1. MAHMUD HUSAIN, J.-This appeal is directed against the judgment and decree passed by the learned Subordinate Judge in a suit for partition. Plaintiffs filed the suit on 3rd September 1955, alleging that the suit property originally belonged to raiyati of Bande A.I Khan, son of late Hasan A.I Khan. Bande A.I Khan acquired that property on the basis of a patta dated 28-3-85 A. D. From the landlord Debaddin Hazari and that the name of Bande A.I was recorded in the C. S. Khatian. There-- after Bande A.I died leaving behind his widow Badiunnessa, brother Fate A.I Khan and accordingly they inherited the shares being 4 annas and 12 annas respectively. While they were in possession Fate A.I died before C. S. Operation leaving Majarullah his son as the only heir and that Majarullah thereafter died before the R. S. Operation and it has been asserted in the plaint that the property inherited from Bande A.I remained in ejmali possession without any formal partition and Fate A.I and after him Majarullah remained in ejmali possession. That the said Majarullah was survived by two sons, defendant No. 2 Md. Ibrahim and plaintiff No. 1 Abdul Munaf alias Muharam A.I and a daughter plaintiff No. 2 Bhelua Sundari and a widow plaintiff No. 3 Fatema Khatun. Plaintiffs 1 and 2 were minors at the time of their father's death and all the heirs of Majarullah were under the care and management of Badiunnessa. It is alleged that taking advantage of the minority of the plaintiffs 1 and 2, the Offcers and the party men under Badiunnessa either collusively or through mistake got the name of Badiunnessa alone recorded in the R. S. Record, but in spite of such record the plaintiffs and defendant 2 remained in joint possession of the suit property. And it has been further alleged that defendant No. 2, the elder brother of plaintiffs 1 and 2 although acted against the interest of the plaintiffs and thus created the municipal holding fraudulently in the name of his wife defendant No. 3. Defendant No. 2 created some fictitious documents covering the suit land in the name of his wife. The plaintiffs are in possession of the property which is their homestead, buy recently the defendant No. 1 threatened to dispossess them from the suit land on the basis of Title Suit No. 36 of 1949 of is Court of Subordinate Judge, Chittagong. The plaintiffs therefore filed this suit for partition on the base s of their share. It has bee alleged in the plaint that Title Suit No. 36 of 1949 brought be defendant No. 1 against defendant No. 2 was a collusive and that defendant No. 1 brought the suit against defendant No. 2 alone knowing fully well that the plaintiffs have got title and interest and possession in the suit land, obtained decree for khas possession in the suit land without impleading the present plaintiffs in the said suit. The plaintiffs are in no way bound by the decision of the said suit. The plaintiffs claimed a share of 141 gandas in the suit land.
2. Defendant No. 2 filed a written statement admitting the share of the plaintiffs.
3. Defendant No. 1 filed a written statement and contested the suit. He denied all the allegations made in the plaint and asserted that the statement made by the plaintiffs that defendant No. 2 acted adversely to the interest of the plaintiffs is entirely imaginary and the defendant No. 2 is a fraudulent type of man who, made unsuccessful attempts to grab the suit land by making false claim. Defendant No. 1 further asserted that Badiunnessa is the only heir of late Bande A.I and her name was duly recorded in the R. S. Khatian and thereafter the said Badiunnessa remained in possession and created dar-ralyati leases-one in favour of Maya Bibi and another in favour of Abdul Gofur. She also sold her raiyati interest to Duryadhan Barua and Raj Kamal Barua who obtained possession. Duryadhan sold part of the land to Mahendra Lal Barua and the remaining part was sold in auction in money execution and was purchased by Raj Kamal and Mrs. Fernandas.
4. While Mahendra was in possession he sold his share to Rabindra Lal Mitra and then defendant No. 1 Golap Pushpa purchashed the share from Rabindra Mitra. She also purchased the share from Rajkamal and Mrs. Fernandas. Thus the entire raiyati came to defendant No. 1 and she also purchased the dar--raiyati of Maya Bibi. The said Abdul Gofur transferred his dar--rafyati to Nasima Khatun who sold it to Prafulla Kumari and defendant No. 1 purchased this dar-raiyati from her. Thus the entire property of raiyati and dar-rafyati came to defendant No. 1 who remained in possession by putting fencing around the land and opening a hydrant. Thereafter India was partitioned and her husband Benoy Krishna Sen, who was an Engineer in East Bengal Railway Administration opted for India and she along with her husband went to India leaving the management of the property with D. W. 1 Bejoy Krishna Sen her husband's brother. During the temporary absence of D. W. 1, Ibrahim defendant No. 2 cut earth and was trying to construct a house. At this defendant No. 1 instituted Title Suit No. 36 of 1949, for recovery of possession. The suit was ultimately contested by defendant No. 2 Ibrahim but the suit was decreed and this defendant put the decree into execution for recovery of khas possession and thereafter the present suit has been instituted. They alleged that the plaintiffs are practically fictitious persons and it is defendant No. 2 Ibrahim who has brought this suit in the name of the plaintiffs.
5. The learned Subordinate Judge after hearing the parties dismissed the suit on contest. As against this the plaintiffs. Preferred this appeal.
6. Mr. Ahmad Sobhan, the learned Advocate appearing for the plaintiff appellants contended that upon the evidence on record the Court below erred in not holding that Fate A.I was full brother of Bande A.I and Majarullah was the son of Fate A.I and that the Court below was wrong in rejecting the Kabinnama Exhs. 4(s) and 4(b) and he further contended that the Court below most illegally decided the question of possession and that from the evidence on record it ought to have held that the plaintiffs have been possessing the land since after the death of Bande A.I and lastly contended.
7. "That the Court below erred in realising ad velorem court-fee at the latest stage of the suit which is for partition inas--much as the plaintiffs possession was found by the Court below during the pendency of the suit at the time of final disposal and accepting the plaintiffs possession ad interim injunction was granted till the disposal of the suit."
8. Plaintiffs examined six witnesses in support of their case. There are three plaintiffs in the present suit. It appears that Abdul Munaf, plaintiff No. 1 has not examined in this suit while the case was taken up for final hearing in May 1959 and it is one Md. Anwar examined himself on behalf of plaintiff No. 1 on the authority of a power-of-attorney. It may be noted that this Abdul Munaf and Md. Anwar were examined by pleader commissioner who was appointed by the Court at the instance of the plaintiffs for local investigation. And the pleader-commis--sioner was appointed only to investigate "whether there is any municipal holding in the disputed property." This Abdul Munaf, plaintiff No. 1 was first examined on 1st of May 1959 and again on 22nd May 1959 and Mr. Anwar was also examined on 22nd May 1959, by the pleader-commissioner. Plaintiff No. 1 was examined by the pleader-commissioner on the point as earlier indicated, but this plaintiff No. 1 did not examine himself during the final hearing of the suit.
9. P. W. 1 Md. Anwar who it appears was examined by the pleader-commissioner on the point as earlier indicated on behalf of plaintiff No. 1 on the basis of a power-of-attorney executed by plaintiff No. 1 P. W. 1 stated that the plaintiffs are the heirs of Fate A.I who inherited the properties as brother of Bande A.I and that plaintiffs are in possession and the defendant No. 1 had no possession at any time and that Ibrahim defendant No. 2 is the eldest son of Majharullah who lives at Chawk Bazar with his family and that Rabeya Khatun defendant No. 3 is the first wife of Ibrahim and that she lives with her mother-in-law, Fatema plaintiff No. 3. This witness stated that the property was acquired by Bande A.I in 1885 and that holding No. 177 stood in the name of Majharullah and this holding number was changed to 285 in the name of plaintiff No. 3 wife of Majharullah. That there was subsequent change in the number of holding and that was 448-A and 448-B in the name of Rabeya Khatun and it was again changed to 591 and 592 and the present holding number is 699 and 700 in the name of Rabeya Khatun and that this Rabeya Khatun had no title but Ibrahim defendant No. 2 got the name of his wife mutated against the interest of the plaintiffs and that the suit between defendant No. 1 and defendant No. 2 was a fictitious one which was designed "to affect the title of the plaintiffs". This witness denied that the defendant No. 2 set up the present plaintiffs and instituted this suit. It is stated that there was no previous partition of the suit property by metes and bounds and that the plaintiffs share in the suit land is 12 annas, that the R. S. Record in the name of Badiunnessa is a mistake and that Ibrahim, Golap Pushpa, that is, defendant Nos. 2 and 1 threatened to dispossess the plaintiffs in the last part of 1954. Thereafter the suit for partition was filed as eimalf possession was creating troubles. It is asserted by this witness that Durjadhan and Raj Kamal had no possession at any time in the suit land and the documents set up by the defendants is fictitious and plaiatiffs did not dispossess Golap Pushpa and her husband's brother Bejoy during War and that the said suit was false that there was no dar-raiyati of Gofur. Maya Bibi had no title or possession.
10. "I was not shown any document of their ancestry."
11. He stated that Bande A.I died first. Then again stated that he had no knowledge when Bande A.I died or married. This witness said that Bande A.I is the son of Hasan Khan. He stated "I do not know the whereabout of Monaf. He has flying business. He was not present when Fatema was examined.
12. Plaintiffs 1 and 2 could not examine" and he also stated that plaintiff Monaf is a hawker who sells goods in other places. He denied that Ibrahim set up the plaintiffs after he became unsuccessful in Title Suit No. 36 of 1949 and that he is conducting the suit. He made an assertion that the plaintiffs made a claim of shares of 12 annas and that Ibrahim had no possession and that the plaintiffs do not possess the entire land but they possess according to their share. But none of the defendants have any possession and the remaining share of the suit land is vacant and is under nobody's possession.
13. Fatema Khatun, plaintiff No. 3 examined herself on commis--sion. She stated "I have been looking after the suit through the Munshi who is standing here. I do not know his name. I pay daily wages to the Munshi". She said that she had been bearing the cost of the suit and defendant No. 2 does not bear the cost for her maintenance and that they had no good terms. She stated that Bande A.I was her father-in-law and that at the time of the death of Bande A.I his widow Badiunnessa and his brother Fate A.I were alive. Fate A.I died after Bande A.I. She stated that the property was not partitioned among Majarullah, Fate A.I and Bande A.I and that after the death of Majarullah her mother-in-law Badiunnessa used to manage the family affairs. She stated that during R. S. Operation Badiunnessa got the suit property recorded in her name. She pleaded her ignorance about the suit filed by defendant No. 1 Golap Pushpa in respect of the suit property. But at the same time she stated that Ibrahim wanted to evict her by that suit and sell away the property and then she stated that when she came to know that Golap Pushpa and Ibrahim, that is, defendants 1 and 2 would jointly take possession of the property then she filed the present suit. She denied that Ibrahim brought any suit against Golap Pushpa. She pleaded her ignorance about the sale by Badiunnessa in favour of Raj Kamal Barua or that Raj Kamal sold to Duryadhan and Mahendra sold to Rabindra Mitra and Rabindra Mitra to Golap Pushpa. She denied that the alleged transferees of the suit land ever possessed it.
14. P. W. 2 Bacha Mia stated that Bande A.I died leaving widow Badiunnessa and a full brother Fate A.I who died leaving a son Mazarullah and "Bande A.I died over 60 years and Fate A.I died 50 years back." This witness stated that Mazarullah died 40 years back, whereas Fatema wife of Mazarullah stated that her husband died 30 years back. This witness stated that Munaf plaintiff No. 1 is at home, whereas P. W. 1 Md. Anwar stated that he could not know the whereabout of Munaf and we find from the evidence of Fatema also that Munaf took no interest in the case and he was not present when she was examined and that Munaf also did not examine himself on the date of final hearing.
15. P. W. 3 Saleh Alam stated that Bhelua is aged about 22 years and Fatema stated that at the time of Mazarulla's death Bhelua was a baby on arms. So, according to Fatema Mazarullah died in 1914 or 1915. So, Bhelua was aged about 45-46 years in 1960.
16. P. W. 4 Amir Ahmed stated that he attended the marriage of Bhelua about 20 years ago and that Mazarullah, father of Bhelua called him to his residence at Enayat Bazar. The kabinnama of Bhelua as earlier stated is of 1939.
17. P. W. 5, Matior Rahman stated that he knew the suit land from his infancy. He stated that he retired in the year 1950 at 55. So he was aged 65 years in 1960 while he was deposing, and he was only 5 years old in 1900 when Bande A.I died. So the statement that he was 16 years at the time of Bande A.I's death is incorrect. And he stated "I am not seeing Ibrahim for last 12 years". But it appears from the deposition of P. W. 1 Md. Anwar that Ibrahim was in Court on that date when P. W. 5 was deposing. So, this witness cannot be relied.
18. P. W. 6, Mazharul Haque stated that Badiunnessa died 16 years back. Whereas P. W. 1 Md. Anwar said that Badiunnessa died 19 years back and this witness further stated that Mazarulla died 38 years back. So according to him it comes to 1922, whereas according to the evidence of Fatema, Mazarullah died between 1914-15. From his evidence we find that the Karja Karak of the plaintiffs is P. W. 1.
19. It may be noted that there is no dispute about the fact that the properties originally appertained to raiyati of Bande A.I. The whole question was as to correctness of R. S. Khatian which shows that raiyaei has been recorded in the name of Badiunnessa, widow of Bande A.I and possession has been shown as per Exh. J(2) with Mahendra Lai Barua and Durjadhan Barua as purchasers. And the two dar-raiyaties in the name of Maya Bibi and Abdul Gafur have been recorded in the R. S. Khatian under Badiunnessa as per Exhs. J(3) and J(4). In order to substantiate the case of the plaintiffs to the effect that the R.S. Khatian is wrong we are to examine the evidence of plaintiff No. 3. The evidence of plaintiff No. 3 Fatema who was examined on commission was accepted as having been duly tendered. She pleaded her ignorance about the suit between Golap Pushpa, defendant No. 1 and her son Md. Ibrahim defendant No. 2 and she further stated that she had no good relationship with her son who did not maintain her. She further stated that there is a holding in the municipality in her name and she has been paying taxes. According to her evidence, her husband died 16 years before the R. S. Operation and the age of plaintiff No. 1 is stated to be 30 years. She claims to have seen Bande A.I but could not say when he died and even she could not say after how many years after her marriage Bande A.I died. As earlier discussed she has been conducting the suit through her Munshi but she could not give the name of that Munshi. From the evidence of P.
20. W. 6 we find that Munshi is none but P. W. 1 Md. Anwar. She pleaded her ignorance about the nature of the documents, filed on their behalf.
21. P. W. 1 Md. Anwar produced some documents including some rent receipts. This P. W. 1 could not say the name of the officer of the landlord who granted rent receipts and according to his evidence the landlords and their Karmachari's were not traceable after the partition of India. He produced certain Kabin--nama and according to him he received it from plaintiff No. 3. P. W. 1 stated that the Kabinnama was found along with the rent receipts in box left by Fate A.I. The Kabinnama was not expected to be in possession of Fate A.I because this is a document which must be with the relation of his wife and it is not explained in what circumstances this document came into the possession of Fate A.I. This is an unregistered document written on a cartridge paper and the learned Subordinate Judge, in my view, rightly described it as spurious document manufactur--ed for the purpose of this suit. He further held on examination of the Firisti that this document was included later and was not filed along with the rent receipts on the 29th September 1955. No witness has been examined to prove this document. This document does not bear the filing seal of the Court. Moreover inclusion of this document in the Firisti shows that it was subse-- quently included. The inclusion in the Firisti of this document is by a different ink and no serial number has been given in the left hand column and the total number of document been shown in the third column shows that it was originally for one document and subsequently there was one addition and that one anna is written in different ink and the total thereafter shown as 2 annas and the filing date shown in the third column has been penned through and the scribe who wrote the document signed in one ink and the inclusion of this document is by a different ink and on the right hand side of the Firisti (which will appear in C File Serial No. 14) there is the signature of Abdul Monaf. But it appears from the vokalatnama filed in the trial Court that Monaf gave a thumb- impression and in the plaint also gave his thumb-impression and similarly in the High Court as well, he gave his thumb-impression in the vokalatnama. Furthermore in filing documents the normal practice is that the Firisti is signed by the learned Pleader/Advocate by writing the names of the party for whom the documents are filed but in this Firisti we find there is the initial of the filing Advocate who wrote the name of Abdul Monaf, and again there is a signature of Abdul Monaf followed by an initial of a lawyer. But there is one ink by which the whole Firisti is written, whereas the inclusion of this particular document and the signature by Abdul Munaf is by different ink. We find another signature on the right hand top of this Firisti which is supposed to be a signature of the lawyer, but we do not find any justification for such signature when it was already signed by another lawyer and this signature also appears to us to be of different from that of the two inks already used. Some writings of the document Exh. 4 are blurred and it appears to us that the document is not as old as over 60 years. This Kabin--nama was introduced to show that Fate A.I was the son of Hasan Khan who was the father of Bande A.I. So on a consideration of the whole case we do not find any cogent reason to differ from the finding of the learned Subordinate Judge when he concluded by saying that no reliance can be given to establish relationship between Bande A.I and Fate A.I.
22. Fatema plaintiff No. 3, wife of Mazharullah stated that she was married while she was 10-12 years old and she gave her age as 80 years on 17-11-59. So, according to her she was born in 1879, whereas Exh. 4 Kabinnama shows that Fate A.I father of Mazharullah married on 26-2-1898. So, Mazharullah, husband of Fatema was not born then. Now even if about 15 years' concession is given to the evidence of Fatema as to the date she mentioned for her old age even then it would be impossible to believe that Mazharullah could marry at the age of 12 years. Fatema stated "15/16 years before the R. S. Operation my husband died."
23. From the evidence of Fatema it will appear that her husband died near about 1929 when the R. S. Operation was in the year 1930. Exh. 4(b) the Kabinnama of plaintiff No. 2 is dated 1935 and according to Fatema her son plaintiff No. 1 is aged about 30 years. So, on a consideration of the evidence of all the P. Ws. We are in agreement with the finding of the learned Subordinate Judge that such evidences are not reliable and cannot be accepted for the proof that Fate A.I was brother of Bande A.I and Mazarrullah is the son of Fateh A.I. We are also in agreement with the findings of the learned Subordinate Judge that "the evidence on record does not justify a finding that plaintiffs 1 and 2 are son and daughter of Majarullah". As earlier discussed plaintiff No. 1 does not examine himself in Court and shows no interest in the result of the suit. We find it is only P. W. 1 Md. Anwar who appeared in the suit as Tadbirkar by virtue of a power-of-attorney executed by Abdul Munaf but we do not find any such power-of-attorney given by the other two plaintiffs to this witness for conducting the case on their behalf.
24. The defendant examined only one witness and he is a Mukhtar of the local criminal Court and he stated that Golap Pushpa, defendant No. 1 is the widow of his younger brother Benoy Sen. She is in Calcutta and he has been looking after her property in Pakistan. It appears from his evidence that he has no knowledge as to who is Fate A.I and who is Majarullah and who are plaintiffs Nos. 1 and 2.
25. He simply proved that Ibrahim is the son of Majarullah and he asserted possession of the suit property by defendant No. 1 who went to India on partition and in the absence of defendant No. 1 defendant loo. 2 made some encroachment on suit land thereupon Title Suit No. 36 of 1949 was filed against defendant No. 2 and that defendant No. 2 while contesting the Suit No. 36 of 1949 did not take any plea about the existence of plaintiffs Nos. I and 2. That the said suit was instituted against defendant No. 2 alone as it was found on enquiry that he was the only son of Majarullah.
26. That defendant No. 1 made the purchase through him as he was satisfied at the time of purchase that Badiunnessa was the only heir left by Bande A.I. There is no other witness in support of the statement of D. W. 1, but that would not enure to the benefit of the plaintiffs in their success in the present suit. Because the plaintiffs must prove their case and their success is not dependant on the weakness or otherwise of the defendants. In our view, as earlier found no reliance could be given on the P. Ws. For the proof of relationship between Fate A.I and Bande A.I or between Fate A.I and Majarullah and plaintiffs 1 and 2.
27. The plaintiffs claimed possession and in support of their case P. Ws. Stated that after Bande A.I, Badiunnessa was in possession and after Fate A.I Majarullah and thereafter the plaintiffs were in possession. The evidence of P. Ws. Is that the defendant No. 2 has no possession in that suit property for the last 12 years. The plaintiff No. 3 was examined on commission and she could not say about the d2khilas Exh. 2 series produced in support of their case. She failed to mention the name of the landlord. She of course claims to have paid rent to the sons of original landlord and P.
28. W. 1, the main hero in the present suit could not prove these dakhilas but he stated that after partition of India the landlords and their sons left this country and officers and the karmacharies of the landlord could not be ascertained. In the absence of any proof with reference to the counterfoils of the landlords and on the failure on the part of the plaintiffs to prove the rent receipts by any competent witness we are unable to rely on those receipts as granted by the landlord.
29. It appears from Exh. 3 series municipal assessment record that Rabeya Khatun, defendant No. 3 wife of defendant No. 2 has a holding on the suit land bearing holding No. 592 Jamal Khan and the other holding No. 591 Jamal Khan also stands in the name of Rabeya Khatun. These holdings were previously numbered as 448-A and 448-B as per assessment of 1949-50 and 1950-51 respectively.
30. Plaintiffs case is that there was a holding No. 285 as per Demand Register 1922-24 Exh. 5(a). There is nothing in evidence which could show that the present holding Nos. 591 and 592 are the same holding as 285. Exh. 5 certified copy of the municipal Demand register 1915-16 goes to show a holding No. 177 but that also cannot be connected with the present holding in dispute. The pleader- commissioner who was appointed for the purpose of holding local investigation submitted his report and was accepted without objection. Pleader-commis--sioner submitted his report on the two questions as will appear from his report. The questions being "(I)". Whether there is any Municipal holding in the disputed property? Meaning what are the Municipal holding or holdings if any that stand on the disputed R. S. Plots or.
31. Whether the Municipal holding No. Old 591/New 699 and Old No. 592/New 700 of 1956-57 of Enayet Bazar Mahalla Ward "B" of Chittagong Municipality stand on R. S. Plots mentioned in the Schedule I of the plaint i.e., R. S. Plots Nos. 471, 472, 473 and 479 of Monza Battaly alias Enayat Bazar, P. S. Kotwali." The two holding Nos. 285 and 177 were not referred to the pleader-commissioner for relayment. So, the mere existence of two holdings in the name of Fatema Khatoon and Majarullah could not be sufficient to prove that the said two holdings relate to the suit land. The oral evidence adduced on behalf of the plaintiffs is discrepant and contradictory and in our view the learned Subordinate Judge was perfectly justified in not accepting the oral evidence for the proof of possession.
32. There has been many transfers in respect of the suit land by Badiunnessa as will appear from Exhs.
33. B, B(1) dar-raiyati leases of the year 1921 and 1927 respectively and kabalas by Badiunessa Exh. C dated 1922, Exh. C(1) dated 1925, Exh. C(3) dated 1931, Exh. C(4) dated 1938 and certain other documents such as Exh. C(2) dated 1925 Exh. C(5) dated 1942 C(8) dated 1938, C(7) dated 1942, C(9) dated 1942, C(10) dated 1941 and C(6) dated 1943. There are certain other documents such as the sale certificate Exhs. G and G(l ). G(2) is the return of delivery of possession. So, from all these documents it will appear that several transfers were made by Badiunnessa followed by subse-- quent transaction on the basis of title obtained from Badiunnessa and the R. S. Khatians also go to show the names of these transfers from Badiunnessa. The mere assertion on behalf of the plaintiff's that such possession should be ignored cannot be accepted. As earlier found that no reliance could be given on the evidence of the P. Ws. So far as the title and possession of the plaintiffs as heirs of Bande A.I, so the possession as evidenced by these documents which go against the interest of the plaintiffs, holds good. The learned Subordinate Judge was right in accepting the evidence of D. W. 1 on the point of possession and we find no reason to differ. The presumption of the R. S. Record has not been rebutted. The case of defendant No. 1 is that the suit is instituted at the instance of defendant No. 2 as it is in 1948 defendant No. 2 dispossessed the plaintiffs and made some construction on the suit land and got the holding recorded in the name of his wife, defendant No. 3 and as such defendant No. 1 had to file Title Suit No. 36 of 1949 as discussed earlier. Further allegation of the defendant No. 1 was that the suit was instituted with some fictitious documents in order to dispossess her. From the records it appears that the plaintiffs exhibited certain documents belonging to defendant No. 3 wife of defendant No. 2. Plaintiff No 3 in her deposition claimed that the documents in this suit belonged to her and not to Ibrahim and her evidence is that Ibrahim instituted Title Suit No. 36 of 1949 in the name of defendant No. 1 as plaintiff in order to deprive the plaintiffs of the present suit and that the defendant No. 2 had been acting against their interest and it appears that the name of defendant No. 3 appears as owner of certain holding and since those documents were produced by the plaintiffs we are of the view, it has been rightly held by the learned Subordinate Judge that those documents were supplied by defendant No. 2 for helping in the success of the suit. From Exh. C(12) it will appear that plaintiff No. 3 purchased some of the properties in dispute from Abul Khair and others and that the original document is with the plaintiff as admitted by P. W.
1. This also goes to prove that the plaintiffs story of acquiring the property by inheritance has no substance.
34. It appears from the order sheet order No. 75 dated 25-1I-1959 that the learned Subordinate Judge heard the parties on the application filed on behalf of the plaintiffs for amendment of the plaint for raising the valuation from Rs. 4,500 to Rs. 7,025 and accordingly allowed it and directed that the plaintiffs to pay the ad valorem court-fee by 15-12-1959. On the prayer of the plaintiffs time was extended up to 19-1-60. Thereafter the plaintiffs filed the deficit court-fee of Rs. 500 and odd, and after concluding the hearing, judgment was delivered on 30-5-60 and then on 2E-7-60 on calculation of the court-fees paid, it was found that there was still a deficit to the extent of Rs. 295- 6-0 B which was later on paid. The plaintiffs accepted the order of the Court passed on 25-I1-59 and since the plaintiffs did not prove the higher Court against the order, which was final as against them it cannot be agitated at this point of time. In this view of the matter we do not find any substance in the contention of the learned Advocate that the Court below erred in realising the ad valorem court-fee at the latest stage.
35. HABIBUR RAHMAN, J.-I agree.