P L D 1961 Dacca 71 (PLP)

3. The suit was contested by defendants Nos. 1 and 2 and according to them, the plaintiffs never acquired any right, title or interest in these lands. The lands belonged to the recorded tenant Jan Muhammad who had a taluki interest in 13 items and a raiyati interest in the rest of the lands within the boundary of the schedule attached to the plaint. This Jan Muhammad died leaving two sons, Serajul Hoque and Syed Ahmed and two daughters, Jamila Khatun and Sharifa Khatun. Serajul Hoque by an amicable partition between his co‑heirs obtained possession of the suit lands and on the 13th of Chaitra 1352, B.S., granted a howla patta Exh. A to defendant No. 1 in respect of the suit lands and some other lands. Thereafter the sisters of Serajul Hoque namely, Jamila Khatun and Sharifa Khatun executed a kabala Exh. B in respect of the suit lands in favour of defendant No. 2, the wife of defendant No. 1, on the 11th of Baisakh 1353 B.S. After the aforesaid transfers defendant No. 4 and some other persons dispossessed defendant No. 1 from the suit lands towards the middle of Ashar 1353 B. S. For this defendant No. 1 brought a Title Suit No. 144 of 1947 obtained a decree therein and took possession through Court on the 23rd of March 1950, and since then had been possessing the lands through his bargadars. When the plaintiffs sought to interfere with his possession, he brought the Criminal Case No. 502 of 1950, and the plaintiffs also brought a counter case being Criminal Case No. 503 of 1950 against the said defendant No. 1. and both these cases were compromised between the parties by filing a solenama Exh. D by which the plaintiffs admitted the right of defendants Nos. 1 and 2 to the suit lands. Hence, the plaintiffs had no cause of action in the said suit.

4. The trial Court took the view that the plaintiffs had failed to establish either their right, title or interest in the lands or their possession thereof and hence, the suit was barred under the provisions of section 42 of the Specific Relief. Act, as possession was found with the defendants.

5. In coming to this view, the trial Court attached consider able importance to an apparent discrepancy between the sale certificate Exh. 3 and the suit register of S. C. C., Suit No. 76 of 1908, Exh. 2, upon which the plaintiffs based their title Exh. 3 purported to show that lots Nos. 1 and 3 were sold on the 9th of September 1908, for a sum of Rs. 68 to the said Ismail but Exh. 2 purported to show that the sale took place on the 30th of October 1908 for Rs.

78. The date of the delivery of possession was also not found in the suit register Exh.

2. In view of this discrepancy and the delay in the filing of the certified copy of the register which though obtained as long ago as the 20th June 1951, was not filed in Court until the 17th of November 1955, which was the date of the positive hearing of the suit, the Court was rather suspicious of these documents and did not consider them as furnishing satisfactory evidence of the title of the plaintiffs.

6. The trial Court also took the view that the burden was on the plaintiffs to prove that the solenama Exh. D said to have been filed in the criminal case was fraudulent and collusive and that the plaintiffs had made no attempt to prove the said alleged fraud in respect of the said solenama. Again, the trial Court treated the patta Exh. B 1 said to have been executed on the 6th of Baisakh 1353 B. S., by the plaintiffs granting a raiyati settlement to Abdul Baten and Muhammad Hussain as another suspicious document, for according to the trial Court, the plaintiffs, if they purchased anything at all in auction‑sale, purchased the talukhi interest of Jan Muhammad and not his raiyati interest. Hence, they could not transfer the raiyati interest. The trial Court was also of the opinion that the oral testimony with regard to posses sion could not be relied upon in the absence of any documentary evidence to corroborate the same. Hence, it dismissed the plaintiffs' suit in toto.

7. On appeal, however, the learned Subordinate Judge took the view that the trial Court was wrong in placing the burden of proving the want of genuineness of the solenama Exh. D on the plaintiffs. According to the learned Subordinate Judge, since the defendants relied on this solenama and the plaintiffs denied its genuineness as also their signatures thereon, it was the duty of the defendants to prove the signature and the thumb‑impressions of the plaintiff No. 1 on the said document with the help of a finger print expert. Hence, the execution of Exh. D not having been proved, the solenama could not be taken into evidence to establish the title of the contesting defendants.

8. The Court of appeal below was also of the view that the trial Court was wrong in holding that there was any discre pancy between Exh. 3 and Exh. 2, Exh. 3, according to the lower appellate Court, showed the sale of only lots Nos.1 and 3 but Exh. 2, the suit register, shows the sale of lot No.

2. The explanation furnished by the plaintiffs for discrepancy, namely, that the discrepancy in the Mice arid the date was due to the fact that lot No. 2 was sold on a later date, was also accepted as a reasonable explanation, particularly, as it was nobody's case that there was any other sale in respect of the lands mentioned in Exh.

3. The learned Subordinate Judge also considered the recital in Exh. 2 that possession had been delivered as sufficient to show that the plaintiffs' predecessor Ismail had actually obtained deli very of possession through Court. In any event, even if there was any discrepancy, the discrepancy between these two documents was according to the learned Subordinate Judge, due to a clerical mistake in making entries in Exhs. 3 and 2, and as such, since they were public documents should have carried great weight with the trial Court in the absence of any proof that they were obtained fraudulently. Hence, they satisfactorily established the auction purchase of Ismail in respect of these properties and furthermore, since Jan Muhammad had admittedly both taluki and raiyati interest in these lands, the auction‑purchaser acquired both these interests of ‑Jan Muhammad by virtue of his auction purchase in the S. C. C., execution case No. 1235 of 1958 and as and from the date of such purchase, the right, title or interest of Jan Muhammad and his heirs became extinguished and they had no further right to make any further transfer of these properties to anyone. Hence, the subsequent purported transfer by Serajul Hoque and his sisters in favour of the defendants Nos. 1 and 2 were of no avail to the defendants.

9. On the question of possession also, the learned Subordi nate Judge found fault with the trial Court for insisting on documentary evidence in corroboration of the oral evidence already furnished on behalf of the plaintiffs' because in the facts and circumstances of this case, there could be no documentary evidence thereof. Anyway, Exh. B (1) and Exhs. 1 and 1 (a) furnished such documentary evidence of possession if the same was considered necessary. The oral evidence was also, according to the learned Subordinate Judge, wrongly rejected by the trial Court.

10. The reliance placed by the trial Court upon the records of Title Suit No. 144 of 1947 was also criticised by the learned Subordinate Judge on the ground that the trial Court had omitted to notice that the plaintiffs were not parties to the said Title Suit No. 144 of 1947 and they, therefore, were in no way bound by the decree in the said suit or by the proceedings held therein. Hence, the decision of the trial Court was reversed and the plaintiffs' title to the lands described in the plaint was declared and their possession therein confirmed and the defendants Nos. 1 and 2 were permanently restrained from entering upon the said lands.

11. It is against this decision that the defendant No. 1 has come up on appeal to this Court and on his behalf it is contended that the Court of appeal below was wrong both in throwing the burden of proof with regard to the solenama Exh. D on the defendants also minimising the discrepancy between Exhs. 2 and

3. The appellant also contends that the learned Subordinate Judge is wrong in holding that the evidence of the proceedings in Title Suit No. 144 of 1947 were not relevant in the suit because the transferees of the raiyati interest from the plaintiffs, namely, Abdul Baten and Muhammad Husain, were made parties to the suit. The failure of the Court of appeal below to notice the oral and documentary evidence with regard to possession has also been criticised on behalf of the appellant ; in particular, the appellant urges, that the Court of appeal below has not noticed the writ of possession Exhs. C and C (1) showing delivery of possession through Court on the 23rd of March 1950, to defendant No. 1 of the suit land ; they had been totally ignored by the learned Subordinate Judge. The learned Subordinate Judge had also not given his own independent view with regard to the oral evidence adduced in the case concerning the possession although he had reversed that finding also of the trial Court. The learned lower Appellate Court, it is said has also not considered whether the suit was hit by section 42 of the Specific Relief Act.

12. On examining the records of this case, I find that the solenama Exh. D was actually filed by the plaintiffs in the suit and it was accepted into evidence on admission of the parties. In the circumstances, in my opinion, the formal proof of the document, was waived. The record further shows that Exh. D is only a certified copy of the solenarna and not the original thereof. In his cross‑examination P. W. 1 who is the plaintiff No. 1 himself again admitted the filing of the counter criminal case as also admitted that that case was compromised. He further admitted that he was present in the salish, although he had in examination -in‑chief denied signing the solenama of the Case No. 502 of 1950, as also asserted that he could not sign his name. He also denied his thumb‑impression on the said solenama. The evidence adduced on behalf of the defendants shows that witness after witness came and stated that the plaintiff No. 1 signed the solenama in their presence and that he had signed his name on other documents as well. The plaint in the suit also appears to bear the signature of the plaintiffs, No. one's thumb‑impression appears thereon.

13. Again, from the recital of the case given by the learned Subordinate Judge himself the plaintiff's case was that his signature and thumb‑impression had been taken on the solenama by practising force and pressure upon him. If that was so, then clearly the plaintiff admitted that the thumb‑impression and sig nature on the solenama were his but denied that he had put them thereon of his own free will and accord.

14. In the circumstances, the solenama Exh. D was certainly abundantly proved and was in every way admissible in evidence and the Court of appeal below was, in my opinion, wrong in taking the view that the solenama was not admissible in evidence. The mere acceptance of the document on admission of the parties was, in my view, sufficient to make that document admissible in evidence and the objection as to the formal proof thereof could not thereafter be taken in the Appellate stage. Once the docu ment had been admitted into evidence, then, in my view, again, the Court of appeal below was wrong in holding that the onus was on the defendants to show also that it was genuine and free from any taint. Normally, the onus of proof lies on the person who asserts a fact positively. In the present case it was the plaintiffs who asserted that the solenama had been obtained by fraud. The onus of proving fraud was thus clearly on the plain tiffs and it was not the duty of the defendants to disprove the existence of the fraud or collusion in anticipation of any case made out by the plaintiffs themselves. In this view of the matter, the learned Subordinate Judge was entirely wrong in taking the view that he took with regard to the solenama Exh. D.

15. Again, with regard to the discrepancy between Exhs. 3 and 2, I am inclined to agree with the learned Advocate appearing in support of the appeal that the discrepancies were not minor discrepancies which could be so lightly brushed aside. The document of title upon which the plaintiffs based their title, was the sale certificate Exh. 3 issued by the Court and this sale certificate Exh. 3 showed that Ismail, the predecessor‑in‑interest of the plaintiffs, had auction‑purchased only two lots 1 and 3 for a sum of Rs. 68 on the 9th September 1908. There is no mention of lot No. 2 in Exh.

3. But Exh. 2, the suit register, purports to show that the sale was held on the 30th of October 1908 of three lots for the price of Rs.

78. The sale certificate is prepared after the sale is confirmed. Hence, there can be no question of any clerical mistake being made in the preparation of the sale certificate. The sale certificate is the document upon which the auction -purchaser based his title and he cannot go behind the sale certificate. If there was any defect or error, he should have applied to the Court to get it corrected and in the absence of such correction he was bound by the sale certificate. The trial Court was, therefore, right in taking into account the discrepancy between the suit register and the sale certificate. The explanation furnished by the plaintiffs is based on no evidence at all so far as I have been able to gather from the depositions recorded in the Court.

16. In the absence of this proof, I cannot see how the plaintiffs can succeed in establishing their title to all the three lots in suit.

17. With regard to the question of possession also, I do not appreciate on what principle the learned Judge has brushed aside public documents, namely, records of Court which showed actual delivery of possession to the defendant No. I in execution of the decree in Title Suit No. 144 of 1947 as late as the 23rd of March 1950. Even if the plaintiffs were not parties to the Title Suit No. 144 of 1947, and were not bound by the decree therein, I do not see why the writ of delivery of possession in the sale suit could not be utilised for establishing the factum of possession of the lands in favour of the defendant No.

1. Prima facie it certainly proved that the defendant No. 1 had entered into possession of these premises. If the plaintiff wished to show that this possession was not actual physical possession it was for him to adduce evidence to show that nevertheless the defendants had not obtained such possession. The Court of appeal below should also have noticed that the transferees Abdul Baten and Muhammad Hussain were made parties to the suit and they certainly were ousted from possession of these lands by virtue of this execution in Title Suit No. 144 of 1947.

18. In my view, the complaint that the Court of appeal below has not considered the evidence of possession independently appears also to be justified. In this case when that finding with regard to possession was being reversed, it was incumbent on the final Court of facts to consider the evidence relied upon by the trial Court and to give its own independent view with regard to the said evidence. The view of the lower Appellate Court in the present case appears to be based purely on the fact that no corroboration of the oral evidence by documents was necessary in this case, as no further documents could be produced by the plaintiffs. In any event, such corroboration was furnished by the two kabuliyats Exhs. 1 and 1‑A to show that the plaintiffs during their alleged possession dealt with the properties as such owners in possession. Apart from this however, there is no discussion of any other evidence in this case either oral or documentary.

19. If, as the learned Subordinate Judge seems to think there was no dispute as to the identity of the lands concerned in this suit and the earlier proceedings, then it is difficult to appreciate how the latter evidence of possession could be brushed aside by the Court of appeal below and the plaintiffs granted a decree of confirmation of possession to these lands.

20. For the reasons given above, I am of the view that this appeal must succeed and the judgment and decree of the Court of appeal below must be set aside and that of the trial Court restored.

21. This appeal is, therefore allowed and the judgment and decree of the Court of appeal below are set aside and that of the trial Court restored. There will, however, be no order for costs in this matter. A. H. Appeal allowed.