Shanti Ranjan Das Vs. Khalilur Rahman Bhuiyan & others

Appellate Division Cases

(Civil)

PARTIES

Shanti Ranjan Das…………………………………..Appellant

-vs-

Khalilur Rahman Bhuiyan & others ……………..Respondents.

JUSTICE

Md. Ruhul Amin. J

M.M. Ruhul Amin. J

Md. Tafazzul Islam. J

JUDGEMENT DATE: 4th July, 2004

Specific performance of a contract.

It is clear that the date of execution of the bainapatra both in Bengali and English were subsequently inserted by different ink and hand and in the schedule the R.S Khatian number was overwritten without any authentication ………………(9)

When insertion of both Bengali and English dates in relevant portion of the bainapatra by different ink and hand has been made and there are overwriting with regard to the schedule of the bainpatra, a great doubt is apparent as to the genuineness of the bainapatra and no discretionary relief for specific performance of a contract can be granted on such bainapatra ……………….(10)

The appellate court below noticed that the trial Court found that there was overwritings in the bainapatra but did not mention in which page and in which line and which words have been overwritten without himself perusing the bainapatra and such sweeping remark of the final court of fact on a material question is not-sustainable ……………………..(10)

Civil Appeal No. 168 of 2000 (From the judgment and order dated 16.01.2000 passed by the High Court Division in Civil Revision No. 645 of 1987).

Reafique-Ul-Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-

Record………………. For the Appellant.

Abdul Wadud Bhuiyan, Senior Advocate instructed by Ataur Rahman Khan, Advocateon-Record …………………For Respondent Nos.1-2

Not represented …………………….Respondent Nos. 3-4

JUDGMENT

1. M. M. Ruhul Amin, J :- This appeal by leave is directed against the judgment and order dated 16.01.2000 passed by a Single Bench of the High Court Division in Civil Revision No. 645 of 1987 making the Rule absolute.

2. Short facts are that the plaintiff filed Title Suit No. 21 of 1984 praying for a decree for specific performance of contract stating, inter alia, that one suresh Chandra Sen (now deceased), the predecessor of respondent No.3 who was the owner of the suit land entered into a contract with the plaintiff for sale of the suit land at a total consideration of Tk. 21,000/- and on receipt of Tk. 18,000/- the said Suresh Chandra Sen executed a bainapatra on 29.08.1980 in favour of the plaintiff with stipulation that necessary sale deed in respect of the suit land would be executed and registered within a period of three years on receipt of the balance consideration money of Tk. 3,000/-. There after, Suresh chandra Sen died on 10.02.1981 leaving behind as his heir Satish chandra Sen who also died as a bachelor on 12.09.1981 leaving behind the defendant No. 1 as his only heir. Despite repeated demands the defendant No. 1 did not execute and register the sale deed and hence the suit.

3. Defendant No.l contested the suit by filing written statement and contended, inter alia, that suresh chandra Sen never executed the alleged bainapatra which is a forged and concocted one and the answering defendant sold the suit land to the defendant Nos.3 and 4 on 30.01.1984 and the suit is liable to be dismissed.

4. Defendant Nos.3 and 4 also contested the suit by filing a joint written statement contending inter alia, that suresh Chandra Sen never Executed any bainapatra in favour of the plaintiff as alleged and the defendant No. 1 being the owner of the suit land sold, the same to then on 30.01.1984 for valuable consideration without any knowledge of the alleged bainapatra in favour of the plaintiff. All the parties led evidence, both oral and documentary in support of their respective cases and the trial court on consideration of the materials on record dismissed the plaintiffs suit. On appeal being Title Appeal No. 53 of 1986 the Court of appeal below allowed the appeal and reversed the decision of the trial court and decreed the plaintiff’s suit. Being aggrieved the contesting defendant Nos.3 and 4 preferred the above mentioned Civil revision before the High Court Division and by the impugned judgment and order the High Court Division made the Rule absolute. Being aggrieved the plaintiff preferred civil petition for leave to appeal No. 299 of 2000 before this Division.

5. Leave was granted to consider the submission that the bainapatra dated 12 Bhadra, 1387 B.S. Corresponding to 29.08.1980 was proved by the scribe P.W.4, namely, Jatindra Paul and since no suggestion with respect to insertion of the word ‘Bhadra’ and the corresponding date was given to him, the learned Single Judge of the High Court Division committed illegality in holding that those were subsequently inserted and as such the bainapatra Exhibit-1 was forged and further submission that by insertion of words ‘Bhardra’ and the date 29.08.1980 made no material change in the bainapatra and moreover, the learned single Judge of the High Court Division without arriving at a specific finding that the signatures of Suresh Chandra Sen in Exhibit-1 were forged wrongly held that bainapatra was not genuine, and as such the learned Single Judge of the High Court Division acted illegally in reversing the findings of the appellate court without at all discussing the oral evidence on record inasmuch as when such findings of fact of the appellate court are conclusive and final.

6. We have heard Mr. Rafique-Ul-Huq, the learned counsel for the appellant and Mr. Abdul Wadud Bhuiyan, the learned Counsel for the respondent Nos.l and 2 and perused, the judgment of the High Court Division and other connected papers.

7. Mr. Huq mainly argued that insertion of the Bengali word ‘Bhadra’ and the English date 29.08.1980 made no material change in the banapatra, in view of the fact that the bainapatra Exhibit-1 was proved by the scribe, P.W.4 and as such the High Court Division acted illegality in reversing the findings of the appellate court without at all discussing the oral evidence on record.

8. Mr. Bhuiyan, on the other hand, submitted that the insertions of the word “Bhadra’ and the English date 29.08.1980 have been made subsequently by different ink and hand in the place meant for writing the date of execution of the document which is visible with open eyes and this makes the bainapatra in question doubtful and the High Court Division correctly found that the bainapatra is not a genuine document. Mr. Bhuiyan further argued that in the schedule of the bainapatra the R.S. Khatian number was overwritten by different ink and hand. He further argued that the respondent Nos.l and 2 are bonafide purchasers for value without knowledge of the alleged bainapatra in favour of the plaintiff.

9. We have called for the original bainapatra from the District Judge, Narsingdi and perused the same for our satisfaction. It is clear that the date of execution of the bainapatra both in Bengali and English were subsequently inserted by different ink and hand and in the schedule the R.S Khatian number was overwritten without any authentication.

10. The High Court Division held that on perusal of the bainapatra it appears that the Bengali Word ‘Bhadra’ and the English date 29.08.1980 have been inserted subsequently by different ink and by different hand in the place meant for writing the date of execution of the document and in the schedule R.S. Khatian No. 431 has been overwritten in place of C.S. No. 41 . The High Court Division further held that in suit for specific performance of a contract the plaintiff is required to come with clean hands to get the discretionary relief. The High Court Division further held that in the present case when insertion of both Bengali and English dates in relevant portion of the bainapatra by different ink and hand has been made and there are overwriting with regard to the schedule of the bainpatra, a great doubt is apparent as to the genuineness of the bainapatra and no discretionary relief for specific performance of a contract can be granted on such bainapatra. The High Court Division further held that the trial Court considered this material evidence regarding the bainapatra and found that the bainpatra is not a genuine document. The appellate court below noticed that the trial Court found that there was overwritings in the bainapatra but did not mention in which page and in which line and which words have been overwritten without himself perusing the bainapatra and such sweeping remark of the final court of fact on a material question is not sustainable. The High Court Division further held that the court of appeal being the final court of fact was required to see for himself if there is any overwriting in the bainapatra which is the basic document of the plaintiff’s claim. In the face of specific finding of the trial court in this respect the appellate court below totally ignored this material evidence regarding the bainapatra Ext.l and reversed the finding of the trial Court without himself perusing the evidence of the material document Ext.l and non consideration of this vital evidence by the final court of fact has resulted in a gross error of law which has occasioned a failure of justice.

11. It is undisputed that the respondent Nos.l and 2 are bonafide purchasers for valuable consideration without any knowledge of the alleged bainapatra in favour of the plaintiff. The High Court division also held that both the trial court and the appellate court have concurrently found the plaintiff’s possession in the suit land but such possession will not be of any help to the plaintiff in getting a decree in a suit for specific performance of a contract as it is on record that the plaintiff was first brought into the suit land as caretaker and to look after the minor children of provat chandra sen and he was in permissive possession in the structure raised by the sen family in the suit land and subsequently he claimed to have obtained the bainapatra in question and the plaintiff could not prove his independent possessing on the basis of the alleged bainapatra. It is also the case of the defendants that the plaintiff had no means to purchase any land or to pay the amount of consideration money of the baianpatra.

12. We have already pointed out that we have perused the original baianpatra called for from the office of the district Judge, Narshingdi for our satisfaction, we fined that the dale of execution both in Bangali and English were inserted subsequently in the baianpatra by different hand and ink and the R.S Khatian number was over written without any authentication.

13. In the circumstances, in our view the High Court Division correctly entertained doubt regarding the genuineness of the bainapatra and accordingly held the same to be not genuine and further held that on the on the basis of such baianpatra which is basic document of the plaintiff no discretionary relief for specific contract can be granted. In out view these findings of the High court division are based on correct assessment of the materials on record and proper consideration of the bainapatra Ext. 1. Therefore, we find no cogent reason to interfere with the judgment of the High Court Division. Accordingly, the appeal is dismissed with cost.

Ed

Source: I ADC (2004), 387


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