P L D 1963 Dacca 607 (PLP)

"No doubt questions of law and fact are often difficult to disentangle, but the following propositions are clearly estab lished :‑ (1) There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however, gross the error may seem to be: See Durga Chowdhurian v. Jawahir Singh Chowdhuri (17 I A 122, 127). (2) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admit ted is necessarily a pure question of fact: see Nafar Chandra Pat v. Shukur (45 I A 183, 187). (3) Where the question to be decided is one of fact it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights, but were really historical materials, have to be con strued for the purpose of deciding the question: see Midnapur Zamindary Co. v. Uma Charan Mandal (29 C W N 131)."

10. The question in the present case is whether the purchase in the name of Maleka Khatun was by Monohar Ali Chow dhury and Azgar Ali. If a Court of fact on a consideration of the evidence oral and documentary produced by the parties has come to the conclusion that the purchase was not by persons other than in whose name the property stands I do not see howl, that becomes a mixed question of law and fact as has been urged on behalf of the appellants. It is purely a question of fact and when the documents relied on by the party alleging benami are not documents of title the conclusions drawn by a Court of fact with regard to those documents cannot be reconsidered in second appeal. High Courts powers under section 100 C. P. C. has been considered by the Federal Court in the case of Abdul Majid and others v. Khalil Ahmed ((1959) 11 D L R (S C) 182). In that case the question that was considered whether the High Court while hearing a second appeal was competent to set aside certain findings about legal necessities arrived at by the lower Appellate Court. The findings of the lower Appellate Court were set aside by the High Court on these observations :‑ "In the present case, there is no recital of necessity in any one of the three deeds, and in each case the entire considera tion was received in cash. Even assuming that the alienee acted bona fide, the least inference which can be drawn, bearing in mind that he himself was governed by agricultural custom, is that he did not apply his mind at all to the question of necessity for if he did, and if he was satisfied that the money was needed by the alienor for the purposes now alleged by his descendants, there was nothing to be lost and on the other hand everything to be gained by mentioning in the formal docu ments that Qazi Abdur Rahman needed the money for e.g., paying off a mortgage, putting up a house, performing the marriage of his daughter, etc. No presumption can be drawn in favour of such an alienee and it makes no difference that at the time of the suit, he is dead and the task of defending the alienation against the challenge of the reversioners falls to be performed by his successors who may be totally ignorant of the circumstances in which the alienation was carried through. Of necessity, reliance has to be placed exclusively on oral evidence, not as to the existence of need prior to the alienation, but as to the application of the sale proceeds after the sale and such evidence is apt to be either conjectural or merely procured, for the chances of its being genuine are, in the majority of cases distinctly remote. It is the duty of .the Courts in dealing with such evidence to examine it with more than ordinary care, for not only is it intrinsically unreliable, since memory must fade with the passage of time and in the absence of documentary evidence, particular items of expendi ture cannot be related to the date of alienation with any approach to exactness, but there is also to be borne in mind another factor viz., the extreme anxiety of the alienee to retain the land. In the present case the Courts below have taken exactly the opposite view i.e., that the alienee's evidence should be accepted at its face value and should not be regarded with suspicion, etc., and their findings being based on this fallacious method of approach are not binding on this Court in second appeal. It, therefore, becomes necessary to examine the evidence regarding the application of the sale proceeds afresh." Munir, C. J., who delivered the judgment in that case after quoting the above passage observed as follows:‑ "It is obvious that what the learned Judges intended to say was for the reasons stated by them. Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to as material mistaken assumption, is merely an error in coming to a finding as to that fact and such error has never been held to be an error of law justifying interference in second appeal."

11. The learned Advocate for the appellants has not been able to point out that any piece of evidence on which the defen dant relied upon has not been considered by the lower Appellate Court. All that he has argued is that the conclusions drawn from the documents were wrong and in some instances the learned Judge misread the documents. In my view such arguments cannot be advanced in second appeal and the finding arrived at by a final Court of fact on a consideration of all the materials placed on record is binding on me. For the sake of completeness, however, I think it is necessary to refer to the documents to which my attention has been drawn by learned Advocate and the arguments submitted with regard to them. The first document that has been referred to is Exh. D, a mortgage deed in favour of Azgar Ali. This documents was produced by Wazed Ali, defen dant of Title Suit No. 176 of 1950. It was his case that this mortgage deed was mentioned in Exh. 1; the first deed of purchase in favour of Maleka Khatun and it was stated therein that Rs. 76 was paid in cash through her father Monohar Ali and the remainder out of Rs. 400 was to be paid to the creditors of the vendors including a debt of Rs. 280 due under Exh. D to Azgar Ali. The case of Wazed Ali is that this deed was handed over by Azgar Ali to his father Monohar Ali on receipt of the amount of debt. The plaintiff Maleka Khatun alleged that the debt due to the husband was adjusted with her claim of dower. The learned Advocate has argued that Exh. E, the kabin‑nama of Maleka which has been produced, however, does not show that the dower debt was adjusted with this amount. All these facts have been taken into consideration by the trial Court and the lower appellate Court and they have come to the conclusion that the debt of Azgar Ali was adjusted with the dower debt due from him to the plaintiff Maleka Khatun. Even if I differ from the conclusion which has been arrived at by the Court of appeal below, as it is a conclusion about a fact I am not entitled to interfere with it. The conclusion about a fact from another D proved fact is not a question of law. It is only where a con clusion about the legal effect about certain proved facts is to be drawn it becomes a question of law which can be gone into second appeal.

12. The next document is Exh. M, a rent decree which was obtained by the landlord of the disputed lands against the heirs of Azgar Ali. This rent decree has been taken into considera tion by the lower appellate Court but it has refused to attach any importance to it because it thought that Md. Yonus defen dant No. 1 in Title Suit No. 175 of 19 50 who used to manage the properties of Maleka Khatun was responsible for influencing the landlords to imp lead all the heirs of Azgar Ali with a view to establish his wife's claim to the disputed lands. There is some evidence to this effect and if a Court of fact has relied on this evidence. I do not see how I can interfere.

13. Exh. B is the certified copy of a deposition of P. W. 3 who is plaintiff No.

2. It was put in to prove an admission by him that the disputed lands belonged to his father Azgar Ali. The attention of this witness was not drawn to his admission and he was not given any opportunity to explain that admission. The lower appellate Court has taken into consideration this admission and has given his reasons for not relying upon it. The conclusion that the admission has been explained is a question of fact. Moreover, in view of the decision reported in A I R 1946 Lah. 63, which lays down the law correctly I do not think the admission can be relied upon by the defendants when they did not draw the attention of P. W. 3 during his cross‑examination.

14. The next argument of Mr. Bose is that the learned Judge has come to a wrong conclusion about Exh. 3 (g) without taking into consideration Exh. L Exh, 3(g) is a rent receipt produced by the plaintiffs showing payment of rent in respect of the disputed lands. Exh. L was produced by the defendants to show that before the date of this receipt the land lords lost their title in the disputed land by virtue of an auction sale of which the sale certificate is Exh. L. Exh. L, no doubt, shows that the landlords interest was sold before the date on which Exh. 3 (g) was granted but it does not prove that the auction purchaser, the Maharaja of Tippera actually took delivery of possession before the date of this receipt. The learned Judge has come to a finding on the evidence of one of the landlords that Exh. 3 (g) is a genuine document and I have shown that the non‑consideration of the date of purchase as mentioned in Exh. L does not affect the finding of the learned Judge.

15. Exh. J series and K were then referred to but I find from the judgment of the lower appellate Court that they have been considered in his judgment as will appear from page 38 of the paper book. The conclusion that these municipal receipts and assessment list do not prove the ownership of Azgar Ali or his heirs is not wrong and even if it were it is not a question of law.

16. Exh. H is a kabuliyat dated the 22nd day of January 1945 which shows that plaintiffs 2 and 3 let out some portion of the lands in suit to a tenant before the gift in their favour by Maleka Khatun. This was produced for the purpose of showing that plaintiffs 2 and 3 let out the land as heirs of Azgar Ali. This document has been considered by the lower appellate Court and on a consideration of the fact that this document was written by Yunus and it was alleged by the plaintiffs that Yunus on whom they placed reliance brought it about with a view to create evidence of title in favour of his wife, the learned Judge has rejected this document. I do no not see how I can interfere with this finding in second appeal.

17. The next document to which my attention has been drawn is Exh. C which is a patta executed by the landlords in favour of Azgar Ali and Maleka Khatun in respect of some lands including the disputed lands. This document has been considered by the lower appellate Court and has been rejected in connection with the question of benami purchase by Azgar Ali on the ground that in Exh. C not only the disputed lands but some other lands exclusively belonging to Azgar Ali were included and in respect of both a joint patta was granted in favour of the husband and the wife. It is difficult to understand how Exh. C proves that Maleka Khatun was only a benamdar of Azgar Ali in respect of the disputed lands. The document has been considered and the learned Judge has come to his own conclusion about it and I am left with no option but to accept the finding.

18. The next point that has been raised in this case is that the plaintiffs have failed to establish that the defendants were licencees of Maleka Khatun. In this connection my attention has been drawn to the allegations made in the plaint wherein it has been stated that the daughter and the son‑in‑law began to occupy the disputed lands as licensees from 1923 and the brother from 1921. The learned Advocate has argued that the evidence, on the contrary, shows that these defendants were on the lands from long before those dates. This discrepancy, no doubt, is there but since both the Courts on a consideration of the evidence have come to the conclusion that the defendants entered the disputed land as licensees, I do not think I pan interfere with this finding as it has not been argued that this finding is based on no evidence at all.

19. The last argument of the learned Advocate is that in view of the decision Hakim Maulvi Muhammad Mahbub Ali Khan v. Bharat Indu and others (23 C W N 321), the learned Subordinate Judge should have come to the conclusion that the allegation about benami had been established. I have already indicated that the conclusion whether the purchase in the name of Maleka Khatun was a benami purchase by Monohar Ali Chowdhury and Azgar Ali is a question of fact and since the conclusion arrived at with regard to this question has been after a consideration of all the evidence placed on the record, there is no scope for interference by me in this appeal. These are the points which have been raised in this appeal and as, in my view, they have no substance the appeals are dismissed. Having regard to the facts and circum stances of the case however, I direct that each party will bear its own costs in these appeals. S. B. Appeal dismissed.