Sontosh Kumar Chowdhury & ors. Vs. Pranab Kumar Chakraborty & ors., 2018(1) LNJ 109

Case No: Civil Revision No. 4088 of 2000

Judge: Soumendra Sarker, J.

Court: High Court Division,

Advocate: Mr. Tapan Kumar Chakrborty, Adv. , Mr. Kamal-ul Alam, Advocate ,

Citation: 2018(1) LNJ 109

Case Year: 2017

Appellant: Sontosh Kumar Chowdhury and others

Respondent: Pranab Kumar Chakraborty and others

Subject: Evidence Act & Code of Civil Procedure

Delivery Date: 2018-05-30

title in the suit property. Without establishing his title in the property, the plaintiff is not entitled to get any other relief.

23.        Though the plaintiff claimed in his plaint that .20 acres of land orally gifted by Sourendra Mohon Bhattacharji and subsequently registered by his son Shaymaprashad Bhattacharji and the plaintiff is in possession of the suit but in his cross examination as PW.1 he stated that: ú¥m ®k, 20 naL S¢j c¡h£ L­l Eq¡­a HMe ¢L B­R Eq¡ h¢m­a f¡¢lh e¡z

24.        The above statement is not enough to prove claim of the plaintiff.

25.        Considering facts and circumstances of the case and for the reasons stated above, I do not find any reason to interfere with the findings of learned Additional District Judge. 

26.        Accordingly, the rule is discharged without any order as to cost.

27.        Judgment and decree dated 10.05.2000 passed by the learned Additional District Judge, Magura, in Title Appeal No. 91 of 1999 reversing those of dated 29.06.1999 passed by the learned Additional  Assistant Judge, Magura, in title Suit No. 41 of 1999 is maintained.

28.        Order of stay granted at the time of issuance of rule is hereby vacated.

29.        Send down lower courts record alongwith a copy of this judgment to the court concern at once.

Ed.

 

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J.

 

Judgment on

07.08.2017

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Sontosh Kumar Chowdhury and others

. . . Plaintiff-Petitioner

-Versus-

Pranab Kumar Chakraborty and others

. . . Defendant-Opposite parties

Evidence Act (I of 1872)

Sections 22 and 21

Admission by way of statements made in documents certified to be true copies by an authorized officer of the Government are admissible in evidence. . . .(22)

Code of Civil Procedure (V of 1908)

Section 115

The concurrent findings and decisions of both the courts below with regard to the right, title and interest of the present petitioners since their predecessor-in-interest Brojendra Lal Chowdhury is not proved by any tangible evidence, rather; the concurrent findings of facts arrived at by both the courts below is not warranted any interference of this Court in absence of any such misreading or non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice. Under the ambit of section 115(1) of the Code of Civil Procedure no such infirmity or non consideration of material facts is noticed by which the impugned judgment and decree can be interfered with.        . . . (27)

Hajee Abdus Sattar Vs. Mahiuddin and others, VI BLD (AD) 224; Birendra Chandra Saha Vs. Sashi Mohan Saha, 27 DLR (SC) 89; Hajee Abdus Sattar Vs. Mahiuddin and others, 6 BLD (AD) 224; Degdulal Tilokchand Gangrade and another Vs. Ramesharar Ramkaran and others, AIR (31) 1944 Nagpur 305 ref.

Mr. Tapan Kumar Chakrborty, Adv. with

Mr. Sanjib Kumar Chowdhury, Adv. (in person)

. . . For the petitioners.

Mr. Kamal-ul Alam, Advocate with

Mrs. Shahanaj Akther, Advocate.

. . . For the Opposite Parties.

JUDGMENT

Soumendra Sarker, J: The Rule was issued calling upon the opposite parties No.1-3 to show cause as to why the impugned judgment and decree dated 18.05.2000 passed by the learned Additional District Judge, 4th Court, Chittagong in Other Appeal No.380 of 1990 disallowing the appeal and thereby affirming those of dated 31.05.1990 passed by the learned Assistant Judge, 3rd Additional Court, Sadar, Chittagong in Partition Suit No.25 of 1990 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.            The facts leading to the issuance of the Rule in a nutshell can be stated thus, the predecessor-in-interest of the present petitioners namely Brojendra Lal Chowdhury as plaintiff instituted the original Partition Suit being No.131 of 1978 in the 3rd Court of learned the then Sub-ordinate Judge, Chittagong which was subsequently transferred to the 1st Court of learned Assistant Judge, Sadar, Chittagong and renumbered as 149 of 1984. The suit was again transferred to the 3rd Additional Court of the learned Assistant Judge, Sadar, Chittagong for hearing and disposal and it was again renumbered as Partition Suit No.25 of 1980, contending inter alia; that the disputed property corresponding to schedule No.1 of the plaint originally belonged to one Monmohon Dutta. At the demise of Monmohon Dutta his one son Nogendra Lal Dutta and wife Tarongini Dutta succeeded him. Tarangini Dutta in the year 1963 made her portion of land demarked in a Partition Suit No.10 of 1963. For want of getting cost of that suit in an Execution Case being No.13 of 1967 the plaintiff and the defendant No.1 auction purchased the land of Nogendra Lal Dutta in equal share and the plaintiff after erecting his homestead in some portion of that land possessing the same as of his dwelling house. In the remaining portion of land the defendants do possess. In the land of schedule No.2 of the plaint out of 5½ koras of land the plaintiff in his equal share obtained two gondas three koras. In fact; the auction purchased land was never partitioned by metes and bounds among the plaintiff and defendants. The plaintiff while asked the defendant No.1 to make partition through “cMm ®cJu¡e£” (delivery of possession) the defendant No.1 denied; showing excess land in his portion, which constrained the plaintiff to institute the original suit.

3.            The contrary case of the contesting defendants No.1 and 6 in short is thus that the plaintiff is the “L¡kÑ L¡lL” of the defendant No.1 and he used to work on behalf of the defendant No.1. The plaintiff taking advantage of that; at the time of auction purchase collusively created a “boynama” in his name as auction purchaser with the name of the defendant and in the subsequent “cMm ®cJu¡e£” proceedings, the plaintiff admitting his collusive act begged pardon and prayed for one gonda land in his favour, at which the defendant at the request of the plaintiff gave him one gonda land in the suit holding. The further case of the defendants is such that in the corresponding “cMm ®cJu¡e£” of the aforesaid ‘boynama’ the plaintiff admitted the case of the defendants, and there is a mention to that effect in the “cMm ®cJu¡e£,” wherein the plaintiff admitted that he has obtained only one gonda land in the suit holding. Suppressing the facts on false allegations subsequently the plaintiff instituted the original suit for partition to grab the property of the defendants.

4.            The case of the defendant No.6 in a nutshell is such, that he has purchased 03 koras land by way of a kabala deed dated 01.02.1980 from the defendant No.1 and after his purchase he is possessing that 03 koras land in the suit holding.

5.            The learned trial court during trial of the original suit after examining two witnesses from the side of the plaintiffs and 03 witnesses from the side of the defendants on perusal of the evidence produced therein and evaluation of the same, dismissed the suit on contest by his judgment and decree dated 31.05.1990.

6.            Being aggrieved the plaintiff preferred a Partition Appeal being Other Appeal No.380 of 1990 in the court of learned District Judge, Chittagong, which was transmitted to the 4th Court of learned Additional District Judge, Chittagong for hearing and disposal and the learned appellate court hearing the appeal disallowed the same affirming the judgment and decree passed by the trial court by the impugned judgment and decree dated 18.05.2000.

7.            Being aggrieved by and dissatisfied with the impugned judgment and decree passed by the learned appellate court, the heirs of Brojendra Lal Chowdhury, who was the original plaintiff have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule.

8.            During hearing of this Rule Mr. Tapan Kumar Chakraborty with Mr. Sanjib Kanti Chowdhury, the learned Advocates appeared on behalf of the petitioners while Mr. Kamal-ul Alam with Mrs. Shahanaj Akther the learned Advocates appeared on behalf of the opposite parties.

9.            The learned Advocate appearing on behalf of the petitioners submits that, both the courts below during disposal of the original suit and its subsequent appeal committed illegality and infirmity. The learned Advocate further submits that without assigning any cogent reason the learned trial court as well as the appellate court in deciding the fate of the case committed error of law resulting in an error in the decision occasioning failure of justice. The learned Advocate also submits that the specific contention of the plaintiff to the original suit was such that he along with the defendant No.1 auction purchased the suit land in equal share in the execution proceedings of Auction being No.13 of 1967 on 10.01.1968 A.D. at a cost of Taka 895/- (Eight hundred and ninety five) and the ‘boynama’ showing the purchase of the plaintiff and the defendant in equal share has been duly effected. In some portion of the suit property the plaintiff to the suit after erecting his homestead used to reside with his family members. It was further contended from the side of the plaintiff specifically that in the subsequent “cMm ®cJu¡e£” the defendant No.1 collusively entried excess land depriving the plaintiff in getting equal share pursuant to auction ‘boynama’ which has been marked as Exhibit-‘A’. The learned Advocate argued that the specific case of the defendants has been raised in paragraph No.10 of their written statement, which is not proved by any tangible evidence. The learned trial court at the time of disposal of the original suit analyzing the papers on record arrived at a conclusive decision after framing seven different issues that the suit is maintainable in its present form and it is not barred by limitation. It was further decided by the trial court that the valuation of the suit and payment of court fees are proper and adequate and that there is no defect of parties and all the ejmali properties has been brought into hotchpotch. Against the aforesaid decision of the trial court neither any appeal was preferred nor any cross objection was filed from the side of the contesting defendants in the appellate court and thereby they have waived any counter claim on the findings and decisions of the trial court on the issues No.1-5. The learned Advocate lastly submits that, the courts below only on one point which is the alleged admission of the plaintiff in the “cMm ®cJu¡e£” with regard to his only 01 gonda land in the suit holding dismissed the suit. The learned Advocate submits that in “cMm ®cJu¡e£” Exhibit-‘D’ despite it is found that the defendant gave possession of 01 gonda land in the suit holding in favour of the plaintiff, but it is not conclusive evidence and the alleged “cMm e¡j¡ Exhibit-‘D’ has not been effected yet. The learned Advocate in support of his contention referred some decisions of this Court and our Apex Court.

10.        As against the aforesaid submissions 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 neither the trial court nor the appellate court during disposal of the original suit and its subsequent appeal committed any sort of illegality, infirmity or irregularity resulting in an error in the decision occasioning failure of justice. The learned Advocate further submits that the learned trial court and the lower appellate court in their observation and findings concurrently held adverting evidence on records that, pursuant to auction sale in the “cMm ®cJu¡e£” the predecessor of the present petitioners namely Brojendra Lal Chowdhury clearly admitted that; he is not entitled equal share with the defendant No.1. It is also admitted that in the suit holding he has right, title, interest and possession in only one gonda land and both the courts below concurrently decided after proper assessment of evidence that the claim of the plaintiff is barred by the principle of estoppels. Under section 20 of the Evidence Act the plaintiff is estopped in getting his share as prayed for in the partition suit. The leaned Advocate lastly after referring some decisions of this Court and our Apex Court submits that the ‘boynama’ of the auction sale is not a collusive piece of evidence and the final proceedings of the auction depends upon “cMm ®cJu¡e£viz. “cMm e¡j¡” which apparently disproved the case of the plaintiff.

11.        Considering the submissions of the learned Advocates having gone through the judgment and decree passed by the trial court and the judgment and decree passed by the learned appellate court below along with the evidence led from the sides of the respective parties it transpires that the contention of the plaintiff in his pleading in the suit for partition is such that the plaintiff Brojendra Lal Chowdhury who was the predecessor-interest of the present petitioners along with the predecessor of the defendant-opposite parties namely Satish Chandra jointly purchased the disputed property in equal share in an auction measuring 05 gondas, 02 koras on 10.01.1968.

12.        The contrary case as alleged from the contesting defendants No.1 and 6 is such that Satish Chandra the predecessor of the defendants in fact alone auction purchased the suit land through his tadbirker Brojendra Lal and taking advantage of that, Brojendra Lal included his name collusively along with the name of Satish Chandra and inserted his name with ill motive in the ‘boynama’. The Other contesting defendant No.6 raised his plea that he has purchased 03 koras land from the defendant No.1 by a kabala deed dated 01.02.1980 finding the actual physical possession of the defendant No.1 pursuant to auction “cMm e¡j¡” locally known as “cMm ®cJu¡e£”.

13.        On perusal of the documentary evidence produced from the side of the parties it appears that Exhibit-‘A’, the ‘boynama’ dated 10.01.1968 shows that the plaintiff and the defendant No.1 were the auction purchasers in equal share. Pursuant to auction it also appears that an application for getting possession of the auction purchased land dated 05.03.1968 was filed by the auction purchasers jointly marked as Exhibit-‘E’ and this very document shows that the plaintiff Brojendra Lal admitted the defendant No.1 as an auction purchaser of 04 gondas 02 koras of land and he (plaintiff) has acquired 01 gonda land, for which he is claiming possession of that land. It also appears that, pursuant to that documentary evidence there has been delivery of possession, which is commonly known as “cMm ®cJu¡e£” and this paper is Exhibit-‘D’. This document proves that the plaintiff to the original suit took delivery of only one gonda land according to his prayer and the defendant obtained 04 gondas, 02 koras land in the suit holding. The certified copy of the final order of the Execution Case No.13 of 1967 is marked as Exhibit-‘D(1)’ dated 01.04.1968. This documentary evidence goes to show that the predecessor of the present petitioners who was the plaintiff to the original suit was given 01 gonda land and the defendant was given the rest 04 gondas 02 koras land pursuant to the auction sale by the concerned the then Sub-ordinate Judge, 3rd Court, Chittagong. The Other Execution Case No.13 of 1967 was finally disposed of on full satisfaction without objection inasmuch as the connected Writ of D.P. under Order XXI, Rule 95 of the Code of Civil Procedure duly executed [vide Exhibits D(1) and E].

14.        Having gone through the evidence on records I find that the predecessor-in-interest of the defendants Satish Chandra thereafter filed an application before the competent authority stating as to how he has acquired title and interest in the land, for correction of the B.S. khatian which was allowed in presence of Brojendra Lal, followed by recording of 01 gonda land in the name of Brojendra and 04 gondas, 02 koras land in the name of Satish Chandra, without any challenge (vide Exhibit ‘C’). In that act of law; the entire previous proceedings were reflected.

15.        On meticulous assessment of the evidence adduced from the sides of the respective parties I find that to substantiate the case of the plaintiff he has examined two witnesses. Between these 02 witnesses, P.W.1 is the plaintiff himself Brojendra Lal Chowdhury. From the testimony of the plaintiff it is apparent that the plaintiff admitted at a stage of his examination-in-chief that, pursuant to the auction dated 19.02.1968 he went into possession through court. It further appears that the plaintiff asserts that in the last part of August, 1978 the defendants tried to construct house in the vacant land and in spite of his protest the defendants have erected two houses therein. P.W.1 during his deposition in reply to a question from the side of the defendants admits that the defendant No.1 have dispossessed him after institution of the suit from the vacant land and he further admits that no amendment was sought for to that effect by him and it was not even informed to the trial court. The plaintiff states at a stage of his deposition that against the B.S. khatian he lodged objection, but his objection has been rejected. At a stage of his testimony the plaintiff admits that pursuant to the final order passed in Execution Case No.13 of 1967 (Exbt.-‘D’) they filed an application for possession and the certified copy of that application has been identified by the plaintiff Brojendra Lal. From his admission it was marked as exhibit-‘E’. The plaintiff with regard to the quantum of the land; which is under his possession and being used by him as of his own homestead; failed to state anything. P.W.1 at a stage of his deposition testified that in the year 1968 he was a clerk of an Advocate Mr. Umesh Chandra Chowdhury and at the time of giving deposition he is also working as an Advocate’s clerk of Advocate Mr. Bisheshor. The plaintiff testifies before the court that against the “cMm ®cJu¡e£” no step was taken by him before any court of law.

16.        P.W.2 Parimal Kanti Das has testifies in his examination-in-chief that he knows the parties and the suit land and in the year 1968 the plaintiff along with Satish Babu auction purchased the suit property jointly. This witness further testifies in his examination-in-chief that at the time of payment of money of auction Satish Babu called him and he has seen that the plaintiff handed over half auction money in the hand of Satish Babu and the total amount of the auction money was Tk.895/-. In the cross-examination P.W.2 testified that since 1952 he is an Advocate’s Clerk. This witness in a reply to a question with regard to auction purchase frankly admitted that, besides the money he knows nothing about the auction.

17.        On the contrary; D.W.1 Pronab Kumar Chakraborty who is the son of defendant No.1 deposed after the death of his father the defendant No.1 Satish Chandra Chakraborty. In support of their pleadings he testified that, Brojen Babu at the time of auction was a “kormachari” of his father Satish Chandra and he was entrusted to auction purchase on behalf of his father Satish Chandra Chakroborty and taking advantage of that, Brojen Babu committed breach of trust with his father and managed to insert his name along with the name of his (D.W.1) father. Subsequently; Brojen Babu admitted his misdeed and prayed for one gonda land to reside with his family members in the suit holding from his father and his father being pleased gave him (Brojen Babu) 01 gonda land.

18.        The witness No.02 for the defendants is Kiron Sankar Chakraborty. This witness in his testimony testified before the Court that he knows the parties and the suit land. The plaintiff is residing in his present homestead since the year of liberation of Bangladesh. This witness further testified that it is not a fact that he is deposing falsely. The last witness is Sumita Chakraborty, who is the defendant No.5. This witness testifies in support of her registered sub-kabala deed executed and registered by the defendant No.1 in favour of her for 03 koras land in the disputed holding. This witness further testified that for her purchased land she paid rent which is Exhibit-B(1). D.W.3 further testified that the plaintiff use to possess 01 gonda land and the plaintiff has no other land in the disputed holding other than this 01 gonda land. During cross-examination from the side of the plaintiff this witness in a reply to a question testifies that in the year 1966 she came to Chittagong Town and since then she is residing in the present property and prior to her purchase her husband was a tenant under Satish Babu.

19.        In the instant suit; it is evident to note that practically it is not denied from any corner that the suit land had been owning and possessing originally by the admitted owner of the property Monmohon Dutta who died leaving behind one son Nogendra Lal Dutta and wife Torongini Dutta. It is also an admitted position that in a Rent Suit the property was put to an auction and purchased by the auction purchaser. Lastly it was finally disposed of in Execution Case No.13 of 1967 on 01.04.1968 A.D. The ‘boynama’ of the auction sale stands in the names of the plaintiff and the defendant no.1 in equal share. In this regard; it is the specific contention of the defendant that the plaintiff was the “L¡kÑ L¡lL” of the defendant No.1 who was entrusted to auction purchase the suit land in favour of the defendant No.1 and taking advantage of that, the plaintiff managed his name inserted as one of the purchasers with the defendant in the ‘boynama’ which has been marked as Exhibit-‘A’. The fact remains that, pursuant to ‘boynama’ there was delivery of possession and prior to that; admittedly the auction purchaser defendant along with the plaintiff jointly filed an application on 05.03.1968 in the 3rd Court of the then Sub-ordinate Judge, Chittagong under Order 21 Rule 95 of the Code of Civil Procedure. The plaintiff as P.W.1 admitted the said application before the concerned court in connection with the auction purchase. In that application there was a recital, which reads as follows:

Bjl¡ 1/2 ew ¢em¡j M¢lŸ¡l fË¡¢bÑLNZ c¡C­Ll ¢eÇj af¢n­ml Øq¡hl pÇf¢š 10/1/68 Cw­lS£ a¡¢l­M Bc¡m­a fËL¡nÉ ¢em¡­j ¢e¾j ¢m¢Ma j­a M¢lc L¢lu¡ hue¡j¡ fË¡¢ç j¡m£L qCu¡¢Rz Bjl¡ fË¡¢bÑL¡l af¢n­ml S¢j ¢eÇj ¢m¢Ma j­a cMm f¡Ju¡l BhnÉLz

AaHh fË¡bÑe¡ ®k, ¢eÇj af¢p­ml c¡C­Ll üa£u pÇf¢š ¢eÇj ¢m¢Ma j­a BCeax 21 AXÑ¡l 95 l¦m j­a cMm ®cJu¡l B­cn quz C¢a-

afn£m

1z ®j±­S j¡c¡l h¡s£ b¡e¡ Xhmj¤¢lw jqm 14698 ew q¡m 9605 ¢Sw ¢Lj¡w L¡W¡ J 3424 ew ¢Sw hc¤ J R.S. S¢l­fl 449 ew M¢au¡­el 3064 c¡­Nl J R.S. S¢l­fl 515 ew M¢au¡­el c¡­Nl Bw P.S. S¢l­fl 1614 ew M¢au¡­el 3485 c¡­Nl J 1613 ew M¢au¡­el P.S. 3486 c¡­Nl R.S. J P.S. Ei­ul c¡­Nl 5zz Ls¡ S¢jl j­dÉ B¢j 2ew ¢em¡j M¢lŸ¡l fË¡¢bÑ­Ll Bjl¡ 1/2  ew fË¡¢bÑL ¢em¡j M¢lŸ¡­ll B­f¡o j­a B¢j 2ew fË¡¢bÑ­Ll phÑ c¢r­Z Qm¡Qm l¡Ù¹¡l pwmNÀ 1 HL N¾X¡ av Eš­l B¢j 1ew fË¡¢bÑL ¢em¡j M¢lŸ¡­ll Ah¢nØV 4zz Q¡¢lN¾X¡ c¤C Ls¡ phÑ ®j¡V 5zz fy¡Q N¾X¡ c¤C Ls¡ S¢jz

20.        The certified copy of this application which is an attested document from both the parties has been marked as Exhibit-‘D’. Pursuant to that application the concerned court vide his order dated 01.04.1968 passed an order and in compliance of that order the process-server delivered possession. All these papers have been duly proved and after admission from the side of the plaintiff those have been exhibited. In this context; it is required to be mentioned that the plaintiff to the suit is an Advocate’s Mohorar who supposed to be a well acquainted person having knowledge about auction and its subsequent proceedings upto the final order passed by the executing court.

21.        The learned courts below after proper assessment of the relevant evidence on records and appreciation of law arrived at a concurrent decision that the claim of the plaintiff-petitioner is barred, inasmuch as he is stopped by law from claiming the suit property as prayed for in the schedule of the plaint from his side.

22.        Section 20 and 21 of the Evidence Act, 1872 provides admission by persons expressly referred to by party to suit and proof of admissions, against persons making them, and by or on their behalf. Our Apex Court in the case of Hajee Abdus Sattar –vs.- Mahiuddin & others, VI BLD(AD)224, opined admission between the parties made in another proceeding-such admission whether binds a party in a subsequent proceeding-Respondent’s admission that he was a tenant under the appellant extops him from denying appellants’ title in the suit premises. Admission by way of statements made in documents certified to be true copies by an authorized officer of the Government are admissible in evidence.

23.        In the case of Birendra Chandra Saha –vs.- Sashi Mohan Saha, 27 DLR(SC)89, it was decided by their lordships that, admission is a substantive evidence.

24.        Having regard to the facts and circumstances of the case and the decisions referred to from the sides of the respective parties, consulting the same meticulously with the facts and circumstances along with the material evidence on records, I have the reason to inclined such a view that among the decisions referred to from the sides of the learned counsels, the case laws reported in 1986 BLD(AD) 224 have got nexus in our instant case because of its identical character. In the case of Hajee Abdus Sattar –vs.- Mahiuddin and others  6 BLD(AD) 224, it was held by their lordships in paragraph No.9 (quote):

   “Mr. Asrarul Hossain has laid considerable stress on Exts. 4 and 4(a) which purportedly contains an admission of the respondent (defendant No. 1) that he was atenant under the appellant. These exhibits are certified copies of two applications of the respondent to the Additional Deputy Commissioner (Revenue) praying for settlement of the suit-premises from the Government, the ultimate owner. Both the appellant and the respondent (defendant No. 1) prayed for settlement from the Government in 1973 where upon two separate Cases were started which ended ultimately in favour of the appellant, obviously in view of the appellant’s possessory right from Gagan Ali Bepari for a long time. The question raised here, however, is-not as to who got the settlement from the Government. In both these applications, Exts. 4 and 4(a), filed about six years after his father Kala Mia’s death, the respondent (defendant No. 1) stated that he was a tenant of the appellant. Haji Abdus Sattar who by misrepresentation, had created the tenancy though he had no title, that because of this defect of of title, he was offering himself as a candidate for settlement in view of the fact that he had been running a cloth shop in the premises for a long time. This is a clear admission and estops him from denying the appellant’s title in the premises. To wriggle out of this tight corner, he has contended that the documents Exts. 4 & 4(a) are not correct copies of his applications to the Revenue Authorities. The learned Single Judge has observed that these copies of the applications were not legally proved that they are private documents and further that attention of the respondent was not drawn to the statement contained in these applications, and as such the question of binding him with the statement therein does not arise. This observation, we find, got no legal or factual basis. For these are certified copies of applications to the Additional Deputy Commissioner for settlement, who after necessary endorsement, incorporated them into the record of the Settlement Case and issued certified copies thereof in accordance with law; the originals of the applications cannot be produced or obtained by anybody unless a Court calls for them. These certified copies were   filed as exhibits in this suit in presence of the respondent who then raised objection, but the Court ignoring his objection marked them as exhibits- 4 and 4(a). Again, while deposing in Court as D.W. 1 he himself drew his attention to these documents stating in his examination-in-chief that these were not true copies of his applications to the Additional Deputy Commissioner. In the circumstances, there was no necessity for drawing his further attention to them during cross-examination. As to the authenticity of these certified copies the respondent did not apply to the Court to lodge a complaint under section 195 Cr. P.C. against the appellant on a charge of forgery who produced or filed in evidence these documents in a judicial proceeding. Such a complaint may be filed under section 195(1)(c) Cr. P.C. even now if the respondent deres to move the Court for that purpose. These documents issued and certified to be true copies by an authorized officer of the   Government are admissible in evidence. The statement contained therein as described above is admission within the meaning of section 20of the Evidence Act and the respondent is bound by his admission that he was a tenant of the appellant who allegedly got no valid title to the premises.”

25.        Apart from this; with regard to sale certificate in the case law reported in AIR (31) 1944 Nagpur 305, in the case of Degdulal Tilokchand Gangrade and another –vs.- Ramesharar Ramkaran and others, their lordships held that,

   Sale certificate-It is merely prima facie evidence of title and not conclusive-Schedule of property in application for attachment, order directing sale and sale proclamation are the crucial documents to be seen.

   The sale certificate is not conclusive. It affords only prima facie evidence of title and it can always be shown that the sale certificate is wrong even when there is no ambiguity in it. A court sale is nothing but an offer and an acceptance, the offer being made by the Court in the sale proclamation. The drawing up of the sale certificate is only a ministerial act and not a judicial one, and so, if it does not correspond with what was offered for sale and purchased it is of no avail. The crucial documents are (a) the schedule of property in the application for attachment, (b) the order directing the sale and (c) the sale proclamation. [Not village in suit but some other village held was sold]; 41 Cal. 590 (P.C); 27 Bom. 334 and (25); 12 A.I.R. 1925 Pat. 615, Bel.

26.        From the above mentioned case laws the principles, which has enunciated by their lordships definitely lies against the case of the present petitioners and supports the opposite paties.

27.        In the foregoing narrative as spelt out in the discussions and findings referred to above; I have the reason to draw such inference that the concurrent findings and decisions of both the courts below with regard to the right, title and interest of the present petitioners since their predecessor-in-interest Brojendra Lal Chowdhury is not proved by any tangible evidence, rather; the concurrent findings of facts arrived at by both the courts below is not warranted any interference of this Court in absence of any such misreading or non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice. Under the ambit of section 115(1) of the Code of Civil Procedure no such infirmity or non consideration of material facts is noticed by which the impugned judgment and decree can be interfered with. Besides this; the matter of adjudication as already decided makes it clear that in the instant civil revision the plaintiff-petitioners have got no such merit by dint of which the Rule issued can be made absolute.

28.        In the result, the Rule is discharged. The impugned judgment and decree dated 18.05.2000 passed by the learned Additional District Judge, 4th Court, Chittagong in Other Appeal No.380 of 1990 disallowing the appeal and thereby affirming those of dated 31.05.1990 passed by the learned Assistant Judge, 3rd Additional Court, Sadar, Chittagong in Partition Suit No.25 of 1990 is hereby affirmed.

29.        However; there will be no order as to costs.

30.                   Let a copy of the judgment along with the Lower Court’s Record be sent down at once.

Ed.



Civil Revision No. 4088 of 2000