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2013 DIGILAW 502 (GAU)

Anu Dutta v. Lolit Kalita

2013-07-31

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the plaintiff, is directed against the judgment and decree dated 04.12.2001 (decree drawn on 12.12.2001), passed by the learned Civil Judge (Senior Division), Golaghat, passed in Title Appeal No. 1/2001, dismissing the appeal by affirming the judgment and decree dated 13.09.2000 (decree signed on 21.09.2000) passed by the learned Civil Judge (Junior Division) No. 1, Golaghat, in Title Suit No. 10/1994, whereby and where-under the suit of the plaintiff has been dismissed. The appellant as plaintiff instituted the aforesaid suit for declaration of right, title and interest and recovery of khas possession in respect of the land described in Schedule-A to the plaint, contending inter aha that the defendant No. 4, who is the original owner vide registered deed of sale dated 20.01.1987 (Ext.-2) transferred her right, title and interest in favour of the defendant No. 3, who thereafter vide registered deed of sale dated 21.11.1987 (Ext-1) transferred the suit land in favour of the plaintiff, by virtue of which the plaintiff has acquired right, title and interest over the suit land. It has further been contended that the possession of the suit land, on execution of the aforesaid sale deed dated 21.11.1987, has been handed over, who has been dispossessed by the defendant Nos. 1 and 2 in the month of November, 1988, for which the plaintiff has to brought the suit for declaration of right, title and interest and recovery of khas possession. 2. The defendant Nos. 1, 2 and 4 have filed their respective written statements. While the defendant Nos. 1 and 2 have filed their joint written statement, the defendant No. 4 has filed a separate written statement, who was subsequently arrayed as defendant No. 2(a) on the suit being contested. The proforma defendant No. 3 did not contest the suit by filing any written statement. 3. In the written statement filed by the defendant Nos. 1, 2 and 4 the execution of the sale deed by the defendant No. 4 in favour of the defendant No. 3 on 20.01.1987 has been denied. The proforma defendant No. 3 did not contest the suit by filing any written statement. 3. In the written statement filed by the defendant Nos. 1, 2 and 4 the execution of the sale deed by the defendant No. 4 in favour of the defendant No. 3 on 20.01.1987 has been denied. It has also been averred that the land originally belonged to Bhelengi and during her lifetime the land was claimed to have been sold by the defendant No. 4 to defendant No. 3 on 20.01.1987, though the defendant No. 4 did not have any right, title and interest on the said land during the lifetime of Bhelengi, her mother. The further contention of the defendants is that in any case the defendant No. 4 cannot alone transfer the land, mere being two other sisters, namely, Tutu and Kunja, apart from her, who have inherited the property after the death of Bhelengi in the year 1988. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:-- (i) Whether there is any cause of action for this suit? (ii) Whether the plaintiff has any right, title and interest and possession over the suit land? (iii) Whether the plaintiff has at right to sue? (iv) Whether the suit is bad for non-joinder of necessary parties? (v) Whether the proforma defendant Nos. 1 and 2 sold the suit land to the proforma defendant No. 3 by a registered deed on 20.01.1987? (vi) Whether the mutation of the suit land obtained by the plaintiff and proforma defendant No. 3? (vii) What relief/relief's the parties are en-tided to? 5. The plaintiff in order to prove his case has examined 5(five) witnesses including the plaintiff himself as PW-1 and proved two documents being the sale-deeds dated 21.11.1987 (Ext.-1) and dated 20.01.1987 Ext.-2). The defendants have examined 5(five) witnesses including the defendant No. 1 as DW-1, Sri Pulin Borthakur as DW-2, defendant No. 2(a) as DW-3. The witnesses examined by the parties were cross-examined by the respective parties. 6. The defendants have examined 5(five) witnesses including the defendant No. 1 as DW-1, Sri Pulin Borthakur as DW-2, defendant No. 2(a) as DW-3. The witnesses examined by the parties were cross-examined by the respective parties. 6. Trial Court upon appreciation of the evidence on record, has held that execution of the sale-deed dated 20.01.1987 (Ext.-2) by the defendant No. 4 in favour of the defendant No. 3 could not be proved by the plaintiff and hence no right, tide and interest can be acquired by the plaintiff by virtue of the sale deed dated 21.11.1987 (Ext.-1) executed by the defendant No. 3 in favour of the plaintiff. It has further been held that since Bhelengi, the successor-in-interest of the defendant No. 4, was alive on the date of alleged execution of the sale deed by the defendant No. 4 in favour of the defendant No. 3 i.e. on 20.01.1987, the defendant No. 4 cannot transfer the land in favour of the defendant No. 3 during the lifetime of Bhelengi. The suit is also held to be bad for non-joinder of necessary parties i.e. the other two sisters of defendant No. 4, namely, Tutu and Kunja. 7. Being aggrieved, the defendant preferred the aforesaid appeal, which has also been dismissed by concurring with the finding recorded by the Trial Court. Hence the present appeal. 8. The appeal was admitted for hearing vide order dated 24.04.2002 on the following substantial question of law:--(i) Whether the learned Court below mis-construed Section 54 of the Transfer of Property Act, 1886 and Section 67 of the Evidence Act, 1872 in holding that the appellant had failed to prove the sale-deed Ext.-2? 9. I have heard Mr. P.S. Deka, learned counsel for the appellant and Ms. T. Goswami, the learned counsel appearing for the respondents. 10. It has been contended by the learned counsel for the appellant that since the appellant could prove due execution of the sale deed dated 20.01.1987 by the defendant No. 4 in favour of the defendant No. 3, the Court below ought not to have dismissed the suit of the plaintiff/appellant, more so when the execution of the sale-deed by the defendant No. 3 on 21.11.1987 in favour of the plaintiff transferring the land has not been disputed. The learned counsel further submits that in any case, the defendant No. 3 having inherited 1/3rd of the property left behind by Bhelengi, the plaintiff is at least entitled to the decree declaring right, title and interest and recovery of khas possession in respect of 1/3rd of the schedule property measuring 1 bigha 0 katha 8 lechas. 11. On the other hand, the learned counsel appearing for the respondents supporting the judgments and decrees passed by the Courts below has submitted that the plaintiff's witness No. 5, during cross-examination, has admitted that when the sale-deed dated 20.01.1987 was allegedly executed by the defendant No. 4 in favour of the defendant No. 3, Bhelengi was alive and that being the position, the defendant No. 4 having no right, title and interest during the lifetime of Bhelengi, cannot transfer the land, execution of which in fact has been denied by the defendant No. 4. It has also been submitted that the plaintiff could not prove that the defendant No. 4 has put the thumb impression on the sale-deed dated 20.01.1987 and the thumb impression appearing in the said document is the thumb impression of the defendant No. 4 and hence the Courts below have rightly dismissed the suit of the plaintiff. 12. I have considered the submissions advanced by the learned counsel for the appearing parties and also perused the judgments and decrees passed by the Courts below. I have also perused the Ext.-1 and Ext.-2 sale-deeds dated 21.11.1987 and 20.01.1987, respectively, apart from the deposition of witnesses examined, though in the second appeal the oral evidence are not required to read in the absence of plea of perversity in recording the finding. 13. The plaintiff's claim for right, title and interest is based on the two documents, one is sale-deed dated 20.01.1987 (Ext.-2) allegedly executed by the defendant No. 4 in favour of the defendant No. 3 transferring the suit land and the other is the sale-deed dated 21.11.1987 (Ext.-1) executed by the defendant No. 3 in favour of the plaintiff. The execution of the sale deed dated 20.01.1987 has been denied by the defendant Nos. 1, 2 and 4 in the written statement. The plaintiff could not prove that the thumb impression appearing in Ext-2 sale-deed dated 20.01.1987 is the thumb impression of the defendant No. 4. The execution of the sale deed dated 20.01.1987 has been denied by the defendant Nos. 1, 2 and 4 in the written statement. The plaintiff could not prove that the thumb impression appearing in Ext-2 sale-deed dated 20.01.1987 is the thumb impression of the defendant No. 4. That apart, it appears from the evidence of the witnesses examined, more particularly the DW-5, that Bhelengi, who was the original owner of the suit land was alive when the Ext.-2 sale-deed dated 20.01.1987 was executed, allegedly by the defendant No. 4. The said property being the self acquired property of Bhelengi, her successor-in-interest would not derive any right, title and interest, by right of inheritance, during the lifetime of Bhelengi and hence the defendant No. 4 did not have right, title and interest to execute the sale-deed dated 20.01.1987 and by virtue of such sale, even if executed, no right, tide and interest can be passed on to the defendant No. 3. Consequently no right, title and interest can be passed on to the plaintiff by virtue of the sale-deed dated 21.11.1987 (Ext.-1) executed by the defendant No. 3. 14. That apart, it also appears from the materials available on record that defendant No. 4 had two other sisters, namely, Tutu and Kunja, all of whom i.e. three sisters have inherited the property after the death of Bhelengi in the year 1988. The submission of the learned counsel for the appellant that at least the plaintiff is entitled to 1/3rd of the suit land pursuant to the aforesaid sale-deed dated 20.01.1987, cannot also be accepted, when it is not the case of the plaintiff that the suit land was partitioned and in the absence of Tutu and Kunja as a party defendants. Moreover, as noticed above, the execution of the sale-deed by the defendant No. 4 in favour of the defendant No. 3 on 20.01.1987 (Ext.-2) could not be proved by the plaintiff. 15. In view of the aforesaid discussion, I do not find any merit in the appeal and hence the appeal stands dismissed. No cost. Registry is directed to send down the records forthwith. Appeal dismissed