1. HAMOODUR RAHMAN, C. J.-The petitioner brought a suit for specific performance of a contract of sale alleging that one Mst. Tamina Bibi, the predecessor-in-interest of the present respondents, had on the 14th of August 1963, entered into an agreement to sell to him the suit lands, measuring 5.84 acres, for a consideration of Rs. 3,500.
2. After the execution of this agreement, the said Tamina Bibi fell seriously ill in the house of her son's father-in-law at Balakhal. As her condition was getting precarious, her son was sent to the petitioner with a request to make arrangements for immediate execution of the deed of sale in fulfilment of the agreement earlier entered into. The petitioner not being in a position to immediately procure the entire consideration money requested the said Tamina Bibi's son to purchase a stamp paper of Rs. 1-8-0 and to wait for the petitioner at his father-in-law's house. The petitioner went there that very day i. e. The 13th Aswin, 1370 B. S., and a bainapatra was written and executed on the stamp paper embodying the terms of the contract for the sale of the land. The petitioner paid Rs. 2,000 as earnest money to the vendor's son.
3. In pursuance to this agreement the vendor's son also obtained necessary papers for obtaining the Income-tax Clearance Certificate. Subsequently, however, the petitioner came to learn that the other defendants in the suit had, by exercising undue pressure and influence over the said Tamina Bibi and her son, got various bogus kobalas executed in their names knowing full well of the contract between him and the said Tamina Bibi.
4. The defendants contested the suit by filing separate written statements and claimed to be bona fide purchasers for value without notice of the alleged contract between the petitioner and the said Tamina Bibi. The trial Court came to the conclusion that the vendor Tamina Bibi was the paternal aunt of the peti--tioner and the latter had subsequently procured the bainapatra (Exh. 2) from her in order to nullify the sales made in favour of the other defendants by the said Tamina Bibi. It was also found that the other defendants were bona fide purchasers for value without notice and hence the suit was dismissed. An appeal filed against the said judgment was dismissed by the District Judge, Comilla, who confirmed the findings of the trial Court. A second appeal in the High Court also failed on the ground that the questions decided by the Courts below were concluded by concur--rent findings of fact based upon proper appreciation of evidence.
5. The petitioner now seeks special leave to appeal and it is contended on his behalf that the Courts below were wrong in taking the view that the baiuapatra (Exh. 2) was an ante-dated document, as a presumption should have been drawn that thel document was made on the date it bore. In support of this contention, reliance is placed on the observations of the Privy Council in the case of Mina Kumari Bibi v. Bijoy Singh Dudburia (44 I A 72), but in this very case the Privy Council itself pointed out that, the presumption is, by no means, conclusive.
6. In this case an issue was clearly raised to determine as to whether any contract for the sale of the disputed land was entered into between the petitioner and the said Tamina Bibi, and evidence led on this issue shows that the question as to whether the document was collusive, fraudulent and ante-dated was specifically agitated in the suit. No illegality was, therefore, committed by the Courts of fact in deciding upon this evidence that the document was in fact ante-dated. This evidence clearly rebutted the presumption, if any.
7. Learned counsel next sought to contend that the findings of the Courts below, even though concurrent, were based upon a misreading of the evidence, but since no evidence has been annexed to or quoted in the petition for special leave, we are not in a position to discover any such misreading from a mere perusal of the judgments of the Courts of fact. All that the learned counsel has been able to point out is that the onus of proof was misplaced on the petitioner so far as the question of the bona fides of the purchases of the defendants was concerned. But this question is of no importance now after evidence has been led by both sides. Once it is accepted that the bainapatra on the basis of which the petitioner himself claimed specific performance was a fraudulent, collusive and ante-dated document the suit is bound to fail. If the petitioner fails in establishing his own case, he cannot succeed on the weakness of the defendants.
8. There is no substance in any of the points urged in support of the petition which is, accordingly, dismissed.