APPELLATE DIVISION :(Civil) Syed Mahmud Hossain J Md Imman Ali JGopal Goyala and another ….. Appellants vsMolina Rani and others………..Respondents* Judgment November 20th, 2014. Evidence Act (I of 1872) Section 92 The oral and extraneous evidence contradicting the contents of a written instrument is not admissible. . ….. (15) Shameem Khaled Ahmed, Advocate, instructed by Md Zahirul Islam, Advocate-on-Record-For Appellants. Abdul Hoq, Advocate, instructed by, Md Nawab Ali Advocate-on-Record-For the Respondent No.1. None Represented- Respondent No. 2&3.Judgment Md Imman Ali J : This Civil Appeal, by leave, is directed against the judgment and order dated 15-6-2002 passed by a Single Bench, of the High Court Division in Civil Revision No. 5450 of 1998 making the Rule absolute. 2. The facts of the case, in brief, are that the respondent No. 1 as plaintiff filed Other Class Suit No. 151 of 1992 in the Court of Senior Assistant Judge, Sadar, Mymensingh, praying for specific performance of contract alleging, that her husband taking lease of the suit land from the admitted owner defendant No.1, used to possess the same by installing Rice Mills, Flour Mills and Lathe Machine thereon. 3. Thereafter, defendant No. I decided to sell the said land and the plaintiff proposed to purchase the same at a consideration of Taka 45,000. Defendant No.1 executed a bainapatra in favour of the plaintiff No. 1 on 8-11-1989 receiving Taka 2,000 as baina money. The defendant also received Taka 3,000 on 23-1-1989, Taka 5,000 on 4-4-1991 and Taka 5,000 on 10-6-1991 by acknowledging the same on the back page of the bainanama. She repeatedly requested the defendant No. 1 to execute the sale deed accepting the remaining consideration money, but the defendant made pretext. Lastly, on 27th June, 1992 the defendant No. 1 in collusion with defendant No.2, declined to execute the sale deed. So plaintiff filed the instant suit. 4. Defendant Nos. 1, 2 and 4 contested the suit by filing three sets of written statement. The case of the defendant No. 1 is that he proposed to sell one decimal of land and structure thereon of plot No. 845 to the husband of plaintiff at consideration of Taka 45,000 and accordingly receiving Taka 2,000 he executed a bainanama. He did not execute any bainanama for the land of plot No. 846. The husband of the plaintiff was a tenant of defendant No.1 and having had good faith on him he without reading and understanding the contents of bainanama put his signature therein. Earlier the husband of the plaintiff took loan of an amount of Taka 30,000 but he did not repay the same and denied to pay the rent to the defendant No. 1 in such view of the matter, the suit was liable to be dismissed. 5. The case of the defendant No.2, in short, was that in order to sell the suit land the defendant No. 1 executed a bainanama in favour of the defendant No.2 on 25-9-1983 and in pursuance of bainanama he executed a sale deed in favour of defendant No.2 on 10-8-1992. At the time of execution of the said bainanama this defendant took delivery of possession of the suit land and he has been possessing the same. The added defendant No. 4 in his written statement stated that in order to sell 1/2 decimal of land, the defendant No. 1 receivjng an amount of Taka 2,000 on 6-5-1988 executed a bainanama in favour of this defendant. As this defendant trusted the defendant No. I very much, so no bainanama was executed, thereafter receiving the remaining consideration of Taka 4,000 the defendant No. 1 executed and registered the sale deed in favour of the defendant No.4 in respect of that 1/2 decimal of land on 29-8-1992. This defendant has been possessing the said 1/2 decimal of land. 6. During trial the plaintiff examined two witnesses, defendant No. 1 examined one witness and defendant No.2 examined 2 witnesses in support of their respective cases. 7. Considering the facts, circumstances and oral and documentary evidence on record, by his judgment and decree dated 6-10-1993 the learned Senior Assistant Judge, Sadar, Mymensingh decreed the suit. 8. Against the said judgment and decree, the defendant No. 1 preferred appeal being Other Class Appeal No. 253 of 1993. After hearing the parties and considering the materials on record the learned sub-ordinate Judge, Ist Court Mymensingh, allowed the appeal setting aside the judgment and decree of the trial Court. 9. Being aggrieved by and dissatisfied with the judgment of the appellate Court the plaintiff preferred Civil Revision No. 5450 of 1998 before the High Court Division and obtained Rule. By the impugned judgment and order the High Court Division made the Rule absolute. 10. Against the said judgment and order of the High Court Division, the Defendants as petitioners filed Civil Petition for Leave to Appeal No. 1240 of 2002. 11. Leave was granted on the following submissions of the learned Advocate appearing for the petitioner: “It has not been considered either by the High Court Division or the trial Court that the bainapatra in favour of the defendants-petitioners in respect of 31/2 decimals of land of Plot No. 845 and 1/2 decimal of land of plot No. 846 respectively was earlier in point of time than that of the bainapatra in favour of the plaintiff-opposite party No. 1 and that in pursuance of the said earlier bainapatra the defendant-petitioners having obtained two kabalas executed and registered even after the suit for specific performance of bainapatra in favour of the plaintiff-opposite party No. 1 was filed. The registered saf-kabala in favour of the defendants-petitioners operative from the date of the bainapatra in their favour under section 47 of the Registration Act and, therefore, no decree could have been passed in the said suit in favour of the plaintiff.” 12. Mr Shameem Khaled Ahmed, learned Advocate appearing on behalf of the appellant made submissions in line with the grounds upon which leave was granted. The learned Advocate further submitted that the High Court Division erred in making the Rule absolute without reversing the findings of the lower appellate Court. 13. Mr Abdul Hoq, learned Advocate appearing on behalf of respondent No. 1 made submission in support of the impugned judgment and order of the High Court Division. He further submitted that when the defendant No. 1 admitted the execution of the bainanama, which was produced and marked as exhibit 1, and also admitted the entry on the reverse of the said bainanama, he cannot now go back on his agreement on a flimsy excuse that he acted in good faith and did not verify the quantum of land written in the said bainanama. He further submitted that defendant No. 1 did not produce the bainanama alleged to have been executed before the bainanama of the plaintiff, nor did he adduce any evidence in support of such agreement for sale. The learned Advocate pointed out that the alleged bainanama of defendant No.1, though produced before the appellate Court, the same was not considered or accepted as a valid document. He finally submitted that the registered deeds in favour of .defendant Nos. 1 and 2 both postdate the filing of the suit by the plaintiff and therefore are of no legal value, especially since the basis of the said deeds, being the alleged bainanama of defendant No. 1 and oral agreement of defendant No. 2 were not proved in accordance with law. 14. We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment and order of the High Court Division and other connected papers on record. 15. We note from the impugned judgment that the High Court Division elaborately dealt with the evidence on record and carefully scrutinised the judgments of the courts below. We also note from the materials on record that defendant No. 1 produced a bainanama before the lower appellate Court, which had apparently been executed in the year 1983, but the corresponding deed of sale was not executed until 1992, after the plaintiff filed the suit for specific performance of his contract. Moreover, we find that the High Court Division correctly observed that the appellate Court admitted into evidence the bainanama of defendant No. I but did not at all consider the same and against such non-consideration the defendants did not take any step. We also find it curious that the bainanama of defendant No. 1 having been allegedly executed in the year 1983 the agreement was not put into effect until almost 10 years later, and there was no explanation why such a delay occurred. In any event the lower appellate Court in allowing the appeal of the defendants in the suit did not take into consideration the alleged bainanama of the year 1983. Furthermore, the High Court Division correctly referred to the provision of section 92 of the Evidence Act and held that the oral and extraneous evidence contradicting the contents of a written instrument is not admissible. 16. The claim of defendant No. 2that there was an oral agreement for sale prior to the bainanama of the plaintiff was not proved. Moreover, in cross-examination defendant No.2 stated that the case land is separate from the land purchased by him, and therefore, he had no interest in the case land. In view of the above discussion, we do not find any illegality or infirmity in the impugned judgment and order of the High Court Division. Accordingly, the appeal is dismissed, without however any order as to costs.
