High Court Division · Civil Revisional Jurisdiction
Siddique Ara Begum and others v Fazle Rashid Chowdhury and others
Civil Revision 4837/2003 · Rule made absolute; trial decree affirmed · Decided 19 August 2026
The plaintiffs brought Other Suit No. 55 of 1994 in Anwara, Chattogram for declaration of title and confirmation of possession of land recorded in the R.S. khatian in the name of Foizunnessa, claiming it through amicable partition among her heirs and alleging that the later P.S. and B.S. khatians were wrong. The contesting defendants said Foizunnessa had gifted the land to her daughter by an unregistered deed of 28.01.1931, and that the daughter's heirs sold it in 1991 to defendant No. 14. The trial court dismissed the suit; the Additional District Judge, Court No. 6, Chattogram reversed, finding the gift deed not proved. On the Rule obtained by the heirs of defendant No. 14, the High Court Division held that the plaintiffs had not denied the gift, that the old deed, exhibited from proper custody without objection, was presumed executed under section 90 of the Evidence Act, 1872, and that the records showed it was acted upon. It set aside the appellate decree and affirmed the trial court's decree.
- Whether an unregistered deed of gift of 1931, exhibited without objection, was proved by the presumption under section 90 of the Evidence Act, 1872.
- Whether the appellate court rightly reversed the trial court's dismissal of a suit for declaration of title and confirmation of possession.
- A deed more than thirty years old produced from proper custody, whose executant, writer and witnesses are dead, carries a presumption of due execution under section 90 of the Evidence Act, 1872.
- A party who raised no objection when a deed was marked as an exhibit is not entitled to object to its execution at the appellate stage.
- Khatians are not the basis of title but have presumptive value as to possession, and the recording of later khatians in the donee's name showed that the gift deed was acted upon.
- As the plaintiffs did not deny execution of the gift deed, the donor's other heirs did not inherit the land and the trial court rightly held the suit under section 42 of the Specific Relief Act not maintainable.
- The appellate court's reversal, made without reasons on maintainability and without any finding on the plaintiffs' possession, suffered from misreading and non-reading of evidence occasioning failure of justice.
Since no objection was raised by the plaintiffs at the time of marking the deed dated 28.01.1931 as exhibit, the plaintiffs were not entitled to raise objection as to the execution of the said deed at the appellate stage.
