IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Surendra Kumar Sinha
Mr. JusticeMd.Abdul Wahhab Miah
Mr. Justice Syed Mahmud Hossain
Mr. Justice Muhammad Imman Ali
Mr. Justice Mohammad Mamtaz Uddin Ahmed
Mr. Justice Md. Shamsul Huda
CIVIL APPEAL NO. 45 OF 2002.
(From the judgment and order dated 24.03.1998 passed by the High Court Division in First Appeal No.55 of 1980).
Nurul Islam Chowdhury …. Appellant.
-Versus-
Morshedul Alam and others …. Respondents.
For the Appellant : Mr. Mahbubey Alam, Senior
Advocate instructed byMr.Md.
Nawab Ali, Advocate-on-Record.
For the Respondents : Mr. Mahmudul Islam, Senior
Advocate instructed by Mr.Zainul
Abedin, Advocate-on-Record.
For the added Respondents: Mr. A.J. Mohammad Ali, Senior
Advocate instructed byMr.Md.
Aftab Hossain,Advocate-on-Record
Date of hearing : 21.6.2011 & 20.7.2011.
J U D G M E N T
SYED MAHMUD HOSSAIN,J: This appeal by leave by defendant-appellant arises out of the judgment and decree dated 24th March,1998 passed by a Division Bench of the High Court Division in First Appeal No.55 of 1980 affirming the judgment and decree dated 24th July,1977 passed by the Second Court of Subordinate Judge (now Joint District Judge), Chittagong in Partition Suit No.03 of 1969 decreeing the suit.
The case of the plaintiffs, in short, is that the suit land measuring 17 drones, 5 kanis, 1 gonda and 1 kara as described in schedules to the plaint originally belonged to Fazal Kabir Khan, who possessed the same in khas. While being the rightful owner-in-possession, Fazal Kabir Khan settled 14 drones of the land with Md. Putan by a registered patta dated 2nd Falgoon, 1308 B.S. and since then he owned and possessed the same. The said suit land was, of course, acquired by Md. Putan in benami of his son Ali Hossain on 01.02.1901 but he was the real ostensible owner of the suit land as it was acquired with his own money and for his own benefit. After sometime, landlord Fazal Kabir Khan forcibly dispossessed Md. Putan from the said land whereupon, Md. Putan filed Title Suit No.142 of 1906 against said Fazal Kabir Khan for recovery of khas possession in the said 14 drones of land out of the suit land on declaration of his title thereto and the said suit was eventually decreed on contest on 18.03.1907. Against the said judgment and decree, Fazal Kabir Khan filed Title Appeal No.161 of 1911 but the said appeal was allowed because of formal defects in the plaint. Md. Putan filed Title Suit No.89 of 1909 impleading Fazal Kabir Khan as the principal-defendant and Ali Hossain as proforma-defendant seeking declaration of title to 14 drones of land and also for recovery of khas possession. The suit was decreed and an appeal being Title Appeal No.161 1911 therefrom by Fazal Kabir Khan was dismissed. During the pendency of the Title Appeal No.161 of 1911, Fazal Kabir Khan transferred his superior interest in the said 14 drones of land and khas interest in 3 drones, 11 kanis, 1 gondas and 1 kara of land out of the suit land to his wife Afza alias Alimannessa by a registered deed of gift dated 18th Magh, 1316 B.S. In this way the right, title, interest and possession of Md. Putan in the 14 drones of land were clearly established. Subsequently, said Afza alias Alimannessa transferred her superior interest in the 14 drones of lands and khas interest in 3 drones, 5 kanis, 1 gondas and 1 kara of land out of the suit land to Md. Putan by a registered kabala dated 10.06.1912. In course of time, Md. Putan executed a power of attorney in favour of his eldest son Ali Hossain for proper management and administration of the suit property as he was unable to look after the property due to his old age. Thereafter, Ali Hossain kot mortgaged the suit property with one Sultan Ahmed Bahaddar on behalf of his father Md. Putan, on the strength of the said power of attorney, in order to save the suit property from auction sale for arrears of land revenue. Subsequently, Md. Putan died in 1919 leaving Ali Hossain, Omar Ali, Ali Akbar, the predecessors of plaintiff Nos.1-3 and defendant Nos.1-6, 8-10, 12-19, 20 and 30 as three sons and Khatija, Johora and Fatema, the predecessor of plaintiff Nos.4-15 and defendant Nos.7 and 1 as three daughters as his heirs and heireses. In this way, each son of Md. Putan acquired 2/9 share and each daughter of Md. Putan acquired 1/9 share in the suit property. Thereafter, Khatija died leaving Ejahar Meah and the predecessor of the plaintiff Nos.11-15 as two sons to succeed her and defendant No.7 as her heirs. After that, Johora died leaving behind plaintiff Nos.6-10 and defendant No.7 as her heirs. Then Fatema died leaving plaintiff Nos.4-5 as her heirs. Thus, the plaintiffs have acquired right, title and interest in 6 drones, 6 kanis and 19 gondas of land out of the suit land by inheritance from Ali Akbar, son of Md. Putan, Khatija, Johora and Fatema, the three daughters of Md. Putan. Omar Ali, son of Md. Putan died leaving defendant No.8 as son and defendant Nos.9-10 and 12 one Mahmuda Khatun as four daughters to succeed him. Thereafter, Mahmuda Khatun died leaving behind defendant Nos.13-14 as hers. Ali Hossain died leaving defendant Nos.15-17 as three sons and defendant Nos.18, 20 and 30 as three daughters and Pear Jan as wife. Defendant No.31 has acquired the share of Pear Jan in the suit land by purchase by a registered kabala. Defendant No.32 acquired the share of defendant No.20 in the suit land by purchase. Thereafter, Ali Akbar died leaving behind plaintiff Nos.1-3 and defendant Nos.1-6 to succeeded him. After the death of Md. Putan, one Makbul Ali created a fradulent and collusive kabala in respect of the suit land from Fazal Kabir Khan. Thereafter, one Elahadad Chowdhury, father of defendant No.21 and the brother’s son of the said Makbul Ali, acquired kot mortgage interest in the suit land from Sultan Ahmed Bahaddar by a registered kabala dated 11.09.1924 on payment of proper consideration and he possessed the suit land in khas as the mortgagee under the heirs and heiresses of Md. Putan through Sultan Ahmed Bahaddar. Makbul Ali acquired no right, title and interest in the suit land by his alleged kabala from Fazal Kabir Khan, who had already transferred his right, title and interest in the suit land to his wife Ruh Afza by a registered deed of gift and said Afza in her turn, transferred her right, title and interest in the suit land to Md. Putan. Although Md. Putan became the absolute owner of 14 drones of land, the names of his heirs and heiresses were not recorded in the R. S. Khatian owing to mistake. The R. S. record was prepared in the names of Ali Hossain and Elahadad Chowdhury as the mortgagees. The R. S. record is evidently wrong and it is not binding upon the plaintiffs. As the aforesaid Elahadad Chowdhury being in possession of the suit property on the basis of purchase and kot mortgage interest of Sultan Ahmed Bahaddar by registered kabala, failed to pay rent for the suit land to the landlords, the suit property was put to auction sale for arrears of rent and the said Elahadad Chowdhury fraudulently auction purchased the suit property in the benami of his uncle Jinnat Ali on 20.05.1931. Thereafter, the said Elahadad Chowdhury created a collusive deed of relinquishment in his favour for the suit land in collusion with his uncle Makbul Ali and Jinnat Ali and as such, Elahadad Chowdhury acquired no right, title and interest in the suit property. Elahadad Chowdhury then created a fraudulent, collusive and void deed of partition in respect of the suit property with some heirs of Ali Hossain on 25.02.1940, following which, one of the heirs of Ali Hossain, filed Other Suit No.13 of 1951 against the heirs of Ali Hosain and Elahadad Chowdhury for redemption of mortgage of the suit property and the said suit was eventually decreed on compromise in terms of a solenama filed by the heirs of late Elahadad Chowdhury and defendant Nos.15-18 in the suit but the plaintiffs were not made parties in the aforesaid suit. The plaintiffs after coming to know about the said decree in Other Suit No.13 of 1951 demanded their shares in suit property from the heirs of Elahadad Chowdhury, following which, the heirs of Elahadad Chowdhury delivered to them possession in 5 drones of land as described in schedules ‘Ka’ to the plaint, out of the suit land, amicably during the middle part of Baishak, 1955. In this way, the plaintiffs have been possessing the ‘Ka’ schedule land in khas since Baishak, 1955 by amicable arrangement with the defendants without any partition by metes and bounds. The plaintiffs acquired right, title and interest in 6 drones, 6 kanis and 19 gondas of land out of the suit land by inheritance from one son and three daughters of Md. Putan to whon the suit land formerly belonged. Thereafter, the other heirs of Ali Hossain, filed Other Suit No.35 of 1954 for cancellation of the solenama and the decree passed in Other Suit No.13 of 1961 against the heirs of Elahadad Chowdhury and others but the said suit was eventually dismissed. Thereafter, the plaintiffs filed Partition Suit No.16 of 1958 for partition of their shares which ultimately abated as some heirs of deceased defendants were not brought on record in time. Under these circumstances, the plaintiffs have been constrained to file this suit for partition for a saham of 6 drones, 6 kanis and 19 gondas of land out the suit land.
Defendant Nos.1-18, 20 and 30 appeared in the suit and filed written statements praying for sahams for 2/3 shares in the suit land but they have not challenged the right, title, interest and possession of the plaintiffs in 6 drones, 6 kanis and 19 gondas of land claimed by them.
Defendant No.21 contested the suit denying the material allegations made in the plaint and contended, inter alia, that Md. Putan and his sons Ali Hossain and Ali Akbar acquired 14 drones of land out the suit land recorded under C. S. Khatian No.217 and R.S. Khatian No.2 by way of settlement from Fazal Kabir Khan in Der-Jote right and possessed the same in khas and then transferred 9 drones and 4 kanis of land out the said 14 drones of land to one Tripura Chowdhury and Prasanna Chowdhury by kot mortgage on receipt of Tk.4000/- and delivered possession of the said property to them. Thereafter the said Md. Putan and his sons Ali Hossain and Ali Akbar transferred 4 drones and 12 kanis of land out of their 14 drones of land to one Suyendra Chowdhury by a kot mortgage on receipt of Tk.600/- and delivered possession thereof to him. After that, Md. Putan, Ali Akbar and Ali Hossain purchased the superior jote right in the said 14 drones of lands and other khas land of the jote. Later, Tripura Chowdhury and Prasanna Chowdhury filed Mortgage Suit No.65 of 1921 for realization of the mortgage money against Ali Hossain, Ali Akbar and other heirs of Md. Putan, which was decreed in preliminary form. One Jinnat Ali purchased the decree of Mortgage Suit No.65 of 1921 from Tripura and Prasanna Chowdhury. Subsequently, Jinnat Ali put the said 9 drones and 4 kanis of land to auction sale which was purchased by Jinnat Ali himself and he went into possession in the suit land on obtaining sale certificate and delivery of possession through Court. Jinnat Ali also auction purchased the land of the entire jote for arrear of rent in Certificate Case No.214 of 1930-1931 and got possession therein and obtained sale certificate and delivery of possession through Court. Elahadad Chowdhury, the father of defendant No.21 acquired the suit land by amicable partition with Jinnat Ali and Mokbul Ali by way of a registered Ewaznama dated 27.01.1933. In the meantime, Jinnat Ali filed Other Suit No.70 of 1929 in the Court of the Munsif at Cox’s Bazar against the heirs of Ali Hossasin, Omar Ali and Ali Akbar in respect of the suit land for recovery of the khas possession in his homestead and obtained decree. Elahadad Chowdhury acquired 4 drones and 12 kanis of land in the suit jote by kot mortgage purchase by registered kabala from Surendra Lal Chowdhury in the benami of one Abdul Rashid. Ali Akbar, Omar Ali and the heirs of Ali Hossain threatened Elahadad Chowdhury to redeem the kot mortgage of the said land following which Elahadad Chowdhury, Omar Ali, Ali Akbar and the heirs to Ali Hossain executed and registered a deed of Ewaznama. By this Ewaznama, Ali Akbar and others relinquished their right to redeem the mortgage in favour of Elahadad Chowdhury. The heirs of Omar Ali and Ali Akbar including their daughters and their heirs acquired 6 drones, 3 kanis, 11 gondas and 1 kara of land by the solenama filed in Other Suit No.13 of 1951 and they relinquished their right, title interest in the remaining portion of the suit land in favour of the heris of Elahadad Chowdhury. It was also contended that he had been possessing 11 drones and 1 kani of land out the suit land, including Khas land by dint of solenama filed in Other Suit No.13 of 1951. The heirs of Ali Hossain filed Other Suit No.35 of 1954 for cancellation of the solenama filed in Other Suit No.13 of 1951 but the suit was dismissed and the order of dismissal was upheld by the appellate Court. It was also contended that the plaintiffs have no right, title and interest and possession in the suit land and as such, the suit was liable to be dismissed.
Trial Court decreed the suit by its judgment and decree dated 24.07.1978 allowing a saham for 37.06 acres of the land to the plaintiffs and for 39.70 acres of land to defendant Nos.3, 1-8, 20 and 30.
Being aggrieved by and dissatisfied with judgment and decree of the trial Court, the defendant preferred First Appeal No.55 of 1980 before the High Court Division and the learned Judges of the High Court Division after hearing the parties by judgment and decree dated 24.03.1998 dismissed the same with costs affirming the judgment and decree passed by the trial Court in preliminary form.
Against the judgment and decree dated 24.03.1998 passed by the High Court Division, the defendant-petitioner moved this Division by filing Civil Petition for Leave to Appeal No.1109 of 1998 and this Division, upon hearing the parties, granted leave on 16.01.2002 resulting in the initiation of Civil Appeal No.45 of 2002.
Mr. Mahbubey Alam, learned Senior Advocate, appearing on behalf of the appellant, submits that the High Court Division on the face of the facts and documents on record as an appellate Court failed to take notice of Exhibit-(M-2), the judgment and decree passed in the appeal being First Appeal No.40 of 1958 and therefore, erred in law in not holding that the suit filed by the plaintiffs was barred by constructive res judicata. He further submits that the plaintiff-respondents herein are taking advantage of Exhibit-(M-2), the judgment and decree passed in First Appeal No.40 of 1958 to prove that the kot mortgage given by Ali Hossain to one Sultan Ahmed Bahaddar was a mere paper transaction and that even Ali Hossain did not sign the mortgage deed. He lastly submits that the plaintiffs’ suit is barred by res judicata as their interest in the suit land was extinguished by the judgment and decree passed in Other Suit No.13 of 1951.
Mr. Mahmudul Islam, learned Senior Advocate, appearing for the plaintiff-respondent Nos.4 (Kha) to 4 (Cha), 6(4) to 6 (9), 7 (Ka), 7 (Gha) to & (Cha), ( (Kha), 12, 13 and 14, submits that the High Court Division came to a definite finding that the plaintiffs were not made parties to Other Suit No.13 of 1951 and as such, they are not bound by the judgment and decree passed in that suit and as such, the question of resjudicata does not arise. He further submits that though the High Court Division did not consider Exhibit-(M-2), the judgment and decree passed in First Appeal No.40 of 1958, the findings arrived at in that appeal are not binding upon the plaintiffs having not been parties to the suit and as such, non consideration of the said Exhibit (M-2) will not affect the judgment delivered by the High Court Division. He also submits that the judgment and decree, Exhibit (M-2) delivered in First Appeal No.40 of 1958 is relevant under sections 13 and 43 of the Evidence Act but its evidentiary value against the plaintiffs is nil.
We have considered the impugned judgment and the papers included in the paper book.
Admittedly, the land described in the schedule to the plaint originally belonged to Fazal Kabir Khan who settled 14 drones of land with Md. Putan by a patta dated 2nd Falgun,1308 B.S. Md. Putan acquired the land in the benami of his son, Ali Hossain. Fazal Kabir Khan dispossessed Md. Putan from the suit land which he took settlement. After that, Md. Putan filed Title Suit No.142 of 1906 seeking recovery of khas possession and the suit was decreed on contest. On appeal by Fazal Kabir Khan, the decree was reversed by dismissing Title Suit No.142 of 1906 for formal defect. Md. Putan filed Title Suit No.89 of 1909 impleading Fazal Kabir Khan as the principal-defendant and Ali Hossain as proforma-defendant seeking declaration of title to 14 drones of land and also for recovery of khas possession. The suit was decreed and an appeal being Title Appeal No.161 1911 therefrom by Fazal Kabir Khan was dismissed. Fazal Kabir Khan transferred his superior interest in 14 drones of land and khas interest in 6 drones, 5 kanies, 1 gonda and 1 kara of land to his wife, Afza alias Alimannessa by a registered deed of gift dated 18th Mugh,1316 B.S.. Alimannessa transferred her superior interest in 14 drones of land and khas interest in 3 drones, 5 kanies, 1 gonda and 1 kara of land out of the suit land to Md. Putan by a registered deed of sale dated 10.06.1912. Md. Putan appointed his son Ali Hossain as an Attorney to look after his property. Ali Hossain kot-mortgaged the suit property with Sultan Ahmed Bahaddar in order to save the property from being auction sold for arrears of rent. The plaintiffs were the successors-in-interest of Md. Putan. R. S. record was prepared in the name of Ali Hossain and Elahadad Chowdhury as the mortgagees that Elahadad Chowdhury was in possession of the suit land on the basis of purchase of kot mortgage interest of Sultan Ahmed Bahaddar and having failed to pay the rent, the property of the suit was put to auction and the said property was purchased by Elahadad Chowdhury in the benami of his uncle Jinnat Ali. After that, Elahadad Chowdhury created a collusive deed of relinquishment in his favour in collusion with his uncle Makbul Ali and Jinnat Ali and thereby Elahadad Chowdhury acquired no right, title and interest in the suit property. Later, Elahadad Chowdhury created a fraudulent deed of partition in respect of the property in the suit with some of the heirs of Ali Hossain and thereupon one of the heirs of Ali Hossain filed Other Suit No.13 of 1951 against the other heirs of Ali Hossain and Elahadad Chowdhury for redemption of mortgage of the suit property. The suit was decreed on compromise. In the said suit, the plaintiffs were not impleaded and the plaintiffs having come to know about the decree passed in Other Suit No.13 of 1951 demanded their shares in the property in the suit and thereupon some of the heirs of Elahadad Chowdhury delivered possession of 5 drones of land out of the land described in schedule ‘Ka’ to the plaint and since middle of Baisak, 1355 B.S. by amicable arrangement with the defendants, they were enjoying the same. Some of the heirs of Ali Hossain filed Other Suit No.35 of 1954 for cancellation of the solenama and the decree passed in Other Suit No.13 of 1951 impleading the heirs of Elahadad Chowdhury and others but the same was dismissed. Against that judgment and decree, the plaintiffs of Title Suit No.35 of 1954 filed First Appeal No.40 of 1958 before the erstwhile High Court Division of Judicature atDhaka. After hearing the parties, the High Court dismissed the appeal affirming the judgment and decree passed by the trial Court by its judgment and decree dated 08.09.1961 (Exhibit-(M-2). The leave was granted to consider the following ground:
Whether the High Court Division on the face of the facts and documents on record as an appellate Court committed an error of law in failing to take notice of Exhibit-(M-2), the judgment and decree passed in the appeal being First Appeal No.40 of 1958 and thereupon erred in law in not holding that the suit filed by the plaintiffs was barred by constructive resjudicata.
The appellant contends that the previous judgment passed by the then High Court of East Pakistan, Exhibit-(M-2), has not at all been considered by the High Court Division in disposing of the appeal before it. The contesting respondents in reply to it stated that the judgment is not at all admissible in evidence and no exception can be taken if the High Court Division has not considered the findings of the judgment, Exhibit-(M-2).
A judgment deciding an issue in an earlier suit between the same parties and their representatives is res judicata as between the same parties and their privies and in such a situation, the judgment is admissible. But in this case, the contesting respondents or their predecessors were not parties to the suit in which the judgment, Exhibit-(M-2) was passed and as such, the said judgment can not operate as res judicata. Section 44 of the Evidence Act provides that the principle of res judicata will not be attracted when it is proved that the earlier judgment was obtained by fraud and collusion.
As a general rule, a judgment not inter parties is not admissible. Judgments, orders or decrees are relevant under sections 40, 41, 42, 43 and 44 of the Evidence Act. The word “Relevant” means and relates to, admissibility only. According to section 40, a previous judgment, order or decree is relevant to bar a second suit, that is, when such a judgment operates as res judicata under section 11 of the Code of Civil Procedure. According to section 41, a final judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, is not only relevant but also is conclusive both against the parties thereto as well as against the rest of the world, that is, it is a judgment in rem as distinguished from a judgment in personam. According to section 42, a judgment is relevant if it relates to any matter of public nature but it is not a conclusive proof of the fact it states. The judgment, Exhibit-(M-2) is not covered by any of these three sections of the Evidence Act. Let us now examine the scope of section 43 of the Evidence Act as quoted below :
“43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.”
Section 43 declares that all judgments, orders or decrees, other than those specified in sections 40, 41 and 42 are themselves irrelevant, that is, not admissible in evidence unless the existence of the judgment or order or decree itself is a fact in issue or relevant under some other sections of Act such as section 13.
There is, however, section 13 of the Evidence Act which makes a judgment not inter parties admissible in evidence to show any transaction by which any right or custom was created, modified, recognized, asserted or denied which is consistent with its existence or to show particular instance in which the right or custom was claimed recognized or exercised, or in which its exercise was disputed, asserted, or departed from; but the findings and the reasonings contained in that judgment are not relevant and cannot be made the basis for the result of the suit. This judgment, Exhibit-(M-2), is admissible under section 13 of the Evidence Act only to show that there was previously instituted another suit in respect of the same properties and nothing more.
In this state of affairs, no exception can be taken to the impugned judgment of the High Court Division when it did not take the judgment, Exhibit-(M-2), into consideration and did not rely on it. In simple terms, it can be said that a judgment is not binding against a person who is not a party to the suit in which it was passed and as such, the said judgment can not be the basis of the judgment in the subsequent suit against such person.
In the case of State ofBiharand others v. Sri Radha Krishna Singh and others, AIR (1983) SC, 684, it was held as under :
“It is now settled law that judgments not inter parties are inadmissible in evidence except for limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the judgment of the suit.”
In the above judgment, their Lordships relied upon and quoted a portion of the judgment in the case of John Cockrane v. Hurrosoondurri Debia (1854-57) 6 Moo Ind App (Moor’s Indian Appeal) 494, which dealt with the question of admissibility of a judgment and observed as follows :
“With regard to the judgment of the Supreme Court, it is plain, that considering the parties to the suit in which that judgment was given, it is not evidence in the present case……… We must recollect, however, not only that suit had a different object from the present, independently of the difference of parties, but that the evidence here is beyond, and is different from, that which was before the Supreme Court upon the occasion of delivering that judgment.”
In the case of Jogendro Deb Roy Kut v. Funindro Deb Roy Kut, (1870-72) Moo Ind App 367 it was held as under :
“If such a suit, as the first suit, was brought here and tried according to the law of this country there could not be a pretence for saying, that the judgment in it was anything like a judgment in rem or that it could bind any but the parties to the suit………. It is sufficient for their Lordships to say, that the judgment pleaded in this case in bar cannot be treated as one of that nature upon any principles, whether derived from the English Law or from the law and practice ofIndia, which can be applied to it.”
In the case of Gadadhar Chowdhuyr v. Sarat Chandra Chakravarty (1940) 44 CWN 935 =AIR 1941Cal193 it was held that findings in judgments not inter parties are not admissible in evidence. The relevant portion of the judgment is quoted below :
“Though the recitals and findings in a judgment not inter parties are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.”
In Kesho Prasad Singh Bahadur v. Bhagjogna Kuer AIR 1937 PC 69, the Privy Council made the following observation :
“Whether based upon sound general principle or merely supported by reasons of convenience, the rule that so far as regards the truth of the matter decided a judgment is not admissible evidence against one who is a stranger to the suit has long been accepted as a general rule in English law.
…………………………………………………………………………….
Their Lordships find themselves in agreement with the observation of Ross, J. :
“The judgment is not inter parties, nor is it a judgment in rem, nor does it relate to a matter of a public nature. The existence of the judgment is not a fact in issue; and if the existence of the judgment is relevant under some of the provisions of the Evidence Act it is difficult to see what inference can be drawn from its use under these sections.”
Serious consequences might ensure as regards titles to land inIndiaif it were recognised that a judgment against a third party altered the burden of proof as between rival claimants, and much ‘indirect laying’ might be expected to follow therefrom.”
This principle was reiterated in the case of Coco-Cola Co. of Canada Ltd., AIR 1942 PC 40, where their Lordships in most categorical terms expressed the view that no judgment which was not inter parties or the one to which neither the plaintiff nor the defendant were parties could be used in evidence for any purpose.
In the case of Kumar Gopika Raman Roy v. Atal Singh and others, AIR 1929 Privy Council 99 held that the Evidence Act does not make finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case where the parties are not same.
In the case of Gobinda Narayan Singh and others v. Sham Lal Singh and others AIR 1931 PC 89, it has been held that the judgment in question is only admissible under the provisions of sections 13 and 43, Evidence Act, as establishing a particular transaction in which the portability of the Pandara estate was asserted and recognized, viz., the partition resulting from the 1793 suit. The reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded, nor can any finding of fact there come to, other than the transaction itself, be relevant in the present case. The judgment therefore is no evidence that Thakur Sib Singh got the Achra villages by partition; it is at most evidence that he might have done so, and this is plainly not sufficient.
The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter parties is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit.
Mr. Mahbub-E-Alam, learned Advocate for the appellants, submits that the appellant in the concise statement stated in no certain terms that the plaintiffs stated that purchase of the mortgagee Elhahadad Chowdhury is for the benefit of the plaintiffs and no title has accrued to him and the interest in the mortgagor is still in existence and that the plaintiffs failed to state when the mortgage was redeemed and as such the suit must fail.
Mr. Mahmudul Islam, learned Counsel for the contesting respondents, submits that the trial Court and the appellate Court addressed the issue in their judgments.
At the outset, it is to be examined whether the appellant can raise any question not covered by the leave granting order.
Order XX Rule 5 of the Supreme Court ofBangladesh(Appellate Division) Rules,1988 provides as under :
“The appellant shall not, without leave of the Court, rely at the hearing on any ground not specified in his petition of appeal and the concise statement.”
From the above Rule, it appears that the appellant may raise any ground at the hearing of the appeal if taken in his concise statement and petition of appeal..
The High Court Division came to a finding that the definite case of the plaintiffs was that the heirs of Elahadad Chowdhury delivered possession in the 5 drones of the suit land as described in schedule ‘Ka’ to the plaint to plaintiff Nos.4-15 in the middle of Baishak,1355 B.S. on their demand and that deed of mortgage was accordingly redeemed and that since then they had been possessing the suit land. This finding of the High Court Division is based on proper appreciation of evidence on record. Therefore, the ground raised in the concise statement of appellant had already been addressed by the High Court Division.
In addition, both the High Court Division and the trial Court on consideration of oral and documentary evidence came to a finding that the plaintiffs have got possession in the suit land.
The learned Advocate for the appellant could not assail the finding of possession. The plaintiffs could not have been in possession of the suit land unless the mortgage was redeemed.
Therefore, the submission of the learned Advocate falls through.
In the light of the findings made before, we do not find any ground for interference with the impugned judgment and decree.
Accordingly, the appeal is dismissed without any order as to costs.
J.
J.
J.
J.
J.
J.
The 21st June,2011
and 20th July,2011.
/Rezaul/