Appellate Division Cases
(Civil)
PARTIES
Syed Abdul Haque and another ……………….…Appellants
-VS-
Surendra Nath Majumder and others ……………Respondents
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 7th August 2006
35 DLR (AD) 216, 56 DLR (AD) 53, 25 DLR (SC) 90, 10 DLR 1 (PC) and 43 DLR 18.
Seeking declaration of title in respect of the land described in schedule ‘Ka’ attached to the plaint and for declaring 4 kabalas described in schedule ‘Kha’ illegal, fabricated, forged, void, collusive and as such not binding on the plaintiffs ……………(2)
The record of right i.e. R.S. and S.A. being contrary to the proved fact that the land in suit was auction sold and was purchased by the landlord and as such payment of rent on the basis of the wrong record of right thus no way establishes the claim of the defendants as to the title and possession in the land in suit. It has also been submitted that payment of rent would have been the evidence of possession in favour of the defendants had they any title in the land in suit but the defendants having had no title in the land in suit by mere payment of rent it can not be said that they are in possession of the land in suit ……………(10)
Civil Appeal No. 98 of 2002 (From the Judgment and order dated June 13, 2000 passed by the High Court Division in Civil Revision No. 1781 of 1990)
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-record ……………………..For the Appellants
Md. Ozair Farooq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate –on-record …………………….For Respondent Nos. 2&4
Respondent Nos. 1,3 & 5 …………………Not represented.
JUDGMENT
1. Md. Ruhul Amin J : This is defendants’ (defendant Nos.2 and 3) appeal, by leave. The
same is against the judgment dated June 13, 2000 of a Single Bench of the High Court
Division in Civil Revision No. 1781 of 1990 making absolute the Rule upon reversing the
judgment and decree dated June 9. 1990 of the Court of District Judge, Jhalakathi in Title
Appeal No. 34 of 1988 reversing the judgment and decree dated May 29, 1988 of the
Court of Subordinate Judge (now Joint District Judge), Jhalakathi in Title Suit No. 93
of 1985 decreeing the same and thereupon declaring title of the plaintiff and further
declaring the kabalas (in all 4) executed and registered on May 24, 1984 by Sukhada
Sundari and others in favour of defendant Nos. 2 and 3 are illegal and void.
2. The suit was filed seeking declaration of title in respect of the land described in schedule ‘Ka’ attached to the plaint and for declaring 4 kabalas described in schedule ‘Kha’ illegal, fabricated, forged, void, collusive and as such not binding on the plaintiffs.
3. The suit was filed stating, inter alia, that the land in suit belonged to 3 brothers in equal
shares and on the death of 2 unmarried brothers shares of the said two brothers devolved
upon the 3rd brother-Rai Charan Howlader, who died leaving daughter Sukhada Sundari.
Ganga Charan was the landlord and as the tenant Sukhada Sundari failed to pay rent, the
landlord filed Rent Suit No. 1801 of 1952 in the 2nd Court of Munsif (now Court of
Assistant Judge), Perojpur and obtained decree and on the basis of said decree filed
Rent Execution Case No. 1211 of 1952. The land in respect whereof rent decree obtained
was purchased by the decree holder and obtained the sale certificate and took delivery of possession through Court. The auction purchaser, Ganga Charan Majumder died leaving
plaintiff No.l and Ananta Kumar Majumder, the predecessor of plaintiff Nos. 2-4 that R.S. and S.A. record as regard the land in suit was wrongly prepared in the name of the defendant No.l- respondent No.5 and that the said wrong preparation of record of right became known to the plaintiffs in Baisak, 1391 B.S, that taking advantage of the wrong record in the name of the defendant No.l she sold the land in suit to the defendant Nos.2 and 3 by the 4 kabalas dated 24th May, 1984. The plaintiffs upon claiming right, title and possession in the land in suit and alleging that the kabalas of the defendant Nos.2 and 3 illegal and void filed the suit.
4. The suit was contested by defendant Nos. 2 and 3 by filing separate sets of written statements, although their case more or less identical. It is the case of the contesting defendants that the land in suit was owned and possessed by defendant No.l and that the same was never auction purchased by the landlord Gnaga Charan Majumder, the predecessor of the plaintiffs, that defendant No. 1 and her two sons by 3 kabalas transferred 50 decimals of land to the defendant No.2 on 24th May, 1984 and that on that very day by another kabala they transferred 50 decimals of land to defendant No.3 and put them in possession, that consideration money was paid by Mokhles, further of the defendant Nos. 2 and 3 and that he possessed the land on behalf of the Defendant Nos.2 and 3, that the plaintiffs at no point of time had right, title and interest as well as possession in the land in suit.
5. On consideration of the evidence, both oral and documentary, particularly Ext. 1 and 2
(sale certificate and certificate relating to delivery of possession respectively) trial court
decreed the suit. The Court of first instance disbelieved Ext. Uma, (information slip) on
the face of Exts. 1 and 2 that also observed that entry of name of Sukadha Sundari in the
R.S. Khatian was probable since the same was prepared prior to the auction sale and that S.A. Khatian having been prepared in the light of the R.S. Khatian the name of Sukadha Sundari was entered therein. The court of first instance found possession in favour of the plaintiffs.
6. As against the judgment and decree of the Court of first instance defendant Nos.2 and 3 went on appeal. The appellate Court reversed the judgment and decree of the trial Court. The plaintiffs then moved the High Court Division in revisional jurisdiction. The High Court Division on the findings that the Court of appeal below was in serious error in disbelieving the Exts.l and 2 placing reliance on Ext. Uma’ upon overlooking the material fact that the register of the Rent Suit No. 1801 of 1952 was destroyed, that the court of appeal below disbelieved the Exts. 1 and 2 inspire of there being on material to entertain doubt about the genuineness thereof. The High Court Division also reversed the finding of the Court of appeal below as regard possession of the parties upon observing that the finding of the Court of appeal below as regard possession of the parties upon observing that the finding of the Court of appeal below as to question of possession of the plaintiffs is based on misconception of documentary evidence as well as non-consideration of material evidence.
7. Leave was granted to consider the contention that plaintiffs having not been able to
show any payment of rent in respect of the land in suit the High Court Division was in
error in reversing the judgment and decree of the Court of appeal below and thereupon in
decreeing the suit, that the Court of appeal below being the final Court of fact and that on
assessment of the materials on record the said Court having had dismissed the suit the High Court Division was in error in reversing the judgment and decree of the Court of appeal below and thereupon decreeing the suit on reassessment of the evidence which is not permissible in revisional jurisdiction.
8. The learned Counsel for the appellants submits that report of the Assistant Judge as to
destruction of the suit register being not correct since there is no provision for destruction
of the suit register and that plaintiffs having not called for the suit register the High Court
Division was in error in holding that suit register was called for on the application of the
plaintiffs and thereupon rejecting the finding of the lower appellate Court that from the
plaintiffs’ side suit register was not called for to dislodge the facts stated in Ext. Uma. The learned Counsel further submits since Ext. Uma, information slip, relating to the
records/suit register of the Rent Suit No. 1801 of 1952 was obtained from the competent
authority the High Court Division in the absence of non-calling of suit register was in
serious error in brushing aside genuineness of the fact stated in Ext. Uma and thereupon in decreeing the suit, that by the auction sale on the basis of the decree obtained in Rent Suit No. 1801 of 1952 (decree was put into execution by initiating Rent Execution Case No. 1211 of 1952) the defendant No. 1 lost title in the land in suit was not established, that since it is not clear what was the contents of the petition filed by the plaintiffs or in other words what for plaintiffs filed the petition being not clear, the High Court Division was wrong in relying on the report of the learned Assistant Judge to the effect that the register of the Rent Suit No. 1801 of 1952 was destroyed in accordance with law. It has also been submitted by the learned Counsel that as from the plaintiffs’ said Ext. Uma, the information slip, was not challenged and as such High Court Division was in error in not holding that there was no auction sale as the plaintiffs claim on the basis of Ext.l. sale certificate and Ext.2, certified copy of the writ of delivery of possession in Rent Execution Case No. 1211 of 1952, that report of suit register can not be accepted as correct since distraction of the suit register is not permissible under the provision of Civil Rules and Orders, although the provision of Civil Rules and Orders provides for distraction of certain records of the suit after specified period. It has also submitted by the learned Counsel that although plaintiffs claimed that they auction purchased the land, that in pursuant to the rent decree in Rent Suit No. 1801 of 1952 the interest of Sukhada Sundari was put to auction on February 21, 1953 and the land in suit was auction purchased by the landlord and the auction sale was confirmed on March 25, 1953 and thereupon sale certificate (Ext.l) was issued on March 25. 1953 and that possession
was delivered on June 26, 1953 (Ext.2) but since auction purchase plaintiffs at on point of time got their names mutated in the Revenue Record of time paid rent the High Court Division was in serious error in acceptation the case of auction sale and auction purchase and of delivery of possession by the plaintiffs’ predecessor and thereupon setting aside the judgment and decree of the appellate Court dismissing the suit. It has further been submitted by the learned Counsel for the appellants that in the background of the evidence of D.Ws. the High Court Division was in error in holding that the plaintiffs
are in possession of the land in suit although no evidence has been adduced from
the said of the plaintiffs in what manner and mode they are in possession of the land in suit.
9. It may be mentioned the trial Court rejected the claim of the defendants as to possession of the land in suit since the witnesses examined by the defendants were not independent, rather related to each other and to the D.W. 1 who is the father of defendant Nos. 2 and 3. The learned Counsel lastly submitted that the rent in respect of the land in suit having been paid by the defendants and in support thereof rent receipts having been filed which prima facie show that the defendants are in possession of the land and that claim of possession made by the defendants was supported by the D.Ws. particularly D.Ws. 2,3,4 and 7 on the basis thereof lower appellate Court having had arrived at the finding that the defendants are in possession and thereupon dismissed the suit the High Court Division was in error in setting aside the said finding and decision of the lower appellate Court on re-assessment of the evidence. It has also been submitted that record of right having been in the name of Sukhada Sundari and the fact of payment of rent by the defendants who purchased from the aforesaid recorded tenant the High Court Division was in error in not taking notice of the presumptive value of the record of right
and thereupon in restoring the suit. Lastly the learned Counsel has submitted that the High Court Division as well as the trial Court were in error in decreeing the suit on the failure of the defendant to disprove the fact of auction sale and purchase by landlord, although the plaintiffs by calling the suit register did not establish the fact of auction sale of the land in suit and purchase thereof by the landlord and of obtaining possession of the land so sold in auction by the auction purchaser.
10. The learned Counsel for the plaintiff-Respondents has submitted that the fact of
auction sale and the auction purchase have been established by the Exts.l and 2 which
have presumptive value of genuineness being of more than 30 years old and as such the onus was on the defendants to dislodge the presumptive value of the Exts.l and 2 and they
tried to dislodge genuineness of Ext.l and 2 by putting into evidence Ext. Uma. the information slip, relating to the suit register of the rent suit but the same was not proved by calling the person who issued the same and on the top of everything there was no official seal under the signature of the person who said to have issued the said Ext.Uma. The learned Counsel in the background of the afore state of the matter submitted that because of the nature of the Ext.Uma the appellate Court was wrong in disbelieving the Exts.l and 2 and as such the High Court Division was quite correct in holding that upon placing reliance on Ext.Uma, the Exts.l and 2 cannot be disbelived. The learned Counsel has also referred to the evidence of P.W.4 who is the witness to the certificate of delivery of possession and in the background of that very fact, the learned Counsel submitted that the High Court Division was very much correct in holding that plaintiffs’ claim of possession in the land in suit is acceptable rather than claim of possession by the defendants since it has not been established after obtaining delivery of possession by the auction purchaser through the Court in what manner and way defendants’ vendor went into possession of the land in suit and after purchase the defendants went into possession. The learned Counsel for the plaintiff-Respondents has also referred to the finding of the trial Court as to Exts. Cha and Cha(l) whereby rent said to have been paid to the landlord. It may be mentioned as regard the said documents the trial Court had observed that although rent receipts are old but the writings therein are new and that the said rent receipts were not proved by calling the competent witness. It may be mentioned this finding of the trial Court was not reversed by the lower appellate Court. The appellate
Court rather placed the onus on the plaintiff to disprove the rent receipts Exts. Cha and
Cha(l). The appellate Court was in serious error since under the law as the defendants
relied on the said exhibits in support of their case or in other words in support of their
claim in the land in suit as they relied on the said two rent receipts as well as to disprove
the fact of auction sale it was their duty to prove the said rent receipts. The learned
Counsel for the plaintiff-Respondents submitted that the record of right i.e. R.S. and S.A.
being contrary to the proved fact that the land in suit was auction sold and was purchased by the landlord and as such payment of rent on the basis of the wrong record of right thus no way establishes the claim of the defendants as to the title and possession in the land in suit. It has also been submitted that payment of rent would have been the evidence of possession in favour of the defendants had they any title in the land in suit but the defendants having had no title in the land in suit by mere payment of rent it can not be said that they are in possession of the land in suit. Lastly it has also been submitted that High Court Division was not in error in setting aside the judgment and decree of the appellate Court since the same was made on mis-reading of evidence and mis-construction of document.
11. The admitted position is that property in suit belonged to 3 brothers, namely Baikuntha Chandra Hawlader, Hari Charan and Rai Charan Hawlader in equal shares and the property of two brothers of the three brothers devolved upon third brother Rai Charan
Hawlader who died leaving daughter Sukhada Sundari. The R.S. record was prepared in the name of Sukhada Sundari.
12. The case of the plaintiffs is that while Sukhada Sundari was owning the land and
rent thereof having had fallen an’ear landlord Ganga Charan Majumder filed Rent Suit
No. 1801 of 1952 and the same was decreed. The landlord thereupon instituted Rent
Execution Case No. 1211 of 1952 and in the said execution case land owned by Sukhada
Sundari was put to auction sale on February 21, 1953 and the landlord Ganga Charan
Majumder purchased the said land. The auction sale was confirmed on March 25,1953
and thereupon sale certificate (Ext.l) was granted auction purchaser obtained the possession through Court of June 26, 1953 and thereupon certificate of delivery of possession (Ext.2) was issued. The fact of delivery of possession has been proved through the evidence of P.W.4. Ganga Charan Majumder died leaving 2 sons, namely plaintiff No.l, Surendra Nath Majumder and Ananta Kumar Majumber, father of plaintiff Nos. 2-4.
13. As against the aforesaid case of the plaintiffs it is the case of the defendants that
Sukhada Sundari was married to Sukha Ranjan Bala and after the death of Sukha
Ranjan Bala, Sukhada Sundari married Jageswar Dakua and out of that marriage she
had 2 sons, Nirmal Chandra Dakua and Amal Chandra Dakua, that Sukhada Sundari as the R.S. and S.A. recorded tenant sold the land to the defendant Nos. 2 and 3 by the kabalas dated 24.5.1984, that the plaintiffs’ contention of auction sale of the land in suit and purchase thereof by Ganga Charan Majumder is a got up story and that there was no auction sale of the land in suit at any point of time and that the papers filed by the plaintiffs in support of their case of auction purchase by their predecessor in interest are forged and fabricated.
14. The plaintiffs in support of their case of auction purchase of the land in suit by their
predecessor have produced the original of the sale certificate (Ext.l) and the certified copy of the writ of delivery of possession (Ext.2). The defendant to disprove the ‘plaintiffs’ case of auction sale and auction purchase of the land in suit have put into evidence information slip (Ext.Uma). The trial Court as well as the High Court Division considered the said exhibit and noticed that in the said exhibit there is no official seal of the person who said to have issued the same. It may be mentioned from the defendants’ side none was examined to prove the contents of the information slip.
15. The trial Court noticed the contents of the Ext.Uma and having had found that from the contents of the said exhibit logical conclusion cannot be made that there was no rent suit and execution case as claimed by the plaintiffs and thereupon held that on the basis of said kind of information slip conclusion can not be arrived at that the Ext. 1 and the Ext.2 are not genuine or in other words the said exhibits cannot be disbelieved. The defendants to counter plaintiffs’ case of auction sale of the land owned by Sukhada Sundari produced Ext. Cha and Cha(l) said to have been issued by the landlord Ganga charan Majumder subsequent to the plaintiffs’ case of auction sale and auction purchase by Ganga Charan Majumder. The trial Court considered the said two exhibits and held that the said rent receipts are of recent origin since the writings therein were of recent time. The trial Court also held that the said rent receipts were not proved by calling the competent person as witness. It may be mentioned appellate Court did not advert itself to the aforesaid finding of the trial Court as regard the Ext. Cha and Cha(l), rather shifted the onus on the plaintiffs to disprove the same. It may be mentioned the appellate Court was quite unmindful of the law that one who wants the Court to accept a particular case put forward by one law requires one to establish the same by calling competent witness or to prove the document on which one relies as to his claim by calling the competent person. The appellate Court discarded the Exts.l and 2 placing reliance on Ext.Uma without noticing the fact that in the said exhibit there was no official seal of the person who said to have issued the same, nor the contents thereof was proved by calling the person who issued the same and also upon mis-reading the contents of the said Ext.Uma since there is nothing in the said exhibit that there was no existence of the rent suit and the rent decree mention whereof was made by the plaintiffs in their pleading and in
support whereof placed on record the Exts.l and 2. The lower appellate Court while
reversing the judgment of the trial Court placed reliance on the fact that the R.S. and
S.A. records are in the name of the defendants but was quite unmindful of the fact that subsequent to R.S. record the land owned by Sukhada Sundari was sold in auction and purchased by Ganga Charan Majumder and for that Ganga Charan Majumder’s name was not in the R.S. record. It was the case of the plaintiffs that S.A. record having not been prepared at the field level, and the same as was prepared in the light of the R.S. record, the S.A. record was prepared in the name of Sukhada Sundari. This contention of the plaintiffs was not dislodged from the side of the defendants. The appellate Court while reversing the judgment of the trial Court took into consideration of the fact of non-payment of rent by the plaintiffs. The fact of non-payment of rent in rent by the plaintiffs is not wholly correct since plaintiffs in support of their contention of payment of rent in respect of the land in suit filed Ext.6 series. The appellate Court was quite unmindful of the fact, that for mere non-payment of rent title of a person in respect of particular
land, as in the instant case, is not extinguished in the absence of process extinguishing
the title or in other words the rightful claimant of the property does not lose his right in the property for non-payment for some time unless person to whom the claimant of the
land owes obligation of payment of rent initiated proceeding, either rent suit or certificate
proceeding for realization of rent or other dues and finally put the land in auction for
realization of the rent and other dues and the land so put in auction is sold and purchased
either by the person at whose instance the land was put to auction or by a 3rd party. In the
instant case since auction purchase by the plaintiffs’ predecessor on February 21. 1953
there was no proceeding for arrears of rent, although it is not clear that after auction purchase by plaintiffs’ predecessor rent in respect of the land in suit had fallen arrear and the land was put to auction and purchased by some body else other then the plaintiffs’ predecessor or the plaintiffs and that being the situation the lower appellate Court was quite in error in arriving at the finding that the land in suit was not sold in auction and thereby Sukhada Sundari did not lose her interest in the land in suit. The trial Court on consideration of the evidence of the parties found the evidence of the witness examined by the plaintiffs is reliable and disinterested relating to matter of possession of the parties and thereupon held that the plaintiffs are in possession of the land in suit. As against the
aforesaid findings and decisions of the trial Court on the question of possession the appellate Court placing reliance on the evidence of D.Ws. reversed the finding of the trial Court on the question of possession of the parties and held that plaintiffs failed to prove their claim of possession in the land in suit. It may be mentioned that plaintiffs proved the delivery of possession through the court as back as in 1953 by the evidence of P.W.4 From the defendants’ side no material was brought on record that after delivery of possession through Court in favour of the auction purchaser Ganga Charan Majumder at what point of time and in what situation Sukhada Sundari entered upon the land in suit. In that state of the matter the High Court on consideration of the materials on record i.e. Exts.l and 2 as well as the evidence of parties relating to question of possession held that the plaintiffs are in possession of the land in suit.
16. Since the Exts.l and 2 have a presumptive value being the documents of 30 years and the said presumption having had not dislodged from the side of the defendants by filing reliable evidence we are of the view plaintiffs have right, title and interest in the land and
that also possession in the land in suit. The defendants tried to dislodge the presumption
of Exts.l and 2 by putting in evidence Ext. Cha and Cha(l) (rent receipts said to have
been issued by the landlord) and the Ext.Uma. It has already been held that the Exts. Cha and Cha (1) are not genuine documents and the same have not been proved by calling the
competent person as witness and that Ext. Uma being not a document of the kind (as
stated hereinbefore) placing reliance whereupon the genuineness of the of the Exts.l and
2 can be doubted or in other words the Exts. 1 and 2 can be left out of consideration or that it can be said that by the said documents plaintiffs did not acquire any right, title and interest in the land in suit and that did not obtain possession on the basis of auction purchase. It was contended from the side of the appellants that the plaintiffs did not call the suit register to prove the genuineness of Exts.l and 2. It is seen from the judgment of the High Court Division that plaintiff took step for calling the suit register/records from the custody of the competent authority and the said authority informed the Court that the suit register of the rent suit and the other connected papers have been destroyed as per Rules. As stated hereinbefore since the documents Exts.l and 2 are of 30 years old and has a presumption of correctness and that presumption having had not been dislodged by the defendants there was no occasion for the Court to discard the claim of title of the plaintiffs made on the basis of the said documents. The learned Counsel for the appellants has submitted that rent receipts and the record of right placed on the record from the said of the defendants having had the presumption of possession and prima facie title the High Court Division was wrong in not discharging the Rule. In support of the aforesaid
contention the learned Counsel has referred to the case reported in 35 DLR (AD) 216 and the case reported in 56 DLR (AD) 53. The ratio of the cases referred to from appellants’ side would have been of purpose to the them had plaintiff-Respondents not established their claim of possession and title by reliable oral evidence as well as by the documentary evidence, Exts.l and 2. As against the aforesaid contention of the learned Counsel of the
appellants it has been submitted from the side of the plaintiff Respondents that there has
been sufficient explanation as to preparation of right in the name of Sukhada Sundari and
as such contention of the appellants of their having prima facie title on the basis of the
R.S. and S.A. record is not legally well founded. The learned Counsel has further submitted that as to presumption of possession on the basis of rent receipt or that the contention as to presumption of possession in the light of rent receipt would have been available to the defendants of they had right, title and interest in the land in suit but because of the Ext.2 and Ext.6 (rent receipts) produced from the said of the plaintiff-Respondents, presumption can hardly be there in favour of the defendants as to possession of the land in the basis of Exts. Cha and Cha(l) and other rent receipts. It has
also been submitted from the side of the plaintiff Respondents that oral evidence relating to possession being quite sufficient in proof of claim of possession of the land in suit by the plaintiffs, as such the claim of possession by the defendats on the basis of rent receipts is not well founded. It has feebly been submitted by the learned Counsel for the appellants that plaintiffs’ case has been decreed on the weakness of the case of the defendants although the accepted principle of law is that plaintiff is to prove his case or in other words plaintiffs success depends in proving his case or in establishing his case by reliable evidence. In support of the aforesaid contention the learned Counsel has referred to the cases reported in 25 DLR (SC) 90, 10 DLR 1 (PC) and 43 DLR 18. It may be mentioned the Hugh Court Division as well as the trial Court have decreed the suit of the plaintiffs not on the weakness of the defendant rather on the weakness of the defendant rather on the basis of the materials brought on record from the side of the plaintiffs, particularly Exts.l and 2, genuineness whereof was not disproved by the defendants. It has also been submitted from the side of the appellants that High Court Division sitting in revisional jurisdiction was not well within its jurisdiction insetting aside the finding of fact arrived at by the last Court of fact. In support of the aforesaid contention the learned counsel for the appellants has referred to the case reported in 39 DLR (AD) 237. In repelling the contention of the learned Counsel for the appellants that High Court
Division exceeded its jurisdiction while making the Rule absolute upon interfering with
the finding of fact arrived at by the last Court of fact, the learned Counsel for the plaintiff-Respondent has submitted that when the finding of fact arrived at is result of mis-reading and non-consideration of the evidence or misconstruction of the document the High Court Division is quite competent to set aside the finding of fact so arrived at by the last Court of fact. In support of the aforesaid contention the learned Counsel for the plaintiff-Respondents has referred to the case reported in 48 DLR (AD) 154 and 57 DLR (AD) 55. The principle of law enunciated in the cases referred to by the learned Counsel of the plaintiff-Respondents is applicable to the facts and circumstances of the instant case.
17. On consideration on the materials of record we are of the view the plaintiffs have
been able to establish their claim of title and possession in the land in suit and in that view of the matter the High Court Division has not committed any error in making the Rule absolute and thereupon setting aside the judgment of the appellate Court.
18. Accordingly the appeal is dismissed with costs.
Ed.
Source: IV ADC (2007), 43