Ranjit Kumar Choudhary & Anr. v. Mr. Anita Raghavendra

CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV ORDER 13 08-11-2012 1. Heard the learned senior counsel, Mr. Dhruv Narayan, Sr. Advocate, appearing on behalf of the appellant and the learned counsel, Mr. Rakesh Narayan Singh appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure.

2. The defendants-appellants appellants have filed this second appeal against the Judgment and Decree dated 11.9.2008 passed by First Addl. District Judge, Katihar in Title Appeal No.19 of 2006 whereby the lower appellate Court dismissed the title appeal and confirmed the Judgment and Decree of the trial Court dated 27.09.2006 passed by Sub Judge Ist, Katihar in title suit No.43 of 1998. 2 Patna High Court SA No.490 of 2008 (13) dt 08-11-2012

3. The plaintiff-respondent filed the aforesaid suit praying for declaration of title and interest and possession over the suit land on the basis of sale deed executed by defendant 2nd party in favour of the plaintiff on 15.12.1997 and further for declaration that the defendant Ist party have got no manner of right, title, interest and possession over the suit land on the basis of the sale deed dated 18.6.1997 brought into existence by forgery and purported to have been executed by defendant 2nd party. Further prayer was made for declaration that the sale deed in favour of defendant Ist party purported to have been executed by defendant 2nd party on 18.6.1997 is illegal, void and without consideration, and therefore, the sale deed be cancelled. The plaintiff also prayed alternatively for recovery of possession.

4. The plaintiff prayed the aforesaid relief alleging that Mostt. Chand Devi was the owner of the suit land which devolved on her after the death of her husband Uchit Kumar. Out of the total lands measuring 2.27 acres, the State of Bihar acquired some land for construction of Koshi canal and Bandh. The remaining land measuring 1.66 acres are in possession of Chand Devi after death of her husband. Mostt. Chand Devi sold the said property by registered sale deed dated 15.12.1997 in favor of the plaintiff for consideration of Rs.54,000/-. After purchase, when the plaintiff’s husband went to the land for cultivation, the defendants objected to it and disclosed that he has already purchased the same land by registered sale deed dated 18.6.1997 for Rs.47,000/- from Chand Devi, widow of Uchit Kumar. The plaintiff got the certified copy of 3 Patna High Court SA No.490 of 2008 (13) dt 08-11-2012 the sale deed and then came to know about the forgery committed by the defendant, therefore, the suit was filed.

5. The defendant filed contesting written statement alleging that the sale deed executed by Chand Devi in favour of the defendant on 18.6.1997 is valid, genuine and for consideration. After purchase, the defendant filed application for mutation which was allowed and the defendant is coming in possession of the suit land. The sale deed in favour of the plaintiff is invalid, collusive, fraudulent and no title passed to the plaintiff by the said sale deeds.

6. The defendant 2nd party, Mostt. Chand Devi also filed a written statement alleging that the sale deed dated 18.6.1997 in favour of the defendant is a forged and fabricated document. She never executed the same.

7. The trial Court after considering the evidences recorded the finding that the sale deed alleged to have been executed by Chand Devi in favour of defendant is forged document and in fact it does not bear thumb impression of Chand Devi. The suit was accordingly decreed. On appeal, the appellate Court also recorded the same finding on the basis of oral evidence and the finger print expert report and dismissed the appeal.

8. The learned senior counsel, Mr. Dhruv Narayan appearing on behalf of the appellant submitted that the lower appellate Court did not correctly perused the pleading of the parties, therefore, the Judgment of the lower appellate Court is 4 Patna High Court SA No.490 of 2008 (13) dt 08-11-2012 based on complete mis-appreciation and non-appreciation of evidence on the record. The sale deed dated 18.6.1997 was never challenged by the vendor of the plaintiff, i.e., by the widow of Uchit Kumar, Mostt. Chand Devi. The document executed in favour of defendant is earlier document. Therefore, unless it is challenged or set aside the plaintiff’s suit on the basis of subsequent registered sale deed could not have been decreed. The learned counsel further submitted that the finger print expert who submitted the report is a private finger print expert and the report was called for from him at the instance of the plaintiff, therefore, the Courts below could not have relied upon the same.

9. On the other hand, the learned counsel appearing on behalf of the respondent submitted that it is not the case that the plaintiff suo motu got the disputed thumb impression compared by private finger print expert. The trial Court directed to take steps to the plaintiff and on the direction of the Court, the plaintiff took step and also deposited the cost. Thereafter, the thumb impression of Chand Devi was obtained and thereafter the same was sent by the order of the Court. The present appellant did not object. After submission of the report also, no objection was raised and therefore, at this stage, the said point cannot be allowed to be raised. None of the points raised by the appellant is substantial question of law.

10. From perusal of the Judgment, it appears that the Courts below considered the evidence of Chand Devi. She has specifically denied to have executed the sale deed on 18.6.97 in favour of the 5 Patna High Court SA No.490 of 2008 (13) dt 08-11-2012 defendant. The finger print expert report was also considered. According to the finger print expert report, the sale deed of the plaintiff bears the thumb impression of Chand Devi whereas the sale deed of the defendant does not bear the thumb impression of Chand Devi. So far this finding is concerned, it is pure question of fact. Therefore, this finding being the concurrent finding of fact based on admissible evidence cannot be interfered with by the High Court in second appellate jurisdiction. So far the submission that the sale deed of the appellant is prior to the sale deed to the plaintiff is concerned, it may be mentioned here that both the Courts below found the sale deed of the appellant to be forged document, therefore, no title passed on the defendant. In such circumstances on the basis of forged sale deed, it cannot be held that the defendant acquired title as his sale deed is prior to the sale deed of the defendant, therefore, even if there is mutation or rent receipt granted it will not create title in favour of the appellant. So far the submission that vendor Chand Devi never challenged the deed is concerned, it may be mentioned that it has been found by both the Courts below that it does not bear thumb impression of Chand Devi so even if not challenged the forged deed will not become legal and valid document. .

11. So far the submission that the report should not have been called for from private finger print expert is concerned, it may be mentioned here that at the time of hearing in admission matter, the ordersheet was produced by the appellant. From perusal of the ordersheet, it appears that the defendant appellant never 6 Patna High Court SA No.490 of 2008 (13) dt 08-11-2012 raised any objection nor he ever suggested for sending the disputed thumb impression for comparison to a particular expert. Now, therefore, at the second appellate stage, the appellant cannot be allowed to say that the Judgment is vitiated on that ground alone.

12. In view of the above facts and circumstances of the case, in my opinion, none of the grounds raised by the appellant is substantial question of law. Thus, no substantial question of law is involved in this second appeal. Accordingly, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-