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2014 DIGILAW 416 (TRI)

Sukumari Nath v. Subrata Nath

2014-12-10

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This second appeal under Section 100 of the Code of Civil Procedure is directed against judgment and decree dated 30.05.2005 passed by the learned Additional District Judge, North Tripura, Dharmanagar in Title Appeal No. 17 of 2004, whereunder the learned Additional District Judge upheld judgment and decree dated 30.07.2004 passed by the learned Civil Judge (Senior Division), Dharmanagar, North Tripura in Title Suit No. 09(Partition) of 2003. The second appeal is filed against concurrent finding of the trial Court and the appellate Court. 2. Heard learned counsel, Mr. G.K. Nama for the appellant and learned counsel, Mr. S. Bhattacharji for the respondent Nos. 1, 2, 6 and 7. None appeared for the other respondents. 3. The second appeal has been admitted for hearing on the following substantial question of law:-- "1. Whether the allegation of forgery and fraud in execution of sale deed can be decided by the Civil Court without verification of the thumb impression by expert?" 4. The appellant, Smti. Sukumari Nath and pro-respondent Nos. 12 and 13, Smt. Kusumbala Nath and Smt. Promodini Nath, all as plaintiffs (hereinafter mentioned as 'plaintiffs'), instituted Title Suit No. 09(Partition) of 2003 against the defendant-respondents (hereinafter mentioned as 'defendants') seeking partition of the suit land measuring 4.57 acres described in Ist Schedule of the plaint and further seeking declaration that registered sale deed No. 1-3142 dated 14.05.1990 and registered sale deed No. 1-3141 dated 14.05.1990 as illegal, fraudulent, collusive and are not binding on the plaintiffs. 5. Bereft of unnecessary details, the short fact leading to the litigation is that Sanatan Nath, father of the plaintiffs and defendant Nos. 1, 2, 3 and 6 died intestate on 15.03.1987 leaving behind his wife Baradabala Devi and the plaintiffs as well as defendant No. 6 as four daughters and defendant Nos. 1, 2 and 3 as three sons. Baradabala Devi died on 06.12.2001 and so, the plaintiffs and the defendant Nos. 1, 2, 3 and 6 inherited the property left by Sanatan Nath. The plaintiffs contended that they had good relation with their brothers and that they claimed partition of the land left by their father and in the year 1990 their brothers proposing an amicable partition obtained their signatures and thumb impressions in blank stamp paper and in October, 2002 they came to learn that their brothers, defendant Nos. The plaintiffs contended that they had good relation with their brothers and that they claimed partition of the land left by their father and in the year 1990 their brothers proposing an amicable partition obtained their signatures and thumb impressions in blank stamp paper and in October, 2002 they came to learn that their brothers, defendant Nos. 1, 2 and 3 created some fraudulent sale deed with the blank stamp papers and get it registered. They further stated that they had never attended the Sub-Registrar Office, Dharmanagar and did not execute any sale deed in favour of their brothers, defendant Nos. 1, 2 and 3 as well as defendant No. 4. They obtained certified copy of the sale deeds and thereafter filed the suit seeking declaration of sale deed No. 1-3141 dated 14.05.1990 and sale deed No. 1-3142 dated 14.05.1990 as illegal, void and has no binding effect on the plaintiffs and further prayed for partition of the suit land described in Ist Schedule of the plaint. 6. The defendants contested the case by filing written statement, inter alia, contending that the plaintiffs, defendant Nos. 1, 2, 3 and 6 and their deceased mother, Baradabala Devi all executed sale deed No. 1-3141 dated 14.05.1990 and thereby sold out 19 Gandas 3 Karas of land to defendant No. 4 and they also sold out 17 satak and 19 satak of land in favour of Smt. Jaladini Nath, defendant No. 5(b). By executing sale deed No. 1-3142 dated 14.05.1990, the plaintiffs, their sister, defendant No. 6 and their mother sold out their shares of the land inherited by them in favour of defendant Nos. 1, 2 and 3. The plaintiffs brought the suit unnecessarily having no right, title and interest in the land described in Ist Schedule of the plaint and hence, the defendants prayed for dismissal of the suit. 7. The trial Court considered the pleadings of the parties and framed six issues, namely : "I. Is the suit maintainable in its present form? II. Whether the suit is bad for non-joinder of necessary parties? III. Whether all the lands belonging to Sonatan Nath were incorporated in the schedule of the land for partition? IV. Whether the Sale Deed No. 1-3142 and 1-3141, dated, 14-05-1990 are liable to be cancelled? V. Whether the plaintiffs are entitled to get the decree as prayed for? VI. II. Whether the suit is bad for non-joinder of necessary parties? III. Whether all the lands belonging to Sonatan Nath were incorporated in the schedule of the land for partition? IV. Whether the Sale Deed No. 1-3142 and 1-3141, dated, 14-05-1990 are liable to be cancelled? V. Whether the plaintiffs are entitled to get the decree as prayed for? VI. To what other relief or reliefs the parties are entitled to get?" 8. In course of trial, four witnesses were examined on behalf of the plaintiffs and they proved following documents:-- "i) Exbt. 1(Srs.) - Copy of Khatian No. 157, 157/2. 157/3, 157/4. ii) Exbt. 2. - Copy of Khatian No. 443. iii) Exbt. 3 - Copy of Khatian No. 458. iv) Exbt. 4 - Copy of survival Certificate dated, 12.09.2002. v) Exbt. 5 - Certified copy of Deed No. 3141, dated 15.05.1990. vi) Exbt. 6 - Certified copy of Deed No. 3142, dated 15.05.1990. vii) Exbt. 7 - Trace map of Sheet No. 2." 9. The defendants examined six witnesses and proved following documents:-- "a) Exbt.-A - The original Deed No. 3141, dated, 15.05.1990. b) Exbt.-B - The original Deed No. 3142, dated, 15.05.1990. c) Exbt.-C - Deed No. 2647 dated, 6.7.93. d) Exbt.-D - The Original Copy of the deed No. 2697 dated, 9-6-94. e) Exbt.-E - Photocopy of the death certificate." 10. The trial Court decided Issue Nos. 1, 2 and 3 in favour of the plaintiffs, but decided the material Issue Nos. 4 and 5 against the plaintiffs and accordingly, dismissed the suit. 11. Aggrieved, the plaintiffs preferred Title Appeal No. 17 of 2004 in the Court of learned Additional District Judge, Dharmanagar, North Tripura and the learned Additional District Judge by Judgment and decree dated 30.05.2005 dismissed the appeal and affirmed the judgment and decree passed by the trial Court. Hence, this second appeal. 12. Learned counsel, Mr. G.K. Nama, has very fairly submitted that Exbt. 5 and Exbt. 6 are the two sale deeds, which are also proved as Exbt.-A and Exbt.-B, are the crux of the suit. It is contended by Mr. Nama that both the deeds are registered deeds executed on 14.05.1990 and registered on 15.05.1990. It is the case of the plaintiffs that they never executed any such sale deeds for consideration. 5 and Exbt. 6 are the two sale deeds, which are also proved as Exbt.-A and Exbt.-B, are the crux of the suit. It is contended by Mr. Nama that both the deeds are registered deeds executed on 14.05.1990 and registered on 15.05.1990. It is the case of the plaintiffs that they never executed any such sale deeds for consideration. According to the plaintiffs, those sale deeds were created fraudulently obtaining signatures of the plaintiffs giving assurance of amicable partition. The trial Court did not obtain any expert opinion regarding the execution of those sale deeds by the plaintiffs and hence, the trial Court as well as the appellate Court arrived at a wrong decision. 13. Learned counsel, Mr. Bhattacharji, on the other hand, has submitted that the substantial question of law formulated in this second appeal cannot be at all termed as a substantial question of law. He has also submitted that the plaintiffs along with their three brothers, i.e. defendant Nos. 1, 2, 3 and their sister, defendant No. 6 and mother, Baradabala Devi executed sale deed marked Exbt.-5 and thereby sold out land to defendant No. 4 and also sold lands to defendant No. 5(a). By sale deed marked Exbt.-6, the plaintiffs and defendant No. 6 along with their mother sold out their shares in the inherited land to defendant No. 1, 2 and 3 and those original sale deeds have been proved as Exbt.-A and Exbt.-B by the defendants. The plaintiffs also proved the certified copy of those deeds marked as Exbt.-5 and Exbt.-6. No evidence was adduced by the plaintiffs to discard the registered instrument. The plaintiffs out of greed instituted the case and even the plaintiffs have not been supported by another sister, defendant No. 6. Even the plaintiff Nos. 1 and 2 did not prefer appeal against the judgment passed by the appellate Court. The appeal is devoid of any merit and liable to be dismissed. 14. Section 100 of CPC has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Even the plaintiff Nos. 1 and 2 did not prefer appeal against the judgment passed by the appellate Court. The appeal is devoid of any merit and liable to be dismissed. 14. Section 100 of CPC has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. In a second appeal a finding of fact, even if erroneous, will generally not be disturbed, but where it is found that finding stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. But where in a case the trial Court and the appellate Court arrived at a concurrent finding after appreciation of a fact, the High Court in the second appeal is not required to re-appreciate the evidence and arrive at a contrary finding. 15. The substantial question of law formulated in this appeal cannot be termed as a question of law, far from a substantial question of law. The trial Court and the appellate Court carefully scrutinized the evidence and found no element of forgery or fraud in the execution of the sale deeds marked Exbt.-5 and Exbt.-6 as well as Exbt.-A and Exbt.-B. The submission of learned counsel, Mr. Nama that the expert opinion was not taken is of no consequence since the plaintiffs did not deny their signatures in those documents, rather their stand is that their signatures were obtained in blank paper giving false assurance of partition. So, obtaining of expert opinion about signature was of no consequence. 16. The trial Court examined the volume book and all relevant records and arrived at a finding that the sale deeds were duly executed and registered in due course of law. The appellate Court affirmed the finding. While the sale deeds were executed and registered in due course of law, it has a presumption of genuineness. Burden heavily lies on the party alleging contrary to it. The plaintiffs failed to adduce any convincing evidence to prove their case that their signatures were obtained in blank paper and the sale deeds were created fraudulently to deprive them from their shares in the suit land. 17. Burden heavily lies on the party alleging contrary to it. The plaintiffs failed to adduce any convincing evidence to prove their case that their signatures were obtained in blank paper and the sale deeds were created fraudulently to deprive them from their shares in the suit land. 17. The trial Court and the appellate Court, as I find, considered the pleadings and evidence in its right perspective and the appeal has no merit at all. The second appeal, therefore, stands dismissed with cost. 18. Send back the lower court record along with a copy of this judgment.