1. This Second Appeal is at the instance of the defendants 1 and 2 arising out of a suit for declaration of the plaintiffs' title to the lands in suit and also for recovery of khas possession therein by evicting the defendants.
2. The plaintiffs instituted Title Suit No, 57 of 1957 in the Second Court of Munsif, Narail, on the allegations, inter alia, that the lands in suit comprising in all 1.75 acres appertaining to C. S. Plot Nos, 5122 and 8133 of a jama of Rs, 52-13-0 belonged to one Jahura Bibi, defendant No, 4 and her co- sharers and that on partition the lands in suit fell in the share of defendant No, 4 who possessed the same through different bargadars. It is the further case of the plaintiffs that the said defendant No, 4 settled the lands in suit with the plaintiff No, 1 by a registered patta dated 31-10-56 at a salami of Rs, 200 and thereafter on the same date she executed a kabala which was not registered, in favour of the plaintiff No, 2 who is the wife of plaintiff No, 1 with regard to her maliki right in the lands for a consideration of Rs, 50 only. It is alleged further that when the plaintiff No, 1 on behalf of himself and plaintiff No, 2 went to cultivate the lands in suit on 10-2-57 the defendants 1-2 resisted him and at that time the said defendants declared that they acquired the said lands by virtue of a registered deed of sale from defendant No, 4 who is a near relation to the said defendants.
3. The suit was contested by the defendants 1, 2 and 4 who filed a joint written statement contending, inter alia, that the lands of Plot No, 5133 did not belong to defendant No, 4 but it belonged to her co- sharers, the heirs of Ramjanulla who are in possession of the same and that the defendants 1 and 2 have all along been possessing the lands which belonged to defendant No, 4 within the jama of Rs, 52-13-0 which included the Plot No, 5122. It is further contended that defendants 1 and 2 used to give the defendant No, 4 her share of crops in the said lands, but for more than 12 years from before 31-10-56 they have not been giving the said defendant No, 4 any share of crops of the lands in question in spite of the demands and thus they have been exercising adverse possession in the said lands. It is also the case of the defendants that ill-feeling existed between the plaintiff No, 1 on one hand and the defendants Nos 1 and 2 on the other; and that the defendant No, 4 has been aggrieved very much as defendants Nos, 1 and 2 refused to give her share of crops of the lands in suit and that taking advantage of such estrangement the plaintiff No, 1 prevailed upon the defendant No, 4 Jahura and gave her to understand that if she executed a power of attorney in his favour with regard to the lands in suit he would recover her lands from the clutches of the defendants Nos, 1 and 2 and consequently defendant No, 4 agreed to execute such a power of attorney, but unfortunately the plaintiff No, 1 got the thumb-impression of defendant No, 4 on some blank stamp papers and created the document, namely, the patta and the kabala. It has also been positively pleaded by defendant No, 4 that she had no intention to execute any patta or kabala in favour of the plaintiffs and the documents in question were never read over or explained to her nor had she any one by her side to give her independent advise on the said occasion although she is a pardanashin lady. The defendants have also asserted that no consideration was paid to the defendant No, 4 for the said documents and she could not understand what really the Sub- Registrar told her. With regard to the said documents she alleged that the same were fraudulent and manufactured. The defendants also pleaded that the patta which was dated 31-10-56 was hit by the provisions of section 75-A of the East Bengal State Acquisition and Tenancy Act and as such no right, title and interest in the lands in suit passed by the said patta.
4. On the aforesaid pleadings the suit was tried by the learned Munsif who by his judgment and decree passed on 30-9-59 dismissed the suit holding that the documents are fraudulent and that those are also hit by the provision of section 75-A of the East Bengal State Acquisition and Tenancy Act, even if the same are treated to be genuine. The learned Munsif has of course, found that the point of adverse possession sought to be made out in favour of the defendants Nos, 1 and 2 with regard to the lands in suit was not maintainable, but he dismissed the suit on the ground that the plaintiff's documents were fraudulent and they had acquired no title in the lands in suit. On appeal the learned Subordinate Judge, Jessore by his judgment and decree dated 12-7-61 passed in Title Appeal No, 227 of 1959 reversed the decision of the learned Munsiff, holding that the documents Exhs. 1 and 2 with regard to the lands in suit are genuine and the same are not hit by the provisions of section 75-A of the East Bengal State Acquisition and Tenancy Act.
5. The defendants Nos, 1 and 2 having felt aggrieved by the said decision of the learned Subordinate Judge preferred the instant second appeal to this Court.
6. Mr. Syed Mohammad Ali, the learned Advocate appearing on behalf of the appellants has taken me through the judgments of both the Courts below. He contends that the appellate Court below erroneously arrived at its decision without considering some of the important points raised by the learned Munsif and vital portions of some evidence. He has also contended before me that the appellate Court below has erred in holding that documents Exhs. 1 and 2 are genuine without considering the relevant evidence in this behalf and the vital fact proved on evidence that the said documents were never read over and explained to the defendant No, 4 who is admittedly a pardanashin lady.
7. The next point of the learned Advocate is that the Court of appeal below committed error in law in holding that the said documents Exhs. 1 and 2 are not hit by the provisions of section 75-A of the East Bengal State Acquisition and Tenancy Act.
8. I have carefully perused the judgments of both the Courts below and also heard the arguments advanced by both the learned Advocates appearing on behalf of the parties concerned. I am of opinion that there is substance in all the points urged by the learned Advocate for the appellants and this Second Appeal calls for my interference with the decision of the appellate Court below. I shall presently give my reasons in arriving at my decision.
9. It would appear from the judgment of the learned Munsif that on a careful consideration of the material evidence on record he found that the Exhs. 1 and 2 namely, the patta and the kabala were fraudulently obtained. In this respect the learned Munsif finds as follows /-- "P. W. 2 claims to have been present when talk for the patta and kabala was held and when the patta and kabala were read over and executed and consideration money for the patta and kabala were paid. But he cannot say for that quantity of land the patta and kabala were talked to be executed. Again according to him one Mansur took L. T. Is. of the defendant No, 4 on the stamp papers of the patta and kabala but the patta and kabala speaks otherwise. Again, according to P.
10. W. 1, the consideration money were paid before the patta was registered, but according to P. W. 2 the same were paid after the patta was registered. Again according to P. W. 1 among the notes by which the consideration moneys were paid there was one hundred-rupee note but according to P W. 2 there was no hundred-rupee note. Again P. W. 2 says that Chaprashi has given him summons for this suit while the record speaks otherwise. ;Under these facts and circumstances I shall speak hereinafter. I would believe that P. W. 2 is not a truthful man and that he was not present at any talk for the patta or kabala nor did he see execution of the patta or kabala or any reading over or interpretation of the patta or kabala nor did he see any payment of any consideration money for the patta or kabala."
11. The learned Munsif has also given his reason to disbelieve P. W. 3 saying that he did not know the man to whom ultimately the amount of Rs, 250 was paid and that P. W. 3 is related to P. W. 2 and also on the ground that he in his deposition said that he received the summons from the Court peon although the records would show otherwise. The learned Munsif further noticed that P. W. 1 (plaintiff No, 1) in his deposition stated in examination-in-chief that there was a talk for giving him Kshamatapatra by the defendant No, 4 but it was not said by him whether the `Kshamatapatra' was executed or why the `Kshamatapatra,' was not executed. I would like to add to the aforesaid findings of the learned Munsif by referring to the evidence of P. W. 2 Babon Sardar when in cross- examination he says, just after the patta and kabuliyat were written those were taken for registration. Ismail wrote whatever was to be written and when the patta and the kabuliyat were taken for registration the Sub-Registrar registered them". This portion of the evidence clearly shows that the documents in question were never read over and explained to the alleged executant, defendant No, 4 who is admittedly a pardanashin lady. Unfortunately the learned Subordinate Judge, the final Court of fact did not at all consider the aforesaid vital portion of the evidence of P.
12. Ws., although he relied on the evidence of the said witnesses for the plaintiffs. The learned Subordinate Judge did not consider the discrepancies and contradictions in the evidence of the witnesses of the plaintiffs and the circumstances which really showed that the said witnesses could not be relied upon. It will be evident from a mere reading of the judgment of the learned Subordinate Judge that he did not apply his mind at all to the case with reference to the material evidence on record and the facts and circumstances of the case. I would like to quote from his judgment to show how abruptly he arrived at his decision without considering the material evidence on record. He finds, "Defendant's case is that plaintiff No, 1 wanted to look after the property of defendant No, 4 and he dupend her into executing the documents (Exhs. 1 and 2) in place of power of attorney. In support of this theory there is no specific evidence on record." After making the said observation, the learned Subordinate Judge simply mentions the evidence of P.
13. Ws. without considering the discrepancies and contradictions of the same as I have already noted above. Peculiarly enough the learned Subordinate Judge though found that non-examination of Abu Taleb, Mansur Aminuddin and others were telling, but he did not give any reason as to why no adverse inference should be drawn against the plaintiffs for non-examination of the said persons as witnesses. In this case the attesting witness of the document, its scribe and the identifier have not been examined and moreover, of the three plaintiffs witnesses P. W. 1 is the plaintiff No, 1 himself, P. W. 2 is his close relation and P. W. 3 practically proved nothing. But without considering the relevant portion of the evidence of the witnesses of the plaintiffs, the learned Subordinate Judge finds : "There is no convincing suggestion why these 2 witnesses (P. Ws. 2 and 3) should have deposed falsely against the defendant woman."
14. Moreover, the learned Subordinate Judge appears to have deviated from the principle that the plaintiff has to rise or fall on his own evidence and he has wrongly shifted the onus of proving the genuineness of the said two documents on the defendants while discussing the evidence of the witnesses for the defendants. When the documents are alleged to have been executed by a pardanashin lady, the learned Subordinate Judge should have been more careful in assessing the evidence with regard to the genuineness or otherwise of the said document.
15. Mr. Mohammad Ali referred me to the decision in the case of Ayana Dasi v. Arena Bala Dasi and others , wherein Inam Hussain Chowdhury, J. (as his Lordship then was) relying on the decision reported in 30 C W N 337 held that the object of the rule of law, which is applicable to pardanashin ladies is to protect the weak and helpless and consequently such a rule should not be restricted to that class only but should apply to the case of a poor woman who is equally ignorant and illiterate though not a pardanashin in the strict sense of the term. In the facts and circumstances of the said case his Lordship has further observed: "Simply because the Sub-Registrar made certain enquiries from the P. W. 2 and from the plaintiff and asked her whether she had executed the particular document, and that she said that she affixed her thumb-impression on it, would not lead to the conclusion that the plaintiff had the idea of the nature of the document she executed."
16. I may here also note that in that very case his Lordship has also held that the finding of fact arrived at by the lower appellate Court without considering or adverting to the reason given by the trial Court for disbelieving the set of witnesses is not such a finding of fact as to be binding on the High Court in a second appeal under section 100 of the Code of Civil Procedure. The said principle of law with regard to documents alleged to have been executed by a pardanashin lady or a poor illiterate woman has been reiterated in a recent Division Bench decision of this Court in the case of Sree Sree Gopal Jeo Bigraha and others v. Mahmuda Begum and others . The said Division Bench decision also referred to the Privy Council case reported in 52 I A 242 and the aforesaid case of Ayana Dasi, and also the case of Chinta Dasya v. Bhulku Das . As I have already found above that from the evidence on record it is clear that the document in question were never read over and explained to the executant, the defendant No, 4 who is a pardanashin lady and following the principle of law as enunciated in the aforesaid decisions I am of opinion that the appellate Court below seriously erred in law in arriving at his decision that the said two documents Exhs. 1 and 2 are genuine and his finding to the said effect is thus not only contrary to the evidence on record but also against the well settled principle of law.
17. With regard to the question as to whether the said documents were hit by the provision of section 75-A of the East Bengal State Acquisition and Tenancy Act or not I would like to observe that, in fact, no decision is required to be given on the said point after what I have said above. Still then if I am to give my decision on the said point also I would like to observe that the appellate Court below was not justified in holding that the said documents were not hit by the provisions of section 75-A of the East Bengal State Acquisition and Tenancy Act. From a mere reading of the said documents it would appear that really there was no intention of making an out and out sale by virtue of the C said documents. The patta bears the thumb-impression of defendant No, 4 and it was through Abu Taleb and the kabala bears the thumb-impression of defendant No, 4 but it was through one1 2 3 Aminuddin Molla. The scribe of the two documents is the same. The evidence of P. W. 2 which I have quoted above is to the effect, that both the documents were taken to the Sub-Registrar for their registration, but in fact, only the patta was registered and the kabala was not registered. This not only goes to show that the two documents were not made in the same sitting and simultaneously but it also lends support to the defendants' case that fraud was perpetrated on the defendant No, 4 in obtaining the said two documents. That being the position the principle of law enunciated in the case of Province of East Pakistan v. Muhammad Hussain Mia on the question of applicability of provisions of section 75-A of the East Bengal State Acquisition and Tenancy Act has no application in the facts and circumstances of the present case. I have already observed that the aforesaid two documents did not constitute an out and out sale with regard to the lands in suit. Before parting with this judgment I would like to mention here that the appellate Court below has also deviated from the principle of law that the said appellate Court should have given due importance to the assessm ent of evidence by the trial Court who had the opportunity to look into the demeanour of the witnesses and acquire first hand impression from the evidence of the said witnesses. There are numerous decisions of all the High Courts of the sub-continent and the Privy Council and our Supreme Court on this well-settled principle of law. I may casually refer to some of them. I have already mentioned the case reported PLD 1961 Dacca 140. Reference in this regard may be made also to the cases reported in 11 D L R 220 14 D L R 392, 17 D L R 105 and also 17 D L R 687.
18. In the result, the appeal is allowed with costs. The judgment and decree passed by the appellate Court below are set aside and those of the learned Munsif restored. PLD 1961 Dacca 140 PLD 1968 Dacca 265 51 C L J 465 PLD 1965 SC 1