Appellate Division Cases
(Civil)
PARTIES
Government of the People’s Republic of Bangladesh Represented by the Deputy Commissioner, Rajshahi and others ……….Appellants
-VS-
Md. Abdul Jabbar Sheikh …………………..Respondent
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 6th July 2006
The Code of Civil Procedure, Order 6, Rule 4. AIR 1977 SC 615
For mandatory injunction directing the defendants to execute and register the sale deed …….. (1)
The moot question is whether a Court is competent upon scrutiny of the materials placed on record by the parties, genuineness of which was not challenged by either of the parties, to arrive at a finding as to the genuine character of a document so relied upon by either of the parties in respect of their respective claims and thereupon making decision discarding the document of one of the parties as not being genuine and decreeing the suit in favour of the other party or in other words when in the pleading of the defendant there is no allegation as to the non-genuineness of the document of the plaintiff on the basis of which the plaintiff claiming the subject matter of the suit, as in the instant case land in suit. There is no allegation from defendants’ side as to the non-genuineness of the documents of the plaintiff and that also no evidence was lead from the side of the defendant to show that the document placing reliance upon which the plaintiff is claiming the subject matter of the suit in not genuine, the question is in such a situation whether the court is precluded from making decision in the background of the result of the scrutiny of document or documents of the plaintiff by the Court and thereupon refusing the relief sought by the plaintiff on the finding that the document relied upon by the plaintiff was not genuine. In our view if there is no pleading from the said of the defendant alleging the non-genuineness of the document on the basis of which plaintiff is claiming the relief in the suit the Court has a duty in the interest of justice to scrutiny the document (s) relied upon by the plaintiff and if on such scrutiny the Court notices elements in the document that makes the same non-genuine, in the instant case as noticed by the appellate Court and stated hereinbefore, then in that situation the Court inspite of the absence of the pleading of the defendant as to the non-genuineness of the document of the plaintiff is quite competent to make its decision on the basis of the result obtained upon scrutiny of the document i.e. if on scrutiny document of the plaintiff is found not genuine the Court is competent to make its decision as against the plaintiff since his documents on which he based his claim not genuine …………… (15)
When the plaintiff is seeking relief on the basis of certain document/documents as to which from the defendant’s side no allegation of mis-representation, fraud, breach of trust, willful default or under influence has been alleged, but the Court of arriving at the decision as to the relief sought in the suit either in the affirmative or in the negative while scrutinizing the document on the basis of which relief has been sought in the suit and in the corse of such scruting noticed the fact which makes the document/documents, which is/are the basic document (s) of the plaintiff, non-genuine or in other words fabricated by dismissing the suit, in such state of the matter, in our view, finding arrived at the decisions made by the Court would not be unsustainable ………….(17)
Zainal Abedin, Deputy Attorney General, instructed by B. Hossain, Advocate-on-record………….For the Appellants
Abdus Salam Khan, Senior Advocate, Instructed by Ahsanullah Patwary Advocateon- record…………….. For the Respondent
JUDGMENT
1. Md. Ruhul Amin J: The appeal by the defendant by leave is directed against the judgment dated December 3, 1998 of a Single Bench of the High Court Division in Civil Revision No. 2824 of 1997 making absolute the Rule obtained against the judgment and decree dated March 27, 1997 of the 5t h Court of Additional District Judge, Rajshahi in Title Appeal No. 81 of 1997 allowing the same upon reversing the judgment and decree dated March 25, 1995 of the Court of Senior Assistant Judge, Rajshahi in Title Suit No.
220 of 1994 decreeing the same. The suit was filed seeking declaration that the order dated May 30, 1994 passed by Additional Deputy Commissioner (Revenue), Rajshahi in
Exchange Case No. 342 of 1993-94 was null and void, illegal and for mandatory njunction directing the defendants to execute and register the sale deed (in respect of the ‘ka’ schedule land in the light of the exchange deed) in favour of the plaintiff by the defendants in respect of the land in suit and for recovery of possession upon eviction of the lessees of the defendants.
2. The suit was filed stating, inter alia, that the land in suit (ka schedule land) belonged to
Amioyo Nath Sarker and other sons of Anadi Nath Sarker, that the said owners during the communal disturbance of 1961 left the erstwhile East Pakistan and went to Murshidabad,
West Bengal, India, that plaintiff was the resident of village shib Nagar, Police Station
Dom Kola in the district of Murshidabad and because of the communal riot of 1961 he exchanged his Indian property described in schedule property, that the plaintiff executed the exchange deed in respect of this Indian property on November 27, 1962 and in return thereof plaintiff got the ‘Ka’ schedule property in the then East Pakistan, that Amioyo Nath Sarker and others, the owners of the ‘Ka’ schedule property, executed and registered a power of attorney on November 27, 1962 appointing the plaintiff as their constituted for execution and registration of a kabala in respect of the ‘Ka’ “Schedule property belonged to Amioyo Nath Sarker and others. The plaintiff filed Power of Attorney before the prescribed authority for authentication and the Power of Attorney was authenticated on
December 31, 1962, that war having had broken out in 1965 between India and Pakistan and as such embargo was put on the registration of the exchange deed of the migrant from India, that in 1968-69 the said embargo having had withdrawn the plaintiff on April 17, 1970 filed the exchange deed before the Deputy Commissioner, Rajshahi and thereupon decision having not been made by the authority the plaintiff again on February 11, 1994 filed an application as reminder to the authority for completion of the registration to the authority for completion of the registration of the exchange deed and thereupon Exchange case No. 342 of 1993-94 was initiated in the office of the Additional Deputy Commissioner, (Revenue) Rajshahi (Respondent No.3), that the Additional
Deputy Commissioner sent the matter for inquiry to the Assistant Commissioner (land),
Rajshahi and he submitted his report on February 27, 1994 and the defendant No.3 also obtained the opinion of the Government Pleader who gave his opinion to the effect that the exchange deed was genuine, that the defendants before finalization of the exchange case leased out the land to different persons, that finally by the order dated May 30, 1994 the Respondent No.3 rejected the application for registration of the exchange deed on the ground that plaintiff did not file any application for regularization of the exchange deed before July 30, 1970, that .14 acre of land of S.A. Plot No. 3313 has been transferred upon regularization of Exchange Case No. 35/Sadar/1969-70 and the revenue in respect thereof has been prepared in the name of the son of the man in whose favour exchange cases, that the signature of the attorney appears to be doubtful and that the seal affixed can not be accepted as genuine, that Abdul Zabbar has no possession in the claimed exchanged land and that has prayed for regularization of the exchange deed after 32 years and that he has not made any objection when the land leased out treating the same as vested property and that also did not make objection when the other exchange case was regularized. As against (Revenue) rejecting the plaintiff’s prayer for regularization of his exchange as regard the land of the ‘Ka’ schedule property he filed the aforementioned suit seeking the reliefs as stated hereinbefore.
3. The suit was contested by the defendant by filing written statement denying the material averments made in the plaint and stating, inter alia, that the original owners Amioyo Nath Sarker and others of the ‘Ka’ schedule property left the then East Pakistan for India and the said property was declared enemy property and thereafter non-resident and vested property and as such the said land has vested in the Government, that R.S. record has been prepared in the name of the Government, that the Exchange deed and Power of Attorney are forged, fraudulent and fabricated and the said documents are ante-dated documents, that the land being the vested property has been leased out to different persons and the lessees are in possession, that plaintiff has no right, title and possession in the land in suit, that to grab the Government’s property has filed the suit making untrue statements as well as on the basis of manufactured papers and as such the suit is liable to be dismissed.
4. The trial Court decreed the suit on the findings that no evidence has been lead from the defendants’ side to discard the evidence produced from the plaintiff’s side as to the signature and seal of the proper officer in the Power of Attorney, that defendant No.3 passed the order on untenable grounds, that no evidence has been lead from the side of the defendants to establish the basis of the grounds, particularly grounds ‘Ka’ and “Kha’ in rejecting the Exchange Case by the order dated May 30, 1994, that the Government Pleader gave his opinion as to the genuineness of the Exchange deed but the defendant No. 3 without obtaining the second opinion rejected the opinion of the Government Pleader, that in support of the contention of the defendants that the Government has leased out the property in suit upon treating the same as vested property in suit upon treating the sale as vested property has neither produced the record of the V.P. Case nor has examined any witness, that the defendant No.3 has disposed of the Exchange case without application of judicial mind as well as not from the judicial point of view, that the suit is not barred by limitation, that by the materials on record as well as the evidence,
both oral and documentary lead from the side of the plaintiff, he has proved his case.
5. The reasons, particularly the reasons recorded as ‘Ka’ and ‘Kha’, in the background whereof defendant No.3 dismissed the Exchange case are quoted below: (Bangla)
6. The defendants went on appeal. The appellate Court on scrutiny of the Power of
Attorney and the Exchange and the Exchange deed (certified copy) found those not genuine. It may be mentioned the plaintiff at no point of time filed the original Exchange deed before the Deputy Commissioner to whom application was filed for regularization of the Exchange said to have been made with the owners of the property described in schedule ‘Ka’. The appellate court while allowing the appeal held that there is no reliable evidence that plaintiff applied for regularization of Exchange on. 17.4.1970, that the order dated 30.5.1994 does not suffer from any illegality, or the same is also not against the materials on record, that plaintiff has failed to prove his case. Thereupon the plaintiff moved the High Court Division in revisional jurisdiction. The High Court Division made the Rule absolute on the findings that plaintiff exchanged his land in Indian described in schedule ‘Kha’ with the land described in ‘Ka’ schedule (land in Bangladesh) but because of the war of 1965 embargo having had put in regularization of the Exchange case like that of plaintiff and in 1968-69 embargo having been withdrawn the plaintiff filed petition in 1970 before the Deputy Commissioner accompanying the Exchange deed for regularization of exchange by way of registration of the Exchange deed and thus in the background of the documentary evidence as well as the circumstance “it appears that it is real and genuine case of exchange and the lower appellate Court misconstrued and misinterpreted the documentary evidence. The trial Court in details considered the oral and documentary evidence adduced in the this case and then decreed the suit in favour of the plaintiff. The High Court Division absolute also observed that the Government treated the land in suit i.e. ‘Ka’ schedule land as vested property and thereupon by evicting the plaintiff leased out the same to different persons, but “The plea of Government is not at all tenable in law in view of the exchange deed and Power of Attorney of the year 1962 which was executed and registered by the Hindu migrants in India”, that the judgment of the lower appellate Court because of the evidence on record “is not a proper judgment of reversal, rather it is a case of misconstruction and misinterpretation of the evidence on record “.
7. It may be mentioned it was never the case of the plaintiff that the defendant upon treating the property as vested property evicted him and thereupon leased out the land to different persons. It may also be mentioned that the implanted and internal evidence, as noticed by the appellate Court in the Power of Attorney and the Exchange deed and whereupon the said Court arrived at the definite finding that the said two documents are not genuine, are that the writing of the said documents were removed by using chemical or through chemical process and thereupon the present writings were inserted was not at all addressed by the High Court Division and the finding made, in the afore state of the matter, by the appellate Court was also not aside. It may also be mentioned that the finding of the appellate Court the plaintiff for the last 32 years is not in possession of the land was also not set aside, rather the High Court Division making out a case, which was not the case of the plaintiff i.e. that defendants evicted the plaintiff from the land in suit and thereupon leased out the same treating the land in suit as vested property, addressed the question of possession and dispossession of the parties.
8. Leave was granted to consider the contentions that the Court of appeal below being the final Court of fact having had dismissed the suit on due consideration of the materials on record, the High Court Division sitting in revisional jurisdiction was in error in setting aside the findings of fact so arrived at by the appellate Court, that plaintiff having had filed to make out a case that he acquired title in and obtained possession of the land in suit as found by the Court of appeal below the High Court Division ought not have reversed the judgment and decree of the lower appellate Court and thus erred in law in making the Rule absolute.
9. The learned Deputy Attorney General has submitted that High Court Division making out a 3rd case of dispossession by the appellant and thereupon leasing out the land made the Rule absolute. It may be mentioned it was never the case of the plaintiff that while he was in possession the Government dispossessed him and thereupon leased out the property in suit treating the same as vested property. It may be mentioned the case of the evasive one. The appellate Court on consideration of the facts and circumstances of the case held that although plaintiff claiming the land on the basis of exchange plaintiff claiming the land on the basis of exchange deed, but he had no possession in the land said to have got by exchange. It needs to be mentioned that the trial Court did not arrive at any definite finding as to possession of the plaintiff since the said Court proceeded on the presumption that plaintiff in exchange of his Indian property got the property in schedule ‘Ka’ and that defendant did not produce any evidence in support of his case that the land in suit has been leased out and the lessees are in possession. The learned Deputy Attorney General has also submitted that High Court Division while making the Rule absolute did not at all addressed itself to the findings and decisions of the appellate Court as to the character of the document i.e. certified copy of the exchanged deed and the power of attorney and thus was in error in setting aside the judgment of the appellate Court.
10. The appellate Court on scrutiny of the petition said to have filed on April 17, 1970 by the plaintiff seeking regularization of the alleged exchange and also the certified copy of the exchanged deed (original of the exchange deed at no point of time was placed before the Court) and the power of attorney observed “(Bangla)
11. The lower appellate Court having had noticed the aforesaid fact relating to the application dated 17.4.1970, the Power of Attorney and the exchange deed arrived at the finding that defendant No.3, Additional Deputy Commissioner, Rajshahi had quite legally rejected the plaintiff’s prayer for registration of the exchange deed.
12. The learned Counsel for the Respondent has submitted that the lower appellate Court was in serious error in entertaining doubt about the genuineness of the papers upon which plaintiff relied in support of his claim in the land in suit and for a decree in the suit since it was not in the pleading of the contesting defendant that plaintiff’s documents are not genuine, or in other words it was not the case of the defendants in their pleading as per provision of Order 6, Rule 4 of the Code of Civil Procedure i.e. the statement as to particulars of the fact as regard non-genuineness of the document of the plaintiff. It has also been submitted by the learned Counsel for the Respondent that since the facts noticed by the appellate Court as regard the petition dated 17.4.1970, the Power of Attorney and the exchange deed dated 27.11.1962 were absent in the pleading of the defendants and as such the appellate Court was not legally competent to take into consideration the said fact to make finding as to the genuineness of the document of the plaintiff and thereupon reversing the judgment of the trial Court. The learned Counsel continues that the lower appellate Court should have given weight to the report of the Assistant Commissioner (land) and the opinion of the Government Pleader as regard the claim of the plaintiff, that as there was no statement as to fraudulent nature of the documents of the plaintiff in the written statement, the appellate Court because of the provision of Order 6, Rule 4 of the Code of Civil Procedure and in the light of the decision reported in AIR 1977 SC 615 was in error in setting aside the judgment of the trial Court and thereupon dismissing the suit, that the judgment of the appellate Court was not a proper judgment of reversal since findings and decisions of the trial Court as to the ground upon which the defendant No.3 rejected the prayer of the plaintiff for regularization of the exchange were made due consideration of facts on record but the appellate Court did not reversed the said finding. The learned Counsel lastly submitted that from the appellant’s side submission has been made in support of the appeal beyond the leave granting order and as such the submissions so made merit no consideration.
13. The last submission, in our view, is of not merit since leave was granted to consider the contention that the final Court of fact upon due consideration of the materials on record having had dismissed the suit the High Court Division exceeded its jurisdiction sitting as revisional Court in setting aside the finding of the appellate Court without adverting to the facts considered by the lower appellate Court and the findings arrived at. It may also be mentioned that the leave was granted to consider the contention that the plaintiff having failed to make out a case that he acquired title in and possession of the land in suit as found by the lower appellate Court the High Court Division in its revisional jurisdiction upon observing in general that the lower appellate Court “misconceived and misinterpreted the documentary evidence on record” was in error in reversing the judgment of the lower appellate Court.
14. The learned Counsel for the Respondent while assailing the judgment of the appellate
Court submitted that the fact noticed by the appellate Court relating to the nature and character of the document by the provision of Order 6, Rule 4 of the Code of Civil
Procedure by the defendants in their pleading the appellate Court should not have taken into consideration the fact so noticed while making the judgment. In support thereof the learned Counsel has referred to the case of varanasaya Sanskrit Vishwavidyalaya and another Vs. Dr. Rajkishore Tripathi and another reported in AIR 1977 SC 615 wherein it has been observed “We, however, think that the first appellate Court had much too lightly believed that the plaintiff-appellant had been a victim of some kind of fraud, when no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI, Rule 4, Civil Procedure Code We do not think it is enough to state in general terms that there was “collusion” without more particulars”. In the aforesaid case reliance was placed on the observation made in the case of Bishundeo Vs. Seogeni Rai reported in AIR 1951 SC 280 wherein it was observed “General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, and the same applies to under influence and coercion.”
15. The proposition of law enunciated in the reported cases can hardly be disputed or any other view can hardly be taken. In the background of the fact of the instant case the moot question is whether a Court is competent upon scrutiny of the materials placed on record by the parties, genuineness of which was not challenged by either of the parties, to arrive at a finding as to the genuine character of a document so relied upon by either of the parries in respect of their respective claims and thereupon making decision discarding the document of one of the parties as not being genuine and decreeing the suit in favour of the other party or in other words when in the pleading of the defendant there is no allegation as to the non-genuineness of the document of the plaintiff on the basis of which the plaintiff claiming the subject matter of the suit, as in the instant case land in suit. There is no allegation from defendants’ side as to the non-genuineness of the documents of the plaintiff and that also no evidence was lead from the side of the defendant to show that the document placing reliance upon which the plaintiff is claiming the subject matter of the suit in not genuine, the question is in such a situation whether the court is precluded from making decision in the background of the result of the scrutiny of document or documents of the plaintiff by the Court and thereupon refusing the relief sought by the plaintiff on the finding that the document relied upon by the plaintiff was not genuine. In our view if there is no pleading from the said of the defendant alleging the non-genuineness of the document on the basis of which plaintiff is claiming the relief in the suit the Court has a duty in the interest of justice to scrutiny the document (s) relied upon by the plaintiff and if on such scrutiny the Court notices elements in the document that makes the same non-genuine, in the instant case as noticed by the appellate Court and stated hereinbefore, then in that situation the Court inspite of the absence of the pleading of the defendant as to the non-genuineness of the document of the plaintiff is quite competent to make its decision on the basis of the result obtained upon scrutiny of the document i.e. if on scrutiny document of the plaintiff is found not genuine the Court is competent to make its decision as against the plaintiff since his documents on which he based his claim not genuine. In this Connection we may refer to a situation where an ex-parte decree is passed by the Court either the defendant has not entered by the Court either the defendant has not entered appearance or on the date of hearing defendant defaulted, as seen from the reported casess, particularly from the case of Bangladesh Vs. Abdul Wadud and others reported in 25 DLR (SC) 90 wherein it is seen that the Court is required to pass a decree when the plaintiff establishes its claim and that merely because of the absence of the defendant the Court is not absolved from the duty “to examine as to whether the plaintiff’s claim is based on legal process”. It has further been observed in the aforesaid case “The Court is bound to apply its mind with reference to the pleadings and satisfy itself as to what should be the proper proof for passing a decree on the basis of the averments made in the plaint”.
16. The provision of Order VI, Rule 4 of the Code of Civil Procedure requires a party to give the particulars of fraud, breach of trust, mis-representation, willful default or under influence when he seeks relief on making allegation any one of those or more than one of the said matters so that other party against whom any one or more than one of the allegations as stated hereinbefore is made can meet the said allegation or can make replay to the said allegation when the party against whom the allegations have been made goes to the contest of the litigation. The object of the provision of Order VI, Rule 4 of the Code of Civil Procedure is that the opponent against whom one or more than one of the allegations as stated hereinbefore while made is not taken to surprise when he at the trial contest the claim of the party who alleging the one or more than one of the aforementioned situation against his opponent is seeking the relief. The law requires the parties who make the one or more than one of the aforesaid allegations against his opponent to give the particulars since the particulars thereof is known to him.
17. The situation is different when the plaintiff is seeking relief on the basis of certain document/documents as to which from the defendant’s side no allegation of mis-representation, fraud, breach of trust, willful default or under influence has been alleged, but the Court of arriving at the decision as to the relief sought in the suit either in the affirmative or in the negative while scrutinizing the document on the basis of which relief has been sought in the suit and in the course of such scruting noticed the fact which makes the document/documents, which is/are the basic document (s) of the plaintiff, non-genuine or in other words fabricated by dismissing the suit, in such state of the matter, in our view, finding arrived at the decisions made by the Court would not be unsustainable because of the provisions of Order VI, Rule 4 of the Code of Civil Procedure as contended by the learned Counsel for the Respondent since infirmities in the document of the plaintiff on the basis of which he sought for the relief in the suit was detected by the Court when it was scrutinized the document of the plaintiff for arriving at a decision as to the relief sought in the affirmative or in the negative. As stated hereinbefore that the appellate Court on scrutiny of a documents i.e. certified copy of the exchanged deed (original of the exchange deed was not filed in Court), the Power of Attorney and the petition dated 17.4.1970, which plaintiff said to have filed seeking regularization of his exchange deed found those papers fabricated and the appellate Court has assigned reason for considering the said documents as fabricated. The appellate Court arrived at the said finding on scrutiny of the documents in the background of the claim of the plaintiff in the land in suit and the relief sought on the basis of the said papers. The High Court Division while reversing the judgment and decree of the appellate Court did at all not advert itself to the finding of the appellate Court as regard the nature on the documents, mentioned hereinbefore, i.e. fabricated. The finding of the appellate Court was based on the fact noticed by it while scrutinizing the documents of the land in suit and sought for the relief as regard the land so claimed. The reasons assigned by the appellate Court was also not set aside by the High Court Division while reversing the judgment of the appellate Court dismissing the suit.
18. In the background of the discussions made hereinbefore we find merit in the appeal.
19. Accordingly the appeal is allowed.
20. There is no order as to costs.
Ed.
Source: IV ADC (2007), 182