Trinath Chandra Shil Vs. Monoranjan Shil & another, 3 LNJ (2014) 508

Case No: Civil Revision No. 3649 of 2011

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. Ali Reza,Mr. Muhammad Eunus,,

Citation: 3 LNJ (2014) 508

Case Year: 2014

Appellant: Trinath Chandra Shil

Respondent: Monoranjan Shil & another

Subject: Specific Performance,

Delivery Date: 2013-05-28


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
A. K. M. Zahirul Hoque, J.

Judgment on
28.05.2013
  Trinath Chandra Shil
. . .Plaintiff-Respondent- Petitioner
-Versus-
Monoranjan Shil and another
... Defendant-Appellant-Opposite Parties
Government of Bangladesh
... Pro-forma-defendant-respondent-opposite party
 

Evidence Act ( I of 1872)
Sections 44, 45, 47, 67, 73 and 114(g)
Where in the suit for Specific Performance of Contract the plaintiff totally failed to prove the genuineness of his baina by adducing any independent, reliable and believable witness rather he avoided the vital witness who was very much present and wrote the alleged baina as well as witnesses of baina namely, Ripon, Swapan by the plaintiff and withhelding of the such vital witnesses the presumption is to go in favour of the defendant as per section 114 (g) of the Evidence Act. However the D. W. 4 came forward at the appellate stage and deposed that he is a licencee as a deed writer being licence No. 2033 and he did not write the baina dated 28.02.1998 in favour of the plaintiff. The plaintiff totally failed to prove the genuineness of bainapatra as required under the provision of Sections 44, 45, 47, 67 and 73 of the Evidence Act in support of his case. . . . (14 and 16)
 
Mr. Ali Reza, Advocate with
. . . For the Plaintiff-Respondent- Petitioner
Mr. Muhammad Eunus, Advocate
. . . For the Defendant-Appellant-Opposite Parties

Civil Revision No. 3649 of 2011
 
JUDGMENT
A. K. M. Zahirul Hoque, J.
 
This Rule was issued calling upon the opposite party Nos. 1 and 2 to show cause as to why the judgment and decree dated 19.07.2011 and 27.07.2011 respectively passed by learned Additional District Judge, Patuakhali in Title Appeal No. 85 of 2008 reversing the judgment and decree dated 11.09.2008 and 17.09.2008 respectively passed by Senior Assistant Judge, Patuakhali Sadar, Patuakhali in Title Suit No. 3 of 2004 suffers from an error of law resulting in an erroneous decision occasioning failure of justice and should not be revised or set aside and/or to pass such other or further order or orders as to this Court may seem fit and proper.

Facts, relevant for the purpose of disposal of the Rule, in short, are that the petitioner as plaintiff filed Title Suit No. 3 of 2004 of the Court of learned Senior Assistant Judge, Patuakhali Sadar, Patuakhali for Specific Performance of Contract.

The suit was filed on the allegation that the opposite party being the owner of the suit property proposed to transfer the same in favour of the petitioner and the consideration was fixed at Tk. 36,000/- and 30,000/- was paid and he delivered possessing and the executed an agreement for sale on 28.02.1998 and it was stipulated that he will receive the rest of the consideration and thereupon register the kabala.

The plaintiff petitioner on several occasions tendered the rest of the consideration the defendant delayed on different pretext execution and registration of the kabala on receipt of rest of the consideration tendered but as there was refusal in Baishakh 1314 corresponding to 25.12.2003 and the petitioner in the circumstances filed the present suit.

The plaintiff has been in possession and constructed homestead where he has been living with his family filed the suit for Specific Performance of Contract and deposited the entire consideration. He also pleaded that he constructed a house in the suit land and the kabala of the defendant No. 3 in collusive that in the suit defendant No. 3 got himself added as a defendant claiming that he has purchased a portion of the suit property and the defendant Nos. 1 and 3 filed a written statement and denied to have executed the agreement on receipt earnest money and also denied the tender and also alleged that the document is forged and it was created in collusion of the deed writer. That upon the above pleadings that the trial Court framed 04 issues as to maintainability; whether the agreement is a gunine one and whether the plaintiff was entitled to any relief.

During the trial 3 P. Ws and 3 D. Ws were examined and trial Court found that the suit is not barred by limitation since the suit was filed within the time from refusal and as per under Article 113 of Limitation Act the suit was not barred.

The trial Court decreed the suit in favour of the plaintiff and against the said judgment and decree the defendant as appellant filed Title Appeal No. 85 of 2008 ultimately the said appeal was heard by the Joint District Judge who allowed the appeal by the impugned judgment and decree.

Being aggrieved by and dissatisfied with the aforesaid judgment and decree passed by the Additional District Judge the petitioner preferred this revisonal application under section 115(1) of the Code of Civil Procedure and obtained the present Rule.

Mr. Md. Ali Reza, the learned Advocate appearing on behalf of the petitioner submits that the after consdering the evidences on record as well as the genuineness of the signature of the executent namely Monoranjan Shil came to a finding that the Bainapatra was genuine one and subsequently on appeal the appellate Court only considering the evidence of D. W. 4 dismissed the suit mere only basis of signature  of deed writer and thus it committed an error of law resulting in an error in the decision occasioning failure of justice. He further submits that since the genuineness of the signature not only proved by the plaintiff but also admitted by the defendant in paragraph 12 of written statement that the D. W. 4 has written the bainapatra therefore the genuineness of baina can not be questioned but the lower appellate Court without considering these legal as well as the materials on record including the pleading came to a wrong conclusion occasioning failure of justice. In support of his submission the learned Advocate for the petitioner referred a decision in the case of Jahanara Begum Vs. Md. Aminul Islam Chowhdhury and others, reported in 2 MLR(AD) 215. He also relied upon another decision in the case of A. Jabbar Bari and others Vs. Sultan Hossain Matbar and others, reported in BCR 2006 AD 111.

Mr. Muhammad Eunus, the learned Advocate appearing on behalf of the opposite party submits that the plaintiff claimed the suit land by a registered baina in a suit for Specific Performance of Contract in where Swapon has been mentioned as a deed writer of baina but Swapon was not examined by the plaintiff to prove the said bainapatra rather Swapon was examined by the defendant as D. W. 4 and in where he denied the said baina and categorically stated that the did not writ the baina. So the genuineness of the baina cannot be proved beyond reasonable doubt. He also submits that the plaintiff claimed the land in pursuance of baina which was executed on 28.02.1999 and cause of action arose on 25.12.2003 that is the suit was filed after more than 06 (six) years this delay is unusual. He further submits that the gunuineness of the baina is also doubtful without any satisfactory explanation for unusual delay of 6 years to file the suit from the plaintiff. He also submits that the trial Court though found only the signature of the executant is tally with the signature of the baina and this finding of the trial Court was found as not correct it was reversed by the lower appellate Court after proper scrutiny of the signature of Monoranjan in his deposition as well as Exhibit Ga alongwith the signature of baina and thereafter the lower appellate Court as a final Court of fact found that the signature of the baina of Monoronjan is not correct. In support of his submission the learned Advocate for the opposite party relied upon a decision in the case of Md. Fazlul Haque Vs. B. H. Rahman @ Mahbubur Rahman and others, reported in 15 BLD 228.

Heard the learned Advocates for both the sides, perused the revisional application under section 115(1) of the Code of Civil Procedure as well the judgment of both the Courts below including the evidences on record led by the parties.

It appears from the pleadings that the plaintiff filed the suit for Specific Performance of Contract in pursuance of a unregistered deed of bainapatra on 28.02.1998 against the defendant Monoranjan and by showing cause of action arose on 25.12.2003 on the allegation that the suit land measuring 18 decimals entered into contract for a consideration Tk. 36,000/- out of which 30,000/- was paid at the time of bainapatra and only 6000/- was unpaid and on refusal to receive the rest amount the plaintiff filed the suit for Specific Performance of Contract against the defendant. On the other hand the defendant case is that he did not execute any bainapatra and he did not take any consideration from the plaintiff for the suit land rather he stated that 04 decimals of land his land was sold to the defendant No. 3 immediately after said alleged bainapatra for a consideration of Tk. 18,000/-. He further stated that after 06(six) years the unusual claimed of plaintiff petitioner is for the purposely. These are the pleadings of the parties.

It appears from the judgment of the trial Court who after only compare the signature of the defendant No. 1 without discussing the evidence led by the parties side by side as required by law in passing his judgment. He passed the judgment and decreed in the suit only he after comparing the signature of bainapatra alongwith the signature of Monoranjan in a deed dated 28.07.1991 and deposition of D. W. 1 alongwith signature of Exhibit ‘Ga’ a registered deed dated 26.04.1998 came to a finding that the signature of Monoranjan is similar with the signature of bainaptara and subsequently he came to the opinion that the signature of bainapatra is  the signature of Monoranjan. On the other hand, the lower Appellate Court considering the evidence of D. W. 4 whose name has been mentioned as a writer of the bainapatra namely Swapan Kumar Dutta and considering the evidence of Swapan he came to the finding that the signature of bainpatra of defendant Monoranjan is not tally with the signature of Monoranjan with the Exihibit No. ‘Ga’ alongwith deposition of D. W. 1 and he found that the bainapatra was not genuine and therefore he dismissed the suit and allowed the appeal. I have gone through the evidence on records Exhibit 3 the bainpatra which is the basis of the plaintiff case. That the bainapatra was written by a deed writer but it appears from the said bainapatra that there is no heading of bainaptra and it has been written on a non judicial stump paper and it is unregistered one and there is no explanation regarding the over writing in the schedule of the bainapatra after written the word (S. A. Khatian number)in the said bainapatra and no explanation was given as to the overwriting of the said deed of bainapatra in the schedule of the land. It appears that Ripon and Niranjon have been mentioned as witnesses of the bainapatra and Swapan being No. 2033 has been mentioned as scribe of the bainapatra and out of 03 only Nironjan was examined as P. W. 2 who claimed himself as a Teacher but he categorically stated that on 25.02.2003 his school was opened and after performing  his duty in the school he went to the defendants house alongwith the plaintiff and others. But it is admitted that on the date of 25.12.2003 our nation observed as a national holiday due crist much. So all the Schools were remained closed. Therefore the deposition of P. W. Mirarijan can not be reliable and believable rather he is a chance witness. Similarly P. W. 3 who is cousin of the plaintiff and he is not a witness of bainapatra but P. W. 3 categorically stated that the deed was written by Swapan but Swapan was not examined by the plaintiff to prove the bainapatra. Even there is no explanation under what circumstances Ripon and Swapan were not examined by the plaintiff to prove the unregistered bainapatra. It appears from deposition of P. W. 2 that there are serious contradiction in respect of material particular as to the prove of cause of action in the depositions of P.Ws though the plaintiff in his plaint of paragraph No. 9 categorically stated that on the date of cause of action he alongwith 03 persons namely Ripon, Binandra and Kismot went to the residence of the defendant No. 1 but said averment was not corroborated and supported by P. Ws. in their deposition.

Now let me consider the signature of defendant No. 1 in where one Monoranjan has been mentioned as executent in the baina and the signature of the said Monoranjan and the signature of the defendant No. 1 in the deed dated 28.07.1996 and Exhibit Ga alongwith the deposition of D. W. 1. On proper scrutiny after considering the manner and style o writing of the defendant in his deposition and his admitted deed exibit ‘Ga’ it can be said that the signature of the bainapatra is similar with his admitted signature but can not be said as same  and identical. It appears that the alleged baina was alleged to execute on 28.02.1998 and the suit was filed long after 06 years without any satisfactory explanation from the plaintiff as well as it appears immediately after 28.02.1998 the defendant No. 1 executed and registered a kabala in favour of the defendant No. 3 on 26.04.1998 for a land measuring 04 decimals with a consideration of Tk. 18,000/- in this material fact was not denied by the plaintiff. There is no bindings effect of any terms in the bina by mentioning any time limit is bound  to execute the said deed. So the baina is a vague and unspecific in respect of payment and execution of deed that is to say a baina can not be for a unlimited period. It is true that in a suit for Specific Performance of Contract that the plaintiff must prove the genuineness of bainapatra of the plaintiff by examining in the reliable and believable evidence as decided in the case of Jahanara Begum Vs. Md. Aminul Islam Chowhdhury and others, reported in 2 MLR(AD) 215 but in the particular case where the suit for Specific Performance of Contract the plaintiff totally failed to prove the genuineness of his baina by adducing any independent and reliable and believable witness rather he avoid the vital witness who was very much present and written the alleged baina as well as witness of baina namely Ripon, Swapan by the plaintiff and withhelding of the such vital witnesses the presumption is to go in favour of the defendant as per section 114 (g) of the Evidence Act. However the D. W. 4 came forward at the appellate stage and deposed that he is a licencee as a deed writer being licence No. 2033 and he did not write the baina dated 28.02.1998 in favour of the plaintiff.

I have gone through his signature of the baina as well as the signature of the deposition of said Swapan as D. W. 4 which is apparently quite different with the signature of bainapatra. So considering the facts and circumstances alongwith baina itself as well as material on record it is apparent face of the records that the plaintiff failed to prove the genuineness of the baina as well as consideration of payment of Tk. 30,000/- out of 36,000/- for the land of 18 decimals. It appears from the records that the plaintiff claimed that he got a baina from the defendant before about 06 (six) years back from the date of filing of the suit. To disprove the genuineness of baina  the alleged writer of the baina was examined as D.W.4 and he categorically stated that he did not write the said baina. On the other hand to prove the genuineness of the baina P.W.2 was examined on behalf of the plaintiff he stated that he was present at the time of baina but he was a chance witness due to reasons as mentioned above and no witness was examined by the plaintiff  who was acquainted with the signature of the executant i.e. to say that the plaintiff did not produce any single witness to prove the genuineness of the baina. Thereafter the only method of scrutiny of the signature of baina by the Court was available by comprising of signature of the executent alongwtih the admitted signature of the defendant. On scrutiny, the signature of the baina as well as the admitted signature of the defendant No. 1, I find that the manner and style of writing of the executant and defendant can be said as similar but can not be said as same and identical without any other corroborative or any other circumstantial evidence.

In view of the matter, the plaintiff totally failed to prove the genuineness of bainapatra as required under the provision of Section 44, 45, 47, 67 and 73 of the Evidence Act in support of his case.

The requirement for the Specific Performance of Contract was not fulfilled by the plaintiff and accordingly he is not entitled to get the discretionary relief in the suit for Specific Performance of Contract. Therefore I find that the lower appellate Court did not commit any error of law  in his decision and I also do not find any non consideration of evidence of D. W. 4 rather I find that after proper consideration of the deposition D. W. 4 along other evidences led by the parties  the appellate Court came to a legal and proper decision. 
In view of the above facts and circumstances and discussion made above I do not find  any substance in the Rule.

In the result, the Rule is discharged without any order as to costs. The judgment and decree dated 19.07.2011 and 27.07.2011 respectively passed by learned Additional District Judge, Patuakhali in Title Appeal No. 85 of 2008 reversing the judgment and decree dated 11.09.2008 and 17.09.2008 respectively passed by Senior Assistant Judge, Patuakhali Sadar, Patuakhali in Title Suit No. 3 of 2004 is hereby affirmed.

Send down the lower Courts record together with a copy of the judgment and order to the Court below at once.

Ed.