Tarak Chandra Majhi Vs. Atahar Ali Howlader

Appellate Division Cases

(Civil)

PARTIES

Tarak Chandra Majhi ……………………..Appellant

-vs-

Atahar Ali Howlader and others …………….Respondents

JUSTICE

Md. Ruhul Amin.J

K.M. Hasan J

Md. Eazlul Haque. J

JUDGEMENT DATE: 18th November 2002.

The Evidence Act, Section 73.

State Acquisition and Tenancy Act, 1950.

Kessarbai Vs. Jethabhai Jivan AIR 1928 PC 277. 49 DLR( 1997) 241.

The Land Adminstration Board competent to pass the order challenged in the suit.

Resorting to the unsatisfactory and dangerous’ mode of comparison of the contentious signature or writing with the admitted writing or signature and thereby arriving at the ‘notional view’ ‘seems to be’. ‘Appears to be’. ‘May be assumed to’ or ‘perceiving’ or ‘ guessing probability’ of being similar to the admitted writing or signature without the aid in evidence of microscopic enlargement and any expert advice and then stacking judgment thereon is not only risky but unsafe too and consequent thereupon there is serious chance of error in the final decision ……..(13)

So to avoid the risk of falling into error as to genuineness of writing signature etc. upon resorting to ‘unsatisfactory and dangerous’ mode or procedure of examining the contentious signature, writing etc. by the Court through comparison the best course in our opinion is to avoid said ‘unsatisfactory and dangerous’ procedure and desired course should be to go for macroscopic enlargement and expert advice since the science of examination of signature writing etc. for determination of similarity through microscopic enlargement has advanced enough and has reached to the stage of accuracy and certainty as well as expertise skill is also available ………..(13)

Civil Appeal No. 88 of 1999. (From the Judgment and Order dated July 23, 1999 passed by the High Court Division in Civil Revision No. 2118 of 1993)

Khondker Mahbubuddin Ahmed, Senior Advocate, (Haninur Rashid, Advocate with

him) instructed by Md. Nawcib Ali, Advocateon-record ……………For the Appellant

Abdus Salama Khan, Senior Advocate, instructed by Mvi, Md. Wahidullah, Advocate-onrecord …………………….For the Respondents

JUDGMENT

1. Md. Ruhul Amin, J :- This appeal by the plaintiff by leave is against the judgment and order dated July 23. 1999 of a Single Bench of the High Court Division in Civil Revision No. 2118 of 1993 making the Rule absolute upon reversing the judgment and decree dated October 28, 1992 of the Court of Subordinate Judge, Pirojpur, in Title Appeal No. 106 of 1986 decreeing the suit upon setting aside the judgment and decree dated August 31, 1986 of the Court of Munsif (now Assistant Judge). Bahndaria Upazila, Pirojpur, in Title Suit No. 29 of 1985 dismissing the suit wherein declaration was sought to the effect that the order dated February 5. 1985 of the Land Appeal Board in Appeal Case No. 98 of 1984 illegal, void and not binding on the plaintiff.

2. Facts in the background of which the suit was filed, in short, are that kamini sundari Devi as owner of the land in suit on receiving Tk. 700/- out of total consideration of Tk. 1.000/- executed a bainapatra on 16tn Magh, 1376 B.S. in favour of the plaintiff; that on the date of execution of the bainapatra kamini Sundari Devi delivered possession of the land to the plaintiff; that subsequent to the agreement for sale with the plaintiff kamini Sundari Devi sold the land to defendant No. 1 by a kabala dated March 12. 1970. The plaintiff filed Title Suit No. 16.. of 1970 seeking specific performance of contract for sale of land against kamini Sundari Devi and others. The said suit was decreed in terms

of compromise effected between the parties and the defendant No.l (of the instant suit) upon receiving Tk. 1,500/- executed and registered a kabala on July 28,1972 in favour of the plaintiff and made, over possession to him. Later on the defendant No.l by forging signature of the scribe created an Ekrarnama showing the plaintiff as the first party and the defendant No. 1 as the2nd party and on the basis thereof filed Miscellaneous Case No. 262 of 1982 under Section 95 of the State Acquisition and Tenancy Act, 1950 , in the office of the Upazila Revenue Officer, Bhandaria and that upon suppressing the notice of the said Miscellaneous Case and creating evidence as regard appearance of the plaintiff in the said Miscellaneous Case obtained an order on 21.10.1982 for reconveyance of the land in suit. The plaintiff having had came to know about the said order of the Upazila Revenue officer filed an application on January 2, 1983 in the Office of the Upazila Revenue officer and thereupon the Upazila Revenues officer directed the plaintiff to file appeal against his order in the office of the Additional Deputy Commissioner. Revenue, pirojpur and the plaintiff filed an appeal, being No. 91 of 1982 in the office of the

Additional Deputy Commissioner, (ADC) (Revenue), Pirojpur and the same was dismissed by the ADC. Then the plaintiff filed appeal No. 279 of 1983 in the office of the

Additional Divisional Commissioner, Khulna, who allowed the appeal upon setting aside the order of the ADC and the Upazila Revenue Officer. The defendant No. 1 then filed appeal No. 98 of 1984 before the Board of Land Administration and the Board set aside the order of the Additional Divisional Commissioner, Khulna and restored the order of the Additional Deputy Commissioner, Pirojpur and the Upazila Revenue officer,

Bhandaria, Pirojpur.

3. The plaintiff filed the suit contending primarily that at no point of time between him and the defendant No. 1 there was any agreement for reconveyance of the land and that he never executed any Ekrarnama to that effect in favour of defendant No. land that scribe of the plaintiff’s kabala, whereby defendant No.l in the light of the compromise decree in Suit No. 161 of 1970 transferred the land to the plaintiff, had never wrote the Ekrarnama, as claimed by the defendant No.l, between the plaintiff and the defendant

No.l for reconveyance of the land which was the subject matter of hereinabove mentioned

Title Suit.

4. The Suit was contested by the defendant No.l stating, inter alia, that plaintiff executed

Ekrarnama to re convey the land and that land Appeal Board is quite competent to make order of redemption and that Civil Court has no jurisdiction to interfere with the order of the Land Administration Board.

5. The trial Court on the basis of the materials on record dismissed the suit on the finding

that the Kararnama is a genuine document and that the suit so filed is not maintainable as in the light of the provision of the State Acquisition and Tenancy Act (as amended by the

President’s Order Nos. 88 of 1972, 132 of 1972 and 24 of 1973) the Land Adminstration Board competent to pass the order challenged in the suit.

6. The plaintiff went on appeal before the Court of District Judge, Pirojpur. The appellant

Court allowed the appeal and upon setting aside the judgment and decree of the trial court

decreed the suit on the findings that although the Ekrarnama is a genuine document yet, as the Ekrarnama is not a registered one as such on the basis of the same defendant No. 1 under the law cannot go for enforcement of the right of redemption and as such the order passed by the Land Admisntration Board was not legal. The defendant No.l as against the judgment and decree of the appellate Court moved the High Court Division in revisional jurisdiction and obtained Rule in the aforementioned Civil Revision. The High Court Division made the Rule absolute upon observing that the question of genuineness of the Ekrarnama is a question of fact and that appellate Court having and found the Ekrarnama as genuine committed error in setting aside the judgment had decree of the trial Court and thereupon decreeing the suit when the order of the land Administration Board has not been found malafide, that an agreement for re-conveyance is not required to be registered and as such appellate Court was in error in setting aside the judgment and decree of the trial Court.

7. Leave was granted to consider the contention of the appellant that finding of the

Additional Divisional Commissioner, Khulan Division as regard the Ekrarnama and the finding of the Civil Court as to the Ekrarnama being not uniform rather contradictory the High Court Division was in error an affirming the judgment and decree of the trial Court as to the genuineness of the Ekrarnama without taking into consideration the fact that Ekrarnama was not examined by a Hand Writing Expert and that trial Court arrived at the finding as to the genuineness of the Ekrarnama without paying any heed to the caution given by the superior court regarding giving decision on the genuineness of a document by making comparison of signature upon resorting to the provision of Section 73 of the Evidence Act, that defendant No.l executed and registered the kabala on July 28, 1972 in favour of the plaintiff-appellant on the basis of compromise decree in Title Suit No. 161 of 1970. but the learned Judge of the High Court Division wrongly reversed the Judgment

of the lower appellate Court without ascertaining the terms of the said compromise decree which was most vital evidence to ascertain the genuineness or otherwise of the Ekrarnama that High Court Division was wrong in setting aside the judgment and decree of the appellate court on the ground of concurrent findings of the Courts below ignoring material evidence on record particularly the evidence of the scribe of kabala dated July 28, 1972, who categorically denied the assertion of writing of the Ekrarnama by his assistant and that he also denied his signature appearing in the Ekrarnama.

8. The question for consideration in the appeal is how far in the background of the case

of the respective parties and the evidence led from the side of the plaintiff, particularly the evidence of P.W.2, scribe of the deed by which defendant No.l in the light of the compromise decree in the Title Suit No. 161 of 1970 transferred the land in the instant suit to the plaintiff, the courts were correct on comparison of the signature of the plaintiff in arriving at the finding as to the genuineness of the Ekrarnama on the basis where of the defendant No.l went to the office of Upazila Revenue officer for redemption of the land which he transferred to the plaintiff in the light of and in terms of the decree in the suit for specific performance of contract for sale of the land, against the defendant respondent No. 1 and another and was allowed by the Upazila Revenue officer and that affirmed by the Additional Deputy Commissioner, Revenue, perojpur but set aside by the Additional Divisional Commissioner, Khulna and ultimately the Land Admistration Board set aside the order of the Additional Divisional Commissioner and thereupon restored the order of the Additional Deputy Commissioner. Revenue and the Upazila Revenue officer.

9. The plaintiff has filed the suit seeking declaration that the order of the Land

Administration Board was illegal and void. The trial Court as well as appellate Court upon resorting to the provision of Section 73 of the Evidence Act compared the singature of the plaintiff appearing in the Ekrarnama and held that the Ekrarnama was genuine although, RW 2 whose signature appeared in the ekrarnama denied the same.

10. The learned Counsel for the appellant has submitted that in view of the evidence of

RW.2 categorically denying his signature in the Ekrarnama the Courts i.e trial Court and the appellate court, were in serious error in holding the Ekraranama as genuine in disregard of the view of the superior courts as to making of decision in a situation as in the instant case, as regard the genuineness or otherwise of a document upon resorting to the provision of Section 73 of the Evidence Act. In this connection the learned Counsel for the appellant has referred to the case of Kessarbai vs. Jethabhai Jivan reported

in AIR 1928 PC 277 where in it has been held ” it is unsatisfactory and dangerous in

any event to stake a decision in such a case as this on the correct determination of the genuineness of a signature by mere comparison with admitted signatures, especially without the aid in evidence of microscopic enlargements or any expert advice”. In the aforesaid case in the background of contention as to genuineness of endorsement and writing in some documents the appellate Court to arrive at the decision in respect of the subject matter of the suit made comparison of the endorsement and writing in the contentious documents with the admitted writing and signature of the parties to the document and arrived at the finding as to the genuineness of the document and in the said state of the matter the Privy Council had held so. From the Bar the case of Pratik Bandhu Roy and others Vs. Alok Banduh Roy and others reported in 49 DLR (1997) 241, has also been referred and in the said case the High Court Division has held that rejection of a document on comparison of signature by naked eye without an opoinion of expert is not a correct approach in making decision as to genuineness or otherwise of the said document. The learned Counsel for the appellant has placed the evidence of P.W.2 whose signature appears in the Ekrarnama, and he has denied the said signature as of not his and that also denied suggestion that he wrote the Ekrarnama and that stated said Ekrarnama was also not written by his assistant. It was the specific case of the defendant that P.W.2, scribe of the deed by which defendant transferred the land to the plaintiff got the Ekrarnama written by his assistant and thereafter put his signature in the Ekrarnama as the scribe. In the background of the facts of the case the probability of execution of the Ekrarnama

by the plaintiff appears to be something queer. In the state of the matter as are in the instant suit and in the background of the case of the respective parties as well as the evidence on record, particularly the evidence of P.W.2 High Court Division was in error in setting aside the judgment and decree of the appellate Court. The High Court Division, the appellate Court and the trial Court upon resorting to an ‘unstisfactory and dangerous’ procedure erred in staking their decision upon forming opinion as to the genuineness of the Ekrarnama.

ll.The learned Counsel for the respondent has submitted that High Court Division was

quite correct in setting aside the judgment and decree of the appellate court since the lower appellate court as well as the trial court concurrently held the Ekrarnama as genuine. It was also submitted from Respondent’s side since no declaration has been sought as to title and that as no relief his been sought as regard the Ekrarnama the suit so framed is not maintainable.

12. It has already been observed by as that the trial Court as well as the appellate court

upon resorting to ‘unsatisfactory and dangerous mode or procedure staked their decision as to the genuineness of the Ekrarnama. In the background of the facts of the case and the evidence on record said aspect of the case was not noticed by the High Court Division and consequent thereupon was in error in setting aside the judgment and decree of the appellate court. The other contention of the learned Counsel for the respondent that no relief was sought seeking declaration of title and that against the Ekrarnama is not well founded in law since the suit has been filed against the order by which plaintiff’s title to the land in suit was clouded and that no specific relief the plaintiff was required to sought against the Ekrarnama since the decree sought against the Ekrarnama since the decree sought for against the order of the Land Admistration Board would remove the cloud created by the order impugned and thereupon the Ekrarnama relating to plaintiff’s land

would have no bearing upon the land of the plaintiff.

13. Resorting to the xunsatisfactory and dangerous’ mode of comparison of the contentious signature or writing with the admitted writing or signature and thereby arriving at the ‘notional view’ ‘seems to be’. ‘Appears to be’. “May be assumed to’ or ‘perceiving” or ‘ guessing probability’ of being similar to the admitted writing or signature without the aid in evidence of microscopic enlargement and any expert advice and then stacking judgment thereon is not only risky but unsafe too and consequent thereupon there is serious chance of error in the final decision. So to avoid the risk of falling into error as to genuineness of writing signature etc. upon resorting to ‘unsatisfactory and dangerous’ mode or procedure of examining the contentious signature, writing etc. by the Court through comparison the best course in our opinion is to avoid said ‘unsatisfactory and dangerous’ procedure and desired course should be to go for macroscopic enlargement and expert advice since the science of examination of signature writing etc. for determination of similarity through microscopic enlargement has advanced enough and has reached to the stage of accuracy and certainty as well as expertise skill is also available.

14. In case of contentious writing, signature etc. though provision of Section 73 of Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course in course in our view for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or in other words unsatisfactory and dangerous’ procedure.

15. In the background of the discussions made here over we find substance in this appeal and the appeal is allowed.

16. The judgment of the High Court Division is set aside and that judgment and

decree of the appellate court is restored. There is no order as to costs

Ed

Source: I ADC (2004), 481