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2007 DIGILAW 7 (GAU)

Aikan Medhi v. Phula Balak Medhi

2007-01-03

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This second appeal is directed against the judgment and order, dated 21.7.2000, passed, in T.A. No. 03/1997, by the learned Civil Judge (Sr. Division), Tinsukia, dismissing the appeal and affirming the judgment and decree, dated 13.02.1997, passed by the learned Munsiff No. 1, Tinsukia, in Title Suit No. 103/1993. 2. The case of the Plaintiff may, in brief, be described thus: The Defendant No. 1, as owner of the suit land measuring 4 kathas, had sold out the same by four registered sale deeds, dated 12.8.64, in favour of four Plaintiffs, each of the Plaintiffs having purchased 1 katha of the land in consideration of Rs. 2,500/- each. The Plaintiffs were also delivered possession of the suit land. After many years, as boundary dispute between the parties arose, the Plaintiffs sought for measurement of the land and on 12.11.1975, when the Lat Mandal was measuring the land, the Plaintiffs were assaulted by the Defendants and on the basis of the information lodged by the Plaintiffs in this regard, a case under Section 324/34 IPC was registered against the Defendants and some others. On 28.7.1979, as the Plaintiffs (sic.) collected some building materials on the suit land in order to construct houses thereon by dispossessing the Plaintiffs therefrom, a proceeding under Section 145 Code of Criminal Procedure was initiated against the Defendants by the Plaintiff and in this proceeding, an order of attachment of the said land was also passed; but violating this order of attachment, the Defendants constructed two thatched houses on the suit land and a proceeding under Section 188 IPC had to be initiated against the Defendants. In these circumstances, the Plaintiffs instituted the suit seeking, inter alia declaration of their rights, title, interest and khas possession over the suit land and also for permanent injunction prohibiting and restraining the Defendants from dispossessing the Plaintiff. 3. The Defendants contested the suit by filling their written statement, their case being, in brief, thus: The husband of the Plaintiff No. 1, namely, Utsav Medhi, was the elder brother of the Defendant No. 1, namely, Girish Ch. Medhi. The sale deeds, in question, were managed to be executed by Utsav Medhi on the basis of a false hope given to the Defendant No. 1 that he (Defendant No. 1) would be given a share in the flour mill of the said Utsav Medhi. Medhi. The sale deeds, in question, were managed to be executed by Utsav Medhi on the basis of a false hope given to the Defendant No. 1 that he (Defendant No. 1) would be given a share in the flour mill of the said Utsav Medhi. No consideration for sale of the suit land was received by the Defendant No. 1 nor was he given any share in the flour mill as had been promised by his elder brother. The Defendant No. 1 does not know English and he can barely write his name in Assamese. As the sale deeds were in English language, the Defendant No. 1 did not know what exactly were written there and he merely signed the same by relying on the words of his elder brother that the said deeds would provide for him a share in the said flour mill. However, since no sale of the land, in fact, took place, the possession of the suit land remained with the Defendant No. 1 and having failed to obtain possession by launching false prosecution and a proceeding under Section 145 Code of Criminal Procedure against the Defendants, the Plaintiffs have, now, instituted the suit in collusion with each other and, hence, the suit needs to be dismissed. 4. Following issues were framed by the learned trial Courts: 1. Whether the suit is maintainable? 2. Whether the Plaintiff has right to sue? 3. Whether the suit is barred by estoppel, waiver acquiescence and limitation? 4. Whether there is any cause of action for the suit? 5. Whether the suit is undervalued? If so, whether court fee paid improper? 6. Whether the Defendant No. 1 sold the suit land to the Plaintiff by recovery of consideration of Rs. 10,000/- in total, i.e. Rs. 2,500/- for each deed? 7. Whether the alleged sale deeds were managed to have been done in the name of Plaintiff Sri Utsav Chandra Medhi giving a false hope to the Defendant No. 1 that he would be given shares in Utsav Saw Mill by those Defendants? 8. Whether the Defendant No. 1 delivered possession of the suit land to the Plaintiff after the alleged sale? 9. Whether the Defendants encroached the suit land on 23.3.79 and constructed two thatched houses thereon? 10. Whether the Plaintiffs are entitled to the decree? 11. To what relief/reliefs the parties are entitled? 5. 8. Whether the Defendant No. 1 delivered possession of the suit land to the Plaintiff after the alleged sale? 9. Whether the Defendants encroached the suit land on 23.3.79 and constructed two thatched houses thereon? 10. Whether the Plaintiffs are entitled to the decree? 11. To what relief/reliefs the parties are entitled? 5. Both parties adduced evidence by examining the witnesses. The learned trial Court, having answered the issue Nos. 6, 7 and 8 in favour of the Plaintiffs, held, inter alia, that the suit land had been sold by executing sale deeds by the Defendant No. 1 as had been claimed by the Plaintiffs and that the Plaintiffs were also in possession of the suit land and, hence, they were entitled to the declaration of their rights, title, interest and possession over the suit land. For the findings, so arrived at, the suit was decreed in favour of the Plaintiffs. Aggrieved by the decree, so granted, the Defendants preferred an appeal. As this appeal has also been dismissed by the impugned judgment, dated 21.7.2000, the Defendants have preferred this second appeal. 6. In the second appeal, following substantial questions of law were framed for determination: 1. Whether the learned lower appellate Court was justified to hold that there was passing of consideration for the sale deeds. Exts. 1, 2, 3 and 4 by relying on the presumption embodied in Section 11 of the Negotiable Instrument Act? 2. Whether the finding regarding possession over the suit property was arrived at on misreading of the plaint? 3. Whether the learned Civil Judge (Sr. Division) was justified to hold that the appeal abated as against the Appellant No. 1? 7. I have heard Mr. B.K. Goswami, learned Senior counsel appearing on behalf of the Defendants-Appellants. None has appeared on behalf of the Plaintiffs-Respondents. 8. While considering the present appeal, what needs to be noted is that the fact that the sale deeds, in questions, were executed by the Defendant No. 1 has never been in dispute. 7. I have heard Mr. B.K. Goswami, learned Senior counsel appearing on behalf of the Defendants-Appellants. None has appeared on behalf of the Plaintiffs-Respondents. 8. While considering the present appeal, what needs to be noted is that the fact that the sale deeds, in questions, were executed by the Defendant No. 1 has never been in dispute. What was in dispute was as to whether any consideration had really passed in respect of the execution of the sale deeds, for, the Defendants' case had been that the execution of the said sale deeds were managed by the Defendant No. 1's elder brother, Utsav Medhi, by giving him an impression that the said documents were required to be executed to give the Defendant No. 1 a share in the saw mill of said Utsav Medhi and, in such circumstances, the sale deeds were void and ineffective. It is, no doubt, true that when the execution of the sale deeds had not been disputed by the Defendants, the onus was on the Defendants to prove that the Defendant No. 1 had no knowledge of the contends of the deeds nor did he know that the said deeds were sale deeds and that these deeds were not meant to give share to the Defendant No. 1 in the said saw mill. This onus could have been discharged by the Defendants by either deriving support for their case from the evidence of the Plaintiffs or by adducing their own evidence. What is also important to note is that since the Defendants had denied receipt of consideration for execution of the said sale deeds and when the Defendant No. 1 had, in his evidence, stated as to how his signatures had been obtained on the said sale deeds, it was for the Plaintiffs to show that the consideration, which the sale deeds reflect, was, in fact, passed to the Defendant No. 1. In this regard, it is noteworthy that as far as the Plaintiff Nos. 2, 3 and 4 were concerned, they were, admittedly, minors at the time of the execution of the said sale deeds and, hence, they had no knowledge if any consideration had really passed from the end of their father, Utsav Medhi, to the Defendant No. 1. In this regard, it is noteworthy that as far as the Plaintiff Nos. 2, 3 and 4 were concerned, they were, admittedly, minors at the time of the execution of the said sale deeds and, hence, they had no knowledge if any consideration had really passed from the end of their father, Utsav Medhi, to the Defendant No. 1. Similarly, so far as the Plaintiff No. 1 s wife is concerned, she was, admittedly, not present at Dibrugarh, when the sale deeds were executed nor has she claimed, in her evidence, that the amounts of consideration for the sale were given to the Defendant No. 1, in her presence, by her husband. It was in such circumstance that the learned first appellate Court was required to determine if the decree, passed in the suit, was sustainable. 9. However, when the appellate judgment is carefully scanned, what becomes clearly noticeable is that the learned appellate Court has held that when the document had been proved, presumption under Section 118 of the Negotiable Instrument Act arose as regards the correctness of the contents of the document. To say the least, the provisions of the Negotiable Instrument Act were not attracted to the present case inasmuch as a sale deed is not a negotiable instrument within the meaning of Section 13 of the Negotiable Instrument Act, 1881. What also cannot be ignored is that the learned first appellate Court has not discussed the evidence adduced by the parties for the purpose of testing the correctness of the conclusions reached by the learned trial Court. Though on appellate judgment, which upholds the findings of the trial Court, need not contain a threadbare discussion of the evidence adduced by the parties, it is nevertheless required that the first appellate Court scan the evidence and assign cogent reasons for its conclusions reached. In the case at hand, the learned first appellate Court has merely pointed out that the Defendants have adduced no evidence to show that no consideration had passed in respect of the sale, which had taken place on the strength of the sale deeds. In the case at hand, the learned first appellate Court has merely pointed out that the Defendants have adduced no evidence to show that no consideration had passed in respect of the sale, which had taken place on the strength of the sale deeds. What is, however, immensely important to note is that the learned appellate Court has not discussed the evidence of the Defendant No. 1 at all, Omission to discuss the evidence of Defendant No. 1 is a serious lapse on the part of the first appellate Court, for, without discussing the evidence of Defendant No. 1 and without pointing out as to why his evidence should not be believed, the learned first appellate Court could not have rejected his evidence. Similarly, the learned first appellate Court has relied on the evidence of Plaintiff Nos. 1 and 2 given to the effect that they were given possession of the suit land by the Defendant No. 1. Apart from the fact that all the Plaintiffs, except the Plaintiff No. 1, was a minor at the time of the execution of the said sale deeds, no witness from the neighbourhood has been examined by the Plaintiffs to prove that the Plaintiffs had come into the possession of the suit land upon delivery of possession thereof by the Defendant No. 1. Without discussing the evidence on record, the mere fact that the possession of the said land had been declared, in a proceeding under Section 145 Code of Criminal Procedure, in favour of the Plaintiffs, could not have been made a ground for upholding the decree of the learned trial Court. 10. Situated thus, it is clear that the learned first appellate Court's failure to discuss the evidence on record is a serious legal infirmity in the appellate judgment and in such circumstances, the appellate judgment cannot be upheld and the appeal needs to be remanded to the learned first appellate Court for passing a judgment in accordance with law. 11. In the result and for the reasons discussed above, this appeal partly succeeds. The impugned judgment and decree are set aside and the suit is remanded to the learned first appellate Court to dispose of the appeal in accordance with law keeping in view the observations made in the preceding paragraphs of this judgment. 11. In the result and for the reasons discussed above, this appeal partly succeeds. The impugned judgment and decree are set aside and the suit is remanded to the learned first appellate Court to dispose of the appeal in accordance with law keeping in view the observations made in the preceding paragraphs of this judgment. It is, however, made clear that before the appeal is disposed of, the learned trial Court shall hear the arguments, which maybe advanced on behalf of the parties to the appeal. 12. Send back the LCRs.