P L D 1967 Dacca 132 (PLP)

It should be borne in mind that the C. S. Khatian was prepared about thirty‑five years ago. A number of issues were framed, at the trial of the suit by the learned Munsif who, on a full consideration of the evidence adduced by the parties, held that suit‑lands were auction‑purchased by the landlord, as alleged by plaintiff. He also held that plaintiff took settlement of suit‑land from the landlord subsequent to the said auction‑purchase by the latter. He further held that plaintiff was in possession of suit‑lands. The learned Munsif also found that defendant had taken barga settlement of the suit‑lands from plaintiff and had, in fact, paid him (plaintiff) half the produce thereof for a number of years. The Trial Court also held that a registered kabuliyat executed by defendant by which he had admitted the said barga settlement was a valid document and was binding on the said defendant. Upon aforesaid findings the suit was decreed. . Defendant thereupon preferred an appeal, which was heard and disposed of by an Additional District Judge of Rangpur. Learned Additional District Judge, on a discussion of the material evidence in the case, affirmed the findings arrived at by the learned Munsif and the decree passed by him. Hence this appeal by defendant. At the hearing of .the appeal I was taken through the judgments pronounced by the Courts below. It has been contended on behalf of the appellant that the aforesaid sale‑certificate, which has been marked as Exh. 2, does not establish that the suit‑lands were, in fact, auction purchased by the landlord. Furthermore, it has been next contended that the registered kabuliyat referred to above and marked as Exh. 7 in the suit, is hit by the provisions of section 23 of the Contract Act as being against public policy. It was argued that the aforesaid settlement (Exh. 1) was taken during the pendency of criminal proceedings against defendant. It was, therefore, contended that the registered kabuliyat (Exh. 7) being the basis of the decree passed by the Courts below, if found to be void, would disentitle plaintiff to a decree in his favour. No other point was pressed before me. It seems that plaintiff has not succeeded in proving that the suit‑lands were initially purchased by the landlord as alleged by the plaintiff. In any event, there is no reason why the settlement taken by plaintiff by the aforesaid patta, namely, Exh. 1, should not be believed to be a genuine transaction. If the auction‑purchase by the landlord had not been proved, the patta would not operate as conferring any legal title to the plaintiff. Plaintiff must establish his title on some other basis. The material point is, whether plaintiff has established his possession of suit‑lands and the barga settlement thereof taken by defendant. If this is so, the plaintiff is entitled to a decree in this suit because if plaintiff was in possession of suit‑lands and, if defendant has taken settlement of the same from plaintiff, defendant would be estopped from denying plaintiff's title to suit lands. Learned Advocate for appellant did not contest this proposition of law. There is overwhelming evidence on the side of plaintiff to prove that he was in possession of suit‑lands. The Courts below have accepted such evidence and I have also no hesitation to come to the same finding. Furthermore, the Courts below have accepted the evidence led by plaintiff that defendant took barga‑settlement of suit‑lands and that he (defendant) had for a number of years paid plaintiff half the produce of suit‑lands in pursuance of the aforesaid barga‑settlement. There is documentary evidence to support the oral evidence given on behalf of plaintiff on this point. The said documents are the seven account books produced by plaintiff, which have been marked as Exhs. 5 to 5 (f). The evidence adduced by defendant in rebuttal, is extremely poor and not very reliable. The Courts below placed no reliance on them and I also cannot persuade myself to believe such evidence. The appeal would stand dismissed on such finding. Since it has been vigorously canvassed before me that the registered kabuliyat, namely, Exh. 7, is not a valid document, I would make some observations on the said contention. , It should be remembered that it is not plaintiff's case that barga‑settlement of suit‑lands was taken by defendant by the impugned registered kabuliyat, that is, by Exh.

7. The settlement is sought to be proved by oral and circumstantial evidence, including Exh.

7. Plaintiff's case is that Exh. 7 is a subsequent recognition of the barga‑settlement. It was argued on behalf of appellant (defendant) that since Exh. 7 is a registered kabuliyat, upon which reliance has been placed by plaintiff in order to establish the barga‑settlement taken by defendant, it is important to consider whether it is valid according to law. It has been contended that since the document was brought into existence during the pendency of a criminal pro ceeding in which plaintiff was the complainant and defendant was the accused, it is a document which militates against section 23 of the Contract Act as being against public policy, namely, the stifling of a criminal prosecution. The most important question in this behalf is: has the criminal case been settled as a result of and because of the impugned document? If it is so, it would be hit by the provisions of section 23 of the Contract Act; if not, it would not come within the mischief of the said section, notwithstanding the fact that it came into existence during the pendency of the criminal proceedings and that reference to the said proceeding has been made in the document. The execution of the document at a time when the suit was pending may amount to a strong piece of circumstantial evidence tending to show that the criminal proceeding was compromised as a result thereof, but it is no more, than a piece of evidence which may be rebutted. The Court would look to the other evidence attending circumstances in order to arrive at a finding whether the execution of the document was the consideration for a compromise of the said criminal proceeding. If it is held to be so, the document would be void under section 23 of the Contract Act. If, however, the document is merely executed during the pendency of such a criminal proceeding and, if it is not the basis of compounding the criminal proceeding, it would not be hit by section 23 of the said Act. The relevant portion of the recital in Exh. 7 was read out to me by learned Advocate for the appellant. The recital is that the document was being executed as the above‑mentioned criminal proceeding had been settled and because of a demand made by the plaintiff for its execution. It is clear that there is nothing in the document itself to indicate that the settlement of the said criminal proceeding was the basis of the document. It is true that the document came into existence contemporaneously with compounding the criminal proceeding, but, the Appellate Court below was satisfied on the attending circumstances that it did not furnish the cause for the settlement of the said proceeding. In such a. situation, it cannot be said that the document is hit by the provisions of section 23 of the Contract Act. I would like to add that even if I had held that Exh. 7 was not a valid document being hit by the provisions of section 23, the findings arrived at by the Courts below to the effect that plaintiff has succeeded in proving his possession of suit‑lands and 'in proving barga‑settlement taken by defendant would be enough, apart from the impugned document, to decide the appeal. I, therefore, hold that there is no substance in the present appeal, which is dismissed without any order as to costs. Leave, as prayed for, under clause 15 of the Letters Patent, is refused. S. Q. Appeal dismissed.