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Petitioner: FAIZUL HOQUE VS Respondent: NOOR MEAH
P L D 1960 Dacca 835
P L D 1960 Dacca 835
Before Hamoodur Rahman, J
FAIZUL HOQUE AND OTHERS‑Appellants
versus
NOOR MEAH AND ANOTHER‑Respondents
Second Appeal No. 147 of 1958, decided on 10th May 1960.
(a) Limitation Act (IX of 1908), Art. 142‑Plaintif and defendant each claiming title to land through same heirs of original owner‑Possession of transferees as also of transferors to be taken into account for calculating period of limitation.
Where the claim of title to land is derived by the plaintiff as well as the defendant from the same heirs of the original owner of the land, not only the possession of the transferees but also the possession of the transferors had to be taken into account for the purpose of calculating period of limitation under Article 142 of the First Schedule of the Limitation Act, 1908. The possession of the predecessor‑in‑interest in such ‑circumstances when the plaintiff claiming possession has himself acquired title within a period of 12 years preceding the suit is a relevant factor. Where there is no dispute that the predecessors‑in‑interest of both the plaintiff and the defendant were in possession before they purported to transfer their interests to these persons and that was well within a period of 12 years, no question of the suit being barred by limitation could arise in such a case.
Official Receiver of East Godavari at Rajahmundry v. Ghava Govindaraju and another A I R 1940 Mad. 798 ; Bhindyachal Chand and others v. Ram Gharib Chand and others I L R 57 All. 278 Badri Khatik v. Narain Singh arid others A I R 1946 Pat. 185 ; Kuldip Lal and others v. Ram Birchi Tewari and others A I R 1953 Pat. 167 and Ibrahim and others v. Fazal Dad and others P L D 1957 Lah. 45 ref.
(b) Civil Procedure Code (V of 1908), Ss. 1001(c)‑Court itself examining and comparing signature unassisted by expert‑ Conclusion arrived at, cannot be interfered with in second appeal -Evidence Act (I of 1872), S. 73.
Since the Evidence‑.Act, 1872 permits examination of signature, alleged to be false, and comparing it with the admitted signatures on record by the Court‑ itself, it cannot be said that by launching upon such an examination the Court commits an error in the procedure of law or that it makes any material assump tion in so launching upon a comparison of the signatures and thumb‑impressions. Although such inexpert comparison has repeatedly been discouraged yet it cannot be said that it is an illegality in procedure whatever might be the value of such examin ation. A conclusion, therefore, arrived at by comparison of signatures by Court itself cannot be interfered with in second appeal.
Ahasanullah Chowdhury v. Hajee Abdul Jabbar Chowdhury, P L D 1958 Dacca 57 re). Abdul Majid and others v. Khalil Ahmad P L D 1955_F C 38 ref. B. N. Chowdhury for Appellants. Siddique Ahmed Chowdhury for Respondent No. 1.
JUDGMENT
This appeal is against the decision of the learned Subordinate Judge, 2nd Court, Chittagong, affirming the decision of the Munsif, 2nd Court, Sadar, Chittagong, in a suit for declaration of the plaintiff's raiyati right in the properties mentioned in Schedule 3 to the plaint, for confirmation of his possession and for perpetual injunction restraining the defendants from interfering with such possession and in the alternative if the plaintiff is found to have lost possession in the meantime, for recovery of possession.
The plaintiff claimed that the suit properties originally belonged to one Faizur Rahman who died leaving three sons Amirazzaman, Monirazzaman and Hossainazzaman and two daughters, Manikjan and Shonajan. The plaintiffs claimed that he and his brother had purchased by a registered kabala executed on the 6th of October 144, the share of the said Amirazzaman .in the said properties, as also the properties of schedule 'kha' set out in the plaint by a kabala dated the 1st of May 1951, from Shonajan, defendant No. 6 in the said suit. He further claimed that he had also taken settlement from the said Shonajan of the schedule `ka' properties of the plaint.
It is further alleged by the plaintiff' that Monirazzaman and Hossainazzaman, the two other sons of Faizur Rahman, went away of Burma 37 or 38 years ago and were not heard of thereafter. So, it was presumed that they were dead and the other heirs of Faizur Rahman inherited those properties as well. Thus the schedule `ka' properties included the properties inherited by Shonajan, the defendant No. 6, from the said Monirazzaman and Hossainazzman as well.
The defendant No. 1 who is the chachata brother of the plaintiff, it is further alleged, also purchased the share of the other daughter Manikjan and there was an amicable partition between the plaintiff and the said defendant No. 1 and a partition deed was executed on the 25th of August 1951, whereby the plaintiff exclusively possessed the properties of Schedule 1 and the defendant exclusively possessed the properties of Schedule 2. Nevertheless, the defendant No. I, being jealous of the plaintiff, denied execution of the said partition deed which was ultimately registered on appeal before the appellate registering authority. The defendant No. 1 also, it is alleged, created certain fraudulent documents namely, two fictitious ante‑dated kabalas in his own favour, as also other fraudulent documents in favour of defendants Nos. 1 to 5 and was, in collusion and in conspiracy with the said defendants, trying to dispossess the plaintiff from the suit lands without any legal right to do so. Hence, the suit.
This suit was contested by two sets of defendants, namely the defendant No. 1 and the defendants Nos. 3 to 4 by filing separate written statements, but the defences were substantially the same. They claimed that the entire R. S. Plot No. 880, 16 decimals of R. S. Plot No. 8F4 and 9 decimals of R. S. Plot No. 910 belonged exclusively to Shonajan the defendant No. 6 and one Syed Ahmed, the husband of Manikjan who possessed these lands separately by amicable arrangement with‑their co‑sharers and afterwards settled the same with the defendant No. 1 who has since been possessing and enjoying those lands and these were the lands of schedule `ka' to the plaint. The plaintiff had, therefore, no title or possession in these lands. .
The defendants further claimed that the R. S. Plots Nos. 2602, 2606, 3061 and 3062 belonged to the defendant No. 1 alone by purchase from Shonajan who again settled plots Nos. 2606, 2608 and 3062 with the defendant No. 1. The latter in his turn, transferred these lands to defendants Nos. 2 to 5 who were since in possession thereof. As already stated the defendant No. 1 further denied that he executed any partition deed as alleged by the plaintiff and characterised tee said deed as a forged and fraudulent document. In any event he claimed that this document was never acted upon and that the plaintiff's kabalas were fraudulent and void and, therefore, the plaintiff was not entitled to any relief whatsoever.
The learned Munsif after considering the evidence, decreed the plaintiff's suit only in respect of schedule `ka' properties but dismissed the suit with regard to the rest of the properties claimed by the plaintiff. The trial Court also' found that Manirazzaman and Hossainazzaman were still alive in Burma and, therefore, the defendant No. 6 did not inherit their shares. Further that since the shares of Manirazzaman and Hossainazzaman and the other co‑sharers had not been ascertained, the share of the defendant No. 6 also remained unascertained and, hence it was not possible to say as to what was the share actually acquired by the plaintiff through the said defendant No. 6. Hence the plaintiff could not claim the properties mentioned in schedule `ka' in which his share was still unascertained and unspecified.
The partition deed set up by the plaintiff was found to be a genuine document but ineffective in so far as the schedule 'ka' properties were concerned, for all the co‑sharers had not joined therein but valid only with regard to the properties of schedule `ka' which were found to belong exclusively to the defendant No. 6 and to have been validly transferred to the plaintiff.
On appeal, the learned Subordinate Judge agreed with 4he findings of the trial Court and confirmed the decree passed in favour of the plaintiff with regard to the schedule `kha' properties.
It is against this decision that the defendants have come up on appeal to this Court. The first ground urged in support of this appeal is that the Courts below having found that the plaintiff never possessed the suit lands, the Courts below should have held that Article 142 of the 1st Schedule to the Limitation Act applied and the plaintiff had to prove both possession and dispossession within twelve years in order to succeed in the suit. It is true that even with regard to the schedule `kha' properties, the trial Court found that although the plaintiff came to Court with the story that he had possession of the properties and that his possession was being threatened, he disclosed at the trial that during the pendency of the suit the defendants had dispossessed him. The Court however was of the view that upon the evidence it had been established, that the plaintiff never possessed even this land. Having so held the trial Court went on to observe that this made no material difference in the present case for the plaintiff having established his title to these lands under the deed of partition Exh. 3 executed in 1951, he would be entitled to be put into possession in terms of the said Exh. 3 and no question of limitation would arise. The Court of appeal below also agreed with the trial Court that the suit was not barred by limitation and observed as follows :‑
"A question of limitation was raised during the trial of this suit and also in this appeal. The learned Munsif has found that the plaintiff's acquisition of title and execution of the title deed marked Exh. 3 all happened in 1951 A. D. and hence no question of limitation would arise. This is borne out from the document filed by the plaintiff and the documents on which the plaintiff relies. I, therefore, agree with the learned Munsif that the suit is not barred by limitation."
It is contended, however, that both the Courts below have erred in taking this view, for once it was found that the plaintiff was never in possession of the suit lands, the suit should have failed on the ground that the plaintiff had not succeeded in establishing possession and dispossession within twelve years. In support of this contention reliance is placed on a Full Bench decision of the Madras High Court in the case of Official Receiver of East Godavari at Rajahmundry v. Ghava Govindaraju and another (A I R 1940 Mad. 798). In this case it was held that a person suing in ejectment is not entitled to succeed, unless he shows in addition to title that he has been in possession of the property within 12 years of the suit, that the burden lies upon him to prove that be was in possession within 12 years and that this would be so even in the case of an auction‑purchaser in a mortgage sale. Such a sale would be governed by Article 142 of the Limitation Act and in such cases the onus would be on the plaintiff to prove his possession and it is not for the defendant to prove adverse possession for a period of 12 years or more.
Reliance is also placed on another Full Bench decision of the Allahbad High Court in the case of Bhindyachal Chand and others v. Ram Gharib Chand and others (I L R 57 All. 278), where it was held that the plaintiff cannot by cleverly drafting his plaint evade the burden of proof which Article 142 casts upon one who is suing for possession on the ground of dispossession and it was observed:
"When a plaintiff falsely alleges that he is in possession and wants a relief to which the owner in possession is entitled, e.g., for partition, injunction joint possession, etc and it is found that he was in fact not in possession but had been dispossessed, technically speaking the suit would fall under section 42 of the Specific Relief Act and would be dismissed on the ground that he had omitted to ask for a consequential relief and had failed to prove his case. But a Court may allow him to change his ground and give him a decree for possession, treating his claim as one for recovery of possession of the basis of dispossession, provided he succeeds in showing that his dispossession took place within twelve years. 1n such a case the claim would still be regarded as a claim either on the basis of dispossession or dis continuance of possession, and the same principle would govern such a suit."
It is further urged that in these circumstances it makes no difference as to what is the allegation with which the plaintiff came to Court, for, if in fact it is established in the suit that he was dispossessed (sic). Thus not merely the allegations in the plaint but I also the findings of the Court had to be taken into account and in the present case both the Courts have concurrently found that the plaintiff never had possession of these lands. This last contention also finds support from a decision of the Patna High Court fn the case of Badri' Khatik v. Narain Singh and others (A I R 1946 Pat. 185), where it was held that in deciding as to whether a particular case attracts the provisions of Art. 142 or Art. 144 it is rot merely the form of the allegations of the plaintiff which have to be taken into consideration but it is really the substance and the actual facts found by the Court which determine the nature of the suit.
The same view, it appears, was reiterated by the Patna High Court in the case of Kuldip Lal and others v. Ram Birchi Tewari and others (A I R 1953 Pat. 167).
As against this, the learned Advocate for the respondent has placed strong reliance on a decision of the West Pakistan High Court in the case of Ibrahim and others v. Fazal Dad and other (P L D 1957 Lah. 45), where it was held that the question as to whether a suit is governed by Article 142 or Article 144 of the Schedule to the Limitation Act depends on the nature of the allegations in the plaint. Where there is no allegation of possession and dis possession, Article 142 is not applicable although the nature of relief asked for is misconceived as one for possession.
It seems to me, however, that it is unnecessary in the facts of the present case to enter into an examination of this interesting proposition of law, for in the facts of the present case no useful purpose will be served. The learned Advocate for the appellants has, perhaps, forgotten that in the present case both sides, namely the plaintiff as well as the defendant No.1, claimed through the heirs of Faizur Rahman. The plaintiff claims under his kabalas and settlement executed between the 6th of October 1944, and the 1st of May 1951, culminating with the deed of partition of the 25th of August 1951, whereas the defendant No. 1 claims title to these properties through Manikjan, one of the daughters of Faizur Rahman, as well as through Shonajan; the defendant No. 6, also on the basis of documents Exh. A and B and B (I) executed on the 15th of April 1951, and the 28th of September 1951. Thus, admittedly the vendors or the transferors of both the plaintiff and the defendant No 1 were in possession of these properties as the heirs of Faizur Rahman well within 12 years of the institution of the suit. Hence since the claim of title was derived from these same heirs, not only the possession of the transferees but also the possession of the transferors had to be taken into account for the purpose of calculation. The possession of the predecessors‑in -interest in such circumstances when the plaintiff claiming possession has himself acquired title within a period of 12 years preceding the suit, is a relevant factor. In the present case however, since there is no dispute that the predecessors‑in‑interest of both the plaintiff and the defendant No. I, were in possession before they purported to transfer their interests to these persons and that was well within a period of 12 ‑years, no question, of the suit being barred by limitation could arise in the present case, and from this point of view, the Courts below were, in my opinion right in holding that the suit was not barred by limitation.
The next point urged in support of this appeal is that in so far as the partition deed Exh. 3 is concerned, the defendant No. 1 definitely set up the case that it was a forgery and that he had never signed or executed the said document. At one stage the defendant No. I also asked to have the document examined by a handwriting expert but since this was only in the appellate stage of the trial, this prayer was refused. In the trial Court no such examination by an expert was sought for. Indeed, the trial Court made a point of it that the plaintiff had not taken any step to have the hand writing examined by such expert. In the circumstances, the trial Court was of the opinion that the only other alternative left to it, was to itself examine and compare the signatures thereon with the various admitted signatures on the record of the defendant No. 1 "unassisted‑by an expert, unaided by convenient instruments and bereft of all perquisites". By doing so, it came to the conclusion that all these signatures appeared to be in the same hand. In this conclusion, it appears, also to have been influenced in some measure by the fact that the defendant did not challenge the genuineness of his signature on this Exh. 3 in a proper Court of law even though the plaintiff moved under section 75 of the Registration Act the District Registrar for having the registration effected after the defendant No. 1 had refused to admit execution of the docu ment before the Registrar.
In the Court of appeal below the appellants, it appears, did ask for an examination of the document by a handwriting expert and for a remand of the case to the trial Court for taking fresh evidence. But the Court of appeal below refused the said prayer considering that it was not necessary to do so, for the document in so far as the 'ka' properties were concerned, was void for want of necessary parties and so far as Schedule `kha' properties were concerned, it was admitted by both parties that the latter belonged exclusively to the defendant No. 6 from whom both the plaintiff and the defendant No. claimed title. Furthermore, the other evidence also confirmed that so far as Schedule `ka' properties are concerned, there had been an amicable partition thereof accord ing to shares.
The complaint now made is that the Courts below should not have relied upon such inexpert examination of the signatures for coming to any finding as to their genuineness or otherwise. The learned Advocate for the respondent, however, contends that this point cannot be urged in second appeal and has relied on a decision of this Court in the case of Ahasanullah Chowdhury v. Haji Abdul Jabbar Chowdhury (P L D 1958 Dacca 57), where it was held by me that a conclusion arrived at by a comparison of signatures, however, unsafe as a mode of proof, cannot be interfered with in second appeal, when it is a question of fact.
He has also relied on a decision of the Federal Court in the case of Abdul Majid and others v. Khalil Ahmed (P L D 1955 F C 38), where it has been held that:
"The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits."
The argument in this case before their Lordships of the Federal Court was that the High Court erred in interfering in second appeal on the ground that a fallacious method of approaching the evidence was a good ground for upsetting a finding of fact based on such evidence. Their Lordships observed :‑
"A fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal."
In the present case also since the Evidence Act permits such examination by the Court itself, it cannot be said that by launching upon such an examination the Court had committed an error in the procedure of law or that it had made any material mistaken assumption in so launching upon a comparison of the signatures and thumb impressions on Exh. 3. T ere is no doubt that such e inexpert comparison has repeatedly been couraged by this Court. But nevertheless, it cannot be said that it is an illegality in pro cedure whatever might be the value of such examination. From this point of view, 1 adhere to the view expressed by me in the case of Ahsanullah Chowdhury v. Hajee Abdul Jabbar Chowdhury and hold that this is not a ground for interference in second appeal.
These are all the points that have been urged in support of this appeal and since the appellants have failed in all of them, this appeal is dismissed with costs.
K. B. A. Appeal dismissed.