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2003 DIGILAW 498 (PAT)

Baidyanath Choudhary v. Shanti Devi

2003-04-29

P.K.DEB

body2003
Judgment 1. This appeal has been preferred by the defendant Nos. 1, 3 and 4 of Title Suit No. 258 of 1987. The plaintiffs/respondents had filed the suit for declaration of their right title over the suit property including the prayer for restoring of possession and by amendment in the plaint it has further sought declaration that the sale deed dated 1.10.1975 executed by Rampati Devi to Baidyanath Choudhary, defendant no. 1 forged, fabricated and void ab initio and that the subsequent deed of sale in favour of defendant no. 2 by defendant no. 1 on 25.7.1990 be declared as void. One Jago Kuer was the original owner of the suit land measuring 1 katha 10 dhurs; she sold away the said land to her daughter Rampati Devi on 17.8.1965. Rampati Devi was married to Chandra Govind Choudhary who had also another wife Mt. Sautan through whom there was a son Ram EkbaI Choudhary. Ram Pati Devi had sold to defendant no. 1 the same suit land vide sale deed on 1.10.1975 and defendant no. 1 in turn had sold it to other defendants by sale deed of 1990 both of which deeds has been sought to be declared as void on the ground that Rampati Devi died on 5.9.1975 and, as such, an impostor had been procured to execute the sale deed in favour of defendant no. 1 in the name of Rampati Devi. Plaintiffs claimed the land through Ram Ekbal Pd. Choudhary who sold it to Defendant no. 2 then to plaintiff by sale deed dated 10.2.1981. In the written statement the defendant has given a specific date to the effect that Ram Pati Devi died on 16.11.1976, so the crux of dispute remains as to the date of death of Ram Pati Devi. In support of the contention of the plaintiff that Ram Pati Devi died on 5.9.1975 a medical certificate was produced and together with death registration sheet in the municipality, besides the oral evidence being adduced to that effect. Against that defendants sheet-anchor was a document Ext. 1/2 which was admittedly executed before the alleged date of death on 5.9.1975 from the side of the plaintiff but that document also does not support the date of death as specifically stated from the side of the defendant. Then taking that document to be an admitted document having admitted signature of Rampati Devi, the said document Ext. 1/2 which was admittedly executed before the alleged date of death on 5.9.1975 from the side of the plaintiff but that document also does not support the date of death as specifically stated from the side of the defendant. Then taking that document to be an admitted document having admitted signature of Rampati Devi, the said document Ext. A/1 was said to be tallied with that thumb impression of alleged Rampati Devi, in Ext-A the document of the defendants there were two reports of handwriting expert. It appears that the courts below had rightly rejected both the reports. Appellate court has held that by admitting the document Ext-A/1 in evidence it does not go to show that the same bears the genuine signature of Rampati Devi as regards that there was no evidence. The trial court on the submissions being made from the side of the defendants had expressed doubt also about the genuineness of the death registration sheet of the municipality and also the death certificate issued by the doctor but by elaborate discussion the appellate court has relied in those two documents also. The trial court held that even if those two documents are not relied on then also the defendants have failed to prove that Ram Pati Devi died on 16.11.1976 rather the oral evidence adduced from the side of the plaintiff remained unimpeachable showing that she had died on 5.9.1975. Thus, on factual aspects both the courts below have come to the concurrent finding. It has been strenuously argued by Mr. Dwivedi, Senior counsel appearing for and on behalf of the appellant that when Ext. A/1 was admitted in evidence without objection then it should be construed that it contains the genuine signature of Rampati Devi. I do not find any force in such submission. Admission of a document does not prove its genuinity. The crux of dispute remains about the genuinity of the thumb impression of Rampati Devi until and unless a document having admitted thumb impression of a person is there the same cannot be tallied with a disputed thumb impression in any document. The learned Appellate court has taken the right stand. Admission of a document does not prove its genuinity. The crux of dispute remains about the genuinity of the thumb impression of Rampati Devi until and unless a document having admitted thumb impression of a person is there the same cannot be tallied with a disputed thumb impression in any document. The learned Appellate court has taken the right stand. Much submission has also been made regarding the genuinity of the death certificate issued by the doctor but doctor has not been examined and that the genuinity of the copy of the death register as the same shows that such registration was made at a very belated date without conforming to the provisions of the Birth and Death Registration Act. It has been mentioned here that the trial court held that even if those documents are taken to be doubtful then also the plaintiff cannot be able to prove that Rampati Devi died on 9.7.1975 and when a specific date had been given regarding the date of death and when defendants have failed to prove, then definitely that when two facts finding courts have come to the concurrent finding that there is no scope to interfere with it and it cannot be said that there is perverse finding. The ruling submitted from the appellant side as reported in 2002 (2) SCC 85 (Madhukar Shende V/s. Tarabai Aba Shedugo) had got no much relevance. It is not there that a material piece of documentary evidence has been ignored to be considered by the courts below. This ruling has got no relevance in the present case as there is nothing to show that any material evidence has been left non considered. Then it has been referred to 2001 (5) SCC 715 wherein it was held that if in recording of finding of facts by the courts below the mandate of any statute has been ignored or not considered then the same becomes the substantial question of law. This has been submitted on the plea that the provisions of Birth and Death Registration Act had not been properly considered by the courts below. In that matter I have already discussed above as to how those documents had been considered by the courts below and this court also comes to the finding that even if the death register is said to be a doubtful one then also the other evidence prove the plaintiffs case. In that matter I have already discussed above as to how those documents had been considered by the courts below and this court also comes to the finding that even if the death register is said to be a doubtful one then also the other evidence prove the plaintiffs case. On the respondents side a judgment of the Apex Court as reported in (1986) 3 S.C.C. 360 (Dudh Nath Pandey V/s. Suresh Chandra Bhattasoi) has been referred to 1986 S.C. 1509 wherein it has been held that the High Court under section 100 of the Code of Civil Procedure cannot set aside a finding of fact coming to a different conclusion on reappraisal of evidence. Considering all aspects of the matter as discussed above. I do not find any force in this appeal and hence the same is rejected under Order 41, Rule 11 of the Code of Civil Procedure.