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2005 DIGILAW 583 (PAT)

Deepak Kumar Ghosh @ Deepak Ghosh v. Meeta Ghosh

2005-07-06

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the petitioners, learned counsel for the opposite party and learned counsel for the State. 2. The petitioners are plaintiffs of Title Suit No. 209 of 1995, which they had filled for declaration that the sale deed dated 14.5.1987 said to have been executed by the father of the plaintiffs in favour of the defendant was fraudulent, void, illegal, inoperative and not binding upon the plaintiffs and for permanent injunction etc. 3. The petitioners are aggrieved by order dated 17.12.2003 passed in the aforesaid suit, by which the learned Subordinate Judge-III, Bhagalpur rejected the plaintiffs petition dated 25.11.2002 calling for the Thumb Impression Register from the Sub-Registrar, Bhagalpur and also for drawing a contempt proceeding against him as he did not comply the earlier order of the Court and submitted exclusive report that the register was missing. 4. When it came to the notice of this Court that the Sub-Registrar had submitted a report before the learned Court below that the Thumb Impression Register of the Sub-Registry was missing notices were issued to the Sub-Registrar, Bhagalpur to appear in the case and report the actual position vide order dated 30.11.2004, whereafter on 3.1.2005 the District Sub-Registrar, Bhagalpur was directed to file an affidavit stating the relevant facts by 24.1.2005, whereafter a counter affidavit dated 20.1.2005 was filed through the Junior Counsel to the learned Government Advocate on behalf of the District Sub-Registrar, Bhagalpur, whereafter the case was adjourned to 30.3.2005, on which date finding that it was not clear from the said affidavit as to what action has been taken by the Secretary-cum-I.G. Registration with regard to the persons who were responsible for disappearance of the Thumb Impression Register, the Secretary-cum-I.G. Registration was directed to get a fresh search of the Tnumb Impression Registrar done at the District Sub-Registry, Bhagalpur and if the said registrar is still untraced, the liability should be fixed on the person or person who was incharge of the records at the relevant time or the person or persons who is/are found to be responsible for its disappearance and to take appropriate action against him/them. Thereafter a report dated 23.5.2005 has been submitted by the Commissioner-cum-Secretary and Inspector General of Registration Department, who specifically stated that responsibility for disappearance of the said register has been fixed and the concerned person has already been suspended and after departmental proceeding he has been dismissed from service and a criminal case is also pending against him. It is further stated that the subsequent incumbent Record keeper who succeeded in the year 1999 and continued to be incharge of the Record Room from November, 1999 to April 2005 was also suspended and departmental proceeding has also been started against her for not reporting the matter. It is also noted that the District Sub- Registrar of the period concerned also acted irresponsibly as at least after coming to know that some records were missing he should have taken necessary measures for proper upkeep of the records but he appears to have committed a criminal neglect, however, the said person has already been superannuated. It is also stated in the report that the State Government has now decided to institute a criminal case against the persons concerned on the basis of informations available regarding missing of registers, which has to be investigated and guilty persons could be identified for appropriate legal action against them. 5. Since this is the only legal course left now, the Collector and the Superintendent of Police, Bhagalpur are directed to expedite the matter and after due process take appropriate action without any further delay. 6. So far the merit of this case is concerned, learned counsel for the plaintiffs-petitioners submits that the defendant-opposite party has been claiming on the basis of a sale deed dated 14.5.1987 said to have been executed by the plaintiffs father in favour of the defendant but now they are claiming that the said original deed has been lost and hence neither the said original deed has been produced nor even the Chirkut of Takabezul Badlain has been brought on record claiming that it also has been lost. 7. Hence, in the said circumstances, there is no document which could have contained the thumb impression of the executant and could have proved the legality and merit of the claim of the defendant. 7. Hence, in the said circumstances, there is no document which could have contained the thumb impression of the executant and could have proved the legality and merit of the claim of the defendant. He also avers that the defendant had only produced a certified copy of the said deed which does not contain any thumb impression or signature and that the said document is a forged document obtained collusively and on the basis of which no title can be presumed. Hence he submits that the Court below should be directed to take adverse inference against the said deed. 8. On the other hand, learned counsel for the opposite party submits that the petition dated 25.11.2002 on the basis of which the impugned order was passed was only for calling for the thumb impression register from the Sub-Registry and for drawing a contempt proceeding against the Sub-Registrar who failed to comply the Courts order, but no prayer in the said application had been made for drawing adverse inference in these circumstances. Hence he submits that no such claim can be raised in this Court, nor any order can be passed with respect thereto. 9. After considering the claims of the respective parties and after perusing the materials on record, it is quite apparent that there is no document which could show that the deed contained the thumb impression of the plaintiffs father as the defendant has neither produced the original sale deed nor has brought on record the Chirkut of Takabezul Badlain which contained the original thumb impression, nor even the LT.I. Register from the Sub-Registry has been produced. Hence, in the aforesaid circumstances, the only document left to be considered by the Court below is the certified copy of the sale deed claimed by the defendant and challenged by the plaintiffs as fraudulent, void and illegal. 10. In the aforesaid circumstances, this civil revision is disposed of with a direction to the learned Court below to consider what inference can be drawn by this solitary piece of evidence in accordance with the provisions of law, specially those of the Indian Evidence Act.