High Court · 2012

2. The aforesaid suit was instituted by the present respondent, as plaintiff, against the predecessor-in-interest of the present appellants for dec laration of right, title and interest, in respect of the schedule I land, in ejm ali and also for declaring the sale deed dated 12.2.1973 (Ext. 1) purportedly e xecuted by the mother of the plaintiff and the defendant No. 1 in favour of the defendant No. 1 as fraudulent and also for refund of Rs. 2000/- which was paid b y the plaintiff to the defendant No. 1 for the purchase of the land vide sale de ed 21.2.1976.

3. The case of the plaintiff in the plaint is that after the death of the original owner Suresh Chandra Sarma, the property left by him devolved on his widow, apart from the plaintiff and the defendant No. 1, who are brothers a nd amongst whom there was amicable partition on 11.4.1958 allotting respective s hares of land and accordingly they were possessing their respective share by vir tue of such partition deed. It is also the case of the plaintiff that the defend ant No. 1 sold his share of the land to his brother, the plaintiff, and also to other persons from whom the plaintiff again purchased the land in the said patta and accordingly the plaintiff’s share in the land increased from 9 bighas 6 kat has 3 chataks to 17 bighas 3 kathas 4 chataks. It is also the case of the plaint iff that his mother Sabitri Bala Devi got land measuring 3 bighas 8 chataks unde r dag No. 123 of patta No. 15 and subsequently purchased more land in the said p atta, who died thereafter leaving behind the plaintiff and the defendant. It is also the case of the plaintiff that after the death of the mother he also inheri ted his share in the land in Dag No. 122 of patta 15 and accordingly his share i n the land became 18 bighas 1 katha, which he possessed. The further case of the plaintiff is that the defendant, after the death of their mother, showing a reg istered deed of sale dated 12.2.1973, allegedly executed by the mother in favour of the defendant No. 1, proposed to sell the land measuring 2 bighas to the pla intiff and accordingly the plaintiff purchased the said land measuring 2 bighas from the defendant No. 1 on 21.2.1976 by executing a registered deed of sale. Ac cording to the plaintiff he, however, subsequently came to know on 28.8.1977 fro m his sister, proforma defendant No. 3, that Sabitri Devi did not sell the land. Thereafter on enquiry he came to know that the defendant by impersonation of hi s mother created a false and collusive sale deed dated 12.2.1973 i.e. Ext. 1 sho wing that 2 bighas of land was transferred in his favour and sold the said land to the plaintiff at Rs. 2000/-. It is also the pleaded case of the plaintiff tha t the defendant No. 1’s wife instituted Title Suit No. 80/1977 for declaration o f her right, title and interest over the said land measuring 2 bighas claiming t hat she has purchased the same, which, however, was dismissed.

4. The defendant No. 1, his wife and the defendant No. 15 contested the suit by filing written statement denying the contention of the plaintiff in the plaint and contended that the mother of the defendant No. 1 on 12.2.1973 tr ansferred the land measuring 2 bighas in favour of the defendant No. 1 by regist ered deed of sale (Ext. 1) which is not forged but a genuine document.

5. e parties framed the following issues for consideration and decision : - The learned trial court upon appreciation of the pleadings of th

1. Whether there is cause of action? 2. Whether the suit is maintainable in its present form? 3. Whether the plaintiff has a right to sue in view of the fact that the plainti ff purchased the land from the defendant? 4. Whether the suit is barred by waiver, estoppels and acquiescence? 5. Whether the suit is bad for defect of parties, whether all the co-sharer of t he patta are necessary party? 6. Whether the suit land is properly valued and plaint properly stamped? 7. Whether the plaintiff’s purchased deed can be declared void in view of the fa ct that the plauintiff purchased voluntarily and got the original deed in (cid:28)wapos h (cid:29) from the defendant No. 1? 8. Whether the plaintiff is bound to produce the original deed? 9. Whether plaintiff is entitled to refund of Rs. 2000/-? 10. To what relied etc.?

6. nesses including himself, the defendant, however, did not examine any witness. During the course of trial, when the plaintiff examined five wit

7. The learned trial court on the basis of the evidences on record decreed the suit of the plaintiff declaring the ejmali right over the suit land and also declaring that Ext. 1 sale deed dated 12.2.1973 is forged.

8. Being aggrieved, the defendant No. 1 preferred Title Appeal No. 4/1999, which has also been dismissed by the aforesaid judgment and decree by th e first appellate court. Hence the present appeal. The appeal was admitted for hearing vide order dated 6.12.2000 o

9. n the following substantial questions of law :- 1. For that there being no findings by both the courts below as to who admitted the so called admitted thumb impression by corroborative evidence, a substantial question of law arises as to whether the Ext. 26 is legally tenable in view of the fact that there was no admission of documents or thumb impression by the def endant? 2. For that the sale of the schedule land having taken place by the registered d eed on 12.2.1973 and the suit having been filed on 26.11.1977, a substantial que stion of law arises as to whether the suit was barred by limitation?

10. I have heard Mr. RP Sarma, learned senior counsel for the appell ants/defendants and Mr. Sarma, learned counsel appearing for the respondent/plai ntiff.

11. Referring to the substantial questions of law formulated, it has been su bmitted by the learned counsel for the appellant that as there was no admitted t humb impression of the mother of the plaintiff and the defendant No. 1, the Ext 26 i.e. the report of the expert to the effect that the thumb impression of the vendor appearing in Ext 1 is not the thumb impression of the mother of the plain tiff and defendant cannot be sustained in law, unless admitted thumb impressions are available on record, without which there cannot be any comparison of the ad mitted thumb impression with the disputed thumb impression and hence the judgmen t and decree passed by the learned courts below holding that Ext. 1 sale deed da ted 12.2.1973 is forged require to be set aside. Relating to the second substantial question of law it has been s 12. ubmitted by the learned counsel for the appellant that since the Ext. 1 sale dee d was executed on 12.2.1973 the suit ought to have been brought within three yea rs thereafter as required under Article 56 of Schedule of the Limitation Act and in the instant case the suit having been instituted on 26.11.1977 the same is b arred by time and hence the learned court below ought to have dismissed the suit of the plaintiff.

13. Mr. Sarma, learned counsel appearing for the respondents/defenda nts on the other hand supporting the judgments and decrees passed by the learned courts below has submitted that it is evident that the admitted thumb impressio ns of the mother of the plaintiff and the defendant were sent for comparison by the hand writing expert with the disputed thumb impression appearing in Ext. 1 s ale deed dated 12.2.1973, for opinion and the learned court below having regard to the opinion of the expert (Ext. 26) and also comparing both the admitted thum b impression and the disputed thumb impression, as required under Section 73 of the Evidence Act, came to the conclusion that the thumb impression appearing in Ext 1 sale deed dated 12.2.1973 is not of the mother of the plaintiff and the de fendant No. 1 and as such no illegality has been committed by the learned courts below in recording the finding that the Ext. 1 sale deed is a fraudulent docume nt. Mr. Sarma further submits that though the document Ext. 1 sale deed was exec uted on 12.2.1973, the suit instituted by the plaintiff cannot be held to be bar red under the law of Limitation in view of the provision contained in Article 56 of the Limitation Act, which provides that the period of limitation of three ye ars would begin from the date when the execution of the said document came to th e knowledge of the plaintiff, as it is the pleaded case of the plaintiff as well as the evidence adduced that the plaintiff came to know about such forgery only on 28.8.1977.

14. I have considered the submissions of the learned counsel for the parties and also perused the impugned judgment and decree passed by the learned first appellate court apart from the judgment and decree passed by the learned trial court.

15. It is evident from the judgments and decrees passed by the learn ed courts below that the admitted thumb impressions of the mother of the plainti ff and the defendant No. 1 were sent to the handwriting expert for comparison wi th the disputed thumb impression of the mother appearing in Ext. 1 sale deed dat ed 12.2.1973. The handwriting expert has given his opinion, which has been marke d as Ext 26. In the said opinion it is opined that the thumb impression appearin g in the questioned document i.e. Ext. 1 is not the thumb impression of their mo ther as it does not tally with her admitted thumb impression. The learned courts below also compared both the thumb impressions i.e. the admitted thumb impressi on as well as the disputed thumb impression, as provided under Section 73 of the Evidence Act. The courts below thereafter came to the conclusion that the thumb impression appearing in Ext. 1 is not the thumb impression of the mother of the plaintiff and the defendant and hence recorded the finding that the said docume nt is forged document. The said concurrent finding of fact, therefore, needs no interference in the second appeal.

16. Relating to the second substantial question of law as formulated , it appears that the plaintiff came to know about the forgery committed by the defendant No. 1 on 28.8.1977. Article 56 of the Limitation Act provides that the suit for declaration that an instrument is forged is to be instituted within th ree years of coming to the notice of the plaintiff. The plaintiff instituted the suit on 26.11.1977 i.e. within three years from the date of coming to know abou t such forgery and hence the plaintiff’s suit was within the time allowed.

17. hence it is accordingly dismissed without any order as to cost. In view of the above, I do not find any merit in the appeal and

18. At this stage the learned counsel for the appellants submits tha t on the basis of the finding recorded relating to the forgery a criminal procee ding has been instituted against the defendant No. 1 and his wife, which has bee n put to challenge in a criminal revision petition which is pending for decision . It is submitted that during the pendency of the criminal revision one of the a ccused, namely the original defendant No. 1 has expired.

19. Having regard to the aforesaid submission I hope and trust that since both the parties are closely related to each other they will try to resolv e the dispute relating to the criminal proceeding amicably so as to avoid furthe r enmity.

20. The Registry is directed to send down the records forthwith.