High Court · 2012

The respondent as plaintiff instituted the aforesaid suit for declaratio 2. n of right, title and interest in respect of Schedules-Ka and Kha land measuring 1 bigha and 2 kathas 10 lechas, respectively, more fully described in the said schedules and for affirmation of possession in respect of Kha schedule land and for recovery of khas possession in respect of Ka schedule land. The plaintiff al so prayed for a decree that in the event during pendency of the suit it is found that the plaintiff has been dispossessed in respect of the Ka schedule land, de cree for recovery of khas possession in respect of the said land may also be pas sed. The further declaration that the defendant No.3 has not acquired any title to the suit land on the basis of the registered deed No.1852/92 dated 17.06.1992 executed in his favour by the defendant No.2 was also prayed for apart from the decree for permanent injunction. It is the pleaded case of the plaintiff in the plaint that he purchased the suit land by a registered deed of sale dated 11.03 .1981 (Ext.-1) from the defendant No.1 and since then he was enjoying the peacef ul possession by obtaining the mutation i.e. correction of revenue records, in r espect of the said land. It is also pleaded that the defendant No.3, however, on 02.04.1994 and 03.08.1996 entered the suit land and constructed a house and als o reap paddy grown thereon and thereby dispossessed the plaintiff in respect of Kha schedule land. The plaintiff, therefore, claims the right, title and interes t in respect of the suit land on the basis of the sale deed dated 11.03.1981 (Ex t.-1).

3. The defendants on receipt of the summons entered appearance and conteste d the suit by filing joint written statement contending inter alia that the defe ndant Nos.1 and 2 through the defendant No.3 were in continuous possession of th e suit land the same being the ancestral property, which was ultimately transfer red by the defendant Nos.1 and 2 in favour of the defendant No.3 by a registered deed of sale No.1852/92 dated 17.06.1992 and by virtue of such purchase, the de fendant No.3 as a matter of right is possessing the said land. The execution of the sale deed dated 11.03.1981 (Ext.-1) has been denied by the defendants conten ding that they have never executed such sale deed and the signature of the defen dant No.1 in the sale deed is forged. The learned Trial Court on the basis of the pleadings of the parties, fr Whether suit is maintainable? Whether suit is bad for non-joinder or misjoinder of parties? Whether suit is time barred? Whether the alleged sale deed executed by defendant on 11.03.1981 was fo

4. amed the following issues for decision:- (i) (ii) (iii) (iv) rged? (v) (vi) (vii) Whether plaintiff has right, title, interest over the suit land? Whether plaintiff is entitled to a decree as prayed for? To what other relief/reliefs the parties are entitled to?

5. The plaintiff in support of his claim examined 4(four) witnesses includi ng himself as PW-1 and the scribe of the sale deed dated 11.03.1981 as PW-3 and also proved certain documents including the document dated 11.03.1981 (Ext.-1). The defendants also examined 5(five) witnesses and proved certain documents.

6. The learned Trial Court upon appreciation of the evidences on record and on hearing the learned counsel for the parties vide judgment and decree dated 1 3.09.1999 dismissed the suit of the plaintiff by holding that the plaintiff coul d not prove the execution of the Ext.-1 sale deed dated 11.03.1981 since the evi dence of PW-3, the scribe, is not reliable. Being aggrieved the plaintiff prefer red Title Appeal No.17/1999, which has been allowed by the judgment and decree d ated 23.03.2000 and thereby decreeing the suit of the plaintiff by holding that the plaintiff could prove the due execution of such sale deed dated 11.03.1981 a nd though the defendants disputed the execution of such sale deed by defendant N o.1, they, however, could not prove that the said document is fraudulent. Hence the present appeal. The appeal was admitted for hearing vide order dated 30.10.2000 on the f

7. ollowing substantial question of law:- Whether the finding arrived that by the appellate court is perverse as regards t o the alleged execution of the sale deed, alleged to be forged document, (Ext.-1 registered sale deed dated 11.3.81) by the appellant/defendant No.1 being a joi nt owner with appellant/defendant No.2, suit property not being partitioned and under the exclusive continuous possession of the appellant/defendant No.2, he ca n give valid title, interest etc. in favour of the respondent/ plaintiff?

8. . A.R. Banerjee, learned Sr. counsel appearing for the respondent. I have heard Mr. B.C. Das, learned Sr. counsel for the appellants and Mr

9. It has been submitted by the learned Sr. counsel for the appellants that even though the defendants could not prove that the sale deed dated 11.03.1981 (Ext.-1) was fraudulent, the plaintiff having claimed the right, title and inter est on the basis of the Ext.-1 sale deed, he is to prove the due execution of th e said sale deed and in the instant case, it is evident from the deposition of P W-3, the scribe, that he did not even know the defendant No.1 who allegedly exec uted the Ext.-1 sale deed, and hence his evidence relating to execution of the s ale deed by the defendant No.1 cannot be accepted. The plaintiff, therefore, cou ld not prove the due execution of the sale deed, execution of which has been den ied by the defendant No.1, submits the learned counsel. The learned Sr. counsel further submits that in view of the said position, the learned First Appellate C ourt ought not to have allowed the appeal and thereby decreeing the suit of the plaintiff by setting aside the finding recorded by the learned Trial Court that the plaintiff has failed to prove the due execution of the sale deed (Ext.-1). T he learned Sr. counsel also submits that there being no partition between the tw o sisters, namely, the defendant No.1 and the defendant No.2, the plaintiff cann ot have the decree for recovery of khas possession, even if, execution of the Ex t.-1 sale deed dated 11.03.1981 was found to be proved.

10. Per contra, the learned Sr. counsel for the respondent/ plaintiff referr ing to the judgment passed by the learned First Appellate Court submits that it is evident from the deposition of the defendants’ witnesses, more particularly t he DWs-2 and 3 that they have admitted the partition of the land and also that t he land involved in Ext.-1 sale deed fell in the share of the defendant No.1. As such, according to the learned Sr. counsel, no illegality has been committed by the learned First Appellate Court in recording the finding relating to partitio n of the land between the defendant Nos.1 and 2, who are sisters. The learned Sr . counsel further submits that the ground on which the learned Trial Court refus ed to believe the PW-3 was perverse as PW-3 never stated in his deposition relat ing to his visit to the house of defendant No.1, who however, has stated that he does not know whether Debendra, the plaintiff, visited the house of Smt. Bukhle Priya Boro alias Bukhle Priya Kachari (defendant No.1). The learned Sr. counsel further submits that the PW-3, the scribe of Ext.-1, has proved the thumb impre ssion of the defendant No.1 in the sale deed dated 11.03.1981 (Ext.-1) and due e xecution of the said document has also been admitted by the defendant No.1 befor e the Registering Authority by making necessary endorsement in that regard. Mr. Banerjee, learned Sr. counsel for the respondent also submits that though the de fendants have taken the plea that the Ext.-1 is fraudulent, no evidence could be laid to prove such plea, though burden heavily lies on the person taking such p lea.

11. I have considered the submissions of the learned counsel for the parties and also perused both the judgments passed by the learned Trial Court as well a s the learned Appellate Court, as the learned Appellate Court has reversed the d ecision of the learned Trial Courts. Since there is a dispute relating to the ve rsion of PW-3, I have also gone through the evidences on record both oral and do cumentary, though in second appeal it may not always be necessary to peruse the evidences, unless perversity is alleged.

12. It appears from the substantial question of law formulated by this Court while admitting the appeal vide order dated 30.10.2000 that there are 2(two) is sues involved - (i) whether there was partition of land between the defendant No s.1 and 2? and (ii) whether the plaintiff could prove the due execution of the s ale deed dated 11.03.1981 (Ext.-1)?

13. As noticed above, the learned First Appellate Court has found that the p laintiff could prove the due execution of Ext.-1 and though the defendants have taken the plea that the said document is fraudulent, they could not substantiate the same by adducing any cogent evidence.

14. The plaintiff (PW-1) in his deposition has categorically stated relating to the partition of the land between the defendant Nos.1 and 2 and also that th e suit land, which was transferred by the defendant No.1 in favour of the plaint iff by the Ext.-1 sale deed, fell in the share of DW-1. The other witnesses, nam ely, PWs-2 and 4 have also supported the plaintiff in that regard. The defendant No.1, who examined herself as DW-2 during her cross-examination has stated as f ollows:- (cid:28)After the death of our father, we mutually have been enjoying our respective sh are equally among us. Today’s case is relating to my share of land. Khengkheri h as no share over it. (cid:29) The defendant No.2 (DW-3) in her deposition has also admitted the partit

15. ion. The relevant portion of her deposition is also quoted below:- (cid:28)Inherited approximately 5 bighas of land from our father. Bakhle also got her e qual share, I am in possession of my land. Litigation is going on in respect of the share of Bhukle. (cid:29)

16. From the aforesaid evidences adduced by the parties, as discussed above, it is, therefore, evident that there is no dispute relating to the partition of the land between the 2(two) sisters and also to the fact that the suit land fel l in the share of defendant No.1.

17. The next question which requires determination is whether the plaintiff could prove the due execution of the Ext.-1 sale deed dated 11.03.1981 and wheth er the defendants are able to prove that the document is fraudulent. Order 6 Rul e 4 CPC provides that in all cases in which the party pleading relies on any mis representation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exe mplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

18. It is a settled position of law that the party alleging fraud is to spec ifically plead and to prove the same. In the instant case, the plaintiff (PW-1) in his deposition has stated relating to the execution of the sale deed dated 11 .03.1981 (Ext.-1) by the defendant No.1 in his favour as well as the registratio n of the said document under the provisions of the Registration Act. PW-3, the s cribe, has also proved the thumb impression of the defendant No.1 in the said sa le deed (Ext.-1) apart from the thumb impressions of the defendant No.1’s husban d Parasu Boro, who was witness to that execution, who, however, unfortunately is no more. PW-3 never in his deposition has stated anything relating to his visit to the defendant No.1’s house, though according to the learned Trial Court PW-3 cannot be believed because he has stated that he never visited the house of the defendant No.1. What PW-3 has stated in his deposition is that he does not know whether Debendra (plaintiff) visited the house defendant No.1. DW-2 (defendant No.1) during her cross-examination has also stated that the land sold by her hus band was inherited from his father and her husband sold the land in her name. Th is witness has not denied the sale of the property to the plaintiff but stated t hat the sale was by her husband only, which also could not be proved by the defe ndants. Ext.-1 sale deed reveals execution by the defendant No.1. DW-3 during he r cross-examination has also stated that defendant No.1’s share of land was sold to the plaintiff when her husband was alive. The defendants, therefore, in thei r deposition have not disputed the execution of the sale deed and transfer of ri ght over the suit land in favour of the plaintiff by means of the sale deed date d 11.03.1981 (Ext.-1).

19. Sub-section (2) of Section 60 of the Registration Act, 1908 provides tha t the certificate of registration signed, sealed and dated by the registering of ficer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned . Section 59 of the said Act requires affixing the date and the signature by the registering officer to all the endorsements made under Section 52 and 58, relat ing to the document and made in his presence on the same day. Under Section 58 t he registering authority is required to endorse, amongst others, the signature a nd addition of every person admitting the execution of the document. Therefore, the due execution of the document registered under the provisions of the Registr ation Act, by the executant is to be presumed, which, however, is a rebuttable p resumption. The defendants, as discussed above, though have taken the plea that the sale deed dated 11.03.1981 is fraudulent, they could not lead any evidence i n that respect.

20. That being the position, I am of the view that the learned First Appella te Court has rightly decreed the suit of the plaintiff by allowing the appeal an d setting aside the judgment and decree passed by the learned Trial Court, which requires no interference in second appeal.

21. Hence the appeal stands dismissed. No costs.