Ganesh Chandra Pal Vs. Chinu Rani Das and others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 188 of 1996

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. A.K.M. Shamshed, Advocate,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Ganesh Chandra Pal and others

Respondent: Chinu Rani Das and others

Subject: Evidence Act

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

13.08.2018

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Ganesh Chandra Pal and others

. . . Petitioners

-Versus-

Chinu Rani Das and others

. . . Opposite parties

Evidence Act (I of 1872)

Section 45

In the instant case, I have come across that under section 45 of the Evidence Act, 1872 there lies an Expert’s opinion and the Expert was examined by the learned court below. The Expert opinion go to show that the signature as it appears in the disputed ‘solenama’ is not consistent and identical with the actual signature of the plaintiff-opposite party and that the signature of the disputed ‘ solenama’ (Exhibit-E) is the product of different individual Section 45 of the Evidence Act, (I of 1872) contemplates that the opinion of the Expert is not conclusive, nevertheless; it bears a strong prima-facie arguable case in favour of the party in whose favour the report lies in disposing the appeal there is no such illegality or infirmity or misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice, by which the impugned judgment and decree can be interfered with. . . . (25, 26 and 27)

1978 BLD (AD) 142 ref.

Mr. A.K.M. Shamshed, Advocate.

. . .For the petitioners

Mr. Md. Kamrul Alam (Kamal), Advocate

. . . For the Opposite Parties.

JUDGMENT

Soumendra Sarker, J.  The Rule issued calling upon the Opposite Parties No.1-11 to show cause as to why the judgment and decree dated 07.10.1995 passed by the learned Sub-ordinate Judge, 1st Court, Kishoregonj in Other Class Appeal No.260 of 1985 reversing those of dated 26.05.1985 passed by the learned Munsif, 1st Court, Kishoregonj in Other Class Suit No.1051 of 1980 should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.             The facts giving raise to the issuance of the Rule in a nutshell are as follows: One Noni Bala Das predecessor-in-interest of the present opposite parties No.01-09 as plaintiff instituted the original Other Class Suit being No.1051 of 1980 against the defendant-petitioners for a declaration that a compromise decree dated 07.10.1966 is collusive, illegal, fraudulent and the order dated 16.11.1978 regarding separation of holding passed by the Circle Officer (Rev.), Kishoregonj is fraudulent, illegal and void contending inter alia, that the suit land along with other lands had been owning and possessing by the plaintiff and the defendants. By way of amicable partition among the co-sharers of the case jote the plaintiff use to possess the suit property and at this stage the defendants No.1-3 and 10 in collusion with other defendants behind the back of the plaintiff, showing the plaintiff 2nd party and showing the predecessor-in-interest of the defendants-1st party created a false, collusive and anti-dated ‘solenama’ on 07.10.1966. The further case of the plaintiff is such that without serving any notice upon the 2nd party the defendants managed to obtain a collusive service return and thereby in a Mutation Case No.229(9)/1/78-79 they have mutated their names collusively and in fact in that mutation proceedings the plaintiff never obtained any notice. Subsequently, knowing about the mutation order the plaintiff filed an objection which was illegally rejected at the instance of the defendants. It is the contention of the plaintiff that in respect of the suit property in the year 1943 and 1957 there has been two registered ‘solenama’ deed among the co-sharers of the suit holding and in pursuant of those ‘solenama’ deeds the co-sharers after getting their separate shaham were possessing their portion of land. The plaintiff-opposite party never executed the ‘solenama’ dated 07.10.1966 and in that ‘solenama’ all the co-sharers were not impleaded parties. One of the sister of plaintiff namely Kusum Bala migrated to India long before 20/21 years of the disputed ‘solenama’ and in that ‘solenama’ the name of Girish Chandra Das was illegal inserted in order to grab a Cinema Hall situated in plot No.9036 and that the ‘solenama’ dated 07.10.1966 was created by the defendants No.1, 3 and 10 in order to deprive the plaintiff. It was also contended in the pleadings of the plaintiff that there was no talk of ‘solenama’ in respect of the land of plot No.9036 in exchange of the land of plot No. 9136 and the plaintiff never surrendered her interest and title of the land appertaining to plot No.9036, but the defendants in order to grab the property in the name of surrender of title and interest in respect of the land of plot No.9036 in lieu of the land of plot No.9136 created the disputed ‘solenama’. The plaintiff knowing about the disputed ‘solenama’ and the mutation in favour of the defendants on 20.12.1979 from the office of the concerned ‘Tahshil’ finally came to learn about the misdeed of the defendants which constrained the plaintiff to institute the original suit.

3.             The contrary case of the defendant-respondent-petitioners in short is thus that the property-in-dispute originally belonged to the plaintiff and the defendants in ejmali and subsequently for the sake of peaceful possession to remove the inconvenience among the co-sharers of the suit holding a ‘solenama’ was executed on 07.10.1966 and in that ‘solenama’ the plaintiff put her signature and the said ‘solenama’ has been acted upon after its proper execution.  The further case of the defendant-petitioners is such that two ‘solenama’ deed among the co-sharers in respect of their paternal property were made in the year 1943 and 1957, but in fact; those ‘solenama’ were not acted upon. The subsequent ‘solenama’ dated 07.10.1966 was a genuine ‘solenama’ and it was executed properly by the parties to the suit in respect of their paternal property and by this amicable ‘solenama’ in the year 1966 the plaintiff-opposite party give up her interest and title of the land of plot No.9036 in favour of the defendant-petitioners and in exchange of that land the plaintiff obtained ½ of the land in plot No.9136 along with its standing structure. The further case of the defendant-petitioners is such that by the said amicable arrangement pursuant to the ‘solenama’ dated 07.10.1966 the defendants No.1-3 and 7 acquired 16 annas share in the plot No.9036 and thereafter, they constructed a Cinema Hall in front of their dwelling house. Subsequently, they mutated their name after proper service of notice in the office of the concerned Circle Officer (Rev.), Kishoregonj in Mutation Case No. 229(9) /1/1978-79, but the plaintiff out of ill-motive suppressing the facts filed the suit on false allegations.

4.             During trial of the original suit the learned trial court after taking evidences from the sides of the respective parties dismissed the suit on contest by its judgment and decree dated 26.05.1985.

5.             Being aggrieved the plaintiff preferred an Other Class Appeal No.260 of 1985 in the court of learned District Judge, Kishoregonj, which was transmitted to the 1st Court of learned the then Sub-ordinate Judge, Kishoregonj for hearing and disposal and the learned appellate court on hearing the appeal allowed the same and set aside the judgment and dismissal decree passed by the learned trial court by the impugned judgment and decree dated 07.10.1995.

6.             Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-respondent-petitioners have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

7.             During hearing of this Rule Mr. A.K.M. Shamshed, the learned Advocate appeared on behalf of the petitioners while Mr. Kamrul Alam (Kamal) the learned Advocate appeared on behalf of the opposite parties.

8.             The learned Advocate appearing on behalf of the petitioners submits that the learned appellate court during disposal of the appeal committed illegality and irregularity. The learned Advocate further submits that the learned Sub-ordinate Judge, 1st Court, Kishoregonj failed to assess the evidence on record in its true perspective and also failed to appreciate the actual proposition of law. The learned Advocate also submits that there was no material in support of the plaintiff’s contention that the ‘solenama’ of the year 1943 and 1957 were acted upon and according to those ‘solenama’ the plaintiff exercised her title and possession in the land. The learned trial court during disposal of the original suit rightly after proper sifting of evidence arrived at a decision that the ‘solenama’ of the year 1943 and 1957 are collusive and not acted upon and thereafter in the year 1966 among the co-sharers of the suit holding for the sake of their possession and interest they executed a ‘solenama’ on 07.10.1966 which was properly executed by the plaintiff and pursuant to that ‘solenama’ the parties to the suit obtained their possession amicably. The learned Advocate submits that the evidence adduced from the sides of the respective parties were not properly evaluated by the learned appellate court and the learned appellate court without rebutting the findings of the trial court adverting evidence on records, reversed the judgment and decree passed by the trial court and at the time of disposal of the appeal there has been misreading and non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice. The learned Advocate referring some decisions submits that the plaintiff during trial of the original suit failed to produce any particular, which was necessary in case of misrepresentation, fraud, breach of trust and undue influence. But the learned appellate court failed to appreciate that, and under Order VI Rule 4 of the Code of Civil Procedure the impugned judgment and decree is bad-in-law. The learned Advocate lastly submits that the original suit as framed was not maintainable as the plaintiff having no legal character and right to sue instituted the original suit, but the learned appellate court failed to realize that and as such, the suit is barred under section 42 of the Specific Relief Act.

9.             As against the foresaid submission of the learned Advocate for the petitioners the learned Advocate appearing on behalf of the opposite parties opposing the Rule controverted the argument advanced from the side of the petitioners and submits that in passing the impugned judgment and decree the learned appellate court committed no illegality or irregularity. The learned Advocate further submits that, there has been no misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice by dint of which the impugned judgment and decree can be interfered with. The learned Advocate further submits that under the provisions laid down in Order XLI, Rule 31 of the Code of Civil Procedure the learned court of appeal below after proper assessment of evidence in its true perspective and appreciation of relevant law reversed the findings of the trial court and after rebutting the observation and decision of the learned Munsif, 1st Court, Kishoregonj adverting evidence on records reversed the judgment and decree passed by the trial court by the impugned judgment and decree. The learned Advocate submits that the specific element of fraud, misrepresentation and undue influence has been well proved from the side of the plaintiff-opposite parties and the particulars were given specifically under Order VI, Rule 4 of the Code of Civil Procedure by the plaintiff-opposite party in her pleadings as well as in the evidence adduced from her side. The learned Advocate argued that, from the cross-examination of the defendant’s witnesses all the particulars of misrepresentation, fraud, breach of trust, willful default and undue influence has been proved and the learned appellate court rightly and properly in his observation and findings pointed out all the particulars and material evidence on the basis of which the judgment and decree was passed by the appellate court and as such there is nothing to interfere with the impugned judgment and decree passed by the learned Subordinate Judge, 1st Court, Kishoregonj. The learned Advocate on citation of different decisions of this Court and our Apex Court argued that the elements of fraud which have been mentioned in the plaint in paragraph No.05, has been properly proved by sufficient evidence and there has been clear description as to how the fraud was committed upon the mother of the opposite party No.7, who was the plaintiff to the original suit. The learned Advocate lastly submits that, there is no illegality or infirmity in the impugned judgment and decree by which it can be held that the learned court of appeal below during disposal of the appeal committed any unlawful act and as such the Rule is liable to be discharged.

10.         In order to appreciate the submission advanced from the sides of the respective parties having gone through the pleadings of the parties in the plaint and in the written statement and the judgment and decree passed by the trial court in Other Class Suit No.1051 of 1980, the subsequent judgment and decree passed by the appellate court on 07.10.1995 in Other Appeal No. 260 of 1985, the evidence adduced from the sides of the respective parties both oral and documentary including all other relevant papers it transpires that, it is an admitted position that the suit jote originally belonged to the predecessors-in-interest of the plaintiff and the defendants and they had been owning and possessing the property. The suit jote which is the paternal property of the parties to the suit admittedly was not partitioned by metes and bounds and it is the case of the plaintiff that in respect of the entire property of the suit jote in the year 1943 and 1957 there were two registered ‘solenama’ deed among the co-sharers of the suit holding and according to those two ‘solenama’ deeds the parties to the suit amicably possessing the property of the suit holding. It has been specifically contended by the plaintiff in the pleadings that in order to deprive her subsequently the defendants No.1, 3 and 10 in collusion with other defendants managed to create a forged ‘solenama’ in the year 1966. It was further alleged that on 07.10.1966 that ‘solenama’ (aposhnama) was created by the defendants and in that ‘aposhnama’ the plaintiff never put her signature or LTI whatsoever and all the co-sharers of the suit holding were not impleaded parties to that ‘aposhnama’. Besides this, one of the daughter of the plaintiff namely Kushum Bala migrated to India 20/21 years prior to 1966, but in the ‘solenama’ her name has been collusively inserted and the signature was created. It was further contended from the side of the plaintiff that the suit Cinema Hall is situated in plot No.9036 in respect of which the ‘aposhnama’ in the year 1966 was created by the defendants. It was shown in that collusive ‘solenama’ that in lieu of the land appertaining to plot No.9136, the land of plot No.9036 was given to the defendants and this land was devolved by the defendants.

11.         To substantiate the respective cases of the parties both the parties led evidences and the plaintiff examined 03 witnesses in order to succeed. On the other hand, the defendant-petitioners to substantiate their case have examined 04 witnesses. Besides the oral evidence the plaintiffs to the suit produced documentary evidences which have been marked as Exhibits No.1-17 after its formal proof.

12.         Vis-à-vis; the defendants also submitted some documentary evidences and all the documents have been marked as Exhibits.

13.         In order to prove the case of the defendant-petitioners that by their family arrangement pursuant to the ‘solenama’ dated 07.10.1966 the defendants No.1-3 and 7 acquired the entire 16 annas share in the suit plot No.9036 in which they have allegedly constructed a Cinema Hall and also constructed their dwelling house in the back portion of that Cinema Hall, they have adduced 04 witnesses.

14.         P.W.1. the plaintiff herself Noni Bala Das in her examination-in-chief testified that the property was the ejmali property of her and the defendants, who are the co-sharers of the suit holding and possessed the suit property pursuant to 02(two) registered ‘solenama’ deeds of the year 1943 and 1957. P.W.1 also testified in her testimony that, still she possess the suit land and reside therein on the basis of those ‘solenama’ deeds. With regard to the allegation raised by her in her pleadings as cited in paragraph No. 3 and 4 of the plaint, she has categorically stated at a stage that in the unregistered ‘solenama’ of the year 1966 she did not put her signature. She has denied specifically that the ‘solenama’ deed of the year 1966 is correct and it was written by a scribe of Bikrampur in her presence. She also denied specifically in her testimony that she obtained notice of Mutation Case No.229(9)/1/78-79 and all the co-sharers in that mutation proceedings were duly notified. P.W.1 testified in her examination-in-chief that she did not sign any notice of the mutation case and she came to know about the false mutation case subsequently. Thereafter, she sent her son to the concerned ‘Tahsil’ office in order to know the matter definitely. The plaintiff also testified specifically that she filed an objection before the concerned Circle Officer (Rev.) against the mutation case which was rejected. Thereafter, she has filed the present suit. She also denied that the ‘solenama’ dated 07.10.1966 was executed in presence of her son. In respect of the Cinema Hall which is admittedly situated in plot No.9036, the plaintiff Noni Bala Das in her testimony testified that, Gonesh Pal viz. the defendant No.1 renovated the Cinema Hall by the money of rent which he realized in advance from the tenants. In a reply to a question from the side of the defendants, the plaintiff testified at a stage of her cross-examination that it is not a fact that in pursuant to earlier ‘solenama’ deeds which are registered, no possession was delivered in favour of the co-sharers of the suit holding and in compliance of the subsequent ‘solenama dated 07.10.1966 everything was done.

15.         P.W.2 M.A. Mannan is a hand-writing Expert, who has submitted his report comparing the signature of the plaintiff Noni Bala Das and the report of this witness has been identified by him which has been marked as Exhibit-1 dated 04.04.1984. During cross-examination this witness categorically testified that the signature of the executant of the deed of the year 1966 does not tally with the signature as it appears in the deed of 1957, 1974 and 1983 and the signature of the disputed ‘solenama’ deed is also not consistent with the specimen signature which was given by the plaintiff Noni Bala Das in the court room in the year 1983. In a reply to a question from the side of the defendants the hand-writing Expert specifically testified that he has also compared the signatures of the deeds of 1957, 1974 and 1983 with each other and he denied categorically that he did not compare the signature of the deeds of 1957, 1974 and 1983 with each other. He also denied specifically that his report is not prepared on scientific method.

16.         P.W.3 Girindra Sarker is the possession witness of the plaintiff. This witness in his testimony testified that he knows the parties and the suit land for the last 26/27 years. This witness also knows the Cinema Hall namely ‘Universal Cinema’ inasmuch as he was an employ of that Cinema Hall earlier. During cross-examination this witness testified that, when he was the employee of that Cinema Hall, the name of that Cinema Hall was ‘Moni Mongal Hall’ and subsequently its name has been changed to ‘Universal Cinema Hall’ and one Sunil Chandra hired that Hall.

17.         On the other hand, D.W.1 is the defendant No.1 Ganesh Chandra Pal. This witness in his testimony testified that the suit land originally belonged to their predecessors Kunju Mohon and others, and Morna Pal, Kunja Pal were the owner of 08 annas share and the remaining 08 annas had been owning and possessing by Nodi Ram Das and others. The defendant No.1 also testified that there was an amicable partition followed by ‘solenama’ on 10.07.1943 regarding plot No.9036, but they did not possess actually according to the saham of the aforesaid amicable partition of the year 1943. He has purchased the plot No.9146 in the year 1955 from one Nalini Kanta and others and there was separate ‘solenama’ in the year 1957 amongst all the heirs and the heirs have obtained separate saham in respect of the suit holding. The plaintiff obtained 02 annas share and Kushum Bala obtained 02 annas share in the suit jote according to the ‘solenama’ deed of the year 1957. The suit Cinema Hall was allocated in the share of 02 annas but actually the co-sharers of the suit holding did not possess as per terms of that ‘solenama’ deed which was executed and registered in the year 1957. The defendant No.1 in his testimony also testified that in the year 1966 the ‘solenama’ which was filed after execution of the parties including the plaintiff, that was duly effected and all the co-sharers went into possession of the property pursuant to that ‘solenama’ of the year 1966. D.W.1 in his examination-in-chief testified at a stage that the plaintiff Noni Bala has no title and possession in the suit plot No.9036. D.W.1 admitted that he filed an injunction suit against Noni Bala and others being No.633 of 1980 and that suit was dismissed and against that dismissal decree he preferred an appeal which is pending for disposal.

18.         During cross-examination the defendant No.1 frankly testified that it is a fact that these two families had joint business in Tongibari and Kishoregonj. The defendant No.1 has also admitted in his cross-examination that the landed properties were also in ejmali. In a reply to a question from the side of the plaintiff the defendant No.1 testified that, there was amicable partition before 1966 in respect of their ejmali property and that was in the year 1943 followed by a registered deed. D.w.1 also testified in his cross-examination that their ejmali property and business were partitioned in the year 1943 and in that partition they got 08 annas share, Rajani Kanta and others got 04 annas share and Shyama Sunduri got 04 annas share. The defendant No.1 at a stage of his cross-examination admitted that the partition deed and its recital of the year 1943 are correct. He also testified that after the ‘solenama’ of the year 1943 they have purchased some property in ejmali. D.W.1 in his cross-examination also conceded that Kushum Bala left this country for India prior to 1957 forever. The defendant No.1 in a reply to a question from the side of the plaintiff also conceded that he did not implead all the co-sharers in his ‘solenama’ and he cannot say the area of property which was ejmali in ‘Das’ family and ‘Pal’ family. He also cannot say as to how much land he obtained by dint of the ‘solenama’ of the year 1966. With regard to the disputed ‘solenama’ of the year 1966 the defendant No.1 Gonesh Chandra expressed his inability to state the value of the stamp paper which was purchased by him. He has admitted that the cartridge papers were purchased from Tongibari but he cannot remember the year and date of that purchase and also cannot remember the date of execution of the disputed ‘solenama’. D.W.1 in the last portion of his cross-examination replied in a question from the side of the plaintiff in the following way, “Kushumbala also gets a share and her share is lying with us.”

19.         D.W.2 Shailendra Ch. Sarker, is a businessman of Kishoregonj town. This witness is the attesting witness of the impugned ‘solenama’ of 1966. In the examination-in-chief this witness stated about the alleged signature of Noni Bala in the ‘solenama’ dated 07.10.1966. This witness claimed that in his presence the plaintiff put her signature in the ‘solenama’ and the other witnesses namely Abinash Chandra and Kala Chand were also present at that time and Kala Chand is now dead.

20.         During cross-examination this witness testified at a stage that he was not present when the deed was written. This witness also testified in his cross-examination that in the disputed deed the husband of Noni Bala and her son were not witness. D.W.2 admitted that he did not find Noni Bala prior to that ‘shalish’ and execution of the ‘solenama’.

21.         D.W.3 Abdur Rashid Miah is a deed writer of Kishoregonj Sub-registry office. This witness testified in his examination-in-chief that he knows Noni Bala and her sons and he wrote a deed of Noni Bala by which she disinherited her son. During cross-examination D.W.3 testified at a stage that he knows all the members of Noni Bala’s family as the youngest son of Noni Bala happens to be his friend, but he cannot say the name of his that friend! D.W.3 in a reply to a question in his cross-examination testified that he wrote the disputed ‘solenama’ as per draft of an Advocate, but he cannot say, whose draft it was!

22.         The last witness of the defendant-petitioners Abinash Chandra Saha is a witness of the disputed ‘solenama’ of the year 1966. This witness testified that he is a businessman of Kishoregonj. This witness has expressed his inability to state that as to whether Noni Bala put her signature in the ‘solenama’ before or after the presence him (D.W.4). During cross-examination D.W.4 frankly conceded that he is a tenant under the defendant No.1 for the last 31/32 years and there was an agreement between him and Gonesh Pal for purchasing the premises in which he is running his business at present. He cannot remember about the person of Kishoregonj, who was present at the time of disputed ‘solenama’. At a stage of his cross-examination D.W.4 admitted that in his presence nothing was written and only one Kali Chand and Kalu Sarker put their signature in presence of him (this witness).

23.         On meticulous assessment of evidences and the case records I find that the matter of adjudication between the parties to the suit was properly addressed by the appellate court in its true perspective and also properly appraised the evidence on record in his observation and findings, and committed no wrong in relying the plaintiff’s witnesses and discarding the evidentiary value of the defendant’s witnesses for want of their credibility.

24.         In the instant suit, the matter in controversy between the parties is the ‘solenama’ dated 07.10.1966 prior to which admittedly there were two registered deed in respect of compromise of the concerned parties with regard to their paternal property in which the suit property is located. It is the specific assertion of the plaintiff-opposite party that in the ‘solenama’ of the year 1966 she did not put her signature and behind her back it was collusively created. With regard to the pleading’s case of the parties both the parties inasmuch as led evidences, the court of appeal below in his observation and findings adverting evidence on records vividly, rightly rebutted the findings of the trial court and thereafter arrived at a conclusive decision that the ‘solenama’ of the year 1966 is a collusive instrument by dint of which the subsequent mutation proceedings of defendant’s Mutation Case No.229(9)/1/1978-79 was ended in the office of the Circle Officer (Rev.), Kishoregonj and in this proceedings there is nothing on record to show that the service was done properly or that the notice was ever served upon the plaintiff-opposite party, who was admittedly a party to that proceedings.

25.         In the instant case, I have come across that under section 45 of the Evidence Act, 1872 there lies an Expert’s opinion and the Expert was examined by the learned court below. The Expert opinion go to show that the signature as it appears in the disputed ‘solenama’ is not consistent and identical with the actual signature of the plaintiff-opposite party and that the signature of the disputed ‘solenama’ (Exhibit-‘E’) is the product of different individual.

26.         Section 45 of the Evidence Act, (I of 1872) contemplates that the opinion of the Expert is not conclusive, nevertheless; it bears a strong prima-facie arguable case in favour of the party in whose favour the report lies. The Expert under the purview of section 45 of the Evidence Act, (I of 1872) is empowered to compare and analyse the signature which is disputed and he is also empowered to give his decision after comparing and analysing the same, and such authentic report is no doubt a substantive piece of evidence. [Ref. 1978 BLD(AD) 142]



Civil Revision No. 188 of 1996