Appellate Division Cases
(Civil)
PARTIES
Robert Pinaru……………………….Appellant
-vs-
Moulana Habibur Rahman and others ………………..Respondents
JUSTICE
Md. Ruhul Amin, J
K.M. Hasan. J .
JUDGEMENT DATE: 8th April, 2003.
The Evidence Act, Section 13, 41, 43.
The Code of Criminal Procedure 1975, Section 144.
Alauddin Mia and another Vs. Abdul Latif 9 DLR. 357. Malik Din and another Vs.
Mohmmmad Aslam 21. DLR. 95. 41 DLR (Ad) 1997.
The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence date and legal effect, as distinguished from the accuracy of the decision rendered ……………….(12)
Certainly admissible in evidence to show that there was a litigation between the plaintiff and the defendant No.l who were parties in the previous suit and in that suit the specific contention of the parties as to whether plaintiff of that previous suit (defendant No.l herein ) has right, title and interest in the land in suit and the Court had found in that suit that said plaintiff had no right, title and interest in the land in suit which is the subject matter of the instant suit ……………………..(14)
Civil Appeal No. 15 of 2001 (From the Judgment and Order dated August
24,1999 passed by the High Court Division in Civil Revision No. 1358 of 1995
S.S. Haider, Senior Advocate, instructed by Md. Aftab Hossain Advocate-on-record………….For the Appellant
A.S.M.Khalequzzanian, Adocate-onrecord. For Respondent………… Nos. 1-6
Not represented………….Respondent Nos. 7-9
JUDGMENT
1. Md Ruhul Amin, J :- This is plaintiff’s appeal, by leave, against the judgment and order dated August 24, 1999 of a Single Bench of the High Court Division in Civil Revision No. 1358 of 1995 making the Rule absolute upon settina aside the judgment and decree dated February 26, 1995 of the 2 n d Court of Additional District Judge, Chuadanga, in Title Appeal No.22 of 1994 affirming those of dated February 24, 1994 of the Court of Senior Assistant Judge, Damurhuda, Chuadanga, in Title Suit No. 30 of 1985 decreeing the Suit which was filed seeking declaration of title, confirmation of possession, recovery of khas possession of some portion of land in suit and for a further declaration that the kabala in the name of defendant No.8 is void and not binding upon the plaintiff and that the S.A. record in the name of defendant No.9 and R.S. record in the name of defendant No.8 are incorrect.
2. Plaintiff averred that land in suit belonged to C.S. recorded tenant Monohar Ghosh and on the death of Monohar Ghosh his interest devolved upon his daughter charubala who settled 41 decimals of land (including the land in suit) to one Taiyab Ali on 10l Baisakh, 1357 B.S. and in his name S.A. record was prepared and he possessed the land on payment of rent to the Government. Plaintiff by the Kabala dated August 6, 1963 purchased from Taiyab Ali 41 decimals of land and out of that 14 decimals were acquired by C & B Department and thereupon he remained owner and possessor of 27 decimals of land. It was further averred that during the war of liberation he left Bangladesh and in his absence structures including dewlling house in the land in suit were destroyed and after emergence of Bangladesh he returned and he started to possess the land and while he was so possessing the defendant No.l threatened him to dispossess and thereupon he filed Criminal Miscellaneous case No. 89 of 1975 under Section 144 of the Code of Criminal Procedure on June 11, 1975 and the said proceeding was made absolute . Thereupon the defendant No. 1 filed Title Suit No. 626 of 1975 in the Court of Munsif, Chuadanga, Seeking declaration of Title and for a further declaration that the S.A. Khatian as regard the land of the said suit (which is the subject matter of the Title Suit No. 30 of 1985 ) is erroneous. The said suit having been dismissed on June 30,1979. the defendant No.l filed appeal No. 92 of 1979 and the same was dismissed on April 7. 1981 . It was also averred that during the pendency of The title Suit No. 626 of 1975 the defendant No.l on May 1, 1979 dispossessed the plaintiff from the part of the land of the instant suit and erected one hut and that during the pendency of the Appeal No. 92 of 1979 the defendant No.l converted the hut erected earlier into a ‘Chouchala’ hut and also erected some other huts. It is the case of the plaintiff since he has been dispossessed from the portion of the land in suit on May 1, 1979, same has necessitated him to file the suit.
3. The suit was contested by the defendant Nos. 1-6 and 8 by filing separate set of written statements. It was the case of the defendant Nos. 1-6 that defendant No.9 (Nurul Islam) took settlement of 21 decimals of land of plot No. 1049 from Charubala on 15th Chatra, 1359 B.S. and therefrom 12 decimals of land was acquired by C & B Department and there upon S.A. record in respect of 9 decimals of land was prepared in his name. Defendant No.9 sold said land on October 20. 1979 to Chahiruddin (defendant No.8) and in his R.S. record has been prepared and he allowed the defendant No.l to stay therein as licensee. It was also the case of the defendant No.l that C & B Department acquired 16 decimals of land out of 41 decimals of land of Plot No. 1050 and the remaining 25 decimals of land was acquired by Bahar Ali upon obtaining settlement in Ashwin, 1360 B.S. from Charubala and Bahar Ali died leaving 3 sons Rahim Ali, Taiyab Ali and Ayub Ali and the defendant No.l purchased 271/2 decimals of land from Ayub Ali and Rahim Ali sons of Bahar Ali by the Kabala dated January 22,1975 and since purchase he is possessing the land by constructing huts and is living therein with the members of the family. It was further contended by the defendant Nos. 1-6 that plaintiff has got no right, title and interest in the land in suit and he is not in possession of the land of suit plots, and they have not constructed and hut in the land of the plaintiff. It was also the case of the defendant Nos. 1-6 that they are exercising act of possession in 16 decimals of land of S.A. Plot No. 1142 which later on recorded in R.S. Plot Nos. 2323 and 2324 and the plaintiff on the basis of his purchase from Taiyab AH is possessing 9 decimals and the defendants have got their names mutated and upon obtaining receipt paying rent to the Government.
4. The case of the defendant No. 8 was almost similar to the case of defendant Nos. 16 The trial Court decreed the suit on the finding that the suit of the plaintiff as framed is maintainable and not bad for defect of parties and also not barred by limitation and that plaintiff has right, title and interest in the land in suit and defendant Nos. 1-6 in 1979 dispossessed the plaintiff from part of the land in suit and the S.A. record in the name of defendant No.9 is erroneous and the purchase by the defendant No.9 from defendant No. 8 is not binding upon the plaintiff and the R.S. record in the defendant No.8 is incorrect.
5. Defendant Nos. 1-6 filed appeal. The appellate Court affirmed the judgment and decree of the trial Court on the findings that the defendants contention relating to quantity of land of plot No. 1050 measuring 41 decimals’ of land is not correct rather the defendants have introduced the said case to mislead the Court. The appellate Court disbelieved the defendants contention of taking settlement from Charubala by Nurul Islam being fictitious since period in which Nurul Islam said to have taken settlement he was a mere child and he had no source of income and moreover the fact of taking settlement was not proved by calling competent witness. The appellate Court also concurred with the finding of the trial Court that transfer by Nurul Islam to chahiruddin was a mere paper transaction and that plaintiff was dispossessed by the defendant Nos. 1-6 in the year, 1979 and as plaintiff has right, title and interest in the land in suit he is entitled to have a decree for recovery of khas possession upon evicting the defendant Nos. 1-6.
6. The defendant Nos. 1-6 moved the High Court Division in revisional jurisdiction against the judgment and decree of the appellate Court. The High Court division made the Rule absolute on the finding that the appellate Court as well as trial court were in error in decreeing the suit on the basis of exts. 4 and 6 (judgment and decree in Title Suit No. 626 of 1975 and in Title appeal No. 92 of 1979 respectively) considering them as the good piece of evidence in support of the claim of title of the plaintiff and that appellate court having had expressed view doubting genuineness of the documents on the basis of which plaintiff claiming title was in error in decreeing the suit basing its judgment thereon. The High Court Division was also of the view that the judgment in the Title Suit No. 626 of 1975 and in the Title Appeal No. 92 of 1979 were not being the judgment of the kind as contemplated by the provision of Section 41 of the Evidence Act and that also not being the Judgment as regards the matter as contemplates by the provision of Section 42 of the Evidence Act and consequently as the judgment of the aforementioned suit and the appeal cannot “be considered as a conclusive proof of the fact they stated and as such they were also not acceptable as relevant evidence under Section 42 of the Evidence Act” and consequently findings and decisions made by the trial Court as well as by the appellate Court placing reliance of the said judgments as regard the title and possession of the plaintiff in the land in suit are not sustainable in law. The high Court Division also held that the finding made by the trial Court as well as by the appellate court in respect of the deed of defendant No.8 placing reliance on the judgment of the Title Suit No. 626 of 1975 and Appeal No. 92 of 1979 was bad in law. The High Court Division further was of the view that the land as to which decree for khas possession sought for unspecified and indefinite.
7. Leave was granted to consider the contentions that the High Court Division was in error in holding that the judgment on the basis of Exts.4 and 6 is incorrect in that decision as regard the case of the respective parties in the suit was made by the trial Court as well as by the appellate court upon discussions of the evidence, both oral and documentary, brought on record ant that solely on the basis of Exts.4 and 6, that inspijte of remark made by the appellate court, the said court considered the evidence, both oral and documentary, and on the basis of the evidence so discussed arrived at the finding as regard the title and possession of the plaintiff, but the High Court Division did not consider the materials that weighed with the appellate Court and that the High Court Division was in error about the admissibility of Exts.4 and 6, the previous judgments relating to the land in suit and misconstrued the provision of Section 41 of the Evidence Act and wrongly placed reliance in the decision reported in 41 DLR (Ad) 1997 though the said decision relates to admissibility of the previous judgment.
8. The learned Counsel for the appellant submitted that High Court division was in error in reversing the judgments of the Courts below upon taking the view that plaintiff’s case was disposed of on the basis of the judgments in the previous suit and the appeal there form although both the courts below on consideration of the evidence brought on record by the plaintiff both oral and documentary, other than the judgments of the previous suit, i.e Title Suit No. 626 of 1975 and the appeal therefrom, arrived at the finding that alleged settlement of defendant No.9, Nurul Islam from Charubala was fictitious one and that purchase from defendant”; No.9 by defendant No.8 was a mere paper transaction and that purchase by the defendant No.l from the heirs of Bah;.r Ali who said to have taken settlement in 1360 B.S. from Charubala was also found fictitious arid that plaintiff’s purchase being of the year, 1963 the defendant No.l by purchase in 1975 from Bahar Ali’s heirs did not acquire any interest in the land in suit. The learned Counsel further submitted that judgment of the previous suit i.e 626 of 1975and the judgment in the appeal therefrom were considered as the fact relevant being the judgment inter parties i.e plaintiff and the defendant No.l and also in connection with consideration of the question of possession of the plaintiff and the defendant No.l in the land in suit. The learned Counsel also submitted that the judgment in the previous Title Suit No. 626 of 1975 and the judgment in the appeal therefrom (Exts.4 and 6) were referred to by the trial Court as well as the appellate Court in the context of the claim of the parties in the suit i,e plaintiff and the defendant No.l to the land in suit relating to title and possession, the learned Counsel continued that High Court Division was in error in holding that the land as regards which recovery of possession was sought for unspecified and indefinite in that in the schedule to the plaint the land as regard to which recovery of possession has been prayed for specifically described.
9. The learned Counsel submitted that High Court Division was in error in observing that the judgments in the earlier suit i.e in Title Suit No. 626 of 1975 and the appeal there from “were not relevant” in the instant suit, nor the same could be considered as “the conclusive proof of fact stated there in” upon placing reliance on the provision of sections 41 and 42 of Evidence Act as under Section 43 of the Evidence Act in the background of the contentions of the parties in the instant suit the judgment of the earlier suit was a fact in issue as well as was a relevant fact. The learned Counsel lastly submitted that the High Court Division was in error in holding that though the appellate court entertained doubt as to the genuineness of the papers on the basis where of plaintiff claiming the right, title and.interest and the suit but still then affirmed the decree of the trial Court upon over lookingjhe material part of the judgment of the appellate Court where in the said court discussed the case of the parties in the background of the materials placed on record and arrived at the finding that the claim of the plaintiff in the land in suit is acceptable in the absence of any claim from the Government in the land irf suit, than that of the defendant. The finding so arrived at is based on evidence both oral and documentary and the High Court division totally ignored the evidence on which the appellate court based its judgment while making observation that appellate Court inspite of entertaining doubt as to papers of the plaintiff affirmed the judgment of the trial Court.
10. The learned Advocate-on-record appearing for the respondent Nos. 1-6 submitted that since settlement claimed by Taiyab Ali was not proved and thus plaintiff by purchase from Taiyab Ali as did not acquire any right, title and interest in the land in suit the decree passed by the trial Court and affirmed by the appellate court was rightly set aside by the High Court Division. He also submitted that land as regards which recovery of possession has been sought for as not specific the decree passed in the suit not sustainable in law. He lastly submitted that the judgment in the previous suit relied upon by the trial Court as well as by the appellate Court in decreeing the suit being not relevant, the High Court division was quite right in setting aside the decree passed in favour of the plaintiff.
11. The contention of the contesting respondents that the land as to which recovery of possession has been sought for unspecified and the finding of the High Court Division in that regard appears to be upon perusal of the schedule to the plaint and the description of the land, recovery where of has been prayed for, given there in not correct. On perusal of the schedule we are of the view the land as regards which decree for recovery of possession has been passed in identifiable and specifiable. The other contention of the respondent that settlement taken by Taiyab Ali from Charubala as was not established, the plaintiff by purchase from Taiyab ali in the year 1963 did not acquire any right, title and interest in the land in suit and consequently as the courts below were in error in decreeing the suit the High Court division committed no error in settirjg aside the said decree is also of no merit as the trial Court as well as the appellate court on consideration of the evidence both oral and documentary, have arrived at the concurrent finding that Taiyab Ali, vendor of the plaintiff took settlement of the land in suit from the admitted owner Charubala. it may be mentioned High Court Division while setting aside the decree in the suit failed to advert itself to the materials upon placing reliance whereon the court of first instance and the appellate court arrived at the finding that Taiyab Ali, vendor of the plaintiff took settlement in 1357 B.S. of the land in suit and in his name S.A. record was prepared and the plaintiff purchased the land in the year 1963. The High Court division also failed to notice the fact that while settlement to Nurul Islam by charubala in the year 1359 B.S was not established as genuine then the claim of the defendant No.l in respect of the land in suit by purchase from the person who said to have been taken settlement in 1359 B.S did not vest any title in him. The fact of dispossession of the plaintiff from the land in suit has been noted in the R.S. Khatian prepared in the name of the plaintiff in respect of the land in suit and that has also been established by oral evidence and while in the instant suit the question of dispossession of the plaintiff by the defendant No.l came up fro consideration the trial court as well as the appellate court in disposing of the issue of dispossession referred to the judgments, Exts.4 and 6, where in it was held that defendant No.l dispossessed the plaintiff in 1979.
12. There remains the question of taking into consideration judgment in the previous suit i.e judgment in title Suit no. 626 of 1975 and the appeal there from (Exts.4 and 6). In the light of the provision of Section 43 of the Evidence Act Exts. 4 and 6 are relevant in the instant suit since the question of dispossession is a material question for consideration for maintainability of the suit or in other words as regards presence of cause of action and also in the context of noting in the R.S record to the effect that the defendant No. 1 is in forceful possession of portion of the land in suit as well as finding in the previous suit that defendant No.l dispossessed the plaintiff from the land in suit in 1979 during the pendencey of title suit no . 626 of 1975. The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence date and legal effect, as distinguished from the accuracy of the decision rendered. The former judgments and decrees were not themselves a transaction or an instance with in the meaning of section 13 of the Evidence Act, but the suit in which they were made was a transaction or an instance in which the defendants right of possession was claimed and recognized and that to establish that such transaction or instance took place the previous judgment (s) was the best evidence. (41 DLR (Ad) 1997).
13. The question as to admissibility and relevancy of the previous judgment in a subsequent suit in the changed position of the parties as regards the matter, which is common in the previous suit as well as in the latter suit, came up fro consideration in the case of Malik Din and another Vs. Mohmmmad Aslam reported in 21. DLR. 95 and there in it has been observed ‘Judgments, whether inter parties or not, are conclusive evidence for and against all persons whether parties, privies, or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In other words, the law attributes unerring verity to the sustentative as opposed to the judicial portions of the record. But where the judgment is inter parties, even recitals in such a judgment are admissible. A previous judgment is admissible also to prove statement or admission or an acknowledgement made by a party or the predecessor in interest of a party, in his pleading in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegation made by them on that occasion”. As to admissibility of the previous judgment under section 43 of the Evidence Act it has been observed in the case of Alauddin Mia and another Vs. Abdul Latif and others reported in 9 DLR. 357 as follows. “Under this section, judgments are admissible in evidence only if the existence of such judgment is a fact in issue or if it is relevant under some other provision of the Evidence Act that judgments not inter parties, were admissible in evidence for and against every one under section 13 of the Evidence Act. They are thus admissible either as evidencing ‘transaction’ by which a right or a custom in question is crated, claimed or modified, recognized, asserted or denied or as particular instances in which the right or custom in question was claimed or modified, recognized, asserted or denied. Judgments not inter parties, are admissible in evidence under Section 13 of the Evidence Act.
14. It may be mentioned in the previous suit i.e title suit No. 326 of 1975 defendant No.l was the plaintiff and the plaintiff of the instant suit was defendant No.6 and the vendor of the plaintiff was defendant No. 1 and in that situation the judgment in the previous suit even if may not strictly be considered as the judgment inter parties but the same has been certainly admissible in evidence to show that there was a litigation between the plaintiff and the defendant No.l who were parties in the previous suit and in that suit the specific contention of the parties as to whether plaintiff of that previous suit (defendant No.l herein ) has right, title and interest in the land in suit and the Court had found in that suit that said plaintiff had no right, title and interest in the land in suit which is the subject matter of the instant suit. In the background of the facts of the instant case the trial Court as well as the appellate court while considering the question of right, title and interest and claim of possession of the plaintiff, which was denied by the defendant Nos. 1-6 the said Courts in deciding the question of right, title, interest and possession of the plaintiff were not in error in considering the judgment in the previous suit along with the other evidence, both oral and documentary and decreeing the suit and that bening the position the High Court Division without considering the evidence other than Exts. 4 and 6 (previous judgment) placing reliance whereupon judgment by the trial Court was made and the appellate court affirmed was in error in reversing the judgment of the appellate Court affirming the judgment and decree of the trial Court on the view that the said courts decreed the suit solely on the basis of previous judgments which according to the High Court Division was not relevant.
15. In view of the discussions made here in above the appeal is allowed. The judgment and order of the High Court Division is set-aside and the judgment and decree of the appellate Court affirming the judgment and decree of the trial Court is restored. There is no order as to costs.
Ed
Source: I ADC (2004), 421