Appellate Division Cases
(Civil)
PARTIES
Abdul Mannan …………………………………………………………..Appellant
-vs-
Tayeb Ali being dead his legal heirs Jahanara Begum & others…….Respondents
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment : 1st March 2006
The Code Civil Procedure ( V of 1908), Section 100.
Decree for specific performance of contract for sale of land.
Findings of criminal court, cannot be considered by the Civil courts save and except the factum of conviction and sentence (8)
The settled law is that indisposing of an appeal from the decree of the lower appellate Court the High Court Division is to adhere to the provision of section 100 of the Code of Civil Procedure and the said Division is not authorized to add or enlarge the grounds as stated in section 100 of the Code of Civil Procedure (11)
Civil Appeal No. 577 of 2001
(From the Judgment and Order dated April 6, 1997 passed by the High Court Division in Second Appeal No. 713 of 1970)
ADVOCATES
Abdul Aziz Chowdhury, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record. For the Appellant .Subash Ch. Saha, Advocate, instructed by Khalequzzaman, Advocate-on-Record… For Respondent No. l(b).Ahsanullah Patwary, Advocate-on-Record For Respondent Nos.l(a) &1 (c)-l(g).
JUDGMENT
1. Md. Ruhul Amin J:- This is plaintiff’s appeal, by leave, against the judgment dated April 6, 1997 of a Single Bench of the High Court Division in Second Appeal No. 713 of 1970 allowing the same upon setting aside the judgment and decree dated March 1st Court of Additional Subordinate Judge 10, 1970 of the, Sylhet in Title Appeal No. 413 of 1969 allowing the same and thereupon decreeing the suit upon reversing the judgment and decree dated August 25, 1969 of the court of Munsif (now Assistant Judge) Sunamganj, Sylhet in Title Suit No. 176 of 1968 dismissing the same.
2. The suit was filed seeking a decree for specific performance of contract for sale of land
. 3. The suit was filed with the averments, inter alia, that the defendant sold the land described in the schedule attached to the plaint on 15th Kartik, 1372 B. S corresponding to November 1, 1965 for a consideration of TK. 500/- that the defendant on that date executed a kabala upon receiving the consideration money and while the same was presented for registration the authority did not register the document since there was no Income Tax Clearance Certificate, that the defendant handed over the kabala to the plaintiff and assured him that he ( defendant) would execute and register the kabala of obtaining the Income Tax Clearnce Certificate, that the defendant did not collect the Income Tax Clearance Certificate and register the kabala and that specified period for getting the executed kabala registered having had lapsed, he (plaintiff) in the middle of Sraban, 1374 B. S called a ‘panchayat’ and there defendant promised to execute a new kabala and to register the same but he did not do the same, that he informed the ‘panchayat’ about the misconduct of the defendant, that 9th on Bhadra, 1374 B. S while plaintiff went to bazar leaving his wife in the hut the defendant and his nephew entered into the hut of the plaintiff and took away the kabala which was executed earlier and that while defendant and his nephew were taking away the kabala plaintiff’s wife raised alarm and thereupon neigbours came and the incident was narrated to them, that on plaintiff’s return from bazar his wife narrated the incident to him and stated names of the persons who came immediately after the incident and the plaintiff inquired of the persons, namely Abdul Hashim, Sarafat Ali and Ayazullay who came immediately after the incident in the house of the plaintiff, about the matter heard from his wife and they stated the fact of taking away unregistered kabala by the defendent which he executed earlier. Over the said incident the plaintiff field a criminal case and the defendant and his nephew we reconvicted and on appeal the conviction was maintained.
4. The suit was contested by the defendant by filing written statement denying the material averments made in the plaint and stating inter alia, that he did not sell the land to the plaintiff on 15th kartik, 1372 B. S. that he neither executed any kabala on receiving any consideration money alleged by the plaintiff nor he got the kabala written by Sarafat Ali, that he never told plaintiff that he would execute the kabala after obtaining Income Tax Clearance Certificate, that no ‘panchayat’ was held in the month of Sraban, 1374 B. S., that on 9th Bhadra, 1374 B. S he and his nephew in the absence of the plaintiff did not take away the kabala and he other papers form his house, that as he did not take away any
kabala from the house of the plaintiff the contention of the plaintiff that the alleged fact of taking away of the kabala by him was seen by Sarafat Ali, Abdul Hashim and Ayzullah his false, that plaintiff along with Abdul Hashim, Ayazullah and Sarafat Ali sought vote in th B. D election and that he having had turned down the request, the plaintiff filed the false criminal case against him that he did not purchase any stamp and also did not give stamp to the scribe, that the kabala was not attested by Jakesh Babu of Sunamganj, that Mofix Ali along with others went to him and requested for casting vote infavour of the plaintiff but he turned down the said request and because of that plaintiff has filed the suit in collusion with Abdul hashim, Ayazullah, Sarafat Ali and others upon making untrue statements.
5. The trial Court on consideration of the materials on record held that the suit is maintainable, that it is difficult to believe that ‘panchayat’ was held, that story of theft of the kabala was a got up story, that in the background of the materials on record it is difficult to believe that the kabala was presented for registration and the same was returned for not filing the Income Tax Clearance Certificate that the evidence of he P. Ws as to settlement of the price of the land said to have been sold by the defendant is discrepant, that attesting witness of the kabala was not examined and finally held that the plaintiff failed to prove his case. On the aforesaid observations and findings the trial Court dismissed the suit.
6. The plaintiff went on appeal. The appellate Court observed that plaintiff in addition to him has examined P. Ws. 3 and 4 for proving the contract for sale of land by the defendant No. 1, that P. Ws. 3 and 4 have supported the plaintiff as regard talk of sale by the defendant, that from the evidence of P. Ws. 1, 3 and 4 it is evident that talk of sale was held 2/3 days prior to the execution of the kabala and that in presence of P. Ws 3 and 4 price was fixed and thus plaintiff has proved the contract for sale between him and the defendant, that P. Ws. 3 and 4 have corroborated P.W. 1 as regard the writing of the kabala and execution thereof, that fact of writing of the kabala in front of the Bank has been proved, that from the evidence of the P. Ws. 1 and 2 it is seen that the kabala was presented for registration before the sub-Registrar but the same was returned since Income Tax Clearance Certificate was lacking that Income Tax Clearance Certificate was necessary as the land was homestead, that fact of calling ‘panchayat’ by the plaintiff has been established by the evidence of P. Ws. 1-6, that P. W. 2 deposed about the fact of taking away kabala by the defendant while the plaintiff was not in his house and P. W. 6 has corroborated P. W 2 about the fact of taking away kabala by the defendant.
7. It may be mentioned the defendant in support of his case alone deposed. The appellate Court has observed that persons taking whom the plaintiff went to the house of the defendant have deposed in favour of the plaintiff and the defendant did not suggest to those persons that they were deposing in favour of the plaintiff as they were inimical to him sicne he declined to honour their request to vote for the plaintiff in the B. D election, that allegation of enmity between the plaintiff and the defendant has not been proved. On the aforesaid observation and findings the appellate Court set aside the judgment of the trial Court and decreed the suit.
8. The defendant went on appeal before the High Court Division. The High Court Division allowed the appeal upon observing “Though both the judgment of the criminal courts were passed during the pendency of the appeal, yet certified copies of the judgments were not placed before the lower appellate court and the certified copies of the judgments are placed today at the time of hearing of this appeal. Be that as it may, findings of criminal court, cannot be considered by the civil courts save and except the factum of conviction and sentence. I have already noticed that the trial Court on consideration of the evidence on record disbelieved the plaintiff’s case of theft. I do not find any reason not to upheld the findings of the trial Court.”
9. Leave was granted to consider the contention that the High Court Division did not decide the case within the scope of the grounds taken or mooted in the memorandum of appeal and that the decision of the High Court Division being virtually on one ground only not taken in the memorandum of appeal, the judgment of the said Division was not in consonance with the law and that has resulted in serious miscarriage of justice in the case, that conviction of the defendant by the criminal court for theft of the kabala which was upheld by the appellate court on appeal taken by the defendant, who if aggrieved could move in further revision before the High Court Division but by not doing so he accepted the verdict of the court as to the theft of the kabala executed by him from the custody of the plaintiff only to frustrate the deal and being conscious of such fact he had not taken any ground in the memorandum of appeal and there being other evidence on record with regard to execution of the disputed kabala and theft thereof by the defendant relied on by the lower appellate court the decision by the High Court Division as to correctness of the judgment of the trial Court, brushing aside other evidence on record was not legal and proper and as such is not sustainable in law, that the decision of the lower appellate court, as the final court of facts being based on proper appreciation of the evidence on record and neither any ground taken in the memorandum of appeal in the second appeal, nor anything been shown that the judgment of the appellate court suffers from non consideration or mis-reading of material evidence, affecting the merit of the decision of the case, the same could not be interfered with under section 100 of the code of civil Procedure and as such the High Court Division acted beyond the jurisdiction in allowing the appeal by setting aside the decision of the lower appellate court taking into consideration virtually only one point which was beyond the memorandum of appeal filed by the defendant without adverting to any other point involved in the case.
10. The appeal as against the judgment and decree whereof leave was obtained and instant appeal has been registered was filed in the light of the provision of Section 100 (new omitted) of the Code of Civil Procedure. The provision thereof was as follows: “100-(l) Save where otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court Division, on any of the following grounds, namely:(a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure
provided by this code or by any other law for the time being in force, which may possible have produced error or defect in the decision of the case upon the merites.” (Sub-section
2 of the section is not necessary for the disposal of the present appeal).
11. The settled law is that indisposing of an appeal from the decree of the lower appellate Court the High Court Division is to adhere to the provision of section 100 of the Code of Civil Procedure and the said Division is not authorized to add or enlarge the grounds as stated in section 100 of the Code of Civil Procedure. In disposing of an appeal filed from the decree of the lower appellate court or in other words while High Court Division is disposing of an appeal preferred against the decree passed in an appeal by a court subordinate to the High Court Division, if the High Court Division in second appeal questions the finding of fact supported by evidence it exceeds its power and so decision of the High Court Division is not sustainable in law in the absence of an error or defect in
procedure, and when there is no error of law or procedure the finding of the appellate Court subordinate to the High Court Division upon the question of fact is final. If the lower appellate court had before it evidence proper in support of the finding, then in disposing of an appeal preferred against the decree passed by a court subordinate to the High Court Division the only question for consideration by the High Court Division is whether there was any evidence proper to support the finding. The jurisdiction of the High Court Division while disposing of the second appeal is confined strictly to question of law and is bound to accept the lower appellate court’s finding of fact if the same is based on proper evidence.
12. If the finding of the lower appellate court is specific, the High Court Division in disposing of the second appeal is not intitled to entertain in question afresh. If there was proper evidence for the finding arrived at by the lower appellate court the High Court Division while exercising jurisdiction under section 100 of the Code of Civil Procedure is not competent to disturb the finding of fact on the view authorized by law or in other words has no jurisdiction to reverse the finding of fact, however, erroneous unless vitiated by some error of law. In the absence of error or defect in procedure the finding of the first appellate court upon a question of fact is final, if that court had before it evidence proper for its consideration in support of the finding and that mere error or defect in procedure is not sufficient for disturbing the finding and decision of the lower appellate court unless it is shown that error or defect has bearing on the decision upon merit. If the finding of the lower appellate court is on misconception of evidence or on mis-reading or misunderstanding of the evidence or there was omission to consider material on record then in the second appeal before the High Court Division the said finding can be attacked. The High Court Division is quite within its jurisdiction in disturbing a finding of the lower appellate court if the said finding of fact of the lower appellate court is vitiated by error of law or that the finding is based on no evidence proper for consideration or that the finding is based on surmises and conjectures or that the finding has been arrived upon discussing of evidence of only plaintiff’s witnesses.
13. It may be mentioned neither the trial Court nor the appellate court has based its judgment on the judgments passed in the criminal cases against the defendant nor the plaintiff relied in any respect on the judgments of the criminal courts in proving its case. The appellate Court in arriving at the finding that there was a talk of sale between the plaintiff and the defendant No. 1 and that a kabala was drawn up and the same was presented for registration but could not be registered because of lack of Income Tax Clearance Certificate relied on the evidence of P. W. 1 plaintiff and the P. Ws. 3 and 4. The appellate court based its finding as to calling of ‘panchayat’ since defendant No.l did not register the kabala within the time fixed by law and that ‘panchayat’ directed the defendant No.l to execute and register fresh kabala on the evidence of P. W. 1 who was corroborated by P.Ws. 3-6. The appellate court below decreed the suit on the basis of the evidence as mentioned hereinbefore.
14. The High Court Division set aside the judgment of the lower appellate court upon observing “I have already noticed that the trial Court on consideration of the evidence on record disbelieved the plaintiff’s case of theft. I do not find any reason not to upheld the findings of the trial Court.” The appellate Court adverted itself to the finding of the trial Court relating to theft of the kabala by the defendant which previously executed and presented for registration but could not be registered because of lack of Income Tax Clearance Certificate and set aside the finding of the trial Court as regard that upon referring to the evidence of P. Ws. 2 and 6.
15. There is nothing in the judgment of the High Court Division that the finding of the lower appellate court as regard the fact of theft of kabala by the defendant was not based on evidence proper and that there was no evidence proper for arriving at the finding by the lower appellate court that the kabala which was executed by the defendant and was presented for registration but could not be registered for lack of Income Tax Clearance Certificate was stolen by the defendant. The jurisdiction of the High Court Division in setting aside the judgment of the lower appellate court is limited to the grounds as in section 100 of the Code of Civil Procedure. From the judgment of the High Court Division it is not seen that the judgment of the lower appellate Court Jt was vitiated by error or defect in the procedure having bearing on the decision upon merit or by error of law. There is also nothing in the judgment of the High Court Division that the findings arrived at by the lower appellate court were not based on proper evidence or in other words was not based on legal evidence or that the findings of the appellate court was based on misconception of evidence or on mis-reading or non-consideration or mis-understanding of the evidence or findings on material points I were made on omission to consider materi-als on record. Above being the position we W are of the view the High Court Division was I in error in setting aside the judgment of the lower appellate court decreeing the suit.
16. The learned Advocate appearing for the Respondent No. 1 (b) and the learned Advocate-on Record appearing for the Respondent Nos. 1 (a) and l(c)-l(g) have contended that the High Court Division has not committed any error in setting aside the judgment of the lower appellate court since the same was passed without reversing the finding of the trial Court. It is seen from the judgment of the High Court division that the said Division set aside the judgment of the lower appellate Court since the trial Court disbelieved the case of the plaintiff as to the fact of theft of the document, which was executed by the defendant earlier. It has already been mentioned hereinbefore the lower appellate court on consideration of the evidence of P. Ws. 2 and 6 arrived at the finding that the kabala, which was executed by the defendant, was taken away from the house of plaintiff when he was not in the house or in other words stolen by the defendant. It may be mentioned the appellate Court considered p. Ws 2 and 6 independent and disinterested witness and also noticed the fact that said witnesses immediately after taking away of the document by the defendant on the cry of the P. W. 2 came at the house of the plaintiff and they along with others tried to apprehend the defendant but could not. In view of the evidence of P. Ws. 2 and 6 we are of the view that the contention of the learned Advocate and the learned Advocate-on-record of the Respondents that the lower appellate court without reversing the finding of the trial Court set aside the judgment of the trial Court and decreed the suit is of no merit. In the background of the discussions made hereinbefore we find merit in the appeal. Accordingly the appeal is allowed. There is no order as to cost.
Source: III ADC (2006) 326.