P L D 1954 Dacca 62 (PLP)

IBRAHIM, J.

‑This appeal has been brought by the plaintiff's from the judgment and decree of reversal in a suit for recovery of possession on declaration of title. The lands to which the suit relates measure 2 bighas and appertain to C. S. Plots Nos. 376, 605, 202 and 209 of Mouja Bilafar, which belonged to two brothers--‑Adiladdi Molla and the proforma defendant Ahmad Molla in equal shares. There are two appellants. The first appellant is the minor son and the second is the widow of late Adiladdi Molla. On the 21st of January, 1924, Adiladdi and Ahmad Molla leased out the suit lands to Gopal Chandra Bala, the predecesor‑in‑interest of the defendants, by the patta Exh. A., on receipt of a selami of Rs.

200. On the same day Gopal Chandra Bala executed an akrarnama, agreeing to release the lands if the selami was repaid within 8 years. Adiladdi Molla died sometime before 1934. There was thereafter a rift between the appellants and proforma defendant No. 2, Ahmad Molla. The cause of the breach came from a loan of Rs. 350 which Adiladdi Molla had taken on a mort gage from Madan Sikdar, the father‑in‑law of Ahmad Molla. Madan Sikdar died, leaving three daughters including the wife of Ahmad Molla as his only heirs, and the wife of Ahmad Molla became interested in the debt. On the 17th of January, 1938. Ahmad Molla executed the lease Exh. 1 (b) in respect of some properties of the appellants in favour of his wife, purporting to act as the guardian of the minor appellant. This was done to liquidate the mortgage debt which the appellants owed to his wife. The appellants did not take it well; they applied to the Debt Settlement Board. Ahmad Molla became very angry and there was the rift. Later on, the Debt Settlement Board gave an award in favour of the appellants, granting thirteen instalments. But, in the meantime, there were other developments and the breach widened. On the 5th of December, 1938, Ahmad Molla instituted a rent suit against Gopal Chandra Bala for the rent of the tenancy created by the Patta Exh. A. In this suit. be made the deceased Adiladdi Molla a co‑plaintiff by forging his signature in the relevant papers. When the appellants came to know of the suit, they appeared in Court and applied for prosecu tion of Ahmad Molla and Gopal Chandra Bala. Their case was that within 3 or 4 years after the execution of the Patta, the option under the ekrarnama was exercised and the lease was resumed on repayment of the selami of Rs. 200; and that the rent suit was instituted with a false claim in collusion with Gopal Chandra Bala on receipt from the latter some secret considera tion. They further alleged that the object of the suit was to injure the appellants for applying to the Debt Settlement Board. On this application Ahmed Molla was prosecuted and convicted and sentenced to rigorous imprisonment for one year under each of the sections 209 and 471/465 of the Penal Code. In the present suit the appellants allege that about three months after the institution of the suit, Gopal Chandra Bala, in collusion with pro forma‑defendant Ahmed Molla, dispossessed them from the suit lands which had been in their possession since the redemption of the lease and they seek to recover possession on declaration of their title to a half‑share of the suit lands. Ahmed Molla did not appear to contest the suit. Gopal Chandra Bala, who was alive at the date of the institution of the suit, filed written statement. On his death the respondents, who are his heirs, have been substituted. They adopted the written statement filed by Gopal Chandra Bala, and their case is that shortly after the execution of the ekrarnama, the lessors took a further sum of Rs, 5C and waived their right of re conveyance and the defendants have been all throughout in possession. The all important question is whether the option under the ekrarnama was exercised, as alleged by the appellants, or waived, as alleged by the defence. In the determination of this question the question of possession is one of supreme importance ; for, if the was lease redeemed the appellants would be in possession till the alleged date of dispossession; on the other hand, if the option was waived, the defendants would be in possession without any break. The appellants adduced both oral and documentary evidence to prove the exercise of the option under the ekrarnama and to show that they were in possession up to the date of dispossession. The direct evidence consists of the oral testimony of three witnesses of whom P.W. 3 is disinterested. They have all supported the story of the plaintiffs' possession. P.Ws. 2 and 3 have further spoken about the repayment of the selmai money and the release of the suit land. The documentary evidence consists of three pattas. The case of the appellants is that these pattas relate to the suit lands and show that they were in possession. The first of these documents is Exh. 1 (a), a lease for a term of three years executed by Ahmad Molla in favour of Gopal Chandra Bala on the filth of April, 1926. It is in respect of some lands of C.S. Plots Nos. 605 and

209. The area is the same as that included in Exh. A from these two plots. That is not indeed enough to show the identity; but the conduct of the defendants is significant. Their case is that there was no such lease and not that the lease was in respect of differ ent lands. The third deed is Exh. 1 (b), the Patta executed by Ahmad Molla in favour of his wife as guardian of the minor plaintiff. It relates to some land of Plot No.

209. But the dag number is not sufficient to establish the identity ; for the plot contains much bigger area. The second deed is Exh.

1. This is very important. It is in respect of the land of C. S. Plot No. 376 which was included in Exh. A. It is in favour of P.W. 4 Laxmi Kanta and it was executed in his favour by Ahmad Molla and the plaintiff's jointly on the 24tb of September, 1934. There was a serious contest as to whether Laxmi Kanta was in possession of this land or not under this lease. The defendants stubbornly denied that he was in possession. In consequence of this attitude of the defendants, a Commissioner was appointed to make a local enquiry, and the Commissioner found Laxmi Kanta residing on the land with his family. It has been thus satisfactorily proved and both the Courts below have found that Laxmi Kanta has been in possession of this land since the creation of the lease in September, 1934. The appellants could not produce the Patta Exh. A nor the ekrarnama, both of which should be with them, if their case is true. But their case is that Ahmad Molla, for some secret consideration he might have received from Gopal Chandra Bala, made over the documents to the latter at the time when the appel lants were dispossessed in March, 1939. There is one thing to be said in favour of this explanation that when the criminal prosecu tion was started against Ahmad Molla, he was highly interested in proving the continuance of the lease ; for it was by proving that only that he could have made out some sort of a defence, to the charge laid against him in the trial. The defendants have not been able to prove payment of any rent at any time during this long period. They examined three witnesses, including one of the defendants, to prove their possession. All the three witnesses joined their voice in denying the possession of Laxmi Kanta. Such a concerted attempt to suppress the truth tells seriously against their credit. The only circumstance worth in favour of the defendants is that they produced the patta Exh. A from their custody. But if the explana tion of the appellants is accepted, then the custody loses its value. They could not produce the original ekrarnama which should be with them, if the option was waived. It is true that the appellants have also not produced the ekrarnama ; but that does not necessarily mean that the option was waived. When Adiladdi died, the first appellant was a child, and it is not unlikely that, as alleged by the plaintiffs, Adiladdi made over his documents before his death to Ahmad Molla. Ahmad Molla is evidently hostile to them. The non‑production of the original ekrarnama by the defendants has importance ; for in case of waiver the ekrarnama would be returned to the lessee with an appropriate endorsement. If the ekrarnama bears no such endorsement, it would go against the defendants and they would be unwilling to produce it in evidence. The suit was decreed by the learned Munsiff. The learned Subordinate judge reversed the decree of the trial Court mainly on account of a statement of P.W. 2, Raihanuddin that Gopal Chandra Bala possessed the lands for 10 or 11: years on the basis of the patta and ekrarnama. That statement is inconsistent with the appellants' story of exercise of the option within three or four years. Obviously, considering the lapse of time and the status of the witness, much importance cannot be given to that statement. The learned Subordinate Judge did not discuss the evidence of the defence witnesses besides saying merely that it consistently pointed to Gopal Chandra Bala's possession. He did not notice that all the three witnesses denied an established fact, namely, the possession of Laxmi Kanta. The only other fact on which the learned Subordinate judge laid stress was the fact that the half‑share claimed by the appellants was not specified by boundaries. But his conclusion that the defendants have been in possession of conflicts with his other finding that Laxmi Kanta is in possession of a part of the lands covered by Exh. A under the lease granted to him by Exh. 1 in September, 1934. There is no explanation of this incongruity. The learned Subordinate judge sought to whitewash it by saying that the plaintiffs suppressed truth; but there Js no foundation for this criticism. He does not point out what was suppressed, and how it would help to reconcile his conflicting findings. I do not think that the learned Subordinate Judge was justified in reversing the judgment of the trial Court. No doubt, the Court of first appeal is not bound by the findings of fact; but this does not mean that in every case the appellate Judge is inclined to take a different view he can reverse the judgment under appeal. The trial judge occupies a privileged position He has the opportunity to see and hear the witnesses. This is an important aspect of the matter. The record on which the appellate judge has to form his opinion, is not the whole truth about the evidence. It is, so to say, merely the skeleton of the evidence. The man, his expression, his movement and demeanour at the time he deposes and the impression he make on the mind of the judge who hears him, are matters of great importance but can never be printed on paper and are beyond the reach of the appellate Court. The trial Judge is in a better position to appreciate the evidence and his judgment is entitled to great weight and cannot be disturbed without making due allowance for the privilege he enjoys. Mere "nicely balanced calculations which lead to the equal possibility of the judgment on either the one side or the other being right" will not justify any interference. See Naba Kishore Randal v Upendra Kishore Randal (35 C L J 116 (P C.)) "Where", says Lord Thankerton in Watt or Thomas v. Thomas (1947 A C 484.), "a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial‑ Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion". In this case Lord Thankerton quotes with approval an observation of Lord Shaw in Clark v. Edinburgh and District Tramways Co., Ltd (1919 S C H L 35.). Lord Shaw said: "If I cannot be satisfied in my own mind that the judge " (meaning the trial Judge) "with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment." I am not satisfied that the judgment of the trial Court was plainly wrong. It is clear, on the other hand, that the judgment of the appellate Court below is plainly so; for it fails to explain Laxmi Kanta's possession. This appeal will, therefore, succeed and is allowed without cost. The judgment and decree of the learned Subordinate judge are set aside and those of the trial Court are restored. A. H. Appeal allowed.