Section-73
In the instant case the court by the impugned order allowed comparison of the disputed signature of the plaintiff on the solenama with the specimen signatures of the plaintiff and the signature of the plaintiff on the registered sale deed dated 23.10.1983. The plaintiff petitioner raised serious objection on the ground that the genuineness of the registered sale deed dated 23.10.1983 was challenged in Title Suit No. 334 of 1992 — Held : Comparison of disputed signature L.T.I cannot be done by the Expert with the said registered document which is not
admitted or proved to the satisfaction of the court.
Dinesh Chandra Deb Vs. Dulal Chandra Karmaker & Ors 9BLT(HCD)-202
Section-73
Opposite party Mossammat Zinnatunnessa categorically denied that she put her thumb impression on each and every page of the alleged deed of gilt—Held : I am of the view that in the facts and circumstances of the case it is better to have an expert opinion as to the execution of thumb impression of the opposite party on the alleged deed of gift. It is true that the expert opinion is not binding upon the court to
decide as to the genuineness of thumb impression so I am of the view that the opposite party will not be prejudiced in any way if the prayer for expert opinion is allowed. Rather, expert opinion enables the court to come to a satisfactory conclusion.
Md. Abdul Hashem Mizi Vs. Most. Zinnatunnessa & Ors. 8 BLT (HCD)-110.
Section-73
It is well settled that Section 73 of the Evidence Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous.
Zohra Khatoon & Ors. Vs. Ekamul Haque Chowdhury & Ors. 10BLT (AD)-171
Sections-74 and 76 read with
Transfer of Property Act, 1882 [IV of 1882]
Section-123
It is the case of the respondent that the deed of gift has been registered. The production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicated that the same has been acted upon. But neither the original deed of gift nor the original lease deed of Dr. Ansari nor any mutation paper nor .any municipal record have been procured toj>rove the claim of the respondent, in view of the aforesaid we hold that the High Court Division misdirected itself in holding that when there was registered deed of gift the respondent has a genuine and strong claim over the property.
Bangladesh & Anr. Vs. Mrs. Shirely Anny Ansar 9BLT (AD)-185
Section-79 and 114
Whether the deed, exhibit-1. Ekrarnama can be held to be not proved for non-examination of the scribe and the other attesting witness.
The exhibit 1, Ekrarnama is a registered deed. So, there arises under Sections-59 and 60 and I 14 (illustration e) of the Evidence Act a presumption that it was duly presented and registered by defendant 3. Such presumption is. however, rebuttable. But no evidence in rebuttal of such presumption was adduced by the defendant I and 2 , Even, they did not take any step to examine defendant 3 who could have come to the court and denied to have executed the Ekrarnama. The Ekrarnama would then have a decent burial.
A licensed deed writer PW-2 on oath testified that the deed was written before him be the scribe. Amir Bux and executed by the defendant 3. The plaintiff also deposed in the same line on the writing of the deed and its execution
Sections-67 and 68 of the Evidence Act provide for proof of signature, handwriting and execution of a deed. Ekrarnama is not required to be attested under the law. Even, then it was attested by two witnesses. Any attesting witness can prove the writing and execution of the deed. The appellate court did neither discard nor disbelieve the evidence of PW-2 Abu Backkar Siddique. i also do not find any reason to disbelieve the evidence on the writing and execution of the Ekrarnama. In view of the law and the evidence as stated above, why the execution of Ekrarnama. exhibit 1 should not be held to have been proved is not understood. So without discarding and or disbelieving the evidence of PW-1 and 2 and considering the relevant laws, the appellate court erred in law to hold that the plaintiff failed to prove the Ekrarnama.
Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238.
Section -85
Regarding authorization —Held: In her testimony, she has also stated that she got written authorization. In cross-examination, she has deposed that her husband lives in Abu Dhabi since before her marriage for last 15 years.
No such authorization was exhibited in the case. Mr. Salauddin however drew our attention to a power of attorney kept in the file and an envelope. We have seen them. It appears to be a power of attorney and type written in Bengali by the typist Dipen Chandra Pal, Judges Court, Noakhali. It does not bear any date. The envelope is also torn and open. The record does not show who opened it. The envelope bears the seal of Sonaimuri dated I 1.10.98. Those were filed in court with a list dated 26.10.98. More important is that the document is not executed before, and authenticated by a notary public nor any representative of our foreign mission in Abu Dhabi. In view of S.85 of the Evidence Act. such a document is not admissible in evidence.
Md. Shah Alam & Abul Kalam & Ors. 10 BLT (HCD)-22.
Section-90
Once such a document more than 30 years old is produced from proper custody Section 90 of the Evidence Act entitles the Court to presume that it is a genuine document.
A.D.C. (Revenue) Vs. Md. Reazuddin PK & Ors 8BLT(AD)-185
Section-90
Exhibit I being supported by exhibit 6 being an age old document of over 30 years. It had pre-sumptive value under Section 90 of the Evidence Act and the Exhibit l (ka). the certified copy of the original sale deed being admitted in evidence without objection in the trial court and as such no objection can be raised at his stage challenging the legality and propriety of the said certified copy of the sale deed. At the same time in the written statement the defendants have taken burden of proof that the certified copy of the sale deed. Exhibit 1 (ka) as forged and fraudulent but the defendants failed to prove the same and as such the certified copy of an old document of over 30 years old having presumptive value under Section 90 of the Evidence Act admissible in evidence. Exhibit l(ka) cannot be thrown out of consideration and rent receipts being filed by the plaintiffs are the collateral evidence of their possession being followed by title.
Md. Sadek Udding Chowdhury & Ors. Vs. Md. Anowarul Haque Chowdhury & Anr. 11 BLT (HCD)-72
Sections-91 & 92
Section-91 of the Evidence Act is about the manner of proof of a document which has been reduced to the form of a document and which is required by law to be reduced to the form of a document. The document itself has to be proved, or where secondary evidence is admissible, secondary evidence of its contents may be proved. The terms of the document cannot be proved by any other mode of proof. The impugned
kabala has been proved under Section-91.
Section-92 of the Evidence Act provides that when a document described in Section-91 has been proved according to Section-91. “no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms.”
Tambia Khatun Vs. Rafiqullha 8BLT(AD)-230
Section-101
Onus of proof – in the instant ease the transferee is a Pir and the transfer is his disciple who is not a well educated woman. In order to make the transfer in this case valid and legal transaction burden of proof that it is so for the reason of the spiritual relationship that grew between the transferor and the transferee in whom the transferor had deed faith lies on the transferee defendant No. 1 (Pir).
Shah Sufi Taj Islam Vs. Begum Rokeya Chowdhury & Anr. 9BLT (AD)-62
Section-101
Onus of Proof—Held : Learned Judge of the High Court Division found fault with the plaintiff for his failure to adduce evidence to show that he either purchased the machineries and spare parts from the market or fabricated the same in his factory. When defendant Nos. 1-5 acknowledged the receipt of the same there was no necessity of adducing evidence to show from whom those were purchased or from where those were fabricated. That was not an issue in the suit. Learned Admiralty Judge misdirectioned himself to enter into such an enquiry unnecessarily When the supply of the machineries and spare parts are admitted by the principal defendants against whom decree has been sought there was no necessity of enquiring about the origin of the same. We are of the view that failure’s of the plaintiff adduce evidence as to from whom those were purchased or from where those were fabricated cannot deprive the plaintiff from recovering the price of the same form the defendant Nos. 1-5.
Md. Giasuddin Vs. M. V. Forum Power & Ors 8BLT(AD)-272
Section-101
Provision of P.O. 149 of 1972— citizenship—suit for declaration that the plaintiff appellant is a citizen of Bangladesh —the trial court dismissed the suit tender conception that the onus was upon the plaintiff according to the provision of P.O. 149 of 1975 to prove that he was a permanent resident of this country in order to entitle him to get a declaration that he was a citizen of Bangladesh and it further held that the plaintiff should have proved that on 25.03.1972 he was in this country left and the trial courts observed that the plaintiff left this country before the liberation war and came back after liberation —Held: the right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that he has given up it and acquired the citizenship of any other country which is very much lacking in this care and the defendant No. 4 Now respondent could not prove that the appellant lost his citizenship of Bangladesh which he had acquired by birth. So the Courts below; illegally shifted onus to prove upon the plaintiff appellant as to his Bangladeshi citizenship which he held and acquired by birth.
Annada Prasad Das Vs. Dy. Commissioner & Ors 9BLT(HCD)-456
Section-103
Onus—deed of sale dated 20.03.1973 in question does not contain any recital which would raise any doubt as to the transaction that it is not an out and out sale. It is the opposite parties No. 1 and 2 who raised the issue and asked the court to read the deed as a transaction of mortgage. They also claimed that opposite party No. 1 on the same date executed in ‘Ekrarnama’ Ext. A agreeing to re-convey the case
land, Only on 28.02.1983. just four months before disposal of the case, opposite party No.1 executed and registered a deed of sale in favour of the said land. Onus is therefore on opposite parties No. 1 and 2 to prove that ‘Ekrarnama’ Ext A is genuine and executed on 20.03.1973 and that the sale deed is not a colourable transaction.
Jahangir Alam Vs. Sri Sailish Chandra & Ors. 9 BLT (HCD)-78
Section-103
Burden of Proof
—Shababuddin Ahmed through whom the defendant got his initial knowledge of the ex parte decree was not examined. The defendant did not examine any witness to prove is definite date of knowledge of the ex parte decree. As we find that summons and registered notices were validly and legally served upon the defendants it was the duty of the defendants to prove his initial date of know ledge of the ex parte decree.
Mrs. Shamsun Nahar Begum Vs. Salauddin Ahemed & Ors 8BLT(AD)-182
Seetion-110
The presumption under section110 in this case would apply only if two conditions arc-satisfied viz that the possession of the person claiming long possession in not prima facie wrongful and secondly the title of the person in this case the plaintiff despondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they are not in possession to the knowledge of the real owner upon denying his title or any kabuliy at or deed of settlement. On the other hand the plaintiff respondent has proved their title by registered kabala executed on 13.11.1974 for valuable consideration. The hits at the root of the claim by the defendant
appellants on the suit land on the basis of long possession since the courts below have disbelieved their claim of title of the suit property. No doubt the defendant appellants’ possession for a long time and by succession remains. But the claim of long possession remains precarious because of the finding of title of the suit land in favour of the plaintiff respondent by courts below.
Sree Mati Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. 11BLT (AD)-87
Section-114(g)
Suit for redemption of mortgage – before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W.1 is the plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation had been given from the side of the plaintiff for his non-examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination of the scribe led to an adverse presumption against the plaintiff of the fact had he been examined he would not have supported the plaintiffs version of the case of mortgage.
Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9BLT(AD)-12
Section-114(g)
Before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. 1 is the Plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation has been given from the side of the plaintiff for his non-examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination of the scribe led to an adverse presumption against the plaintiff to the fact that had he been examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination against the plaintiff to the fact that had he been examined he would not have supported the plaintiff version of the case of mortgage.
Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9BLT(AD)-77
Section-115
Doctrine of Promissory Estoppel
Plaintiff remained in possession over suit property since the year 1968 first as a tenant under Md. Amin and then under the Government as an allotee and plaintiff paid Government including all arrear rents and Government also took decision that the suit property would be sold to plaintiff on the price fixed by it. Equity and natural justice demand that plaintiff is not be deprived of the suit property. Government, thus is very much bound by its promise to sell the property in favour of plaintiff and it cannot now fall back and also cannot say that the suit property would be put to auction—on the strength “Doctrine of Promissory Estoppel” defendant Government is under a legal duty to execute a document of title with respect to suit property on acceptance of the price fixed by valuation committee constituted by defendant Government and the selling of suit property by auction to anybody else otherwise than plaintiff is illegal.
Govt, of Bangladesh Vs. A.S. M. Ferojuddin Bhuiyan 9BLT (HCD)-149.
Section-115 read with
State Acquisition and Tenancy Act, 1950 Section-95 and 95A
The plaintiff attested the Kabala of defendant No. 1, exhibit A(2). The plaintiff explained in his deposition that he put his signature on the request of the defendant and that he thought that the deed was in respect of other land. He also stated that they live as neighbours—by attestation to deed exhibit A(2), the plaintiff cannot be held to have knowledge of the contents of the deed, exhibit A (2) in order to be estopped under Section-115 of the Evidence Act for claiming restoration of the suit and under Section-95 and 95A of the State Acquisition and Tenancy Act, 1950.
Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT(HCD)-238
Burden of proof
In the present case, the material question of waiver by the pre-emptor and refusal to purchase the case land is the material issue—In this case the onus lies on the pre-emptee to prove the case of waiver as because it is the pre-emptie’s assertion that the pre-emptor refused to purchase, when specifically requested to do so before the sale.
Most. Rokeva Begum Vs. Md. Abu Zaher & Ors 8 BLT(AD)-134.
The basic document of Title-doubtful nature
The learned Judges of the High Court Division found that the suit land admittedly belonged to defendant Nos. 1-34. The plaintiffs asserted that they purchased the suit land in auction in Certificate case No. 10168 of 195060 and got possession therein. The plaintiffs produced photocopies of sale certificate and writ of delivery of possession which were not admitted in evidence by the trial court. The lower appellate court, however, accepted the photocopies as additional evidences. The learned Judges of the High Court Division found that the trial Court gave proper reasons for not accepting those photocopies as there was no explanation as to what happened to the original copies of the
sale certificate and delivery of possession and that there was no evidence on record to show that any witness testified that those were the photocopies of the originals. Secondary evidence was wrongly admitted without any cogent explanation. There was no statement in the plaint or in the deposition that the originals were lost or destroyed. Further from the evidence on record it was found by the learned Judges of the High Court Division that plaintiff Nos. 3. 4, 6 and 14 were not born at the time of auction sale and as such the question of auction purchase in the name of unborn person does not arise. The learned Judges themselves also saw the photocopies Ext. 2 and 2a (as marked by lower appellate court) and found that those photocopies were different from those filed in the trial court. The learned Judges or the High Court Division rightly reversed the finding of the lower appellate court. It further appears from the record that the certificate case was started in 1959-60, but the plaintiffs claimed to have purchased the suit land on 16.06.1979 and got possession on 20.02.1981. The sale was set aside by the certificate officer and the lower appellate court did not consider this aspect at all. The basic document of title of the plaintiffs being of a highly doubtful nature the learned Judges committed no illegality in setting aside the Judgment of the lower appellate court and restoring those the trial court.
Kazi Abdul Khaleque & Ors. Vs. Abdul Kader & Ors 8BLT(AD)-150
Prima facie title
The lower appellate Court has rightly noticed that since the defendant admitted that Harish Chandra Mistry was the C. S. recorded tenant of the suit plot being C. S. Khatian No. 272 and plot No. 1689 measuring .57 decimals there was no evidence how Atul Behari, Bhupati Mohan Sarker and Haripada Sarker could be the owners of the suit land. The defendant did not disclosed how the said Atul Behari Sarker, Bhupati Mohan Sarker and Haripada Sarker became the owners of the suit land . D. W. I, could not explain as to how the defendant got the suit land. He has no knowledge about the S. A. recorded tenants and the lower appellate Court has correctly held that in the absence of any evidence it cannot be held that Ami Behari Sarker. Bhupati Mohan Sarker and Haripada Sarker were the owners of the suit land. It is therefore clear from the genealogy of the plaintiffs that the plaintiffs are the successive heirs of the admitted C, S. recorded owner Haris Chandra Mistry and therefore the plaintiffs have proved their prima facie title in the suit land.
Md. Abdul Baten Vs. Vebla Chandra Mistry Moolin & Ors. 11BLT (HCD)-287
Circumstantial Evidence
P.W.4 Abdul Aziz who claimed to be a night-guard in the area of Armenitola and the stated that he saw deceased Akber Shelth and Sultan Ahmed P.W.2 to go together by rickshaw towards Anananda Moyee School. At United Transport Agency, very nar to the place of occurrence he heard the firing sound and saw these two accused Ali Jan and Fazlu. Asad. Nairn and two others running away crossing the wall of Armanitola field. It is not denied that near the place of occurrence there is Armanitola Math having a boundary wall. P.Ws. 14 and 6 have stated that they got this information from p.W.4 in their house and in hospital immediately after the occurrence. All other P.Ws. also heard from P.W.4 that he saw these two accused running away from the place of occurrence-This strong circum-stance lends support to the presence of the accused-persons at night in the plan of occurrence.
Md. Nurul Alam Vs. Ali Jan & Ors. 8 BLT(AD)-23.