Tuesday, March 26, 2019 | ePaper

Old documents bear evidentiary value

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High Court Division
(Civil Revisional Jurisdiction)
Khizir Ahmed  Choudhury J
Lablu Ansar (Md). ……..Petitioner
                vs     
Md Salim Uddin and others ………
………… Opposite-Parties
Judgment
October 26th, 2017
Evidence Act (I of 1872)
Section 90
Evidentiary value of old documents- The documents in question are as far back of 1966 which being old documents has evidentiary value and specially those documents has not been assailed by initiating any legal proceeding before the Court of law. ...... (13)
Code of Civil Procedure (V of 1908)
Section 115(l) read with
Order XLI, rule 31
Appellate Courts judgment is to be detailed and elaborate whether in concurrence or reversal  but when the judgment is affirmed  by the appellate Court, the appellate Court  may express its concurrence with them and there is no necessity to restate the effect of evidence or to reiterate reasons given by the trial Court, expression of general agreement with reasons given by the trial Court would ordinary suffice. .                        …………(15)
Evidence Act (I of 1872)
Section 110
Possession of defendant whether protected by long possession-Regarding  the possession of the defendant is protected under Section 110 of the Act as he is in possession for long time, the plaintiff .was in possession of the suit land before he gets dispossessed by the defendant and, as such, long possession of the defendant has not been established and consequently defendant is not entitled to get protection of that section. ………………………..(14)
Jitendra Nath Mistry vs Abdul Maled Hawlader, 54 DLR AD 106; Gouri Das vs ABM Hasan Kabir, 55 DLR AD 52; Mahmud Ali vs Bangladesh, 1986 BLD (AD) 56 and Giri Janandini Devi  vs  Bijendra  Narain Chowdhury, AIR 1967 SC 1124 ref.
AF Hassan Ariff with TM Shakil Hossain, Advocate -For the Petitioner.
Nahid Mahatab with Renu Haque, Advocates-For the Opposite-Parties.
Judgment
Instant rule has been issued calling upon the opposite party No. 1 to show cause as to why the judgment and decree dated 23-2-1998 passed by learned Subordinate Judge, 1st Court, Jamalpur in Other Class Appeal No.73 of 1990 dismissing the appeal and affirming the Judgment and decree dated 14-7-1990 passed by learned Assistant Judge, Additional Court, Jamalpur in Other Class Suit No. 49 of 1990 decreeing the suit should not be set aside and or such other  or further  order or orders passed as to this Court may deem fit and proper.
2. The opposite party No. 1 herein as plaintiff instituted Title Suit No. 49 of 1990 before the Assistant Judge, Jamalpur seeking declaration of title and recovery of khas possession in the suit land.
3. The case of the plaintiff in brief, is that, Amzad Ali purchased 15 decimals of land out of suit plot by deed of sale dated 30-4-1966 from Mohej Sheikh whose behalf his sister Kanti Bewa executed and registered sale deed. Amzad Ali also purchased 7 decimals of land from Monohar Ali, Monsur Ali and Noni  Bewa by deed of sale dated 3-5-1966 and thus Amzad Ali became owner in respect of 22 decimals of land. Amzad Ali while in possession sold 10 decimals of land to the plaintiff. After taking possession, the plaintiff erected boundary wall and built Tinshed structure upon the suit land which had been used as student Hostel where the plaintiff connected electricity, mutated his name in the record of right and paid rent. In 1983 a tornadow flattened the structures of the suit land. Subsequently, the plaintiff erected homestead with thatching materials upon the suit land. On 10-8-1984 the defendant tried to dispossess the plaintiff from the suit land which constrained the plaintiff to initiate proceeding under Section 144 of the Code of Criminal Procedure wherein restraining order was passed but the defendant on 12-8-1984 forcibly dispossessed the plaintiff from the suit land and demolished plaintiffs structures therein and made construction subsequently. The plaintiff lodged a GD entry on 10-8-1984 to this effect and, as such, the plaintiff was constrained to file the instant suit.
4. The case of defendant No.1 in short is that by a deed of exchange dated 4-8-1984 he got the suit land from Monsur Ali who delivered possession to him and subsequently he constructed structures over the suit land and since then holding and possessing the same peaceably and uninterruptedly within the knowledge all concerned and, as such, he prayed for dismissal of the suit.
5. The plaintiff examined 4 PWs while the defendants defendant No. 1 examined 3 witnesses. Both the parties  submitted their documentary evidence which were marked as exhibits.
6. The trial Court upon discussing the evidence both oral and documentary decreed the suit in favour of the plaintiff on the contention that Monsur Ali has no saleable interest in the suit land as his entire shares in the suit land  has earlier  been transferred by various registered documents before execution of deed of exchange. The trial Court further found that Monsur Ali, his mother and brother also transferred 7 decimals of land to the plaintiff by a registered deed of sale and Monsur Ali also transferred his remaining land vide exhibit 11-17 and, as such, Monsur Ali has got no title in the suit land. The trial Court further found that after purchase, the plaintiff erected structures, connected electricity mutated his name in the record of right and also possessed the suit land until he was  dispossessed from the suit land. The trial Court with reference to the evidence of the witnesses held that the plaintiff has got possession over the suit land before his dispossession.
7. The appellate Court affirmed the judgment and decree passed by the trial Court concurring with its findings and further held that Monsur Ali has no transferable interest in the suit land for his earlier alienation by various registered instrument and, as such, the purported acquisition of title by defendant No.  1 by deed of exchange was not acted upon. The appellate Court also held that the plaintiff has been able to prove his chain of title over the suit land and the plaintiff also proved his possession and subsequent dispossession by examining witnesses. The appellate Court also found that the plaintiff paid rents, mutated his name in the record of right, connected electricity and act of possession on the part of the plaintiff was there.
8. Mr AF Hassan Ariff along with Mr TM Shakil Hossain, learned advocate appeared for the petitioner. Mr Hassan Ariff, learned advocate firstly assailed the judgment of the Courts below regarding the transfer deed dated 13-4-1966 purportedly transferring 15 decimals of land out of suit plot by Mohej Sheikh whose behalf his sister Kanti Bewa executed and registered deed in question wherein it has been asserted that Mohej Sheikh is not mentally sound and, as such, without appointing guardian by the Court purported transfer by Kanti Bewa on behalf of his brother is not sustainable. He next submits that so far the deed dated 3-5-1966 is concerned, the property has been transferred by Monohar and Noney Bewa on behalf of themselves as well as on behalf of minor Monsur Ali also without obtaining guardianship certificate from Court of law and, as such, the share of Monsur Ali cannot be divested for want of obtaining certificate from Court of law and, as such, the purported transfer regarding share of Monsur Ali is also not sustainable and consequently the purchase as claimed by Amzad Ali who transferred the suit land to the plaintiff is not proper transfer whereby the plaintiff acquired no title and possession therein. He next submits that in a suit for possession and subsequent dispossession, the plaintiff is required to prove his previous possession and subsequent dispossession from the suit land but in the instant case the plaintiff failed to prove his possession and subsequent dispossession by the defendant No.1 from the suit land and, as such, the plaintiff is not entitled to get a decree as prayed for. He finally submits that in a suit for declaration of title and recovery of khas possession the plaintiff cannot get a decree for the weakness of the defendant, rather plaintiff is to get decree by proving his claim of title by submitting proper and credible document and adducing credible witnesses but the PWs failed to substantiate plaintiffs previous possession and subsequent dispossession. He particularly referred the evidence of PW 1 Mukul Mia who was at 29 years old at the time of deposition and he was minor at the time of purported dispossession and, as such, his evidence cannot be relied upon. Mr Ariff. further submits that since the defendant No.1 is in possession of the suit land and his possession is for long time and he is entitled to get protection under Section 110 of the Evidence Act. He finally submits that the findings of the appellate Court is not proper judgment of reversal as per the mandate of Order XLI, rule 31 of the Code of civil Procedure.
9. Miss. Nahid Mahatab along with Mrs Renu Haque, learned advocate appeared for the opposite party No.1. Miss Nahid Mahatab, submits that both the Courts below finding title and possession of the plaintiff and subsequent dispossession by defendant No.1 decreed the suit having affirmed by the appellate Court and the finding and reasonings of both the Courts below are credible and based on evidence on record and there is no misreading, non-reading and non-consideration of the evidence by the Courts below and in absence of any such infirmities, the revisional Court should not interfere with the findings of the Courts below. She next submits that Amzad Ali by two registered instruments purchased the suit land along with other land from their rightful owners and the documents are old and ancient documents whose veracity cannot be assailed without pointing any infirmities in those documents and, as such, the transfer in question by Amzad Ali to the plaintiff is valid and genuine transfer by which the plaintiff got title and possession over the Suitland and the plaintiff was subsequently dispossessed by defendant No.1 which is also substantiated by the evidence of the witnesses of the plaintiff. She next submits that the plaintiff after purchase mutated his name in the record of right, paid rent, connected electricity and performed all acts possession in the suit land and rent receipts are evidence of possession and collateral evidence of title and, as such, the plaintiff's purchase being acted upon, it cannot be assailed without any valid and sustainable ground.
10. Having gone through the pleadings, evidence, exhibited, documents and other materials it is found that Amzad Ali purchased the suit land by two registered instruments, one from Mohej Sheikh represented by sister Kanti Bewa and another from Monohar Ali and Noni Bewa, for themselves and minor Monsur Ali. Subsequently, Amzad Ali sold the suit land to the plaintiff on 3-8-1966 and the plaintiff after purchase mutated his name in the record of right, connected electricity, paid rent thereto.
11. On the other hand the defendant No.1 claimed to have acquired the suit land from Monsur Ali by a registered deed of exchange but it appeared from the evidence and other materials that earlier Monsur Ali has transferred his share by various registered instrument to other persons and, as such, Monsur Ali's share has been exhausted by those transfers. So far the deed of exchange is concerned, the trial Court as well as the appellate Court found that the deed of exchange was not acted upon as defendant No.1 had not title in the property which he purportedly exchanged and consequently defendant No. 1's share in the purported deed of exchange, exhibit-A was not certain and doubtful . The Court also found that since Monsur Ali has no saleable interest in the suit land, his purported transfer of share to defendant No. 1 is also not credible and sustainable. From the evidence of the witnesses of the plaintiff, it is also found that the witnesses have proved possession and subsequent dispossession of the plaintiff from  the suit land.
12. The PW 1 while deposing stated that he was student at the relevant time and he has been residing in the suit land along other student while the dispossession took place, and hence it is apparent that he was 14/15 years old at the relevant time. Amzad Ali, the transferee also deposed as PW 3 stating that he made over possession to the plaintiff and subsequently the plaintiff was dispossessed from the suit land. His evidence carries much relevance for arriving at a decision.
13. Regarding of Mr AF Hassan Ariff's submission that Mohej Sheikh was not mentally sound and purported transfer for him by his sister was not proper sustainable and the transfer of the share of Monsur Ali was also not sustainable as he was minor at the relevant time, it appears that subsequently Mofej Shiek died issueless leaving behind sister Kanti Bewa as his heir and the documents in question are as far back of 1966 which being old documents has evidentiary value and specially those documents has not been assailed by initiating any legal proceeding before the Court of law."  In the case of Jitendra Nath Mistry vs Abdul Maled  Howlader 54 DLR (AD) 106 it is held that,
"Mr Mahabubey Alam, learned Advocate for the appellant, has referred to the decisions reported in 21 DLR 673 and 29 DLR 7 in support of his submission that recital I the document  by itself does not establish the facts of legal necessity and that by calling the persons of the time of transaction facts stated. In the deed are to be established. The facts of the said two cases are quite distinct of the instant one and that in the said reported cases suits challenging the transfers were filed within the short span of time from the date of transfer. The submission of the learned advocate for the appellant that correctness of recital in the document is to be established by calling the persons of the time of transaction would be quite correct in respect of a case where transfer is challenged within reasonable span of time when there is probability of availability of persons of the time of transfer, but in a case, as in the instant one transaction by exhibit B where transfer is challenged after lapse of considerable long time then recital in the document being of long past can legally be considered, in the light of observation in the case reported in AIR 1916 PC 110, genuine and the court may taking the recita along with the circumstances go for making its decision as to validity of the deed."
14. Regarding the submission of Mr AF Hassan Ariff that the possession of the defendant No.1 is protected under Section 110 of the Evidence Act as he is in possession for long time, it is found from evidence that the plaintiff was in possession of the suit land before he gets dispossessed by the defendant No.1 and, as such, long possession of the defendant No.1 has not been established and consequently defendant No.1 is not entitled to get protection of that section. In the case of Gouri Das vs ABM Hasan Kabir 55 DLR (AD) 52 our appellate devision held that,
"Lastly, Mr Khandkar Mahbubuddin, has relied on 29 CWN 138, 128 and 43 CWN 828 to show that if a person is in possession of a land for a very long time, there is a presumption in his favour under Section 110 of the Evidence Act. There is no dispute as to the proposition of law. But we are to see whether the facts upon which reliance has been placed unequivocally point to long possession by the defendant appellants of the suit property. The presumption under Section 110 in this case would apply only if two conditions are satisfied viz, that the possession of the person claiming long possession is not prima facie wrongful and secondly, the title of the person, in this case the  plaintiff-respondent, against whom the long possession is claimed is not proved. The courts below found that the defendant-appellants are in possession but they could not prove their title or that they are not in possession to the knowledge of the real owner upon denying his title or any kabuliyat or deed of settlement. On the other hand, the plaintiff-respondent has proved their title by registered kabulyat executed on 13-11-1978 for valuable consideration. This kabala has not been disbelieved by the Courts below. This hits at the root of the claim by the defendant-appellants on the suit land on the basis of long possession since their claim of title of the suit property has been disbelieved by the Courts below. No doubt the defendant appellants possession for a long time and by succession are material. But the claim of long possession remains precarious because of the finding of title of the suit land in favour of the plaintiff-respondent by Courts below."
15. So far the submission regarding finding of the appellate Court that it is not proper judgment as per mandate of Order XLI, rule 31, it is obvious that appellate Courts judgment is to be detailed and elaborate whether in concurrence or reversal  but when the judgment is affirmed by the appellate Court, the appellate Court may express its concurrence with them and there is no necessity to restate the effect of evidence or to reiterate reasons given by the trial Court, expression of general agreement with reasons given by the trial Court would ordinary suffice. The appellate Court dwell all aspects or the case and affirmed the findings of the trial Court. In the case of Mahmud Ali  vs Bangladesh 1986 BLD (AD) 56 our apex Court held that,
"For the appellate Court to find out the points for determination and give its decision on them is a proposition which finds no acceptance by any Court of this sub-continent. All that the appellate Court is to do when it does not differ with the findings and conclusions of the trial Court is to express its concurrence with them. Thus, in the case of Giri Janandini Devi vs Bijendra Narain Chowdhury, AIR 1967 SC 1124, it has been observed as follows: " it is not the duty of the appellate Court when it agrees with the view of the trial Court, on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal  would ordinarily suffice."
16. In the above facts and circumstances, both the Courts below found possession and subsequent dispossession in favour of the plaintiff and both the Courts below decreed the suit which cannot be upset in absence of any misreading, non-reading and non-consideration of evidence and misconstruction of any document.
17. I find no merit in the rule and accordingly the rule is discharged without any order as to cost.
18. The order of stay granted at the time of issuance of the rule is hereby re-called and vacated.
19. Send down the lower Courts records.
Communicate the order.

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