Abdul Matin Chowdhury Vs. Chapala Rani Sen and others, 37 DLR (AD) (1985) 205

Case No: Civil Appeal No. 120 of 1983

Judge: Chowdhury ATM Masud,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Sharifuddin Chaklader,MR. SR Pal,,

Citation: 37 DLR (AD) (1985) 205

Case Year: 1985

Appellant: Abdul Matin Chowdhury

Respondent: Chapala Rani Sen and others

Subject: Law of Evidence,

Delivery Date: 1984-8-15

 
Supreme Court
Appellate Division
(Civil)
 
Present:
FKMA Munim, CJ.
Badrul Haider Chowdhury, J.
Chowdhury ATM Masud, J.
Syed Md. Mohsen Ali, J.
 
Abdul Matin Chowdhury
……………Appellant
Vs.
Chapala Rani Sen and others
……………Respondents
 
Judgment
August 15, 1984
 
The Civil Procedure Code, 1908
Section 100
Misreading of evidence is a mixed question of fact and law, and as such the High Court Division erred in law in the interfering with the finding of the Court below in second appeal. ………(17)
 
The Evidence Act, 1872 (I of 1872)
Court itself is competent to compare a disputed handwriting or signature of a person with his admitted writing or signature to come to a conclusion…………(19)
Comparison of writing or signature with admitted writing or signature is a ques­tion of fact and the High Court Division is not to interfere with the conclusion of the First Appellate Court on such question…………(20)
Concurrent findings of facts by the trial Court and  the First Appellate Court are binding upon the High Court Division in Se­cond Appeal unless it could be shown the said findings had been vitiated by an error of law or of procedure which had affected the merit of the case………(22)
 
Lawyers Involved:
S.R. Pal, Senior Advocate (M.H. Khandker, Senior Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Appellant.
Khandker Mahbubuddin Ahmed, Senior Advocate instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Respondent Nos.1-3.
 
Civil Appeal No. 120 of 1983
(From the judgment and decree dated 6 April, 1983 passed by the High Court Division, Comilla Bench, in Second Appeal No. 352 of 1978.)
 
JUDGMENT
 
Chowdhury ATM Masud J.
 
This appeal by special leave is directed against the judg­ment and decree dated 6.4.83 passed by the High Court Division, Comilla Bench in Second Appeal No 352 of 1978 allowing the appeal and reversing the concurrent decisions of the Court below.
 
2. The appellant, as plaintiff, instituted Title Suit No.602 of 1974 in the Court of Munsif, 1stCourt, Sadar, Sylhet against the defendant respondents praying for a decree for specific performance of contract for sale and also for permanent injunction restraining principal defendants (Respondent Nos.1-3) from disturbing plaintiff's possession in the suit land or from transferring the suit land to any­body else by way of sale or otherwise.
 
3. The plaintiff's case, in brief, is that the suit land along with other lands belonged to defendant Nos.1 and 2 and Promode Nath Sen, the father of defendant No.3, in Mourashi Maliki right and they were in exclusive possession of the same. In 1963, these three persons proposed to sell the suit land and other lands and after negotiation an agreement was made for sale of 6 keur 1 poa of land including the suit land for a consideration of Tk.18, 750/00. Subsequently, it came to light that there had been some mist­ake in the record of right of the land contra­cted for sale and accordingly in the later part of 1963 a Baina was made after making over possession of the suit land along with the other lands to the plaintiff. It was agreed upon between the parties that the sale deed would be executed and registered by the defendants after correction of record of right. The baina patra was kept with one Saradah Charan Deb, a clerk of the local Court who was the mediator of the transaction.
 
4. The plaintiff's further case is that after getting possession of the suit land along with other lands, he cleared up the jungles, filled up the ditches at huge costs and constructed houses and has been living there peacefully. With regard to the suit land there has been a number of litigations after the contract with the plaintiff so as to meet the said expenses and also to meet their family expenses, the defendants received the entire consideration money from the plaintiff.
 
5. The defendants (Respondent Nos.1-3) as plaintiffs filed T.S No.506 of 1966 and T.S. No. 83 of 1967 in the 1st Court of Munsif, Sadar, Sylhet, for correction of record of right in respect of plot Nos.118,1210 and 121 admitting the plaintiff's possession in those plots (which is present suit land) and got decrees. In L.A, Case No.33 of 1968-69 in con­nection with acquisition of plot No.1210 defendant No. 2 (present respondent No. 2) in his objection petition dated 26.6. 68 spe­cifically admitted sale of the suit land by them to the plaintiff.
 
6. In the meantime liberation war started and the defendants left for India and after libe­ration when they came back, the plaintiff in order to regularise the transaction demanded kabala but the defendants delayed the execu­tion of the kabala on different pretexts. As the stamp paper for requisite value was not available, they executed and registered a ka­bala Ext. 4, which covered only one plot, namely, plot No.1210, the consideration of which was shown to be taka.14, 000/-but when, the stamp paper for the remaining part of the laud under contract, was available, the defendants changed their mind and refused to execute the necessary sale-deed and denied the entire contract. Hence the suit.
 
7. Respondents 1-3, as defendant Nos.1-3 contested the suit by filing a joint written statement and their case, in brief was that they never contracted to sell the suit land and other lands to the plaintiff in 1963 and they also never executed any bainapatra nor they receive consideration money of Tk. 18,750/-. They brought T.S. No. 506 of 1966 against Sailendra and at that time the present plaintiff lived at Mirabazar and defendant No. 2 came in contact with him and the plaintiff was in­ducted as licence in 1968 in part of the plot No.1210, when he promised to help the defendants in their litigations. The defendants also brought T.S. No. 83 of 1967 when plot No.1210 and suit land were declared as enemy property and they got decree in the year 1969. The plaintiff took the responsibility of land acquisition case and ultimately lands were not acquired. Defendant No. 2 never filed any objection in the Land Acquisition Case.
 
8. Defendant’s further contention was that after liberation of the country, the plain­tiff wanted to purchase plot No.1210 and the defendants agreed and the consideration money was fixed at Tk.14, 000/-in the first part of January, 1974, but the execution of kabala was delayed and ultimately the defendants executed the kabala on 2.10.74 on receipt of consideration and it was registered on 4.10.74. The plaintiff has been permitted to use the pathway which runs over northern portion of the suit land which is partly paddy land and partly garden.
 
9. The learned Munsif on consideration of evidence decreed the suit holding, inter alia, that the defendants contracted to sell the suit land in 1963 and it was a genuine contract and that the defendants received the consi­deration and the plaintiff is in possession of the suit land since 1963.
 
10. On appeal, the learned Subordinate Judge, Second Court, Sylhet, affirmed the decision of the trial Court. The defendants thereafter filed Second Appeal No. 352 of 1978 and a Single Judge of the High Court Divi­sion, Comilla Bench, allowed the appeal and set aside the concurrent findings of the Courts below, holding, inter alia, that as there is no satisfactory evidence in respect of passing of consideration and the alleged agreement for sale the decree for Specific Performance of Contract is not tenable in law.
 
11. The plaintiff then moved this Court and obtained leave to appeal. Leave was granted in the following terms:—
 
"Mr. S.R. Pal learned Counsel for the petitioner contends that one of the defendants admitted in an objection peti­tion before, the Deputy Commissioner in a land Acquisition Case that the plaintiff-petitioner was in possession of Plot No.1210 from 1963 in pursuance of a con­tract. The objection petition which is Ext. 3 contains the defendant's signa­ture. This signature has been compared by both the trial Court and the lower Appellate Court with a number of ad­mitted signatures of the defendants and has been held to be that of the defen­dant. But the learned Single Judge, it is further contended on an erroneous view of law, rejected the concurrent finding as to this signature observing that the signature was not examined by an expert Mr. Pal has submitted that the plaintiff prayed for expert examination of the defendant's signature, but the trial Court did not think it necessary but compared it himself with the admitted signatures under section 73 of the Evidence Act. Interference, in second appeal with this concurrent finding, Mr. Pal contends, is totally uncalled for. Mr. Pal next contends that both the trial Court and the lower Appellate Court concurrently found. That the consideration was paid, but this finding of fact has been illegally disturbed in second appeal causing miscarriage of justice. Mr. Pal further contends that the learned Single Judge illegally interfered with the other findings of facts arrived at by the lower Appellate Court and the trial Court on considera­tion of evidence. The questions raised merit consideration.”
 
12.  Mr. S.R. Pal, the learned Counsel for the appellant, argues that the concurrent find­ings of facts by the trial Court and the first appellate Court is binding upon the High Court Division and such finding of facts  even if appears to be wrong  cannot  be interfered with in the second appeal.
 
13. Mr. Khandker Mahbubuddin Ahmed, the learned Counsel, appearing for the respon­dents argues that the learned Judge of the High Court Division committed no illegality in interfering with the finding the facts arrived at by the Courts below, which was vitiated by error of law that had affected the merits of the case.
 
14. The learned Judge of the High Court Division held that there was no satisfactory evidence to prove the contract and passing of the alleged consideration by the plaintiff. The bainapatra was not produced on the ground that it was with one Sarada Charan Deb, the mediator, in the transaction, and since his death it was untraceable. The plaintiff, how­ever, sought to prove the alleged contract by oral evidence and other circumstances particularly, the fact of his alleged possession of the suit land since 1963.
 
15. The learned Subordinate Judge in his judgment referred to the deposition of the present plaintiff in Title Suit No.506 of 1966 and Title Suit No. 83 of 1967, which were instituted by the present defendants against some others. In the said cases while deposing as P.W he asserted his possession of 6½ acres of land from plot Nos. 1210, 118 and 121  since 1963 on the basis of bainapatra.
 
16. The learned Judge of the High Court Division observed that the learned Subordinate Judge acted illegally in making reference to the aforesaid deposition of the plaintiff in these cases as these were inadmissible in the present case. He further observed that the learned Subordinate Judge did not consider the judgment of the said two suits, certified copy of which were marked Exts. 2 and 2(a), which would have proved the possession of the present defendants.
 
17. The deposition of the present plaintiff in the aforesaid suits was referred to only as a circumstance, and is not their sole basis of the finding arrived at. The copy of the judgments Exts.2 and 2(a) were not at all vital for the decision of the point at issue and non-consideration of the same would not in any way affect the finding of the Courts below. One of the grounds on which the learned Judge (of the High Court Division) reversed the deci­sion of the lower appellate Court is misreading of the  evidence by the Courts below but he failed to notice that misreading of evidence being a mixed question of law and fact cannot be interfered with in second appeal.
 
18. The learned Subordinate Judge refer­red to Ext. 3 alleged objection-petitions filed by defendant No. 2, Prabir Chandra Sen, in the Land Acquisition Case and held on the basis thereof that defendant No. 2 admitted the plaintiff's possession in the suit plot. De­fendant No. 2 denied the authorship of Ext. 3. There is no expert opinion as to the disputed signature of defendant No. 2, in the said objection petition. The learned Subordinate Judge in spite of prayer of the plaintiff for expert examination of the signature of defendant No. 2 in Ext. 3 did not consider it necessary and himself compared the disputed signature with the signature of defendant No. 2 in the written statement and vokalatnama and then he ob­served that he was satisfied that the signature was that of Prabir Chandra Sen, defen­dant No. 2. The learned Judge of the High Court Division observed that though the mode of proving signature cannot be said to  be illegal, but in the facts and circumstances of the case it was not proper on his part to have made a  finding  in respect of authorship of Ext. 3.
 
19. Section 73 of the Evidence Act lays down one of the modes of proving hand-writing and signature. Under this section in order to ascertain whether a signature of wri­ting is that of a person by whom it is alleged to be made or written, it may be compared by the Court with another writing or signa­ture which is admitted or proved to have been written or made by that person.
 
In the instant case in spite of the prayer of the plaintiff for sending the disputed signa­ture for examination by an expert, the trial Court did not think it necessary to do so and himself directly compared the disputed signa­ture and came to the positive finding that the signature of defendant No. 2 in Ext. 3 has been well proved.
 
20. Comparison of writing or signature with admitted writing or signature is a question of fact and the High Court Division is not to interfere with the conclusion of the First Appellate Court on such question. It is now well settled that comparison of signatures is a perfectly legal mode of proving hand-wri­ting and however inconclusive such proof may be it cannot be considered as an error of law to base a conclusion on such proof alone, and a Court of second appeal is not competent to set aside a finding based on such comparison.
 
21. The trial Court as well as the Court of appeal below considered the entire evidence and came to positive findings accepting plaintiffs' contention as regards the agreement, passing of consideration and delivery of posse­ssion of the suit land in favour of the plain­tiff and they also found that the signature appearing in the objection petition Ext. 3 were that of defendant No. 2.
 
22. In the circumstances the learned Judge of the High Court Division was not justified in reversing those concurrent findings of facts recorded by the Courts below. It is not dis­puted that concurrent findings of facts by the trial Court and the First Appellate Court is binding upon the High Court Division in se­cond appeal unless it could be shown the said finding had been vitiated by an error of law or of procedure which had affected the merit of the case. There being no such error of law or pro­cedure to affect the merit of the case the deci­sion of the High Court Division cannot be sustained and accordingly it is set aside and the decree of the First Appellate Court is restored.
 
The appeal is allowed with costs.
 
Ed.