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2007 DIGILAW 801 (CAL)

Bani Basu v. Sachindra Nath Ghosh

2007-10-15

ALOK KUMAR BASU, TAPAN KUMAR DUTT

body2007
Judgment : TAPAN KUMAR DUTT, J (1) HEARD the learned Advocates for the respective parties. Facts of the case are briefly as follows: the appellants (Smt. Bani Basu and Ors.) filed title suit No. 2 of 1983 in the court of the learned 5th Assistant District Judge at Alipore, 24-Parganas against the defendants in the said suit including the respondents herein praying inter alia for a decree for permanent injunction restraining the said defendants from interfering with the appellants possession in the suit property and also restraining the said defendants from making any construction on the suit property or from wasting, damaging or alienating any part of the suit property or from changing the character thereof, a decree for mandatory injunction directing the said defendants to remove themselves from the suit property and also decree for possession. The description of the suit property given in the plaint is as follows: "premises on 106, B. T. Road, P. S. Baranagar, 24-Parganas, containing an area of about 21 bighas of land and being a garden house comprising one big building two temples, a tank, two jhils, outhouses, sheds etc. Out of the area an area of 4/5 cottahs near the northern gate covers the menials quarters and accommodation for cows and buffaloes of defendant No. 1. " (2) THE case of the appellants in the plaint was that their father, Debi prasanna Ghosh, who came from an ancient aristocratic family at Jorabagan calcutta, was until his death on 26. 01. 1976, the owner of 106, B. T. Road, P. S. Baranagar, Calcutta. On the death of the said Debi Prasanna Ghosh, the appellants became the owners of the said property by way of succession. That towards the end of 1960s the respondent No. 1 (Sachindra Nath Ghosh) helped the said Debi Prasanna Ghosh in protecting the said property and with the permission of the said Debi Prasanna Ghosh, the respondent No. 1 started living in a part of the said property which was provided for menials as supervisor of the said property along with the defendant Nos. 2 and 3 in the said suit (whose names subsequently appear to have been expunged from the records). 2 and 3 in the said suit (whose names subsequently appear to have been expunged from the records). It has been alleged in the plaint that trouble began towards the end of April, 1976 when the defendants in collusion with each other started making various unauthorized constructions on some vacant land in the suit property without the knowledge and consent of the appellants and the appellants found that the defendants in the said suit were raising a long wall dividing the suit property into two portions which was objected to by the appellants but the appellants were threatened with dire consequences by the defendants in the suit and/or their men and agents. That provisions under section 144 Criminal Procedure code had to be initiated and complaint was also made before the learned magistrate concerned under sections 143, 311 and 506 of the Indian Penal code. The appellants case was that the defendants in the suit did not have any right to raise any construction or change the nature and character of the suit property or interfere with the peaceful possession of the appellants and that the appellants did not require any further the services of the defendants and the licence was revoked and since the defendants did not remove themselves from the suit property in spite of specific demands being made in that regard, the appellants were compelled to file the said suit. (3) THE respondent No. 1 (Sachindra Nath Ghosh) contested the said suit by filing a written statement alleging inter alia that the said Debi Prasanna Ghosh, since deceased, had great love and affection for the respondent No. 1 and that the respondent No. 1 saved the suit property from the onslaughts of refugees and also helped in derequisitioning the suit property. It was the further case of the respondent No. 1 that the respondent No. 1 helped Debi Prasanna Ghosh, since deceased, in the management of the properties at Birbhum and elsewhere and that the said respondent No. 1 was never a durwan or caretaker or supervisor of the suit property. It was the further case of the respondent No. 1 that the said Debi Prasanna Ghosh, out of love and affection for the respondent no. 1 and with the sense of gratitude, proposed to sell the suit property to the respondent No. 1 for a sum of Rs. It was the further case of the respondent No. 1 that the said Debi Prasanna Ghosh, out of love and affection for the respondent no. 1 and with the sense of gratitude, proposed to sell the suit property to the respondent No. 1 for a sum of Rs. 1,75,000/- and the said Debi Prasanna Ghosh took Rs. 20,000/-towards the part payment of the consideration on the date of the agreement for sale and the said Debi Prasanna Ghosh made over possession of the suit property to the respondent No. 1 and that it was agreed between the said Debi Prasanna Ghosh and the respondent No. 1 that the respondent No. 1 will live in the suit property and develop the same by erecting new structures thereon for the purpose of letting out and expansion of the respondent No. 1s business. It has been alleged in the said written statement that the said Debi prasanna Ghosh realized Rs. 76,000/- from the tenants for the years 1975 and 1976 which was to be adjusted against the consideration money and that only Rs. 41,000/-was still remaining due and that the respondent No. 1 has filed a suit for specific performance of contract being T. S. No. 87 of 1976 before the said learned Court. It was the case of the respondent No. 1 that the respondent no. 1 is in lawful possession of the suit property by virtue of his own right under the said agreement for sale dated 07.01.1967. (4) IT appears that the plaint was amended by the appellants subsequently, whereby it was pleaded that the said Debi Prasanna Ghosh did not grant any receipt purported to be dated 12. 01. 1976 to the respondent No. 1 as alleged by the respondent No. 1. It has also been alleged that the respondent No. 1 might have been in possession of blank sheets of papers signed by the said Debi prasanna Ghosh for the purpose of management of the estate which have been wrongly utilized by the respondent No. 1. (5) IT appears that quite sometime after the respondent No. 1 had entered appearance in the aforesaid suit filed by the appellants/the respondent No. 1 filed a suit against the appellants and also one Smt. Aparna Basu praying for a decree for specific performance of the aforesaid agreement for sale dated 07. 01. 1967 and confirmation of possession. (5) IT appears that quite sometime after the respondent No. 1 had entered appearance in the aforesaid suit filed by the appellants/the respondent No. 1 filed a suit against the appellants and also one Smt. Aparna Basu praying for a decree for specific performance of the aforesaid agreement for sale dated 07. 01. 1967 and confirmation of possession. In the plaint of the said suit for specific performance of contract the respondent No. 1 pleaded the case made out by him in his written statement filed in the suit by the appellants and alleged that the said Debi Prasanna Ghosh entered into the agreement with the respondent No. 1 for a price of Rs. 1,75,000/-and respondent No. 1 paid Rs. 25,000/- to Debi Prasanna Ghosh on the date of the agreement towards part payment of the consideration money; and that the respondent No. 1 was put into possession of the suit property. It was further alleged by the respondent no. 1 that it was agreed that the said Debi Prasanna Ghosh would realize rents from tenants then existing till such time the sale is not completed and appropriate such rents to be realized towards the balance of the consideration money. It has also been alleged by the respondent No. 1 that a total sum of Rs. 1,08,800/-has been adjusted against the total consideration money, and that the appellants-were requested to complete the contract but the appellants refused to do the same even though the respondent No. 1 always was and is willing to perform his part of the contract and as such the suit was filed. 1,08,800/-has been adjusted against the total consideration money, and that the appellants-were requested to complete the contract but the appellants refused to do the same even though the respondent No. 1 always was and is willing to perform his part of the contract and as such the suit was filed. (6) THE appellants contested the said suit by filing a written statement denying the material allegations made in the plaint of the said suit for specific performance of contract and it has been further stated in the said written statement that the respondent No. 1 with the permission of Debi Prasanna ghosh used to keep his cattle at the cowshed at the suit premises for the purpose of new dairy business and the said Debi Prasanna Ghosh had always a staff including a Superintendent for the management and maintenance of the said property and that the respondent No. 1, after his dairy business stopped, just began to live in the outhouse of the said property representing himself as an honorary caretaker of the suit premises and that sometime after the death of Debi Prasanna Ghosh the respondent No. 1 turned hostile out of greed and has since won over the staff of the said Debi Prasanna Ghosh in respect of the suit property and that the said Debi Prasanna Ghosh had no reason to be grateful to the respondent No. 1. It has been further alleged in the said written statement that the suit property stands on the junction of two wide public roads and that there is a palatial building in which most of the rooms have rare italian marble floors, kig size doors and windows made of best quality Burma teak with decorated glass panels and there are fountains inside and outside the house, big and costly chandeliers decorating the ceilings of the halls and rooms, rose-garden, green house, large ponds with over-bridge, tanks, statutes of nymphs and fairies made of Italian marble and big bronze figure of Apollo, temples where deities are regularly worshipped etc. It is the case of the appellants that as far back as in 1966 M/s. Talbot and Company had estimated the suit property at about Rs. 23,68,000/- and that it is an absurdity to think that the said Debi Prasanna Ghosh proposed to sell the suit property in 1967 to the respondent No. 1 at a price of Rs. 1,75,000/ -. 23,68,000/- and that it is an absurdity to think that the said Debi Prasanna Ghosh proposed to sell the suit property in 1967 to the respondent No. 1 at a price of Rs. 1,75,000/ -. It has been alleged by the appellants that sometime in 1972 or 1973 Debi Prasanna Ghosh himself constructed several sheds in some portion of the garden land of the suit property and settled those sheds and several bighas of land of the garden in the suit property by way of license to M/s. Diji Enterprises Company of which Debi prasanna Ghosh was, in fact, all in all. Diji Enterprises Company inducted some licensees. It has been further alleged by the appellants in their written statement in the suit for specific performance of contract that the alleged agreement dated 07. 01. 1967 and the alleged money receipt dated 12. 01. 1976 are fabricated, forged and ante-dated documents. (7) THE dndants in the said suit for specific performance of contract further stated that licence fees were regularly collected from several licensees in the suit premises by or for and on behalf of Debi Prasanna Ghosh and that the plaintiff in the said suit never had any means to pay Rs. 25,000/-and he did not pay any such amount and that the said alleged agreement dated 07. 01. 1967 and money receipt dated 12. 01. 1976 are fraudulent documents and have been set up after the death of the said Debi Prasanna Ghosh. It is the case of the defendants in the said suit for specific performance of contract that no money, as alleged by the plaintiff in the said suit, was ever paid by the said plaintiff (Sachindra Nath Ghosh) to the said Debi Prasanna Ghosh and there is no question of the said Sachindra Nath Ghosh being put in possession of the suit property in 1967 and that the said Sachindra Nath Ghosh was there long after 1967 by the grace of Debi Prasanna Ghosh as a mere caretaker. The defendants in such suit further alleged that the said Debi Prasanna Ghosh was in full possession of the suit property throughout his life by inducting licensees and maintaining his own staff and that there was no question of the said Sachindra nath Ghosh developing and erecting new structures and he had no business there except the temporary dairy business. The defendants in such suit further alleged that the said Debi Prasanna Ghosh was in full possession of the suit property throughout his life by inducting licensees and maintaining his own staff and that there was no question of the said Sachindra nath Ghosh developing and erecting new structures and he had no business there except the temporary dairy business. According to the defendants in the said suit for specific performance of contract the clause regarding adjustment of rents against the total consideration money is an impossible and absurd clause and this was never intended to be done. The defendants in the said suit for specific performance of contract have further alleged that the said Debi prasanna Ghosh had no occasion to execute an agreement for sale in favour of the said Sachindra Nath Ghosh nor did the said Debi Prasanna Ghosh grant any receipt alleged to be dated 12.01.1976 to the said Sachindra Nath Ghosh. The further case of the said defendants in the said suit of specific performance of contract was that it may be that the said Sachindra Nath Ghosh had in his possession some blank sheets of papers containing signatures of the said Debi prasanna Ghosh and has utilised such papers wrongfully for the purpose of his case. (8) THE learned Trial Court in the impugned judgement found that the said sachindra Nath Ghosh (respondent No. 1) acquired title to the suit property by way of adverse possession and that the plaintiffs in Title Suit No. 63 of 1976, renumbered as T. S. No. 2 of 1983, being appellants herein are not entitled to recover possession. It may be recorded here that the learned Counsel for the respondent No. 1, at the time of argument before this Court, submitted that the respondent No. 1 is not claiming title to the suit property by way of adverse possession but the said respondent No. 1 is relying upon the agreement for sale dated 07. 01. 1967 and the money receipt dated 12. 01. 1976. The learned Trial court also found that the suit is under valued. On the basis of such findings, the learned Trial Court came to the conclusion that the suit brought by the heirs of Debi Prasanna Ghosh deserves to be dismissed. 01. 1967 and the money receipt dated 12. 01. 1976. The learned Trial court also found that the suit is under valued. On the basis of such findings, the learned Trial Court came to the conclusion that the suit brought by the heirs of Debi Prasanna Ghosh deserves to be dismissed. It appears from the impugned judgement that the handwriting expert appointed at the instance of sachindra Nath Ghosh opined that the signatures of Debi Prasanna Ghosh on the said agreement and on the said money receipt were the genuine signatures of Debi Prasanna Ghosh and that the report of the handwriting expert (D.W. 2)appointed at the instance of Sachindra Nath Ghosh was acceptable to the learned trial Court in comparison with the report of the handwriting expert (P. W. 3)appointed at the instance of the appellants. It appears that the learned Trial court did not assign proper reasons as to why the said learned Court found that the report of D. W. 2 was acceptable rather than the report of P. W. 3 except recording that while coming to the conclusion on this point the learned Trial court took into consideration the attending facts and circumstances and on such consideration the report of the D. W. 2 was accepted by the learned Trial court. But it appears that no specific reason was assigned as to why the learned trial Court found that the D. W. 2s report was acceptable rather than the report of the handwriting expert appointed at the instance of the appellants. (9) THE learned Trial Court found that it is preposterous to think that late debt Prasanna Ghosh, who had a vast zamindary and being is a man of managerial acumen, could be expected to have signed blank sheets of papers allowing miscreants to perpetrate manipulation. The learned Trial Court was of the view that the said Sachindra Nath Ghosh (respondent No. 1) must have constructed the massive structures over about 21 bighas of land on the strength of agreement to sell and it is unbelievable that the appellants came to know for the first time on 28. 04. 12976 that such structures were being raised. The learned trial Court was of the view that the documents dated 07. 01. 1967 and 12. 01. 04. 12976 that such structures were being raised. The learned trial Court was of the view that the documents dated 07. 01. 1967 and 12. 01. 1976 are genuine documents and that part consideration money did pass in favour of the said Debi Prasanna Ghosh and that the said agreement dated 07. 01. 1967 is specifically enforceable against the appellants. The learned Trial Court further recorded that the respondent No. 1 expressed his readiness and willingness to pay the balance consideration sum of Rs. 41,200/ -. The learned Trial Court found that the writing of the date (07. 01. 1976) against the signature of one of the alleged witnesses to the agreement dated 07. 01. 1967 was an accidental slip and that such accidental slip of the pen should be excused. With regard to the appellants case that the valuation of the property mentioned in the purported agreement is shockingly low, the learned Trial Court found that in a suit for specific performance of contract the valuation of the property cannot be considered to be the yardstick for getting a decree for specific performance of contract unless it is proved to the hilt that the agreement in question is not a legal document. The learned Trial Court found that the Court-fees paid was sufficient and correct. The learned Trial Court decreed the suit for specific performance of agreement for sale dated 07. 01. 1967 (T. S. No. 87 of 1976) and the defendants in the said suit were directed to execute and register the sale deed on receipt of the balance consideration money of Rs. 41,200/ -. The learned trial Court dismissed the Title Suit No. 2 of 1983 (previously numbered as t. S. No. 63 of 1976) brought by the appellants. (10) HAVING heard the learned Advocates for the respective parties it appeared to this Court that the respondent No. 1 claimed specific performance of contract on the basis of the agreement for sale dated 07. 01. 1967 (Ext. 19) and the money receipt (Ext. 18) and the entire endeavour on the part of the learned Advocate for the respondent No. 1, Sachindra Nath Ghosh, was to establish that the said agreement for sale and the money receipt were valid and legal and the said agreement can be enforced in a Court of Law. 01. 1967 (Ext. 19) and the money receipt (Ext. 18) and the entire endeavour on the part of the learned Advocate for the respondent No. 1, Sachindra Nath Ghosh, was to establish that the said agreement for sale and the money receipt were valid and legal and the said agreement can be enforced in a Court of Law. The learned Advocate for the said respondent No. 1 clearly submitted that his client is not making any claim on the ground of adverse possession and is thus not supporting the finding of the learned Trial Court in this regard. The learned Advocate for the said respondent No. 1 submitted that the said agreement for sale was acted upon by the parties and according to him the said agreement for sale was proved in accordance with law and as such the learned Trial Court was right in granting the decree in the suit for specific performance of contract. The learned Advocate for the appellants (Bani Basu and others), challenged the said agreement for sale and the money receipt (Exts. 19 and 18, respectively) and submitted that the said documents are not genuine and are forged documents and that there was no such agreement between the said Debi Prasanna Ghosh and the said respondent No. 1 Sachindra Nath Ghosh and that the question of granting receipt by the said Debi Prasanna Ghosh (since deceased), did not arise. As it appeared from the arguments advanced on behalf of both the sides, the main point to be decided in the present appeal is as to whether or not the said agreement for sale and the money receipt are genuine. We need not advert to the question of adverse possession in view of the stand taken on behalf of the respondent No. 1, as aforesaid. It is only reasonable that the learned Advocate for the respondent No. 1 chose not to base the claim of the respondent No. 1 on the ground of adverse possession because it appears from the materials on record, as placed before us, that there is nothing to show that Sachindra Nath ghosh ever declared openly any hostile title during the lifetime of Debi Prasanna ghosh who died on 26. 01. 1976. 01. 1976. It may be noted that the suit brought by the appellants was filed sometime in August, 1976 and the suit brought by the respondent No. 1 was filed sometime in November, 1976. Thus there cannot be any question of the respondent No. 1 acquiring any title by adverse possession. (11) THE agreement for sale is an unregistered one and comprising of only one page. The learned Advocate for the appellants has referred to the said Ext. 19, which is on records and we find from the said Ext. 19 that the worsts have been crammed into the one-page-document to somehow fit in the contents of the document above the signatures of the witnesses and the typist appearing at the bottom. From a close look at the document it appeared to us that artificial means might have been adopted to give an impression that the document is of substantial age. One of the alleged witnesses namely, Dipankar Dutta, appears to have put the date 07. 01. 1976 on the said document. The respondent No. 1s case is that the document is of the date 07. 01. 1967 but Dipankar Dutta signed it on 07. 01. 1976. It was submitted on behalf of the respondent No. 1 that the date given by the said Dipankar Dutta was a mistake and the learned Trial court observed that it was only an accidental slip of the pen. This Court is of the view that such fact cannot be brushed aside by a simple observation like the one made by the learned Trial Court. It has to be borne in mind that the case of the appellants is that the said agreement for sale is a manufactured and forged one and the said agreement for sale never saw the light of the day till after the filing of the suit by the appellants sometime in 1976. The year in which the suit was filed and the year mentioned by the said alleged witness dipankar Dutta in the said document are the same. Serious doubts do arise for such coincidence. A general look at the document that is the agreement for sale in question does not inspire any confidence in the same. The document, which was supposed to have been executed in 1967, was not shown either to Debi prasanna Ghosh or his heirs for a period of about 10 years. Serious doubts do arise for such coincidence. A general look at the document that is the agreement for sale in question does not inspire any confidence in the same. The document, which was supposed to have been executed in 1967, was not shown either to Debi prasanna Ghosh or his heirs for a period of about 10 years. The signature of debi Prasanna Ghosh also does not appear beneath the text of the document but the name Debi Prasanna Ghosh in some handwriting purported to his signature, appears on the right side of the upper half of the document. The said agreement for sale also does not disclose any schedule of the property. Ext. 18 is a purported money receipt allegedly granted by Debi Prasanna Ghosh (since deceased) wherefrom it appears that in one receipt Debi Prasanna Ghosh (since deceased) is alleged to have acknowledged receipt of various sums of money on account of rent from tenants in the said property for different years. This document is also a very highly doubtful document. It has been argued on behalf of the appellants that in the said document the alleged signature of Debi prasanna Ghosh is not over a revenue stamp. It is not understood as to why on 12th January, 1976 the said Debi Prasanna Ghosh (since deceased), all on a sudden granted a money receipt in respect of the alleged payments made over some years at different points of time. The descriptions of the tenants from whom rents were supposed to have been realized are absent in the said document. The periods for which rents were being paid are also not mentioned in the said document. In evidence the said Sachindra Nath Ghosh stated that in 1976 he paid four or five instalments. Such statement is a curious one since debi Prasanna Ghosh died on 26th January, 1976 itself and the so-called money receipt is purported to be dated 12th January, 1976. The said Sachindra Nath ghosh (D. W. I) further stated in evidence that he cannot produce papers to show the payments from 1973 to 1976. The said D. W. 1 further stated in evidence that he kept note of the collections and payments. (12) IN the instant case, one D. D. Gocl, Assistant Govt. The said Sachindra Nath ghosh (D. W. I) further stated in evidence that he cannot produce papers to show the payments from 1973 to 1976. The said D. W. 1 further stated in evidence that he kept note of the collections and payments. (12) IN the instant case, one D. D. Gocl, Assistant Govt. Examiner of questioned Documents came to give evidence and stated that he had examined a large number of documents and expressed his opinion thereon. As per official procedure, the said witness said, each case has to be examined independently by two experts and the same procedure was followed in the present case and the said purported agreement dated 07. 01. 1967 and the purported money receipt dated 12. 01. 1976 allegedly bearing the signature of Debi Prasanna Ghosh were sent for examination for comparison of the signatures of the said Debi Prasanna ghosh appearing on the said purported documents with contemporaneous signatures of the said Debi Prasanna Ghosh appearing on certain Vakalatnamas and a certain letter. Different scientific aids were employed for the said purpose. The said expert opined that the person who wrote the signatures on the said letter and different Vakalatnamas did not write the signature appearing on the said purported money receipt dated 12. 01. 1976 and the purported agreement dated 07. 01. 1967 and there are basic and fundamental differences in both the general and individual writing characteristic between the signatures appearing on the aforesaid purported agreement for sale and the money receipt on the one hand and the signatures appearing on the said Vakalatnamas and the said letter. The said expert further opined that the signatures appearing on the aforesaid two purported documents dated 07. 01. 1967 and 12. 01. 1976 are "slowly written with drawn and hesitating stroke with the defective line quality". He further pointed that inherent sign of forgery such as usual pen lift, careful joining of strokes, unnecessary retouching and the presence of tremor are found in such signatures. R. P. Singh who happened to be the Government Examiner of Questioned Documents also opined that the person who wrote the signatures on the said letter and the Vakalatnamas which were marked as A-1 and A-2 to a-8 respectively did not write the signatures marked as Q-1 in the receipt of 12th January, 1976 and the signature marked as Q-2 in the agreement dated 7th January, 1967. (13) CERTAIN person by the name of Amitava Chowdhury deposed in the instant case as D. W. 2 who was appointed at the instance of the respondent No. 1, sachindra Nath Ghosh, gave his opinion on the genuineness of the signatures of the said Debi Prasanna Ghosh (since deceased) appearing at Exts. 18 and 19, that is, the aforesaid purported money receipt and the agreement. It appears from his evidence that he claims that his name is registered in the panel maintained by the Legal Remembrancer and that he graduated from Calcutta university with Botany and Sanskrit as his subject, that he learnt the subject of handwriting from a certain person who retired as Govt. expert. In evidence he further stated that he cannot produce the certificate for his learning the subject of handwriting. The witness further stated that he has not heard the name the Institute of Criminology of Forensic Science, New Delhi. He further stated that he was remunerated by the party, which obviously means the said sachindra Nath Ghosh. The witness further stated in evidence that "the partys lawyer specified the signatures at the time of stressing the signatures. " It appears that the said witness has given a report that the two groups of signatures tally with each other and there is no dissimilarity between the two groups of signatures except with regard to natural variation. The credentials of the said witness who claims to be an handwriting expert do not inspire confidence. The said witness could not produce any document to show that he was entitled to call himself as an expert on the subject of handwriting. It further appears from his evidence that he had omitted to undertake certain scientific tests for the purpose of comparison of signatures. It is also curious to note that the partys lawyer had the occasion to be with the witness at the time of stressing the signatures, as deposed by the witness himself, as aforesaid. It is also curious to note that a person who claims to have a background in the subjects of Botany and Sanskrit could be appointed as a handwriting expert without any further proof that such person had duly qualified himself to be a handwriting expert. This Court is of the view that no reliance can be placed on the report of the said D. W. 2. This Court is of the view that no reliance can be placed on the report of the said D. W. 2. On the other hand it is found that the Govt. Examiner of Questioned documents and the Assistant Govt. Examiner of Questioned Documents had submitted their opinions in the matter and such opinions are in concurrence. For the purpose of emphasizing on the importance of the use of a microscope for comparison of signatures, the learned Advocate for the appellants referred to Albert S. Osborns "questioned Documents". But we find from the evidence of D. W. 2 that he has stated that he did not use any microscope and his camera has no microscopic power. It is not known on what basis the learned Trial court could come to the conclusion that the report of D. W. 2 is acceptable to him in comparison with the report of P. W. 3. We are of the opinion that the learned Trial Court erred in accepting the report of D. W. 2 in the aforesaid facts and circumstances. In our view the report submitted by the P. W. 3 (handwriting expert) is acceptable to us and the opinion of the said P. W. 3 is the same as that of the Govt. Examiner of Questioned Documents as would appear from reading pages 158 to 160 and pages 175 to 176 of part 2 of the paper book. We cannot rely upon the opinion of D. W. 2 in this regard. (14) NOW, let us come to the other aspect of the matter. The learned Advocate for the respondent No. 1, Sachindra Nath Ghosh, laid much emphasis on the case of the respondent No. 1 that Debi Prasanna Ghosh had tremendous love and affection for Sachindra Nath Ghosh and out of such love and affection Debi prasanna Ghosh had executed the aforesaid agreement for sale and as such there is nothing to disbelieve such agreement. The said learned Advocate submitted that the said agreement for sale was proved in accordance with law and that it is a genuine document and not forged. According to the said learned advocate the aforesaid agreement for sale was acted upon, possession of the property in dispute was delivered to Sachindra Nath Ghosh by the said Debi prasanna Ghosh and that Sachindra Nath Ghosh accordingly made constructions thereon and inducted tenants. According to the said learned advocate the aforesaid agreement for sale was acted upon, possession of the property in dispute was delivered to Sachindra Nath Ghosh by the said Debi prasanna Ghosh and that Sachindra Nath Ghosh accordingly made constructions thereon and inducted tenants. (15) THERE is no dispute that Sachindra Nath Ghosh used to visit Debi prasanna Ghoshs house to supply sweetmeat. P. W. 1 (a daughter of Debi prasanna Ghosh) has deposed that during 1960s Debi Prasanna Ghosh had asked Sachindra Nath Ghosh to help the caretaker and the durwan of the suit property in protecting the suit property from forcible taking of possession of the same by the East Bengal Refugees. She has further deposed that Sachindra nath Ghosh was allowed to stay in some portion (garden portion) of the suit property by Debi Prasanna Ghosh and Debi Prasanna Ghosh also allowed sachindra Nath Ghosh to keep cattle for the latters milk business and Sachindra nath Ghosh used to supply milk to Debi Prasanna Ghosh. Thus, there could have been a cordial relationship between Debi Prasanna Ghosh and Sachindra nath Ghosh. But the question is how much cordial such relationship was so as to prompt Debi Prasanna Ghosh to deprive his daughters from inheriting such a valuable property and propose to sell the same to Sachindra Nath Ghosh for a song. There is nothing on record to show that Debi Prasanna Ghosh had any strained relationship with his daughters. There is nothing on record to show that Debi Prasanna Ghosh, who was a zamindar, was suffering any financial distress so as to compel him to sell the suit property for such a meagre amount as it would appear from the purported agreement for sale. The description of the suit property has already been mentioned above. M/s. Talbot and Company, chartered surveyor and valuer, had submitted a report dated 16. 09. 1966 (Ext. 9)showing that the market value of the property in dispute at that point of time was Rs. 23,68,000/ -. Of course, the learned Advocate for Sachindra Nath Ghosh had raised an objection against placing any reliance on the said report since none came from Talbot and Company to give evidence in support of the said report. 09. 1966 (Ext. 9)showing that the market value of the property in dispute at that point of time was Rs. 23,68,000/ -. Of course, the learned Advocate for Sachindra Nath Ghosh had raised an objection against placing any reliance on the said report since none came from Talbot and Company to give evidence in support of the said report. Even if we dont look into the said report, we can still say applying common sense that the price mentioned in the agreement for sale is far below what such property could fetch if sold in the market. From the evidence of d. W. I (Sachindra Nath Ghosh) it appears that Dcbi Prasanna Ghosh also had properties at Birbhum and Benaras. Thus, Debi Prasanna Ghosh was a man of means. The surrounding circumstances do not lend credence to the allegation of agreement for sale. (16) THE learned Advocate for the respondent No. 1 submitted that the agreement for sale was proved by D. W. 1 as would appear from page 134 of the paper book. D. W. I stated in evidence that one Rabi Roy of Barrackpore Court typed the said agreement and Debi Prasanna Ghosh signed in his presence. But the said witness did not say that Debi Prasanna Ghosh had signed on that agrement itself. However, even if it is assumed that the said witness had the purported agreement in mind, there arc certain facts which cannot be ignored. D. W. I had deposed that Dcbi Prasanna Ghosh drafted the agreement for sale but the D. W. I shall not produce the draft and that D. W. I does not know its whereabout. Next, the D. W. I deposed that he came to know from the daughter of Rabi Roy, typist, that Rabi Roy has died but the said daughter of Rabi Roy was not called upon to adduce any evidence. The witness further said that all the witnesses of the agreement for sale are dead but was unable to give the respective dates of their death. No death certificate was produced by the said d. W. I. The D. W. 1 further said that he cannot cite the sons of the deceased witnesses to the agreement for sale as witnesses in the suit. Thus, the allegation that the witnesses to the agreement for sale arc all dead could not be proved by any substantial evidence. No death certificate was produced by the said d. W. I. The D. W. 1 further said that he cannot cite the sons of the deceased witnesses to the agreement for sale as witnesses in the suit. Thus, the allegation that the witnesses to the agreement for sale arc all dead could not be proved by any substantial evidence. It could be that the D. W. I did not want any of the witnesses to the proposed agreement for sale, if they were alive, to come to the witness box and face cross-examination, for reasons best known to the D. W. I. (17) THE learned Advocate for the respondent No. 1, Sachindra Nath Ghosh, tried to make out a case in favour of Sachindra Nath Ghosh by submitting that the appellants have demolished their own case by making out an alternative case since on one hand the appellants had pleaded that Debi Prasanna Ghosh had no occasion to execute the purported agreement for sale and grant the money receipt, and on the other hand they alternatively pleaded that Sachindra nath Ghosh might have had in his possession blank papers containing signatures of Debi Prasanna Ghosh for the management of Debi Prasanna ghoshs estate which have been filled up subsequently at the instance of sachindra Nath Ghosh with an evil design and for wrongful gains. In this regard, we can rely upon the report of the handwriting expert (P. W. 3) and come to the conclusion that the purported signatures of Debi Prasanna Ghosh appearing on the agreement for sale dated 07. 01. 1967 and the money receipt dated 12. 01. 1976 are not that of Debi Prasanna Ghosh. In any event, it was not unusual for the appellants to make out an alternative case since it appeared from the submissions made by the learned Advocates for the respective parties and from the materials on record that Debi Prasanna Ghosh had vast properties to manage. This Court is of the view that the respondent No. 1 cannot take any benefit out of the fact that the appellants have pleaded an alternative case. This Court is of the view that the respondent No. 1 cannot take any benefit out of the fact that the appellants have pleaded an alternative case. (18) THE next point urged by the learned Advocate for the respondent No. 1 sachindra Nath Ghosh, was that the agreement for sale, as aforesaid, was acted upon by the parties and accordingly Debi Prasanna Ghosh delivered possession of the suit property to Sachindra Nath Ghosh, Sachindra Nath Ghosh made construction thereon and also inducted tenants in the suit property. The learned Advocate for the respondent No. 1 referred to examination-in-chief of d. W. I (Sachindra Nath Ghosh) where Sachindra Nath Ghosh stated that he started construction from 1970 and ended such construction in 1975 and he realised rents upto 1980. D. W. 1 further stated in the examination-in-chief that he constructed about 100 sheds on the suit land and let out the sheds to tenants. The witness further deposed that the agreement could not be completed because of the demise of Debi Prasanna Ghosh. Excepting the oral statement, the D.W. 1 could not prove by any documentary evidence that he had raised any construction lawfully or that he had inducted any tenant lawfully. No rent receipt was adduced in evidence to show that Sachindra Nath Ghosh collected rents from tenants. Very strange and curious coincidences have appeared to have taken place in the instant case -the purported agreement for sale is dated 07. 01. 1967 wherein it was stipulated that on or before 31. 12. 1976 the vendor or his successors in interest has to execute the deed of conveyance and time being the essence of the contract. Suit for specific performance of the agreement was filed in November, 1976 and the said purported agreement came to light for the first time between the filing of the two suits i. e. between august, 1976 and November, 1976. There is nothing on record to show that sachindra Nath Ghosh ever demanded of Debi Prasanna Ghosh to execute the deed of conveyance during Debi Prasanna Ghoshs life-time and he lived for about 9 years from the date of the purported agreement. (19) THE allegation of the respondent No. 1 that possession of the suit property was delivered to him on 07. 01. 1967 is also not borne out by the records. The learned Advocate for the appellants had referred to Exts. (19) THE allegation of the respondent No. 1 that possession of the suit property was delivered to him on 07. 01. 1967 is also not borne out by the records. The learned Advocate for the appellants had referred to Exts. 4 and 4 (1), report book, wherefrom it appears that even as late as in the year 975 Debi Prasanna ghosh took active interest in the maintenance of the suit property and went on giving instructions to his men with regard to the nitty-gritty of maintaining the suit property. The learned Advocate for the respondent No. 1 had submitted that one page in the said report book is missing and therefore adverse inference should be drawn. We are not able to accept such submission of the said learned advocate since the report book has a large number of instructions given by debi Prasanna Ghosh given on various dates which could not be disputed on behalf of the respondent No. 1 and if the report book is considered as a whole, a missing page cannot pursuade us to draw an adverse inference. Ext. 4 shows that on diverse dates, long after the purported agreement dated 07. 01. 1967, the staff of Debi Prasanna Ghosh had been reporting to Debi Prasanna Ghosh regarding the maintenance of the suit property. P. W. 2 deposed that in the year 1971 a certain M/s. Diji Enterprises Company was inducted as a licensee in the suit property in which Debi Prasanna Ghosh was a senior partner, and the said Diji Enterprises Company inducted several licensees. A deed of partnership dated 03. 12. 1971 has been marked as Ext. 1 and the license - agreements between M/s. Diji Enterprises Company and different licensees executed in the year 1973 have also been marked as Exhibits. The license agreement between the Debi Prasanna Ghosh and the said Diji Enterprises Company in respect of a portion of the suit property has also been marked as Exhibit. Salary Register of some of the years subsequent to the dates 07. 01,1967 and relating to the staff engaged at the suit property has also been produced in evidence on behalf of the appellants. Trade License granted in favour of M/s. Diji Enterprises company pertaining to various years also including the years 1974 and 1975 have been adduced in evidence and marked as Exhibits. 01,1967 and relating to the staff engaged at the suit property has also been produced in evidence on behalf of the appellants. Trade License granted in favour of M/s. Diji Enterprises company pertaining to various years also including the years 1974 and 1975 have been adduced in evidence and marked as Exhibits. The learned Advocate for the appellants referred to some of the letters being Ext. 14 to show that debi Prasanna Ghosh was very much in possession of the suit property even long after the date 07. 01. 1967 and we are of the view that the said learned advocate for the appellants was right in submitting that Debi Prasanna Ghosh had been in possession of the suit property till his death and that Debi Prasanna ghosh had never delivered possession of the suit property to Sachindra Nath ghosh. (20) THE purported money receipt Ext. 18 does not inspire confidence. The purported money receipt is supposed to keep on record the various payments received by Debi Prasanna Ghosh over a number of years. No particulars have been given as to on which date (s) of any particular year the payments were made. It does not disclose which of the tenants made the payments of rent. No rent receipt was produced by Sachindra Nath Ghosh by calling any of such tenants as a witness. One person by the name of Baldev Singh (D. W. 3) came to adduce evidence and claimed that he has been running a garage since 1973 as a tenant under Sachindra Nath Ghosh but he stated in cross-examination that there is no plan for the structures of the said garage and there is no sanction by the Corporation concerned. The said witness could not file any trade license in respect of his alleged business. The said witness further stated in cross-examination that he has no paper to show that 40/50 tenants were inducted after he had been inducted in the suit property. The said witness further stated that he does not know if the persons mentioned by him were tenants under m/s. Diji Enterprise Company and he cannot say how many tenants built up their structures by themselves. (21) DEBI Prasanna Ghosh died on 26. 01. 1976 and the date of the said money receipt happens to be just a few days before his date of death. (21) DEBI Prasanna Ghosh died on 26. 01. 1976 and the date of the said money receipt happens to be just a few days before his date of death. The purported money receipt, it appears to us, is a product of an afterthought on the part of sachindra Nath Ghosh and such document has been created for the purpose of evidence in the litigation. Sachindra Nath Ghosh has not adduced in evidence his books of accounts to show that he made any payment to Debi Prasanna ghosh towards consideration money in respect of the said agreement for sale. The purported agreement for sale itself has very unusual clauses like the vendor shall realise rents from tenants till completion of the sale and appropriate the same towards balance consideration money. The materials on record clearly show that title, possession and interest in the suit property remained with debi Prasanna Ghosh till his death and the tenants, if any, in the suit property were in any event liable to pay rents to Debi Prasanna Ghosh himself and Debi prasanna Ghosh was entitled to appropriate such rent as a landlord of the suit property. In such circumstances why should Debi Prasanna Ghosh agree to appropriate such rents towards the balance consideration money. The purported agreement Ext- 19 contains that Rupees twenty-five thousand was paid by sachindra Nath Ghosh to Debi Prasanna Ghosh on 07. 01. 1967 but the said sachindra Nath Ghosh has not filed any document excepting the purported agreement itself to show that such payment was made by him. He has not filed his books of accounts to show that such payments were made by him to Debi prasanna Ghosh. The learned Advocate for the respondent No. 1, Sachindra nath Ghosh, laid much emphasis on the love and affection that Debi Prasanna ghosh allegedly had for Sachindra Nath Ghosh. Materials on record do not indicate that Debi Prasanna Ghosh had such love and affection for Sachindra nath Ghosh which could have prompted Debi Prasanna Ghosh to sell the suit property to Sachindra Nath Ghosh at such a shockingly low price. As we have already seen that strange coincidences appeared to have occurred in this case. Debi Prasanna Ghosh died on 26. 01. 1976 and the money receipt is dated 12. 01. 1976. As we have already seen that strange coincidences appeared to have occurred in this case. Debi Prasanna Ghosh died on 26. 01. 1976 and the money receipt is dated 12. 01. 1976. Suit was filed by Sachindra Nath Ghosh for specific performance of agreement in November, 1976 and time to complete the purported agreement for sale was shown as 31st December, 1976. Certain dates are in very close proximity to somehow fit into the scheme of Sachindra Nath Ghosh. The learned advocate for the respondent No. 1 emphasised on the evidence of P. W. 2, where the P. W. 2 stated that filling of pond was done by Sachindra Nath Ghosh in an unauthorised manner and except four licensees, the other rooms were constructed by Sachindra Nath Ghosh illegally. It is not understood as to how the respondent No. 1 can have an advantage from P. W. 2s such statements. If sachindra Nath Ghosh had done any act unauthorisedly and illegally in the suit property such act cannot confer any legal right to Sachindra Nath Ghosh. Sachindra Nath Ghosh could not produce any document to show that he has made any construction in the suit property and collected rents in the suit property lawfully. The learned Advocate for the respondent No. 1 emphasised on an another part of evidence of P. W. 2 where P. W. 2 stated that only once sachindra Nath Ghosh realised rents in respect of structures but he did not realise such rents for all times, and that the said P. W. 2 used to realise rents and used to give it to Debi Prasanna Ghosh and that Debi Prasanna Ghosh was the owner of the suit property to the exclusion of all others. There is no denying the fact that Sachindra Nath Ghosh was very well known to Debi prasanna Ghosh, and Sachindra Nath Ghosh was in some way staying in the suit property with the knowledge and consent of Debi Prasanna Ghosh and that Sachindra Nath Ghosh was also in some way, probably, helping Debi prasanna Ghosh in taking care of the suit property. In such circumstances, even if Sachindra Nath Ghosh had collected rents on behalf of Debi Prasanna ghosh on certain occasions, it docs not show that either Sachindra Nath Ghosh had acquired any right for such acts or that Debi Prasanna Ghosh was inclined to sell the suit property to Sachindra Nath Ghosh. Materials on record clearly show that Debi Prasanna Ghosh was very much interested in the proper maintenance of his property being the suit property till his death and there was no indication on the part of Debi Prasanna Ghosh to sell the suit property in favour of Sachindra Nath Ghosh. The learned Advocate for the respondent no. 1 Sachindra Nath Ghosh argued that if Sachindra Nath Ghosh was a licensee in respect of 4 to 5 cottahs of land in the suit property, how could he be allowed to raise structures, induct tenants and collect rents in respect of the property outside the said 4 to 5 cottahs of land during the lifetime of Debi prasanna Ghosh. Even if Sachindra Nath Ghosh had made certain structures outside the said 4 to 5 cottahs of land, inducted tenants and collected rents from alleged tenants at times unauthorisedly and illegally, such acts could not have conferred any right on the said Sachindra Nath Ghosh. The respondent no. 1 in this appeal has not based his claim on adverse possession. In any event, the materials on record cannot in any way support Sachindra Nath Ghosh in a claim of adverse possession if the period required for claiming adverse possession is taken into consideration. The learned Trial Court came to a finding on adverse possession without framing any issue in this regard. (22) THE learned Advocate for the respondent No. 1 Sachindra Nath ghosh cited the following reported decisions: (1) (SC; Suppl.) 2006 (3) CHN 6 (S. Venugopal vs. A. Karruppusami and Anr.)for the proposition that evidence should be read as a whole. (2) AIR 1983 Supreme Court 114 (Madhusudan Dus vs. Narayani Bai and ors.) for the proposition that the Appeal Court should bear in mind that the learned Trial Court, when estimating the value of oral evidence, had the advantage of having the witnesses before him and observing the manner in which such evidence was being given. (3) AIR 1951 Supreme Court 177 (Firm Sriniwas Ram Kumar vs. Mahibir prasad and Ors). (3) AIR 1951 Supreme Court 177 (Firm Sriniwas Ram Kumar vs. Mahibir prasad and Ors). A reference was made to paragraph 9 of the said reports. The said paragraph 9 is quoted below: "(9) As regards the other point, however, we are of the opinion that the decision of the Trial Court was right and that the II. C. took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiffs case as made in the plaint that the sum of Rs. 30,000/- was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiffs to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would bo nothing improper in giving the plaintiff a decree upon the case which the deft himself makes. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendent in his pleadings. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendent in his pleadings. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Mohan Manu vs. Manzoor Ahmad, 70 I. A. 1 : AIR 1943 (30) PC 29. This appeal arose out of a suit commenced by the plaintiff-appellant to enforce a mortgage security. The plea of the deft, was that the mortgage was void. This plea was given effect to by both the lower Court as well as by the P. C. But the p. C. held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under section 65, Contract Act. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the respondents could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellant even though the appeal was heard ex parte in the absence of the respondent. " AIR 1963 Madhya Pradesh 51 (Mahadulal and Anr. vs. Chironji Lal and ors.) and reference was made to paragraph 14 of the said report which took into consideration the reported decision at AIR 1951 Supreme Court 177. . AIR 1974 Madhya Pradesh 75 (Shikharchand and Ors. vs. Mst. Bari Bai and ors.) and reference was made to paragraph 11 of the said reports. The said aragraph 11 is quoted below: "11. . AIR 1974 Madhya Pradesh 75 (Shikharchand and Ors. vs. Mst. Bari Bai and ors.) and reference was made to paragraph 11 of the said reports. The said aragraph 11 is quoted below: "11. The learned Counsel for the appellants however urged that if the plaintiffs have to seek a decree on the basis of a cause of action arising out of the case as set up by the defendants it would be necessary for the plaintiffs to amend the plaint to seek the relief of eviction alternatively on the cause of action based on the defendants pleadings and in that event it would be open to the defendant to set up a defense of his choice and unless this is done the Court cannot proceed to judgment under order 12 Rule 6 of the Code of Civil Procedure. It is no doubt true that ordinarily the plaintiff is entitled to a relief only on the basis of the cause of action stated in the plaint but it is open to the Court in suitable cases to afford a relief on the basis of the case as set up by the defendant. In such a case there is no prejudice to the defendant because the relief legitimately springs from the case as set up by him. "the propositions of law laid down in the above reports cannot be of any dispute but the question is how such reports can be of any assistance to the respondent No. 1. The appellants in the present case are making their claims the foundations of which are already there in the pleadings and law permits a party to make out an alternative case. The materials on record clearly show that the case attempted to be made out by the respondent No. 1, Sachindra Nath Ghosh, is unbelievable and not established by evidence, whereas, the case made out by the appellants are borne out by materials on record. (6) AIR 1972 Supreme Court 2685 (Ram Saran and Anr. vs. Smt. Ganga Devi). In paragraph 4 of the said reports the Honble Supreme Court was pleased to observe as follows:"4. We are in agreement with the High Court that the suit is hit by section 42 of the Specific Relief Act. As found by the fact-finding Courts, ganga Devi is in possession of some of the suit properties. vs. Smt. Ganga Devi). In paragraph 4 of the said reports the Honble Supreme Court was pleased to observe as follows:"4. We are in agreement with the High Court that the suit is hit by section 42 of the Specific Relief Act. As found by the fact-finding Courts, ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation. " In the present case the appellants have sought for a decree for permanent injunction and also for a decree for mandatory injunction and possession as would appear from the plaint filed by the appellants. The fact that the suit property belonged to Debi Prasanna Ghosh and subsequently his heirs and successors is not disputed by Sachindra Nath Ghosh, and Sachindra Nath ghosh himself has filed a suit for specific performance of contract against the appellants, (7) AIR 1917 Calcutta 399 (Lalit Mohun Nundy vs. Haridas Mukherjee) for the proposition that when any person makes an allegation of fraud he has to state in his plaint clearly and specifically the nature of the fraud and give the relevant particulars thereof and thereafter he should show by proof that such fraud has been committed. (23) THERE is no dispute with regard to the such proposition of law. We are of the view that, to the extent necessary, the appellants have made necessary statements with regard to the allegation of fraud against the respondent No. 1 in their pleadings. Subsequently, the opinions of two handwriting experts, as already mentioned above, have indicated that the purported signatures of Debi prasanna Ghosh on Ext. 18 and 19 are not genuine. (24) THE learned Advocate for the appellants by referring to Sachindra Nath ghoshs allegation that Debi Prasanna Ghosh had tremendous love and affection for Sachindra Nath Ghosh and that Sachindra Nath Ghosh played the role of a protector of Debi Prasanna Ghoshs property, cited a decision reported at AIR 2003 Supreme Court 4351 (paragraph 12) (Krishna Mohan Kul alias Nani charan Kul and Anr. vs. Pratima Maity and Ors.). vs. Pratima Maity and Ors.). In paragraph 12 of the said reports the Honble Supreme Court was pleased to observe that "when fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and. that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the taw presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position" In this connection reference was also made to 2006 (2)CLJ (SC) 5 (Anil Rishi vs. Gurbaksh Singh). (25) THE learned Advocate for the appellants cited a decision reported at AIR 1979 Calcutta 50 paragraph 6 (M/s. Roy and Co. and Anr. vs. Sm. Nani Bala Dey and Ors.) where it was observed that in case of conflict between the area and the boundary the description of the boundary will prevail. The said reported decision was cited by the said learned Advocate while submitting that there is inconsistency and a variance between the area of the property mentioned in ext. 19 and the description of the property in the schedule to the plaint of the suit for specific performance of contract. Ext. 19 does not contain any schedule but only mentions the area of the property. 19 and the description of the property in the schedule to the plaint of the suit for specific performance of contract. Ext. 19 does not contain any schedule but only mentions the area of the property. (26) THE learned Advocate for the appellants cited a decision reported at air 2007 SC 1753 paragraph 12 (P. T. Mimichiikkanna Reddy and Ors. vs. Revamma and Ors.) In paragraph 12 of the said reports it has been observed inter alia that intention to possesses cannot be substituted for intention to dispossess which is essential to prove adverse possession. (27) REFERENCE was made to paragraphs 9 and 10 of the decision reported at 1990 (4) Supreme Court Cases 706 (Achal Reddy vs. Ramakrishna Reddiar and ors.). In paragraphs 9 and 10 of the said report the Honble Supreme Court was pleased to observe inter alia; "9. In the case of an agrewement of sale the party who obtains. possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owners title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. "10. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. "10. In the case of an executory contract of sale where the transferee is put in possession of the property inm pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the formers title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchasers possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. " (28) REFERENCE was made to paragraph 4 of the decision reported at 1996 (1) Supreme Court Cases 639 [mohan Lal (Deceased) Through His Lrs. Kachru and ors. vs. Mirza Abdul Gaffar and Anr.]. In paragraph 4 of the said reports the honble Supreme Court was pleased to observe inter alia as follows: "4. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e. , up to completing the period of his title by prescription nee vi, nee clam, nee precario. " (29) REFERENCE was also made to paragraph 8 of the decision reported at AIR 1985 Supreme Court 857 (Sant Lal- Jain vs. Autar Singh). In paragraph 8 of the said reports the Honble Supreme Court was pleased to observe as follows: "8. The respondent was a licensee and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. The respondent was a licensee and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. (30) IN view of the discussions made above and considering the facts and circumstances of the case there is no scope to hold that the respondent No. 1 has acquired any title by adverse possession in respect of the suit property. However, since the learned Advocate for the respondent No. 1 has not based the respondent No. 1s case on the plea of adverse possession there is no necessity to make further discussion on this point. (31) THE learned Trial Court came to a finding that the suit is undervalued after having observed that according to the plaintiffs (i.e. the appellants herein)the market value of the entire suit property is Rs. 23,00,000/ -. The learned advocate for the appellants referred to the provisions of section 7 (vi) (b) (ii) of west Bengal Court-fees Act, 1970. The said provision of law is quoted below: "section 7 (vi). For recovery of possession of immovable property.-In a suit for recovery of possession of immovable property from-(a) * * * * * * * * (b) A licensee upon revocation or termination of his license,-(i) Where a license fee is payable by the licensee in respect of the immovable property to which the suit refers - according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint, or-(ii) Where no such license fee is payable by the licensee - according to the amount at which the relief sought is valued on the plaint subject to the provisions of section 11. " (32) THE said learned Advocate referred to the decision reported at 70 CWN 857 paragraph 13 (Amritalal Chatterjee vs. Hiralal Chatterjee and Anr.) and submitted that the learned Trial Court should have proceeded on the basis of "relief sought" and not the "market value of the property". " (32) THE said learned Advocate referred to the decision reported at 70 CWN 857 paragraph 13 (Amritalal Chatterjee vs. Hiralal Chatterjee and Anr.) and submitted that the learned Trial Court should have proceeded on the basis of "relief sought" and not the "market value of the property". In paragraph 13 of the said reports the Honble Division Bench of this Court was pleased to observe inter alia that ". . . . . . The Amendment was obviously intended, both expressly and by necessary implication of the language used in the Amendment to make it clear that an owner wanting to evict a licensee should not be put into a position where he has to pay cither the same or even a larger amount of Court-fee than a landlord wanting to evict a tenant. That overriding purpose of the Amending Act, therefore, has to be respected and that is grant of relief to a person evicting a licensee on the ground of revocation or termination of his license. That relief should not be rendered illusory by any construction or interpretation introducing value of the "property" or "subject-matter" and ignoring the value of "relief sought" which was the only object of the amendment. . . . . . . . . . " (33) THE Honble Court was further pleased to observe in the said paragraph of the said reports that ". . . . . . . . The Court-fees Act, therefore, expressly and impliedly makes a distinction between value of "relief and value of "subject-matter" according to the nature of suits described in the Act (34) IN this connection the said learned Advocate also referred to a decision reported at AIR 1958 Supreme Court 245 (S. Rm. At: S. Sp. Sathappa Chettiar vs. S. Km. Ar. Rm. Ramanathan Chettiar). (35) THUS, we find that the learned Trial Court erred in holding that the suit is undervalued by taking the market value of the suit property into consideration. Near the end of the impugned judgement the learned Trial Court has found the Court-fees paid is sufficient and correct. At: S. Sp. Sathappa Chettiar vs. S. Km. Ar. Rm. Ramanathan Chettiar). (35) THUS, we find that the learned Trial Court erred in holding that the suit is undervalued by taking the market value of the suit property into consideration. Near the end of the impugned judgement the learned Trial Court has found the Court-fees paid is sufficient and correct. (36) IN view of the discussions made above and taking into consideration the facts and circumstances of the case and the materials on record both the appeals have to be allowed and the impugned judgement and decrees passed by the learned Trial Court in the aforesaid two suits have to be set aside. (37) ACCORDINGLY, the impugned judgement and decrees passed by the learned trial Court in the aforesaid T. S. No. 87 of 1976 and T. S. No. 2 of 1983 are set aside and both the instant appeals are allowed. The respondent No. 1 Sachindra nath Ghosh is hereby directed to vacate the suit property within 90 days from this date and deliver up vacant and khas possession of the suit property to the appellants, failing which the appellants will be entitled to put the decree into execution. Let a formal decree be drawn up. Appeal allowed.