Appellant Division Cases
(Civil)
PARTIES
Anu Miah and others ……………………………Appellants
-vs-
Gauranga Chandra Sharma and others ……………Respondents
JUSTICE
Mainur Reza Chowdhury. J
Syed J. R. Mudassir Husain. J
JUDGEMENT DATE: 17th April, 2002.
The Evidence Act, Section 73.
The Registration Act, Section 28.
Fazlul Haque vs Noor Mia 12 DLR (HC). 19 DLR.. Barada sundari vs Makhan Chandra Das 6 BLT. Chowdhury vs Chapala Rani 5 BLD (AD).
The court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save.it was the duty of the defendant to get the same proved otherwise by obtaining an opinion of the hand writing expert…………………………. (10)
Civil Appeal No. 41 of 1997 (From the judgment and order dated 4th May, 1995 passed by a Single Bench of the Hiuh Court division in Civil Revision No. 3022 of 1992)
Mel. Amir Hossain, Advocate-on-Recorcl……………… For the Appellants.
Nikilesh Dutta, Advocate, instructed by AKM Shahidul Huq Advocate-on-Record…………For the respondents
JUDGMENT
1. Syed J. R. Mudassir Husain, J :- This appeal by way of leave is from the judgment
and order dated 4-5-1995 passed by the High Court Division making the Rule absolute in
Civil Revision No. 3022 of 1992 upon setting aside the judgment and order dated 17-10-92 passed by the Additional District JudgeCourt, Comilla Allowing the Title appeal No.
284 of 1990 and reversing those of dated 20.10.1990 passed by the learned Assistant
Judge, Sadar Comilla in Tile Suit No. 448 of 1987 decreeing the same.
2. The relevant facts, in brief, are that Debendra Chandra Sharma father of the present
respondents instituted the Title Suit No. 448 of 1987 in the Court of Assistant judge. Sadar Comilla for declaration that the kabala described in the schedule 1,2 and 3 of the plaint are forged, illegal and void etc, and for further declaration of his title to the land described in the schedule lka and 3ka of the plaint stating to the effect that while said Debendra Chandra Sharma had been owning and possessing the land described in l(ka) and l(kha) of the plaint he exchanged schedule l(kah) property on 19.10.82 by registered kabala with that of the defendant No.l’s property mentioned in schedule 3 (ka) of the plaint and got possession in their respective exchanged properties. The defendant no. 1 purchased some lands in the plaintiff’s paternal homestead from the plaintiff’s brotherson Nagendra Chandra Sharma and by constructing hut thereon encroached the plaintiff’s boundary in the said homestead plot that over the said incident a local salish was held, and in that salish defendant no. 1 disclosed that said Debendra Chandra Sharma had sold
the Schedule 1 ka, 1 kha. and 3ka land to them and the plaintiff denied those sales that by the decision of the salishder, the defendants agreed to recovery the scheduled lands but the defendants subsequently refused to do so. Hence, the suit.
3. The defendant respondent Nos.l and 2 the appellants herein contested the suit by filing
joint written statement denying the case of the plaintiff. Their case is that Debendra Chandra Sharma, for the purpose of arranging the marriage of his grand daughter (the daughter of the present plaintiff respondent) had proposed to sale schedule l(ka) property, in the month of Flagon, 1388 B.S at a consideration of Tk. 18000/00 and for the purpose of avoiding preemption and to save stamp duty, he. on the advice of The scribe Ashraf Ali (D.W.3) created an exchange deed on 9.3.82 on receipt of take 18000/00 as consideration money in respect of his schedule 1 (kha) of the plaint that by showing a sham transacting with that of schedule 3 (ka) property of defendant no.l and Debendra Chandra Sharma himself on the same date that is on 9-3-82 executed and got a sale
deed registered at Chandina Sub-Registrar Office in favour of defendant no.2. the wife of
defendant no.l in respect of Schedule 3(ka) property showing a normal price there in.
According to the defendants the transaction in respect of the schedule l(kha) being an out and out sale deed Debendra Chandra did never go into possession in Schedule 3 (kha) property. Their further case is that in Magh 1391 B.S. Debendra Chandra Sharma again proposed to sell schedule l(ka) property to defendant no.l at a consideration of take 35.000/00 for the purpose of arranging the marriage of his daughters daughter and defendant no.l accepted the same. But Debendra Chandra Sarma took a plea that his son Gouranga Chandra Sarma (the present plaintiff respondent) had been objecting to such
sale and he would not go to Chandina for registration of the document and the document
would be registered at Barura Sub-registry office. Accordingly Debendra Chandra Sarma
along with his brother’s son Nikunja Chandra Sarma (D.W.4) had gone to Barura Sub-registrar office wherein he executed and registered the deed on 2.2.86 and also as an exchange deed, as he had done earlier on 9.3.82 with that of schedule l(kha) property. The defendants denied the right, title interest and possession of the the plaintiff in schedule l(ka) and 3(ka) properties.
4. The trial Court decreed the suit and against which petitioners took an appeal and the
appellate court reversed the decision and thereby dismissed the suit.
5. Against the appellate court judgment the plaintiff respondent moved the High Court
Division in revision and rule issued therein was made absolute by a single judge of the High Court Division restoring the judgment and decree of the trial Court by decreeing the suit.
6. The defendant petitioners being thus aggrieved moved this division and obtained the
leave.
7. Mr. Amir Hossain the learned Advocateon-record appearing for the appellants advances his argument that the impugned judgment of the High Court Division is not a proper judgment of reversal inasmuch as the lower appellate court being the final Court ol fact, on consideration of evidence on record particularly considering the evidence of the scribe and the attesting witnesses namely D. Ws 2-4 of the impugned documents,
arrived at a finding that those documents are genuine having been executed by Debendra
Chandra Sharma himself on receipt of consideration money for the transfer in question. It is argued that the learned judge of the High Court Division committed an error of law in not considering the evidence of the those witnesses and wrongly set aside the appellate Court’s judgment by mere comparing the disputed signatures with those of the admitted signatures of said Debendra Chandra Sharma under Section 73 of the Evidence Act which resulted in an error in the decision causing failure of justice in restoring the judgment and decree of the trial Court.
8. Mr. Nikilesh Dutta, the learned counsel, appearing for the plaintiff respondents on the
other hand contended that the trial Court as well as the High Court Division upon careful scrutiny of the materials on record found the disputed signatures as contained in the deeds mention in schedule 1 and 2 of the plaint are not guanine signature of Debendra Chandra Sharma applying the Provision Act, 1972. He argued that Section 73 of the Said act gave ample jurisdiction to the Court to make an investigation by way of comparing any disputed signatures in order to arrive at finding as to the genuineness of the signature or signatures in question and in such view of the matter, Mr Dutta urged before us that the impugned judgment of the High Court Division having based on sound principal of law can not be interfered with. In support of his above contention reference may be made to
the decision in the case of Fazlul Haque-vs-Noor Mia reported in 12 DLR (HC) at page 770 and the decision reported in 19 DLR (HC) at page. 188. The proposition of law decided in those reported case can be found to have been affirmed by a decision of this division in the case of Abdul Matin Chowdhury -vs- Chapala Rani and others reported in 5 BLD (AD) at page 172 where in it has been held as follows: “Comparison of writing or signature with admitted writing or signature is a question of fact and the High Court
Division is not to interfere with the conclusion of the First Appellate Court on such question. It is now well settled that comparison of Signatures is a perfectly legal mode of proving hand Writing and however inconclusive such proof may be it cannot be considered as an error of law to base a conclusion on such proof alone, and a Court of second appeal is not competent to set aside a finding based on such comparison.”
9. Drawing analogy of the aforesaid decision and also on the point shifting the onus Mr.
Dutta emphatically argued that when the plaintiff totally denied the alleged signatures and execution of the two disputed deeds then the onus was then sifted to the defendant appellants to prove the same otherwise by an expert opinion which the appellants had failed to discharged. In elaborating his above submission, Mr. Dutta also pointed out that the trial Court itself compared the allege signatures of Debendra Chandra Sharma appearing in the alleged subsequent two deeds registered at Barura Sub Registry office in the year of 1986 along with his admitted signatures in the previously executed and registered deeds in the year of 1982 in the Sub-registry office Chandina and the trial Court committed no illegality in holding that the signatures of Debendra Chandra
Sharma in the aforesaid subsequent deeds register in the office of the Sub registry office
Barrera in the year of 1986 are gorged and fabricated and same are not actual signatures of Debendra. We fined Substance in the argument of the learned counsel in view of the materials on record.
10. Mr. Nikelish Dutta further pointed out that the court of appeal below although accepted the correct proposition of law as regard the authority of the court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save. Mr. Dutta contended that the above finding of the appellate court can not be accepted because of the fact that when alleged signatures are denied
by the plaintiff then it was the duty of the defendant to get the same proved otherwise by
obtaining an opinion of the hand writing expert but in this case the defendant appellant did not take any such step and this aspect of the case has been missed by the Court of appeal bellow as regards the shifting of onus upon the defendant. In such view of the matter the argument of Mr. Nikilesh Dutta is to the effect then the High Court Division in its revisional jurisdiction rightly concurred with the findings and decision of the trial court and rightly reversed the judgment of the lower appellate court although the same is a final court of fact in as much as the lower appellate court failed to apply his judicial
mind and wrongly inteipreted the provisions of section 73 of the Evidence Act. We therefore hold the above finding of the appellate court cannot be sustained in law in the facts and circumstances of the case.
11. Mr Nekilesh Dutta. the learned Counsel, next contended that the disputed land are admittedly situated within the jurisdiction of sub registry office of Chandian and Debendra Chandra Sharma admitted his signatures in the two deeds which were executed and registered himself in the year of 1982 in the office of Chandian Sub registry office but he (Debendra Chandra Sharma) denied his alleged signatures of the two subsequent deeds as contained in schedule 1 and 2 of the plaint which were registered at Baruara Sub-registry Office in the year of 1986. Mr. Dutta therefore argued that the Sub-Registry office of Baruara had not legal jurisdiction and authority to registered documents as
contained in the schedule 1 and 2 of the plaint since the land in question is situated with in Chandian Sub-Registry Office.
12. In this connection Mr. Dutta has cited a decision of the single judge of the High Court
division in the case of barada sundari vs Makhan Chandra Das reported in 6 BLT at page
210. We have read the said decision and found that above cited decision is applicable in the instance case under the facts and circumstances of the Case.
13. Mr. Amir Husain. the learned Advocate had however tried to argue that mere registration of the lands situated with in one sub register officer if registered in another sub registry office beyond jurisdiction will not be vitiated the subsequent deeds.
14. Having regard to the facts of the instant case we are of the view that section 28 of the
Registration Act has been violated and as such the registration of the subsequent deeds in the sub Register office of Barura in the year of 1986 can not but speak something fishy and it leads a presumption of fraudulent Act of the party concerned and we hold that aforesaid two deeds in question are illegal in the eye of law.
15. We have read the impugned judgment of the High Court Division and considered the
submissions of the learned Counsels of both the parties in view of our above discussion and regard being to the facts and circumstances of the case, we are fully in agreement with the findings and decisions as arrived at by the High Court division. In the result, we find no merit in this appeal and it is dismissed without any order as to cost.
Ed
Source: I ADC (2004), 462