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2002 DIGILAW 302 (GAU)

Phoolmani Jok v. Budhindra Nath Borgohain

2002-07-19

B.B.DEB

body2002
B.B. DEB, J.— This second appeal has been filed by the defendant-appellants being aggrieved by the judgment/decree dated 27.1.1995, passed by the learned Additional District Judge, Jorhat in Title Appeal No. 10/91 setting aside the judgment and decree dated 14.6.1991, passed by the learned Munsiff, Jorhat in Title Suit No. 93/86. The learned Munsiff dismissed the suit while the learned first appellate Court reversed the same and decreed the suit. 2. The plaintiffs-respondents (hereinafter called the plaintiffs) filed the Title Suit No. 93/86 against the defendants-appellants (hereinafter called the defendants) seeking declaration of right, title and interest, recovery of possession, compensation of Rs.3,150/- and for perpetual injunction contending, inter alia, that the suit land comprising an area of 9 bighas 14 lechas covered by periodic patta No. 58, Dag No. 206 and 208 in Chereli Gohain Gaon, Amguri Kharikatia Mouza was purchased by them from the defendant No. 1 through five registered sale deeds on different dates viz. 28.5.1965, 19.4.1966, 31.1.1967, 1.9.1967 and 31.5.1968 for adequate consideration. The plaintiffs had been jointly possessing the suit land and had been paying Govt. revenue regularly, but unfortunately on 29.4.1982, after lapse of about 11/2 decades, the defendant No. 1 with his sons forcibly trespassed into the suit land and started possessing the same illegally. The plaintiffs protest put in deaf ears of the defendants. Being helpless, the plaintiffs moved the Executive Magistrate for drawing up a proceeding under Section 145 of the Code of Criminal Procedure and that was initiated vide Misc. Case No. 247/ 82 against the defendant No. 1 and his sons. Another criminal case bearing No. CR 545/82 under Sections 447/5061.P.C. had been launched against the defendants. In the 145 proceeding, the possession in favour of the defendant No. 1 was declared vide order dated 11.8.86 and in the criminal trial, the defendants were acquitted on 19.1.1985. Hence for recovery of khas possession, the plaintiffs filed the suit. 3. The defendants No. 1 and 2 contested the plaint case by filing written statement contending, inter alia, that the defendant No. 1 never sold the suit land or any part of it to the plaintiffs, but he mortgaged the suit land in favour of the plaintiffs as he took some loan from late Padmanath Borgohain, the father of the plaintiffs on different phases. He took loan of Rs.750/-on 28.5.1965, Rs.600/- on 19.9.1966, Rs.650/- on 31.1.1967, Rs.350/- on 1.9.1967 and Rs.500/- on 31.5.1968. To secure the loan, he took, on the demand of the creditor Padmanath Borgohain, he had to execute five mortgage deeds. The mortgage deeds were arranged to have been written at the instance of the creditor Padmanath Borgohain and the illiterate defendant No. 1 knowing the said deeds to be the mortgage deeds executed the same. The recitals of the deeds had never been read over to him. The creditor enjoyed all the usufructs of the lands mortgaged for considerable period and on expiry of the mortgage period the defendant No. 1 took back his lands. In the proceeding under Section 145 CrPC both the parties, according to the written statement, divulged their respective cases and the possession of the defendants over the suit land was declared. The principal defendant No. 1 being died his legal heirs are made party during trial. 4. At the time of admission of this second appeal on 15.9.1995, this Court referred Ground No. 'A' of the memo of appeal to be the substantial question of law and as such the related part of Ground No. 'A' needs to be re-produced below: "Whether mere admission of a deed amounts to admission of the contests of the deed while admittedly the plaintiffs failed to show or prove that the contents of deeds were read over and explained?" 5. From the afore quoted Ground No. 'A' which was treated to be the substantial question of law by this Court at the time of admission of the appeal, it appears to me that for the decision of this appeal, it is to be examined as to whether the learned first appellate Court mis-interpreted the provision of Section 61 of (the Indian) Evidence Act, 1872? 6. 6. Mr H.K. Baishya, learned counsel appearing on behalf of the appellants argues that having regard to the denial made by the defendants-appellants as to the recitals of the impugned sale deeds, the plaintiffs-respondents ought to have proved the recitals of the sale deeds during trial, but they did not and as such the learned trial Court wrongly, rather contrary to the provision of Section 61 of the Evidence Act admitted the recitals of the impugned sale deeds in evidence, while the learned counsel appearing on behalf of the plaintiffs-respondents Mr N.N.B. Choudhury submits that once the execution of a deed remains admitted by the executant, the onus shifts upon the executant to prove any fact contrary to recital of the document. In other words, according to the learned counsel for the plaintiff-respondents once the execution of a document is proved, recitals of the said document are automatically admissible in evidence. 7. In the plaint, the plaintiffs claimed that on five different dates, the defendant No. 1 (now deceased) executed five sale deeds while the defendant No. 1 during his life time in filing written statement made averment in para 7 explaining the situation where he executed five sale deeds. The operative portion of para 7 of the written statement is re-produced below:- "(7) That the said Late Padmanath Borgohain lent him a sum of Rs.750.00 on 28.5.65, 600.00 on 19.9.66, Rs.650.00 on 31.1.67, Rs.350.00 on 1.9.67, Rs.500.00 on 31.5.68 against the aforesaid loaned amount, plaintiffs' father asked the defendant to execute mortgaged deed and accordingly defendant requested him to prepare mortgaged deed on different dates. Defendant No. 1 is an illiterate person he honestly believe that late Padmanath Borgohain prepared the mortgaged deed as per his request. Defendant No. 1 believes him that he prepared the mortgaged deed and he executed five numbers of deeds in the Jorhat Sub-Registry Office. Though he executed the deeds it was never read over to him and with his honest belief he signed in the aforesaid deeds. Defendant No. 1 was never told either by late Padmanath Brogohain or by petition written that these deeds were sale-deeds. In fact he never sold and transferred the suit land, in the name of the plaintiff at such a lower price." 8. Defendant No. 1 was never told either by late Padmanath Brogohain or by petition written that these deeds were sale-deeds. In fact he never sold and transferred the suit land, in the name of the plaintiff at such a lower price." 8. From the afore quoted averments of the written statement, it appears that the defendant No. 1 though admitted the execution of the deeds but put forward an explanation that knowing the deeds to be the mortgage deeds, he executed those deeds and none had read over the recitals of the deeds to him before or at the time of registration. 9. In the present case, undoubtedly the scribe(s) of those documents had not been produced and examined. The plaintiffs never put on record any explanation as to why the scribe(s) could not be examined during trial. From the depositions of PW-1, the attesting witness of sale deed, Exbt. I, PW-2 another attesting witness of sale deed, Exbt-2, PW-3, another attesting witness of sale deed, Exbt-3, it reveals that neither of the attesting witnesses could put any light as to the fact that the scriber or anybody else read over the recitals of the deeds to the executant. They never claimed to have seen the executant signing the documents. 10. Of course, the execution of the sale deeds, Exbts. 1 to 5 is admitted in the written statement, but the recitals had been denied as according to the written statement, the executant had not been made understand as to the recitals of the documents, but believing the same to be mortgage deeds, he executed those deeds. 11. MrBaishya, learned counsel for the defendants submits that in view of Section 61 of the Evidence Act, contents of the documnet must be proved. Section 61 of the Evidence Act says "the contents of documents may be proved either by primary or by secondary evidence." 12. Mr Choudhury, learned counsel for the plaintiffs relying upon the provision of Section 61 of the Evidence Act submits that the documents have been put in evidence and they speak for themselves. The recitals of the documents being a part of the documents had been put on record and once the execution is admitted, recitals of the documents stand proved. 13. The recitals of the documents being a part of the documents had been put on record and once the execution is admitted, recitals of the documents stand proved. 13. None of the plaintiffs' witnesses deposed a single word that the scribe wrote the sale deeds as per version of the executant, the original defendant No. I, nor any of the witnesses deposed that the recitals of the sale deeds had been read over to the executant in their presence. In the present case, once the execution is admitted in the written statement, proof of execution is not required afresh, but the recitals of the documents ought to have been brought on record either by examining the scribe who wrote the same or by any witness who was present at the time of execution of the documents, but no such witness had been examined. While the defendant No. 1 specifically denied to have executed the deeds knowing them to be sale deeds, rather knowing them to be the mortgage deeds, he executed the same and further statement was there in the written statement that none read over the contents to the executant, having regard to the aforesaid background of the case, it was imperative on the part of the plaitniffs to prove the recitals of the documents by adducing witnesses conversant with the transactions, but that was not done. 14. The learned counsel for the plaintiffs referred a decision, rendered by the Hon'ble Apex Court in "P.C. Purushothama Reddiar, appellant-Vs-Perumal, respondent, reported in AIR 1972 SC 608 " and submits that once a document is properly admitted, the contents of that document are also admitted in evidence though these contents may not be conclusive evidence. 15. In the case of P.C. Purushothama Reddiar (supra) the Court was called upon to decide an election dispute and a police report was produced in evidence and that report was tendered in evidence by Head Constable. Since the said police report was a record maintained by a police officer being a public servant in discahrge of his official duties and was brought from official custody, the said document being a public document was rightly admitted in evidence being tendered by Head Constable. The said police report was prepared by a police officer and that police officer never denied the correctness of the contents of his report. The said police report was prepared by a police officer and that police officer never denied the correctness of the contents of his report. In other words, the contents of that police report had never been put under challenge, but in the present case, recitals of the purported sale deeds had been put under challenge by the executant himself from the very beginning and in such situation, unless it is proved to the satisfaction of the Court that the executant knowing well the recitals of the deeds executed the same either by reading the recitals himself/herself or the same having been read over to him/her by the scribe or other person, the requirement of Section 61 of the Evidence Act cannot be said to have been satisfied. 16. In that view of the matter, I am constrained to hold that the recitals of the purported sale deeds, Exbts. 1 to 5 having not been proved in accordance with the provision of law, the learned first appellate Court should not have put reliance on the recitals of those purported sale deeds. 17. In answering the substantial question of law in the manner indicated above, in my considered opinion, the second appeal deserves to be allowed and accordingly, it is allowed. The judgment and decree of the learned first appellate Court is reversed restoring the judgment and decree of the learned trial Court. Having regard to the peculiar facts and circumstances of the case, I refrain myself from passing any order as to costs.