Appellate Division Cases
(Civil)
PARTIES
Moksed Ali Mondal being dead his heirs Md. Abdul Mannan and others…………………Appellants.
-vs-
Abdus Samad Modal and others. ………………….Respondents
JUSTICE
Md. Ruhul Amin. J
M.M. Ruhul Amin. J
Md. Tafazzal Islam. J
JUDGEMENT DATE: 25th May, 2004.
Limitation Act IX of 1908. Agreemant of Exchange Agreement of Exchange of
Properties in India and Bangladesh Foreign judgment. Evidence Act 1872
Section 11 did not apply . Section 101 of the Evidence Act . Section 111 of the Evidence Act .1) Code of Civil Procedure 1908. Failed to prove the Agreement of Exchange and also barred by the Limitation.
It is cardinal principle of law that the plaintiff is to prove his case and he must not rely on the weakness or defects of defendant’s case………………..(11)
……even if it is admissible in evidence as a foreign judgment, it does not improve the plaintiff’s case as in our view the plaintiff has helplessly filed to prove the alleged agreement for exchange with Ghose brothers and the plaintiff’s suit is barred by limitation being out of possession although …………………(13)
Civil Appeal No. 166 of 2000 (From the Judgment aiid Order dated 12.04.1994 passed by the High Court Division in Civil Revision No. 459 of 1993)
A. J. Mohammad Ali, Senior Advocate, instructed by Mr. Sayeed Mahbubur Rahman,
Advocate-on Record………………..For the Appellants.
Shahid Ahmed, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record…………….. For Respondent No. 1
Ex-parte………………. Respondent Nos. 2-20
JUDGMENT
1. M. M. Ruhul Amin. J:- This appeal by leave is directed against the judgment and order dated 12.11.1998 passed by a Single Bench of the High Court Division in Civil Revision No. 459 of 1993 discharging the Rule.
2. Short facts are that the ‘kha’ schedule property in the district of kushtia belonged to shibnath Ghose predecessor of defendant Nos. 1 and 2. Nemai Chandra Ghose, predecessor of defendant No. 3 and Bishnupade Ghose. defendant No. 4. The plaintiff by exchange with aforesaid persons got the said property by way of exchange of his ‘ka’ schedule property in India in 1949 AD. Shibnath Ghose and others filed a suit in the Court of Munsif at krishnagar, India on the basis of the said agreement for exchange and got a decree. The present plaintiff preferred an appeal but the plaintiff lost the appeal. The further case of the plaintiff is that in pursuance of that contract the plaintiff handed over possession of his ‘ka’ schedule property in India to shibnath Ghose and others and the ‘kha’ schedule properties was given to him by them. The plaintiff subsequently lost his deed of agreement. The plaintiff surrendered his possession of ‘ka’ schedule properties situated in India in favour of Ghose brothers \yho also gave possession of ‘kha’ schedule properties to the plaintiff in Bangladesh in pursuance of the contract. But when the plaintiff came to this country on query he learnt that Ghose brother had no right, title and interest in respect of the lands of Mouza Hardi and paltadanga though some lands of these two mouzas were shown in the agreement of exchange. The defendant Nos. 14 did not perform their part of the contract by executing a deed of exchange. In the meantime the other defendants have created false documents in respect of the ‘kha’ schedule properties and dispossessed the plaintiff therefrom.
3. The defendants resisted the claim of the plaintiff. Their claim is that they purchased ‘kha’ schedule property from the original owners and they have been in possession of the same and the plaintiff never lived in suit village and never possessed the ‘kha’ schedula land and the suit is barred by limitation.
4. The trial Court on consideration of the evidence adduced by the parties dismissed the suit. On appeal being Title Appeal No. 55 of 1984/78 of 1981 the Court of Appeal allowed the appeal and decreed the plaintiff’s suit. Being aggrieved the defendant preferred the above mentioned Civil Revision and the Rule was discharged as aforesaid.
5. Leave was granted to consider the submissions that the High Court Division wrongly interpreted the provisions of section 86 of the Evidence Act and Sections 13 and 14 of the Code if Civil Procedure and thus fellv into an error of law in holding that foreign judgment, Exhibit-3 was admissible.
6. We have heard Mr. A. J. Mohammad Ali, the learned Counsel for the appellants and Mr. Shahid Ahmed, the learned Counsel for the respondent No. 1 and perused the judgment of the High Court Division and other connected papers.
7. The plaintiff’s case is that he entered into an agreement with shibnath Ghose and others for exchange of his 1000 big has of land situated in India (‘ka’ schedule property) with the ‘kha’ schedule property of the plaint in Bangladesh belonging to shibnath and others.
Accordingly plaintiff handed over possession of the ‘ka’ schedule properties in India to the Shibnath Ghose and others but on coming from India while went to the locality he came to learn that the lands of Mouza Hardi and paltadana though included in the agreement for exchange did not belong to Ghose brothers and he also could not enter into possession of the land as the other defendants were already in possession. His further case is that on the basis of agreement for exchange shibnath Ghose and others instituted a suit in respect of ‘ka’ schedule land in India in the Court of Munsif, Krishananagar against him. The plaintiff contested the suit denying the transaction but inspite of that the suit was decreed. The plaintiff then gook an appeal being Title Appeal No. 115 of 1959/17 of 1961 in the Court of District Judge, Nadia nad appeal was also dismissed by judgment Ext.3 As it appears the plaintiff in the above suit filed by Ghose brothers altogether denied the transaction but again he claims ‘kha’ Schedule land on the basis of same agreement/transaction. His case is that the written agreement entered into between him and Ghose brothers was lost. It further appears that he did not adduce any oral evidence to prove the agreement. In the plaint which was filed in 1969. it was stated that the agreement for exchange was lost that means it was lost before in 1969 but in evidence the plaintiff stated that the agreement in question was lost during the war of liberation. It further appears that the Ghose brothers did not hand over possession of ‘kha’ schedule land to the plaintiff as stated by the plaintiff and that when he came to Bangladesh after handing over possession of the ‘ka’ Schedule land in India to Gose brothers, he learned that Gose brothers were not owners of the land of Mouza Hardi and Paltadnaga and also found contesting defendants in possession of the ‘kha’ schedule land. the plaintiff did not give any specific date or year in which the agreement for exchange was lost.
8. We have already pointed out that the plaintiff altogether denied the transaction with Ghose brothers in the suit filed by the latter in the Court of Munsif at Krishananagar. It is not the Case of the Plaintiff that he had any other agreement with Ghose brother’s for the ‘kha’ scheduly property. From record it appears that the Ghose brothers did not hand over possession of ‘kha’ schedule property to the plaintiff at the time of execution of alleged agreement of exchange or afterwards.
9. From Ext 3 it transpires that the contract on the basis of which the suit was filed in the Munsif’s Court, Krishananagar was written by one Nagendra Nath Ghose and the attesting witnesses to the contract belonged to the members of Nagendra Nath Ghose’s community and all of them were citizens of India. But the plaintiff in his evidence in the present suit stated that one Azimuddin Biswas was scribe of the agreement for exchange and Moksed and Moizuddin were attesting witnesses. Thus it appears that the plaintiff instituted the present suit on the basis of a different contract which he could not prove by adducing either documentary or oral evidence and the contract on the basis of which shibnath Ghose and others filed title Suit No. 17 of 1961 in the Court of Munsif, Krishananagar, as it appears, was on the basis of a different agreement.
10. It is also the case of the plaintiff that Ghose brothers did not hand over their title deeds and khatinans etc. At the time of execution of agreement for exchange and also did not hand over possession of ‘kha’ schedule land to him yet he waited till 12.04.1969 to file the present suit when according to him Ghose brothers refused the transaction. It is on record that he Ghose brothers left the then East Pakistan in 1950 and never came back. The plaintiff did not specify how and when he went to India to make demand to the Ghose brother for execution of exchange deed and in whose presence the demand was made as alleged by him on 12.05.1996. He also did not produce his passport and visa document to show that in fact in April, 1969 he went to India for this purpose. Moreover a man of ordinary prudence would not wait for long 20 years from 1949 to 1969 to institute the suit specially in view of the fact that after coming to Bangladesh he did not get possession and title deeds of ‘kha’ schedule property and lost the suit instituted by Ghose brothers against him in the court of Munsif, Krishananagar, India.
11. It further appears that the plaintiff could not prove that the entered into possession of the suit land or any portion there of and that he was dispossessed by the defendants. Therefore, the question of getting khas possession by him does not arise. It further appears that the plaintiff could not prove that the defendants were aware of his alleged contract when they purchased the suit land.
12. It is cardinal principle of law that the plaintiff is to prove his case and he must not rely on the weakness or defects of defendant’s case. As the plaintiff has not able to prove his case we need not discuss the case of the defendants.
13. Regarding Ext.3, we are of the view that even if it is admissible in evidence as a foreign judgment, it does not improve the plaintiff’s case as in our view the plaintiff has helplessly filed to prove the alleged agreement for exchange with Ghose brothers and the plaintiff’s suit is barred by limitation being out of possession although.
14. In the facts and circumstances and in view of the discussions made above, we are of opinion that the High Court Division committed error of law in discharging the Rule thereby affirming the judgment and decree passed by the Court of appeal decreeing the plaintiff’s suit and this requires interference by us. Accordingly, the appeal is allowedwithout any order as to costs.
Ed
Source: I ADC (2004), 203