High Court
Case Details
RSA 162/2002 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY This second appeal is directed against the judgment of reversal passed on 12.08. 2002 by learned District Judge, Darrang at Mangaldoi in Title Appeal No. 5/2001 thereby allowing the appeal and reversing the decree passed by the learned trial Court dated 12.09.2001 in Title Suit No. 40/1998. 2.
Legal Reasoning
The plaintiffs instituted Title Suit No. 40/1998 in the Court of learned Civil Judge, Senior Division, Darrang at Mangaldoi claiming that the suit land measuring 2 bighas 4 kathas 7 lachas covered by Dag No. 82/658 and 83/659 of Ann ual Patta No. 2 was originally issued in the name of Abatulla allias Abajulla wh o was the brother of one Kabejuddin and Fakir Mamud. According to the plaintiffs Abajulla, the original Annual Pattadar died issueless and as such on his death the suit land devolved on his aforesaid brothers. On the death of the said broth ers the plaintiffs being legal heirs of Kabejuddin and Fakir Mamud have inherite d the property and had been possessing the same till it were dispossessed by def endant on 16.10.1998. The plaintiffs claimed to have mutated their names in the records of rights on 23.09.1998 in place of original pattadar Abatulla allias Ab ajulla. Since the defendants dispossessed the plaintiffs, the plaintiffs alleged that their title to the suit land became clouded and this is why they filed the suit for declaration of their rights, title and interest and recovery of the po ssession. Whether there is any cause of action for the suit? Whether proper Court fee has been paid by the 3. The defendants by filing written statement denied the pleadings of the p laintiffs in entirety. The defendants further took a specific stand that they ha d purchased the suit land by registered sale deed No. 508 of 1957 on 23.01.1957 from the pattadar Abatulla allias Abajulla and since then they have been in poss ession of the land paying land revenue. On the basis of the aforesaid pleadings of the parties the learned trial Court framed as many as 7 issues and they are q uoted below: I. II. plaintiffs? III. d? IV. by the defendants? V. planted trees and enjoying fruits therefrom since a long time? VI. VII. Whether the plaintiffs are entitled to the relief claimed for? To what relief or reliefs if any, the parties are entitled? Whether suit land was possessed by the defendants and whether they have Whether the plaintiffs were dispossessed from the suit land on 16.10.98 Whether the plaintiffs has got right title an interest over the suit lan 4. Plaintiffs examined two witnesses including PW1 Abdul Malek as PW1 and B atcha Ali as PW2. The defendants on the other side examined as many as 5 witness es and also exhibited documents. The learned trial Court while deciding issue No . 3 & 4 held that the plaintiffs have proved their title but while deciding issu e No. 5 felt that a portion of the suit land has been in possession of the defen dants since long and thereafter on 16.10.1998 the defendants occupied the remain ing portion of the land as well. In so doing the learned trial Court did not spe cify the incident of earlier possession of the defendants. Suit was thus partly decreed on contest excluding the land on which thatched houses as well puja ghar of the defendants are situated. 5. The defendants challenged the aforesaid trial Court judgment dated 12.04 .2001 by filing Title Appeal No. 5/2001 in the Court of learned District Judge, Darrang at Mangaldoi. Learned District Judge by judgment dated 12.08.2002 allowe d the appeal and set aside the judgment and decree of the learned trial Court. T he learned District Judge found that Ext.-Ka registered sale deed executed in fa vour of the defendants by original Annual Pattadar (Abatulla allias Abajulla) wa s proved by calling witnesses from sub-registry and the content of the deed was proved from the book by the DW4 (Gajendra Nath Sarma) an employee of the office of the Sub-Registrar at Tezpur. Having found that the defendants proved their ti tle in respect of the suit land, the learned District Judge reversed the finding of the learned trial Court in regard to title of the plaintiffs. Consequently, the suit of the plaintiffs was dismissed while allowing the appeal to the defend ants. It is this appellate judgment and decree which has been brought under chal lenge in the second appeal. This Court while admitting the second appeal on 08.04.2003 framed the fo 6. llowing substantial questions of law: (cid:28)Whether sale of Annual Patta land can be proved validly by producing a copy of alleged sale deed from the original record without producing original sale deed? (cid:29)
Legal Reasoning
7. Mr. S. Chauhan, learned counsel for the respondents. I have heard Mr. M.H. Choudhury, learned counsel for the appellants and 8. Mr. M.H. Choudhury, learned counsel for the appellants has submitted the substantial questions of law framed by this Court on the following arguments: I) That in a single attesting witness to the sale deed (Ext. ka) did not having been examined by the defendants the sale deed has not been proved and as such th e finding of the learned lower Appellate Court is perverse. II) Thumb impression available on the book maintained by the Sub-Registrar at Te zpur does not contain any endorsement as to who had accepted the thumb impressio n and as such the thumb impression on the book is not proved. 9. The learned counsel for the respondents Mr. Chauhan on the other hand su bmits that in course of his evidences as well as pleadings, the defendants have made it clear that the original of the sale deed in question was not in their po ssession. It was specifically stated by the DW-1 (Amiya Bhushan Saha) that all t he attesting witnesses of the sale deed in question have died. Mr. Chauhan furth er argues that the sale deed (Ext-ka) was brought in record without there being any objection from the side of the plaintiffs and as such the plaintiffs / appel lants are not entitled to challenge the admissibility of the said document. Mr. Chauhan has placed reliance on the judgment of this Court in the case of Manindr a Kumar Dey v. Mahendra Suklabaidya reported in 99 (2)GLR 219 wherein this Court has held after relying on catena of decisions of Privy Council as well Supreme Court and thereafter arrived at the finding that if a document is admitted in re cord without any objection the same is not open to challenge at the later part o f the proceeding. The same view appears to have been taken earlier in the case o f Md. Salmuddin Sheikh v. Abjudin Sheikh reported in AIR 1979 Guwahati pg. 14. I n paragraph 8 of the said judgment this Court relied on the decision of the Hon’ ble Supreme Court in the case of Javed Chand v. Pukhraj Surana reported in AIR 1 961 SC 1655 and also P.C. Purusathama Reddia v. S. Perumal reported in AIR 1972 SC 608. In the aforesaid case of Md. Saimuddin this Court has already held that a sale deed is a private document but when the content of the said document is r ecorded in the book maintained by the jurisdictional Sub-Registrar the said book being maintained in course of official duty becomes a public document and as su ch a certified copy of the said document is available. Under Section 77 of the I ndian Evidence Act the content of any document can be proved by producing the ce rtified copy of the public document. In that view of the matter there is no bar in proving content of a sale deed by calling a witness of the concerned Sub-Regi stry to prove the content from the book. This is what has been done in the prese nt case by examining DW4 and as such Ext.-Ka can neither be held to be inadmissi ble in evidence nor can the proof of the said document can be held to be contrar y to the provision of Section 77 of the Evidence Act. Apart from this, said Ext. -Ka having been entered into the records without there being any objection it is to be held, because of preponderant preceding judicial pronouncement, that the appellant / plaintiffs are estopped from challenging its admissibility on the se cond appellate stage. Once Ext-Ka is accepted the conveyance of title by origina l pattadar in favour of defendants becomes only a matter of corollary. 10. It is to be noted here that although the learned trial Court came to a f inding that the plaintiffs were dispossessed from the suit land on 16.10.1998 at least from a part of the suit land there is no material in evidence to arrive at such finding. True, the plaintiff has made a pleading to the effect but surpris ingly no evidence has been led to prove such allegation of dispossession. The on ly independent evidence examined by the plaintiffs is PW2 Batcha Ali who in his cross-examination has indicated that he was not aware about the details of the l and and that he is not a boundary witness. On the other hand the defendants have examined DW 2 and 3 who are boundary witnesses and they have proved the possess ion of the documents over the land for a period over 40 years. The learned trial Court has failed to consider this aspect of the matter. The judgment of reversa l passed by the learned first appellate Court, therefore, cannot be held to be u njustified. 11. It may not be out of context to mention here that it is the plaintiffs w ho instituted the suit for declaration of their right, title and interest and fo r recovery of possession. Having claimed title to the suit land it becomes duty of the plaintiffs to prove their title. Suppose, if the defendants could not sub stantiate their claim of purchase in that event also plaintiffs cannot get a dec ree unless and until plaintiffs proved their own case. Plaintiffs failed to prov e their right of inheritance. Even there is no pleading or proof as to when did Abatulla died. Having said that Abatulla died issueless it cannot be presumed th at he was a Bachelor. Even in that event the explanation over the share of his w idow also ought to have been given by the plaintiffs. Placed with such circumsta nces it is apparent that plaintiffs have failed to prove their case. 12. On totality of circumstances, once it is held that a document of title a nd more particularly a sale deed can be proved by exhibiting the certified copy and examining the witnesses from concerned Sub-Registrar calling the relevant bo ok, the substantial questions of law framed by this Court at the time of admissi on is to be decided in favour of defendants and against the appellants. Conseque ntly, the appeal fails. 13. 14. The second appeal is accordingly dismissed.
Decision
No order as to costs. 15. Send down records. Prayer decreed.