fingerprint expert regarding the disputed signature and thumb impression appearing on the
impugned registered deed. The principal ground urged in support of the said application is that the plaintiff is an elderly lady of about seventy-five years of age, having little or no knowledge of legal proceedings, who has been residing throughout at her paternal homestead with her family members. According to the petitioner, the plaintiff never transferred the suit property in favour of the defendant and has remained in continuous possession thereof. It has further been alleged that the defendant procured the disputed deed by impersonation and fraud, concealed the existence of the deed for nearly seventeen years, and the Subordinate Courts failed to appreciate these surrounding circumstances in their proper perspective.
33Mr Abdus Sabur Khan, learned Advocate for the petitioner, strenuously contended that comparison of the disputed signature and thumb impression by a handwriting and fingerprint expert constitutes relevant evidence under the Evidence Act and that, in the interest of complete justice, the suit ought to be remanded for obtaining such expert opinion. According to him, unless the authenticity of the signature and
thumb impression is scientifically examined, the real controversy between the parties cannot be effectively resolved.
34The learned Advocate further submitted that both the Subordinate Courts misread and misappreciated the evidence on record. It has been argued that although several witnesses, including the defendant's witnesses, admitted the plaintiff's possession over the suit property, such admissions were either ignored or inadequately considered. According to the learned Advocate, the appellate Court also failed to comply with the mandatory requirements of Order XLI Rules 31 and 32 of the Code of Civil Procedure, inasmuch as it did not formulate and discuss all the points arising for determination nor did it adequately evaluate the evidence of all material witnesses.
35Referring to the deposition of P.W.1, wherein she stated—
36"নািলশী ভূ িম হেত আমার রালয় ১ মাইল দূের। আমার ামী ঘর জামাই িহেসেব থােক।"
37The learned Advocate submitted that the evidence unmistakably establishes the plaintiff's uninterrupted
possession over the suit property from the date of her marriage. Reliance was also placed upon the crossexamination of D.W.2 Md. Anes and P.W.3 Abdul Kader, who admitted that the plaintiff continued to possess the property inherited from her father. It has therefore been contended that the Subordinate Courts committed serious errors of law in overlooking these material admissions while upholding the validity of the impugned deed.
38Conversely, Ms Umme Kulsum, the learned Advocate appearing for opposite party No.1, supported the concurrent judgments of the Subordinate Courts and submitted that both Courts, upon proper appreciation of the evidence and settled legal principles, rightly dismissed the suit. She argued that the plaintiff utterly failed to identify with certainty the land allegedly remaining in her possession, failed to produce any mutation record or rent receipts in support of her claim and equally failed to discharge the burden of proving that the registered deed had been obtained by fraud or impersonation. On the contrary, the defendant produced mutation records,
D.C.R., rent receipts and other collateral evidence supporting his possession and title flowing from the registered deed.
39She further contended that the plaintiff cannot seek cancellation of a registered instrument merely by alleging fraud, without first establishing her subsisting title and legal interest in the suit property. She relied upon the decisions reported in 61 DLR (AD) 116, 53 DLR (AD) 110, 7 BLT (AD) 7, and 46 DLR (HCD) 57, and submitted that these authorities conclusively establish that remand cannot be ordered merely to enable a litigant to fill up lacunae left in the evidence and that concurrent findings of fact should not ordinarily be disturbed in revisional jurisdiction unless they suffer from patent illegality or jurisdictional error.
40I have carefully considered the submissions of the learned Advocates, scrutinized the impugned judgments, examined the oral and documentary evidence on record, the applications filed by the parties, and the authorities cited at the Bar.
41It is not disputed that the present litigation is one instituted under Section 39 of the Specific Relief Act, 1877, seeking cancellation of a registered instrument.
42On perusal of the judgment of the learned trial court, it is found that the learned court made an observation in the following way:
43“নািলশী ২৫৩১ নং সাফকবলা দিলল#ট জাল, বােনায়া#ট ও বািতল মেম &'মাণ
44কিরবার জন) বাদীপে, PW-1, PW-2 এবং PW-2 4মৗিখক সা,) 'দান
45কেরন। PW-1 জবানব78েত বেলন 4য, িতিন কখেনা নািলশী স:ি; ১নং
46িববাদীর িনকট িব অিফেস যান
47নাই এবং িতিন কখেনা #টপসিহ 4দন নাই; নািলশী ভূ িমেত তাহার ঘর-দরজা
48আেছ। PW-2 তাহার জবানব78েত বেলন, তাহার Aী কখেনা নািলশী ভূ িম
49কাহােরা িনকট হাBাCর কেরন নাই; নািলশী স:ি;েত বাদীর ঘর আেছ।
50PW-3 জবানব78েত বেলন, জাহানারা তাহার স:ি; কখেনা হBাCর কের
51নাই; নািলশী ভূ িম জাহানারা 4ভাগদখল কের। Learned Trial Court also
52observed that” অR 4মাকSমায় DW-1 ও DW-4 এর জবানব78 ও 4জরা
53এবং 'দশনীঃ
54& ক-ঘ পযােলাচনায়
& অR আদালেতর িনকট 'তীয়মান হয় 4য,
55নািলশী ২৫৩১ নং সাফকবলা দিলল#ট যথাযথভােব স:াদন ও 4র7জি>
56হইয়ােছ এবং উY দিলল মূেল ১নং িববাদীর বরারব নািলশী স:ি;র দখল
57হBাCিরত হইয়ােছ। বাদীপ, তিক&ত ২৫৩১ নং দিলল#টেক জাল, বােনায়া#ট
58ও বািতল মেম & দাবী কিরেলও দাবীর সমথেন
& 4কান দািলিলক বা িব ােযাগ)
59সা,) উপZাপন কিরেত স,ম হয় নাই। ফেল বাদীপে,র অR দাবী#ট
60'ামািণত হয় নাই। সা,) আইেনর িবধান 4মাতােবক বাদীপ,েকই
বাদীপে,র 4মাকSমা 'মাণ কিরেত হইেব। িক\ বাদীপ, দািলিলক ও
614মৗিখক সা,) ]ারা 'মাণ কিরেত পাের নাই 4য, িবগত ১৫/০৫/১৯৯৩ িaঃ
62তািরেখ 4র7জি>কৃত ২৫৩১ নং সাফকবলা দিলল#ট জাল, বােনায়া#ট ও
63বািতল। অন)িদেক িববাদীপ, 'মাণ কিরেত স,ম হইয়ােছ 4য, তিক&ত
64সাফকবলা দিলল#ট যথাযথভােব স:াদন ও 4র7জ#c করা হইয়ােছ।”
65A careful reading of the observations as contained in the judgment of the learned trial Court, which demonstrates that the Court meticulously discussed the evidence of P.Ws. 1, 2, and 3, who asserted that the plaintiff never executed the disputed deed and remained in possession of the suit property. The learned trial Judge thereafter evaluated the evidence of D.Ws.1 and 4 together with the documentary exhibits and ultimately concluded that the impugned deed had been duly executed and registered in accordance with law.
66The learned trial Court further specifically observed:
67"…বাদীপ, তিক&ত ২৫৩১ নং দিলল#টেক জাল, বােনায়া#ট ও বািতল মেম দাবী
&
68কিরেলও দাবীর সমথেন
& 4কান দািলিলক বা িব াসেযাগ) সা,) উপZাপন
69কিরেত স,ম হয় নাই…"
70Thereafter, the learned trial Court relied upon the principles laid down in 39 DLR (AD) 223, wherein it was held that registration carries a statutory presumption that the
official acts connected therewith were regularly and honestly performed, and that registration itself constitutes evidence of execution. Reliance was also placed upon 55 DLR (AD) 39, wherein the Appellate Division held that endorsements made by the Registering Officer enjoy a presumption of correctness and that the burden lies upon the person challenging the document to rebut such presumption by cogent and convincing evidence.
71However, the appellate Court independently reassessed the evidence and found that the defendant had produced mutation records, D.C.R., and rent receipts, which, though not documents of title, constitute relevant collateral evidence of possession. The appellate Court also correctly observed that a registered deed cannot be invalidated merely upon uncorroborated oral assertions unless the statutory presumption attached to such document is successfully displaced.
72However, on perusal of the evidence advanced by the DW4 Abdur Razzak (60), who deposed before the trial Court as under:
73“আিম দিলেলর া,ী। আিম ইসাদী সা,ী এবং wbses কেরিছ। দিলল নং
74২৫৩১, mvdKejv দিলেলর দাতা জাহানারা ওরেফ Rvbywewe dিহতা হােমদ
75wcZv ˆMRywÏb। আিম ঐ দিলল 4লনেদন ৮০০০/ এর সময় উপস্িহত িছলাম।
76হােমদ Rvbyweিব4ক ৮০০০/4দয়। দিলেল জাহানারা ওরেফ আনুিবিবর wbs es
77আিম িনেজ। সবiেলা #টপসিহ আিম িনেয়িছ। ১২টা #টপসিহ wbses আিম
78িদেয়িছ। mve‡iwRw÷ª অিফেস ‡iwRw÷ª হয়। mve‡iwR÷ªvi সমেয় _vgeyK
79#টপসিহ 4দয়। Bmv`x কারী িহসােব আিম া,র কেরিছ দিলল ‡jLK‡K
80িচিন। তার া,র িচিন। এটা স#ঠক `wjj।“
81Particular emphasis has been laid by the opposite party 1 upon the testimony of D.W.4. A close examination of his deposition reveals that he was not merely a formal witness. Rather, he unequivocally stated that he was present at the time of execution of the deed, witnessed payment of consideration, identified the executant before the Sub- Registrar and himself obtained the thumb impressions of the executant. Significantly, this material testimony remained substantially unimpeached in cross-examination.
82Equally significant is the fact that the plaintiff did not specifically plead in the plaint that the thumb impression appearing on the impugned deed was not her’s, nor did she
seek any expert examination either before the trial Court or before the appellate Court. It is a settled principle of civil jurisprudence that evidence cannot travel beyond pleadings. In 46 DLR (HCD) 57 (Shamsul Haque vs. Sarafat Ali), it has been authoritatively held that a party is not entitled to adduce evidence on facts which have not been pleaded. This salutary principle squarely applies to the facts of the present case.
83Likewise, the contention that the matter should now be remanded for obtaining expert opinion is wholly misconceived. The petitioner remained silent throughout the trial and appellate proceedings and never availed herself of the opportunity to seek such examination at the appropriate stage, even after the depositions of the DW4. Having suffered concurrent findings against her, she cannot now invoke the revisional jurisdiction merely to fill up deficiencies in her own case.
84The principle governing remand has been authoritatively settled by the Appellate Division in 53 DLR (AD) 110 (Abdus Sobhan vs. Anwar Rahim), wherein it was unequivocally held that an order of remand cannot be passed for the purpose of
enabling a party to fill up lacunae in the evidence which such party failed to produce before the Subordinate Courts. The same principle was reaffirmed in 7 BLT (AD) 7 (Md. Nazir Hossain Khan vs. Md. Mujal Mollah), wherein their Lordships observed that where the Subordinate Courts have concurrently found that the plaintiff failed to discharge the burden of proving fraud, remanding the suit merely to afford another opportunity to prove the case amounts to total nonapplication of judicial mind.
85These pronouncements of the Appellate Division constitute binding precedents under the doctrine of stare decisis, and this Court is duty-bound to follow the ratio laid down therein. Judicial discipline demands consistency, certainty and predictability in the administration of justice. Unless a binding precedent is distinguishable on facts or has been overruled by a larger Bench, it must be faithfully applied. The facts of the present case fall squarely within the principles enunciated in the aforesaid authorities.
86Furthermore, the Appellate Division in 61 DLR (AD) 116 (Ratna Chandra Dey vs. Jinnator) has categorically held that a
plaintiff is not entitled to obtain a declaration that a registered kabala is false or fraudulent without first establishing his or her own title to the suit property. This principle equally governs a suit for cancellation under Section 39 of the Specific Relief Act. Mere allegations of fraud or impersonation, unsupported by convincing evidence, are insufficient to invalidate a solemn registered instrument.
87Section 39 of the Specific Relief Act, 1877, undoubtedly empowers the Court to cancel a written instrument where the plaintiff establishes that the instrument is void or voidable and its continued existence is likely to cause serious injury. However, the exercise of such jurisdiction is equitable and discretionary.
88A plaintiff seeking cancellation must establish not only a subsisting legal right in the property but also prove, by reliable and convincing evidence, the circumstances rendering the instrument void or voidable, such as fraud, impersonation, misrepresentation, coercion, undue influence or want of authority. Delay in challenging the instrument, the parties' conduct, surrounding circumstances, and the overall equities
of the case are all relevant considerations in exercising such discretion.
89In the instant case, the impugned deed remained unquestioned for nearly seventeen years. During this prolonged period, the plaintiff neither initiated any proceeding challenging the deed nor sought scientific examination of the disputed signature or thumb impression. Such unexplained inaction substantially weakens the credibility of the allegations subsequently advanced before the Court.
90Having independently examined the evidence and the concurrent findings recorded by the Subordinate Courts, I find no perversity, misreading of evidence, non-consideration of material evidence, jurisdictional defect or error of law warranting interference in the exercise of revisional jurisdiction under section 115(1) of the Code of Civil Procedure. The petitioner has failed to rebut the statutory presumption attached to the registered deed, failed to establish the ingredients necessary for cancellation under Section 39 of the Specific Relief Act, and has equally failed to
make out any legal ground justifying remand to obtain an expert opinion at this belated stage.
91Considering the aforementioned facts and proposition of law emerging from the present case, I may, therefore, constrained to hold: Where a plaintiff seeks cancellation of a registered instrument under Section 39 of the Specific Relief Act, 1877, the burden lies squarely upon the plaintiff to establish his or her subsisting title and to rebut, by cogent, reliable and convincing evidence, the statutory presumption attached to the registered document. A litigant who has failed to seek expert examination or adduce necessary evidence before the trial Court or the appellate Court cannot, after concurrent adverse findings, invoke the revisional jurisdiction merely to secure a remand for filling up evidentiary lacunae. Consistent with the binding precedents of the Appellate Division, remand cannot be granted where sufficient evidence already exists on record, and the sole object is to afford a fresh opportunity to improve an otherwise deficient case, if the judgment was not delivered
by a Court not competent to deliver it, or was obtained by fraud or collusion.
92In view of the foregoing discussions, the evidence on record, the applicable statutory provisions and the binding precedents of the Appellate Division, I find no legal infirmity in the concurrent judgments and decrees passed by the Subordinate Courts. The Rule, therefore, fails.
93Accordingly, the Rule is discharged without any order as to costs.
94The interim order, if any, stands vacated.
95Let the records of the Subordinate Courts be transmitted forthwith along with a copy of this judgment.
[ Abdur Rahman, J ]
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