Appellate Division (Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Judgment
May 12tyh, 2014
Evidence Act (1 of 1872)
Section 90
Nurul Hoq Bhuiyan…………..Petitioner
Vs
Momtazul Islam and others…………Respondents
Evidence Act (I of 1872)
Section 90
Exhibit ‘Kha’ is an old registered deed of the year 1935 and, as such, is admissible in evidence without any formal proof. Where there are ample facts and circumstance before the court as pointed out in support of the genuineness of this partition deed and where this partition deed came before the court from the custody of the contesting defendants the heirs of one of the executants of this partition deed itself it cannot be said that this partition deed did not come before the court from the proper custody and, as such, taking of this partition deed into evidence and making of the same as exhibit has been illegal. … ………….(15)
Mahmudul Islam, Senior Advocate with Probir Neogi, Advocate instructed by Md Nawab Ali, Advocate-on-Record–For the Petitioner (In both the cases)
PC Guha, Advocate instructed by Purabi Saha, Advocate-on-Record-For the Respondents (In both the cases)
Judgment
Nazmun Ara Sultana J: Both these Civil Petitions for Leave to Appeal, at the instance of the plaintiff-appellant, are directed against the judgment and order dated 8-11-2000 passed by the High Court Division in Civil Revision No. 1394 of 2008 along with Civil Revision No. 2821 of 2008.
2. The relevant facts necessary for disposal of these Civil Petitions for Leave to Appeal arc as follows:
The present petitioner along with three others instituted Title Suit No 705 of 2005 in the 3rd Court of Joint District Judge. Comilla against the opposite parties for partition of the suit land described in schedule to the plaint. The case of the plaintiff, in short, was that the suit land originally belonged to Alimuddin Bhuiyan-who died leaving 5 sons, namely, Abbas Ali Bhuiyan, Amir Uddin Bhuiyan, Hossain Uddin Bhuiyan, Ali Azam and Abdul Aziz Bhuiyan by his 1st wife and other 2 sons, namely, Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan by his 2nd wife. Alimuddin Bhuiyan during his life time distributed his property amongst the aforesaid 7 sons by a registered deed of gift dated 27-10-1911. As per said deed of gift Amir Uddin Bhuiyan got 9.83 acres of land. Amir Uddin Bhuiyan died leaving defendant Nos. 2-15 as his heirs and successors. Abbas Ali Bhuiyan got 9.45 acres of land who subsequently died leaving defendant Nos. 16-26 as his heirs and successive heirs. Hossain Uddin Bhuiyan got 8.66 4/9 the acres of land and he died leaving defendant Nos. 27-35 as his heirs and successors. Ali Azam Bhuiyan got 9.14-4/9 acres of land from his father and thereafter died leaving defendant Nos. 36-51 as his heirs and successors. Abdul Aziz Bhuiyan got 9.13 4/9 acres of land from his father and died leaving defendant Nos. 53-63 as his heirs and successors. Ibrahim Bhuiyan got 9.04 acres of land from his father and he died leaving plantiff Nos. 1 -4 and defendant Nos. 64 and 65 as his heirs and thus the plaintiffs got 6.03 acres of land out of the schedule I (Ka), I(Kha), I(Ga) and the 2nd schedule to the plaint.
3. Further case of the plaintiff was that at the time of death of Alimuddin Bhuiyan his 2nd wife was pregnant and after his death his wife gave birth to a son namely, Abdul Gafur Bhuiyan who subsequently died leaving defendant Nos. 66- 76 as his heirs. That the heirs of CS recorded tenant Ashraf Ali, Anser Ali and Amjad Ali have been impleaded as defendant Nos. 77 to 81, That the defendant No. 1 Abdul Jabbar Bhuiyan had transferred a portion of his property to different persons.
4. The plaintiffs requested the defendants to make amicable partition of their lands but the defendants denied and hence the suit. The plaintiffs claimed a separate saham for 6.04 acres of land.
3. The defendant Nos. 66 to 76 the heirs of Abdul Gafur Bhuiyan contested the suit by filing written statements. The material case of these defendants was that by the deed of gift dated 29/10/1911 Alimuddin Bhuiyan gifted 1/6 share of his land to Abdul Jabbar Bhuiyan, 1/6 share of Ibrahim Bhuiyan and 1/8 share to his 2nd wife and also gifted I/g share to each of his other 5 sons. Thereafter Foyter Nessa the 2nd wife of Alimuddin Bhuiyan died leaving behind 3 sons, namely, Md. Ibrahim Bhuiyan, Abdul Jabbar Bhuiyan and Abdul Gafur Bhuiyan as her heirs. That since Abdul Gafur Bhuiyan was not born during the life time of his father Alimuddin Bhuiyan he did not get any property from his father by the deed of gift dated 29-10-1911. That in such circumstances his 2 full brothers Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan made an oral gift of 4.301/2 acres of land out of their share to Abdul Gafur Bhuiyan and subsequently these 3 full brothers made a registered deed of partition on 16-5-1935 among themselves and according to that partition deed Ibrahim Bhuiyan got 6.67/-1/2 acres of land, the defendant No.1 Abdul Jabbar Bhuiyan got 4.33 acres of land and Abdul Gafur Bhuiyan got 4.30 1/2 acres of land.
That Abdul Gafur Bhuiyan had purchased 0.46 decimal of land from the recorded owners Ashraf Ali and Ansar Ali by 2 separate registered deeds. Thus Abdul Gafur Bhuiyan got in all 4.76 1/2 acres of land and while he was in possession of his aforesaid land he died leaving behind defendant Nos. 66 to 76 as his heirs and successors. That the defendant No. 68, Rafiqul Islam purchased 0.09 acre of land from the recorded owner and thus the contesting defendant Nos. 66 to 76 got total 4.85 1/2 acres of land and they prayed for separate saham for that quantum of land.
6. The plaintiffs subsequently amended the plaint and stated that the alleged partition deed dated 15-6-1935 was false and forged, that Ibrahim Bhuiyan never gifted any land to Abdul Gafur and never executed and registered the alleged deed of partition. The plaintiffs, therefore prayed for declaration also that the alleged deed of partition dated 15-6-1935 was forged, fabricated, not acted upon and not binding upon the plaintiffs.
7. The trial court, on consideration of the evidence adduced by both the parties and the facts and circumstances decreed the suit in part granting separate saham for 4.43 acres of land to the plaintiffs and also a separate saham for 4.85 1/2 acres of land to the contesting defendant Nos. 66 to 76. Against the said judgment and decree of the trial court the plaintiffs preferred Title Appeal No. 209 of 2007 before the learned District Judge, Comilla which was ultimately heard and disposed of by the learned Additional District Judge, 1st Court, Comilla. This appellate Court, by the judgment and decree dated I – I -2008, modified the judgment of the trial court and granted separate sahams for 4.42 acres of land to the plaintiffs and 4.53 1/2 acres of land to the defendant Nos. 66 to 67.
8. Being aggrieved by the judgment and decree of the appellate court below the plaintiffs preferred Civil Revision No. 1394 of 2008 and the contesting defendant Nos. 66 to 76 preferred Civil Revision No. 282 I of 2008 before the High Court Division. Rule was issued in both those civil revisions.
9. A Division Bench of the High Court Division heard both those Rules together and disposed of both those by a single judgment impugned in these two Civil Petitions for Leave to Appeal. By this impugned judgment and order the High Court Division discharged the Rule issued in Civil Revision No. 1394 of 2008 and made the Rule absolute issued in Civil Revision No. 2821 of 2008 granting separate saham for 4.85 1/2 acres of land in favour of the contesting defendant Nos. 66 to 76.
10. Being aggrieved by this judgment and order of the High Court Division the plaintiff Nurul Hoq Bhuiyan alone has preferred both the present Civil Petitions for Leave to Appeal.
11. We have heard Mr Mahmudul Islam, the learned Senior Advocate for the plaintiff-petitioner and Mr PC Guha, the learned Advocate for the contesting defendant-respondents.
12. Mr Mahmudul Islam has mainly argued to the effect that in this case the contesting defendants though have claimed that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan gifted 4.30 1/2 acres of land to Abdul Gafur Bhuiyan their predecessor and subsequently executed and registered a deed of partition on 16-5-1935 allotting saham for 4.301 /2 acres of land to Abdul Gafur, but this case of the contesting defendants have not been proved at all. The learned Counsel has argued also that though a certified copy of that alleged deed of partition dated 16-5-1935 has been filed before the court and has been marked as exhibit-Kha, but it has not been properly taken into evidence; that the DW who has produced this certified copy of the alleged partition deed dated 16-5-1935 had no personal knowledge about this alleged paJ1ition deed and she also did not state anything from whose custody this alleged deed of partition is coming before the court. The learned Counsel has contended that for taking into evidence a certified copy of any registered deed the court is to be satisfied about the custody of this deed from where it is coming before the court and that since in this case the custody of this certified copy of the alleged partition deed has not been explained and proved the taking into evidence of this certified copy of the alleged partition deed and also marking of that as exhibit-Kha has been illegal and, as such, the decision taken by the courts below on the basis of this exhibit-Kha has been illegal and wrong. The learned Counsel for the plaintiff leave-petitioner has argued also that the contesting defendants’ case that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan gifted 4.30 1/2 acres of land to Abdul Gafur Bhuiyan also has not been proved by any evidence whatsoever and in the circumstances the courts below committed wrong and illegality in allotting a share of that quantum of land to the contesting defendants.
13. Mr PC Guha has made submissions supporting the impugned judgment and order of the High Court Division.
14. We have considered the submissions of the learned Advocate of both the sides and gone through the impugned judgment and order of the High Court Division and those of the appellate court below and the trial court.
15. It appears that all the 3 courts, on meticulous examination and consideration of the evidence on record and the other facts and circumstances, found that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan gifted 4.30 1/2 acres of land to their full brother Abdul Gafur Bhuiyan who was born after the death of their father and as such did not get any land from his father by the deed of gift dated 29-10-1911. It appears that all the courts below took into consideration the fact that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan and their full brother Abdul Gafur Bhuiyan executed and registered a petition deed among themselves and in that partition deed they allotted a separate saham for 4.30 1/2 acres of land in favour of Abdul Gafur Bhuiyan and opined that this registered partition deed-the Exhibit-Kha strongly supports the contesting defendants’ case that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan orally gifted. 4.30 1/2 acres of land to their younger brother Abdul Gafur Bhuiyan. The courts below took into consideration also that in all the records of right this land has duly been recorded in the name of Abdul Gafur Bhuiyan and after his death his heirs paid rent regularly for this land. The courts below pointed out also that Abdul Jabbar Bhuiyan, the defendant No.1 and also other heirs of Ibrahim Bhuiyan the defendant Nos. 64 and 65 did not deny this oral gift by Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan in favour of Abdul Gafur Bhuiyan and also this partition deed of the year 1935 the exhibit-Kha and opined that this fact also strongly supported the defence case that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan orally gifted 4.30 1/2 acres of land in favour of Abdul Gafur Bhuiyan and subsequently they also executed and registered a partition deed the exhibit Kha allotting that quantum of land to Abdul Gafur Bhuiyan. The contention of the learned Counsel for the plaintiff-petitioner is that this partition deed dated 16-5-1935 the exhibit-Kha has not been proved and taken into evidence in accordance with law and, as such, the courts below committed illegality in putting reliance on this partition deed the exhibit-Kha. But we do not accept this contention of the learned Counsel for the leave-petitioner. This exhibit-‘Kha’ is an old registered deed of the year 1935 and, as such, is admissible in evidence without any formal proof. It appears that the DW 1 who is the wife of the contesting defendant No.68 has produced this certified copy of the partition deed dated 16-5-1935 before the court and the court took this certified copy of the partition deed into evidence and has marked it as exhibit-Kha. Where there are ample facts and circumstance before the court as pointed out above in support of the genuineness of this partition deed and where this partition deed came before the court from the custody of the contesting defendants the heirs of one of the executants of this partition deed itself it cannot be said that this partition deed did not come before the court from the proper custody and, as such, taking of this partition deed into evidence and making of the same as exhibit has been illegal.
16. However, we find no merit in these two Civil Petition for Leave to Appeal. Rather, we find that the High Court Division, on meticulous examination and appreciation of the evidence record and all other facts and circumstances, rightly held that the contesting defendant No 66 to 76 were entitled to get a separate saham 4.85 1/2 acres of land and the plaintiffs are entitled to get a separate saham for 4.42 acres of land.
In the circumstances both these two Civil Petition for Leave to Appeal be dismissed.
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Judgment
May 12tyh, 2014
Evidence Act (1 of 1872)
Section 90
Nurul Hoq Bhuiyan…………..Petitioner
Vs
Momtazul Islam and others…………Respondents
Evidence Act (I of 1872)
Section 90
Exhibit ‘Kha’ is an old registered deed of the year 1935 and, as such, is admissible in evidence without any formal proof. Where there are ample facts and circumstance before the court as pointed out in support of the genuineness of this partition deed and where this partition deed came before the court from the custody of the contesting defendants the heirs of one of the executants of this partition deed itself it cannot be said that this partition deed did not come before the court from the proper custody and, as such, taking of this partition deed into evidence and making of the same as exhibit has been illegal. … ………….(15)
Mahmudul Islam, Senior Advocate with Probir Neogi, Advocate instructed by Md Nawab Ali, Advocate-on-Record–For the Petitioner (In both the cases)
PC Guha, Advocate instructed by Purabi Saha, Advocate-on-Record-For the Respondents (In both the cases)
Judgment
Nazmun Ara Sultana J: Both these Civil Petitions for Leave to Appeal, at the instance of the plaintiff-appellant, are directed against the judgment and order dated 8-11-2000 passed by the High Court Division in Civil Revision No. 1394 of 2008 along with Civil Revision No. 2821 of 2008.
2. The relevant facts necessary for disposal of these Civil Petitions for Leave to Appeal arc as follows:
The present petitioner along with three others instituted Title Suit No 705 of 2005 in the 3rd Court of Joint District Judge. Comilla against the opposite parties for partition of the suit land described in schedule to the plaint. The case of the plaintiff, in short, was that the suit land originally belonged to Alimuddin Bhuiyan-who died leaving 5 sons, namely, Abbas Ali Bhuiyan, Amir Uddin Bhuiyan, Hossain Uddin Bhuiyan, Ali Azam and Abdul Aziz Bhuiyan by his 1st wife and other 2 sons, namely, Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan by his 2nd wife. Alimuddin Bhuiyan during his life time distributed his property amongst the aforesaid 7 sons by a registered deed of gift dated 27-10-1911. As per said deed of gift Amir Uddin Bhuiyan got 9.83 acres of land. Amir Uddin Bhuiyan died leaving defendant Nos. 2-15 as his heirs and successors. Abbas Ali Bhuiyan got 9.45 acres of land who subsequently died leaving defendant Nos. 16-26 as his heirs and successive heirs. Hossain Uddin Bhuiyan got 8.66 4/9 the acres of land and he died leaving defendant Nos. 27-35 as his heirs and successors. Ali Azam Bhuiyan got 9.14-4/9 acres of land from his father and thereafter died leaving defendant Nos. 36-51 as his heirs and successors. Abdul Aziz Bhuiyan got 9.13 4/9 acres of land from his father and died leaving defendant Nos. 53-63 as his heirs and successors. Ibrahim Bhuiyan got 9.04 acres of land from his father and he died leaving plantiff Nos. 1 -4 and defendant Nos. 64 and 65 as his heirs and thus the plaintiffs got 6.03 acres of land out of the schedule I (Ka), I(Kha), I(Ga) and the 2nd schedule to the plaint.
3. Further case of the plaintiff was that at the time of death of Alimuddin Bhuiyan his 2nd wife was pregnant and after his death his wife gave birth to a son namely, Abdul Gafur Bhuiyan who subsequently died leaving defendant Nos. 66- 76 as his heirs. That the heirs of CS recorded tenant Ashraf Ali, Anser Ali and Amjad Ali have been impleaded as defendant Nos. 77 to 81, That the defendant No. 1 Abdul Jabbar Bhuiyan had transferred a portion of his property to different persons.
4. The plaintiffs requested the defendants to make amicable partition of their lands but the defendants denied and hence the suit. The plaintiffs claimed a separate saham for 6.04 acres of land.
3. The defendant Nos. 66 to 76 the heirs of Abdul Gafur Bhuiyan contested the suit by filing written statements. The material case of these defendants was that by the deed of gift dated 29/10/1911 Alimuddin Bhuiyan gifted 1/6 share of his land to Abdul Jabbar Bhuiyan, 1/6 share of Ibrahim Bhuiyan and 1/8 share to his 2nd wife and also gifted I/g share to each of his other 5 sons. Thereafter Foyter Nessa the 2nd wife of Alimuddin Bhuiyan died leaving behind 3 sons, namely, Md. Ibrahim Bhuiyan, Abdul Jabbar Bhuiyan and Abdul Gafur Bhuiyan as her heirs. That since Abdul Gafur Bhuiyan was not born during the life time of his father Alimuddin Bhuiyan he did not get any property from his father by the deed of gift dated 29-10-1911. That in such circumstances his 2 full brothers Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan made an oral gift of 4.301/2 acres of land out of their share to Abdul Gafur Bhuiyan and subsequently these 3 full brothers made a registered deed of partition on 16-5-1935 among themselves and according to that partition deed Ibrahim Bhuiyan got 6.67/-1/2 acres of land, the defendant No.1 Abdul Jabbar Bhuiyan got 4.33 acres of land and Abdul Gafur Bhuiyan got 4.30 1/2 acres of land.
That Abdul Gafur Bhuiyan had purchased 0.46 decimal of land from the recorded owners Ashraf Ali and Ansar Ali by 2 separate registered deeds. Thus Abdul Gafur Bhuiyan got in all 4.76 1/2 acres of land and while he was in possession of his aforesaid land he died leaving behind defendant Nos. 66 to 76 as his heirs and successors. That the defendant No. 68, Rafiqul Islam purchased 0.09 acre of land from the recorded owner and thus the contesting defendant Nos. 66 to 76 got total 4.85 1/2 acres of land and they prayed for separate saham for that quantum of land.
6. The plaintiffs subsequently amended the plaint and stated that the alleged partition deed dated 15-6-1935 was false and forged, that Ibrahim Bhuiyan never gifted any land to Abdul Gafur and never executed and registered the alleged deed of partition. The plaintiffs, therefore prayed for declaration also that the alleged deed of partition dated 15-6-1935 was forged, fabricated, not acted upon and not binding upon the plaintiffs.
7. The trial court, on consideration of the evidence adduced by both the parties and the facts and circumstances decreed the suit in part granting separate saham for 4.43 acres of land to the plaintiffs and also a separate saham for 4.85 1/2 acres of land to the contesting defendant Nos. 66 to 76. Against the said judgment and decree of the trial court the plaintiffs preferred Title Appeal No. 209 of 2007 before the learned District Judge, Comilla which was ultimately heard and disposed of by the learned Additional District Judge, 1st Court, Comilla. This appellate Court, by the judgment and decree dated I – I -2008, modified the judgment of the trial court and granted separate sahams for 4.42 acres of land to the plaintiffs and 4.53 1/2 acres of land to the defendant Nos. 66 to 67.
8. Being aggrieved by the judgment and decree of the appellate court below the plaintiffs preferred Civil Revision No. 1394 of 2008 and the contesting defendant Nos. 66 to 76 preferred Civil Revision No. 282 I of 2008 before the High Court Division. Rule was issued in both those civil revisions.
9. A Division Bench of the High Court Division heard both those Rules together and disposed of both those by a single judgment impugned in these two Civil Petitions for Leave to Appeal. By this impugned judgment and order the High Court Division discharged the Rule issued in Civil Revision No. 1394 of 2008 and made the Rule absolute issued in Civil Revision No. 2821 of 2008 granting separate saham for 4.85 1/2 acres of land in favour of the contesting defendant Nos. 66 to 76.
10. Being aggrieved by this judgment and order of the High Court Division the plaintiff Nurul Hoq Bhuiyan alone has preferred both the present Civil Petitions for Leave to Appeal.
11. We have heard Mr Mahmudul Islam, the learned Senior Advocate for the plaintiff-petitioner and Mr PC Guha, the learned Advocate for the contesting defendant-respondents.
12. Mr Mahmudul Islam has mainly argued to the effect that in this case the contesting defendants though have claimed that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan gifted 4.30 1/2 acres of land to Abdul Gafur Bhuiyan their predecessor and subsequently executed and registered a deed of partition on 16-5-1935 allotting saham for 4.301 /2 acres of land to Abdul Gafur, but this case of the contesting defendants have not been proved at all. The learned Counsel has argued also that though a certified copy of that alleged deed of partition dated 16-5-1935 has been filed before the court and has been marked as exhibit-Kha, but it has not been properly taken into evidence; that the DW who has produced this certified copy of the alleged partition deed dated 16-5-1935 had no personal knowledge about this alleged paJ1ition deed and she also did not state anything from whose custody this alleged deed of partition is coming before the court. The learned Counsel has contended that for taking into evidence a certified copy of any registered deed the court is to be satisfied about the custody of this deed from where it is coming before the court and that since in this case the custody of this certified copy of the alleged partition deed has not been explained and proved the taking into evidence of this certified copy of the alleged partition deed and also marking of that as exhibit-Kha has been illegal and, as such, the decision taken by the courts below on the basis of this exhibit-Kha has been illegal and wrong. The learned Counsel for the plaintiff leave-petitioner has argued also that the contesting defendants’ case that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan gifted 4.30 1/2 acres of land to Abdul Gafur Bhuiyan also has not been proved by any evidence whatsoever and in the circumstances the courts below committed wrong and illegality in allotting a share of that quantum of land to the contesting defendants.
13. Mr PC Guha has made submissions supporting the impugned judgment and order of the High Court Division.
14. We have considered the submissions of the learned Advocate of both the sides and gone through the impugned judgment and order of the High Court Division and those of the appellate court below and the trial court.
15. It appears that all the 3 courts, on meticulous examination and consideration of the evidence on record and the other facts and circumstances, found that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan gifted 4.30 1/2 acres of land to their full brother Abdul Gafur Bhuiyan who was born after the death of their father and as such did not get any land from his father by the deed of gift dated 29-10-1911. It appears that all the courts below took into consideration the fact that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan and their full brother Abdul Gafur Bhuiyan executed and registered a petition deed among themselves and in that partition deed they allotted a separate saham for 4.30 1/2 acres of land in favour of Abdul Gafur Bhuiyan and opined that this registered partition deed-the Exhibit-Kha strongly supports the contesting defendants’ case that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan orally gifted. 4.30 1/2 acres of land to their younger brother Abdul Gafur Bhuiyan. The courts below took into consideration also that in all the records of right this land has duly been recorded in the name of Abdul Gafur Bhuiyan and after his death his heirs paid rent regularly for this land. The courts below pointed out also that Abdul Jabbar Bhuiyan, the defendant No.1 and also other heirs of Ibrahim Bhuiyan the defendant Nos. 64 and 65 did not deny this oral gift by Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan in favour of Abdul Gafur Bhuiyan and also this partition deed of the year 1935 the exhibit-Kha and opined that this fact also strongly supported the defence case that Ibrahim Bhuiyan and Abdul Jabbar Bhuiyan orally gifted 4.30 1/2 acres of land in favour of Abdul Gafur Bhuiyan and subsequently they also executed and registered a partition deed the exhibit Kha allotting that quantum of land to Abdul Gafur Bhuiyan. The contention of the learned Counsel for the plaintiff-petitioner is that this partition deed dated 16-5-1935 the exhibit-Kha has not been proved and taken into evidence in accordance with law and, as such, the courts below committed illegality in putting reliance on this partition deed the exhibit-Kha. But we do not accept this contention of the learned Counsel for the leave-petitioner. This exhibit-‘Kha’ is an old registered deed of the year 1935 and, as such, is admissible in evidence without any formal proof. It appears that the DW 1 who is the wife of the contesting defendant No.68 has produced this certified copy of the partition deed dated 16-5-1935 before the court and the court took this certified copy of the partition deed into evidence and has marked it as exhibit-Kha. Where there are ample facts and circumstance before the court as pointed out above in support of the genuineness of this partition deed and where this partition deed came before the court from the custody of the contesting defendants the heirs of one of the executants of this partition deed itself it cannot be said that this partition deed did not come before the court from the proper custody and, as such, taking of this partition deed into evidence and making of the same as exhibit has been illegal.
16. However, we find no merit in these two Civil Petition for Leave to Appeal. Rather, we find that the High Court Division, on meticulous examination and appreciation of the evidence record and all other facts and circumstances, rightly held that the contesting defendant No 66 to 76 were entitled to get a separate saham 4.85 1/2 acres of land and the plaintiffs are entitled to get a separate saham for 4.42 acres of land.
In the circumstances both these two Civil Petition for Leave to Appeal be dismissed.
