P L D 1965 Dacca 395 (PLP)

The suit was tried by Mr. M. A. Bukht, Munsif of Meherpur and he dismissed the suit by an order made by him on 26‑7‑

58. On appeal, Mr. A. S. Faizul Islam Chaudhry, Subordinate Judge of Kushtia decreed the suit. The only point pressed in this appeal by the learned Advocate for the appellant, Mr. T. Ali, is that the judgment of the first appellate Court is not a proper judgment of reversal, inasmuch as, the points raised in the judgment of the trial Court have not been considered by him. Mr. B. N. Chaudhry, learned Advocate for the respondents, however, submits that there is no evidence of exchange as claimed by the appellant Nur Muhammad and the judgment of the trial Court has proceeded merely on conjectures and surmises and there is nothing in the judgment to be taken into consideration by the first appellate Court. Mr. Chaudhry makes a pointed grievance that a material exhibit namely, Exh. 2 filed on behalf of the plaintiffs has not been considered by the learned trial Court. The learned Subordinate Judge has taken into consideration all the relevant materials and reached the firm conclusion to the effect that there was no exchange of properties as claimed by appellant Nur Mohammad. The learned Subordinate Judge has also recorded an important finding to the effect that there was relationship of landlord and tenant between the plaintiff and the defendant and on this ground he has allowed the appeal, set aside the judgment of the trial Court and decreed the suit as stated above. In reaching the aforesaid conclusions, the learned Subordinate Judge took into consideration the judgment in the Title Suit No. 6 of 1957, which was instituted by the present defendant‑appellant Nur Mohammad Mallick who was plaintiff in that suit, and the plaintiff of this suit Sudhir Kumar Biswas was defendant in that suit. In that suit Nur Mohammad at first claimed that there was an exchange of property. He subsequently amended the plaint abandoning his plea of exchange. The learned Subordi nate Judge has, therefore, rightly found that this is an admission made in a previous suit inter partes to the effect that there was no exchange. That being so, in the present case the previous admission of the defendant Nur Mohammad is a strong evidence against him in regard to his plea of exchange. It is true he is entitled to give evidence that his abandonment of the plea of! exchange was the result of a mistake on his part. But he has given no such evidence. It is, therefore, a strong evidence against his claim of exchange. The view expressed above finds support in the case of Rani Chandra Kunwar v. Chaudhri Narpat Singh and others (34 I A 27), in which their Lordships of the Privy Council observed as follows:‑ "What a party himself admits to be true may reasonably be presumed to be so" . . . . The law upon the point is clear. In Heane v. Roger's (1829) 9 B & C 577 at p. 586, Bayley, J. in delivering the judgment of the Court lays it down that:" There is no doubt but that the express admissions of a party to the suit, or admission implied from his conduct, are evidence and strong evidence against him; but we think he is at liberty to prove that such admissions were mistaken or were untrue." The learned Subordinate Judge has also recorded a finding to the effect that the allegation of intention of transferring the ownership of the property was wanting in this case and there can be no exchange in the absence of intention to that effect. He also observed: "The rate of rent as mentioned in the lease deed at Rs. 16 per month is not disputed by the defendant No. 1; rather, it is virtually an admitted fact. The lease deed created a tenancy between the plaintiff, and the defendant No. 1." These are indeed very important findings and there is absolutely no reason whatsoever to reopen these conclusions of fact in this second appeal. In this state of affairs I am invited by Mr. T. Ali to refer to the judgment of the trial Court which according to the learned Advocate for the appellant has not been considered by the Court of Appeal below. The trial Court observed that Ajit Kumar Bhowmick P. W. 1 is a "tutored witness." This is an abrupt comment without discussion of evidence of Ajit Kumar Bhowmick and is absolutely unjustifiable. I have gone through the entire deposition of Ajit Kumar; and when pointedly asked by me. Mr. T. Ali found himself unable to support this comment. P. W. Ajit Kumar deposed to the effect that he realised rents and granted receipts but maintained no counterfoil thereof. This seems to me reasonable. The plaintiff Sudhir Kumar is not a big landlord having many houses and as such he is not supposed to have printed receipts so that counterfoils may be produced. Therefore in this case it is rather natural that Ajit Kumar should be in possession of no counterfoil and on that ground the learned Munsif straightway observes "I do not believe Ajit in the least. He came forward to mount the witness box simply in order to mouth out what was previously stuffed into his retentive memory". Mr. T. Ali totally failed to show as to wherefrom the learned Munsif gets the evidence that the statements made by Ajit in Court was put to his mouth by someone else. After reading the evidence of Ajit Kumar Bhowmick I am satisfied that it is a straight forward deposition which bears imprint of truth. There is no document of exchange produced in this case except verbal statement to the effect that the unregistered deeds of lease as well as the "bharanama" were agreed to be treated as deeds of exchange. This assertion by reason of section 92 of the B Evidence Act cannot go into evidence. Oral evidence is not admissible to prove that a document is not what it purports to be. It is true the Court may take into consideration the conduct of the parties to find out the nature of the transaction. In this case, however, nothing could be shown from the conduct of the parties that they treated the transaction as an exchange of properties and not lease. In these circumstances, I am unable to accede to the request of Mr. T. Ali whose only prayer is that this case should be sent back on remand for reconsideration of the points raised in the judgment of the trial Court. In the result the appeal is dismissed with costs and the judgment and decree of the first appellate Court are armed. K. M. A. Appeal dismissed.