Bela Rani Dasya Vs. Sree Modhusudan Mondol and others, 1 LNJ (2012) 312

Case No: Civil Revision No. 5135/1991

Judge: Md. Nuruzzaman,

Court: High Court Division,,

Advocate: Mr. Bivash Chandra Biswas,,

Citation: 1 LNJ (2012) 312

Case Year: 2012

Appellant: Bela Rani Dasya

Respondent: Sree Modhusudan Mondol and others

Subject: Expert Opinion,

Delivery Date: 2011-11-24

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Nuruzzaman, J.
 
Judgment
24.11.2011
 
Bela Rani Dasya
....Writ Petitioner
VS
Sree Modhusudan Mondol and others
....Respondents
 
Evidence Act (I of 1872)
Sections 45 and 73
The court is not bound to refer a document to the hand writing expert when the   court itself found the dissimilarity in LTI. The appellate court itself committed error on a misconception of law that the expert opinion is necessary to resolve the dispute regarding LTI when the defendants admittedly failed to produce the original deed in question. ...(7)
 
Code of Civil Procedure (v of 1908)
Order XLI , Rule 31
Mere referring some statements made in the plaint which obviously neither admitted nor evidence on record and thus, cannot be a ground to reverse the evidence given on oath and hence the judgment of the appellate court is not a proper judgment of  reversal. ..... (8)
 
Mr. Bivash Chandra Biswas, with
Mr.Hossain Md.Borhan, Advocates
…For the petitioner
No one……                            
.... For the opposite parties
 
Civil Revision No. 5135/1991 (Civil Revision No. 84/1984).
 
J U D G M E N T
Mr. Md. Nuruzzaman, J:
 
1.         The instant Rule has been obtained by the petitioner calling upon the opposite parties to show cause as to why the impugned judgment and decree complained of in the petition moved in Court should not be set aside.
 
2.         The material facts relevant for disposal of the Rule, in short, is that the petitioner as plaintiff  instituted Title Suit No. 242/1978 for declaration that the Deed No. 10292 dated 15.11.1975 shown to have been executed by the plaintiff in favour of the defendant Nos. 1-7 is a forged, fraudulent, without consideration and not binding upon the plaintiff. By amendment order dated 24.3.1981 the plaintiff also prayed for declaration and confirmation of possession, if it is proved that the plaintiff is not in possession then prayed for khas possession in the suit land. The plaint case, is that, the suit land originally belonged to Ballok Mondal. After the death of Ballok Mondal his 8 sons inherited the same. The youngest son Arjun died during the period of liberation while he was going to India. The plaintiff is the wife of Arjun and after his death she became the heir of late Arjun. The rest 7 sons of Ballok Mondal are the defendant Nos. 1-7. The plaintiff has ejmali possession in the suit land with the defendants. In the month of December, 1977 the plaintiff came to learn that the defendant Nos. 1-7 has created a deed of Kabala for the suit land. The plaintiff having been heard about the so called deed she searched for and could know that the defendants had made a deed of Kabala in Shoilkupa Sub-Registry Office, on 15th November, 1975. The plaintiff never executed such deed of Kabala in favour of anybody. The plaintiff neither took Tk. 4,000/- from anybody nor executed  any deed of Kabala. The plaintiff claims that the Kabala shown to have been executed by her obviously forged, fraudulent and without consideration. The plaintiff’s further believes that the defendants’ had created the deed of Kabala only to deprive the plaintiff from the suit land with malafide intention  by making false personification, hence, the plaintiff compelled to file the instant suit.
 
3.         All the defendants contested the suit by filing written statements denying the material allegations made in the plaint, stating, inter alia, that the suit is not maintainable in it’s present form. The suit is bad for suppression of facts. It is admitted that the plaintiff’s husband Arjurn is the youngest son of Ballok Mondal and the suit land originally belonged to Ballok Mondal. Arjun died in the year 1979, one year before the death of his father Ballok Mondal. It is not the fact that Arjun died during liberation period while he was going to India. The wife of Arjun had been living with the defendants after the death of her husband. One day Suren and Judisthir, the brothers of the plaintiff came to the plaintiff and told that the plaintiff would transfer her share of property by Kabala. The defendants being afraid by the proposal of the transferring of the property by the plaintiff, the defendants agreed to purchase the same and consideration money was fixed Tk. 4,000/- only. The plaintiff took the consideration money from the father’s of the defendants and went to the Shoilkupa S/R Office and executed the deed of Kabala in favour of the defendants and since then the defendants have been possessing the suit property. The defendants’ father handed over the original deed to the Tahsilder and as such, the original deed in question was not in their possession. The Tahsilder did not return the original deed. The plaintiffs’ suit is nothing but harassing one and the same is liable to be dismissed with cost.
 
4.         At the trial the plaintiff’s side adduced 2 (two) P. Ws. And the defendants adduced 2 (two) D. Ws. After conclusion of the trial the trial Court considering the materials available on record decreed the suit.
 
5.         Being aggrieved by and dissatisfied with the judgment and decree of the trial Court the defendants preferred appeal before the learned District Judge, Magura. Eventually the learned District Judge transferred the Title Appeal to the Court of the learned Subordinate Judge, Magura for hearing and disposal. On appeal the learned Subordinate Judge, Magura considering the facts and circumstances and evidence on record allowed the appeal reversing the judgment and decree of the trial Court on the grounds that the plaintiff is not in possession of the suit land and the learned Munsif was wrong in deciding that it was the duty of the defendants to pray for sending the left thumb-impression for examination of the expert opinion. So, according to the appellate Court it was a wrong finding, hence, the trial Court apparently did mistake in both in facts and law. On the above two grounds the appellate Court allowed the appeal by reversing the judgment and decree of the trial Court and dismissed the suit.
 
6.         The points for determination is whether the appellate Court in reversing the judgment of the trial Court committed any error of law resulted in an error in the decision occasioning failure of justice.
 
7.         Mr. Bivash Chandra Biswas, with Mr. Hossain Md. Borhan, the learned Advocates appe-aring for the petitioner submits that the trial Court after appreciating the evidence on record opined that the plaintiff on 17.01.1979 on an application sought for a direction upon the defendants to file the original deed being deed No. 10292 dated 15.11.1975 in the Court which was allowed. The defendants time and again took the plea to submit the original documents but could not file the same and later, on an application stated that the original deed was given to the Tahsilder of Isakhada for mutation and that was not returned to them by the Tahsilder. Then the court below called for a report asking the Tahsilder of Isakhada to submit a report whether the alleged deed was submitted by the defendants in the office of the Tahsidler is original or not. The Tahsilder of Isakhada submitted his report vide Memo No. 90 dated 9.8.1979, Ext. 3, to the Court stating that the alleged original deed of Kabala had never been filed in his office for mutation. On the facts and circumstances of the case on the applications of the plaintiff the trial Court called the LTI Register from the S/R office of Shoilkupa. On receipt of the LTI Register the learned Judge himself compared the LTI of LTI Register in serial No. 14297 with the LTI of Bela Rani which has been given in the deposition-sheet. On comparison of the two L.T.Is., the trial Court noticed that there is a clear distinction in between the LTI put in the Register being Serial No. 14297 and the LTI of deposition-sheet. Then the trial court opined that the LTI of Bela Rani in the deposition-sheet and the LTI in the LIT Register had no similarity. He further pointed out that the defendants’ side on the conclusion and for decision of the trial Court might send it for the expert opinion as burden of prove lies with them under section 103 of the Evidence Act. However, the defendants did not take any steps for expert opinion. He further opined that P.W. 2 Monoranjan in his deposition stated that he read over the disputed deed of Kabala to Bela Rani. However, at the time of cross examination the deed Ext. C was handed over to him to read but he could not read the same. Further-more, in cross-examination he admitted that he cannot say the name of the scribe who took the LTI of Bela Rani. But from the exhibit it is seen that it was written by Monoranjan. Therefore, the trial Court on the above findings came to a clear decision that the deed in question is a forged one, and as such, decreed the suit. We find from the judgment and decree dated 28.2.1984 that appellate court without adverting the above evidence on record only basing mere   surmise   and   conjecture reversed   the   trial   Court’s   findings   though   according   to me the trial Court   rightly   decided   one   point,   i.e.,   taking   the  expert opinion   lies   upon   the   defendants.   More-so, the Court was not bound to refer a document to the hand-writing expert when the Court itself noted the dissimilarity in LTI as defendant failed to produce the original document in court. So, I am of the view that the appellate Court itself committed error on a misconception of law that the expert opinion is necessary to resolve the dispute regarding LTI wherein the defendants admittedly failed to produce the original deed in question.
 
8.         Besides these, it appears to me that the judgment of the appellate Court is also tainted as the evidence and findings of the Trial Court as available on record were not adverted by the appellate court but set aside the same merely on a technical grounds that the plaintiff has failed to take the expert opinion. The learned Advocate appearing for the petitioner referring the ground No. 1 of the revisional application and the deposition of P.W.1 submits that P.W.1 categor-ically stated that she is in possession jointly with other co-sharers but the appellate Court without considering the above deposition of P.W. 1 quoting some statements from the plaint opined that the plaintiff is not in possession of the suit land. P.W.1 on oath stated that she is in possession and defence upon cross-examination did not found anything in their favour. Mere referring some statements in the plaint which obviously neither admitted nor evidence on record and thus, cannot to be a ground to reverse the evidence given on oath. Therefore, I am of the view that the appellate Court also in that point of view committed mistake. Therefore the judgment and decree passed by the appellate Court by reversing the trial court Judgment and decree is not a proper Judgment of reversal.
 
9.         On the facts and circumstances of the case, it appears that the plaintiff is a widow, she only enjoy the suit land in her lifetime after her demise, the suit land if not disposed of otherwise the same must be devolved upon the heirs of the late Arjun. So there is no cogent ground to disbelieve the plaint case that the defendant only to depriving the plaintiff’s lifetime interest has created a forged document.
 
10.       In the facts and circumstances of the case my firm view is that the court of appeal below without appreciating the evidence on record mere surmises and conjectures set aside the trial court’s judgment which resulted in an error in the decision occasioning failure of justice.
 
11.       For the reasons and discussions made herein above, I am of the view that the judgment and decree passed by the appellate Court is tainted from legal infirmity, therefore, calls for interference by this Court for ends of justice.
 
12.       Thus, the Rule having merit, it succeeds.
 
13.       In the result, the Rule is made absolute without any order as to cost.
 
14.       The judgment and decree passed by the appellate Court in title appeal No. 104 of 1981 is hereby set aside and those Judgment and decree dated 26.05.1981 of the trial Court is hereby affirmed. The office is directed to send down the L.C Record and Communicate this   judgment at once.
 
Ed.