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2014 DIGILAW 587 (GAU)

Asad Ali v. Renu Begum

2014-06-02

N.CHAUDHURY

body2014
JUDGMENT & ORDER(ORAL) Heard Mr. P.K. Roy, learned counsel for the appellants and Mr. M.H. Rajbarbhuiyan, learned counsel for the sole respondent. 2. By this second appeal the defendants have challenged the concurrent findings of the learned Courts below whereby suit of the plaintiff was decreed and the appeal their against was dismissed. Respondent Renu Begum as plaintiff instituted Title Suit No. 129/2006 in the Court of learned District Judge, Karimganj stating that the suit property originally belonged to one Asim Ali, the father of the plaintiff and defendants. After death of Asim Ali all his legal heirs including the present plaintiff were enjoying their respective shares. The plaintiff being daughter was enjoying 1/6th of the property. Accordingly, defendants used to give the share of usufruct of the suit property. But subsequently the defendants having stopped giving her share, she made enquiry and came to know that two alleged registered sale deeds were fabricated by the defendants showing as if she had sold her share of property on 05.08.2009 and 21.09.2009 in favour of the defendants. The sale deed dated 05.08.2009 was registered as sale deed No. 4405 whereas the sale deed executed on 21.09.2009 was registered as sale deed No. 5992. Plaintiff realised that these deeds were made by forging her thumb impression. The plaintiff, therefore, not only prayed for decree declaring her right, title, interest etc. over suit property but also for prayer that such sale deeds were liable to be adjudged collusive, void ab initio, illegal and liable to be cancelled. 3. The defendants on being summoned appeared but did not file any written statement within the statutory period and accordingly suit proceeded ex-parte against them. The learned Court asked the plaintiff to adduce evidence to prove her case. The plaintiff examined as many as 8 witnesses who were duly cross-examined by the defendants. The learned trial Court after hearing the parties disposed of the suit on 15.12.2007 on technical ground without deciding any issue on merit. The plaintiff challenged the judgment of the trial Court in Title Appeal No. 9/2008 and thereupon the learned Civil Judge, Karimganj allowed the appeal on 18.03.2010, setting aside the earlier trial Court’s judgment dated 15.12.2007 and remanded the suit for decision afresh for the learned trial Court. The plaintiff challenged the judgment of the trial Court in Title Appeal No. 9/2008 and thereupon the learned Civil Judge, Karimganj allowed the appeal on 18.03.2010, setting aside the earlier trial Court’s judgment dated 15.12.2007 and remanded the suit for decision afresh for the learned trial Court. This time the learned trial Court by judgment and decree dated 22.11.2010 decreed the suit of the plaintiff holding that the Ext.-1 & 2 sale deeds i.e. sale deeds dated 08.10.2004 and 05.08.2004 were never executed by the plaintiff. Consequently, the two sale deeds were adjudged as illegal, inoperative and void ab intio and consequently right, title and interest of the plaintiff was decreed. It was this judgment and decree which was challenged by the defendants in title Appeal No. 9 of 2011 and the learned appellate Court by his judgment and decree dated 31.07.2012 dismissed the said appeal holding that there is no material contradiction or inconsistency in the cross-examination of the PWs to shake the veracity of their testimony and that the witnesses of the plaintiff duly proved that the Exhibits 1 & 2 were never executed by the plaintiff. The learned first appellate Court noticed that PW1 being plaintiff specifically claimed that she had never put thumb impression on the said two deeds and that Ext.1 & 2 were illegal, collusive and liable to be cancelled. During her cross-examination, defendants did not give any suggestion to the PW1 that she did put her thumb impression on the deeds. Under such circumstances, the very challenge of the plaintiff that she did not subscribe to the Ext.-1 & 2 sale deeds remained unchallenged. The PW2 (Abdul Goni) fully corroborated testimony of PW1 in regard to share of the land. In the same breath the other witnesses like PWs 3, 4, 5, 6, 7 & 8 proved the 18 exhibits. After considering the evidence on record, the learned first appellate Court not only upheld the findings of the learned trial Court but also independently held that the plaintiff was legal heirs of Asim Ali and that she inherited 1/6th share of the suit land and that she did not execute Ext.-1 & 2 documents in favour of the defendants. So she had right, title and interest to the property. The defendants have preferred the second appeal challenging the aforesaid judgments of the learned courts below. 4. Mr. So she had right, title and interest to the property. The defendants have preferred the second appeal challenging the aforesaid judgments of the learned courts below. 4. Mr. M.H. Rajbarbhuiyan appeared in this appeal through a caveat and accordingly he has also been heard. 5. I have perused the Memorandum of Appeal. The appellant has not taken any objection challenging the findings of fact of the learned Courts below as to the thumb impression of the plaintiff over Ext.-1 & 2. There is no ground claiming that findings of the learned courts below on this count, are perverse. The only point that has been raised in the Memorandum of Appeal is that prior to filing of the present suit the said plaintiff had filed Title Suit No. 224/2004 in the Court of learned Civil Judge (Junior Division) No.1, Karimganj and the suit was dismissed. Under such circumstances the subsequent Title Suit No. 129/2006 was barred by res judicata. 6. It appears such an argument was put forward before both the trial Court and first appellate Court and both the Courts have observed that the previous Title Suit No. 224/2004 having been dismissed on the point of maintainability without finally deciding the issue there is no question of bar of res judicata under Section 11 of the Code of Civil Procedure. A copy of the judgment passed in Title Suit No. 224/2004 has been annexed to the Memorandum of Appeal for ready reference. I have perused the judgment passed in Title Suit No. 129/2004. Having gone through the same it appears that the findings of the learned Courts below that the Title Suit No. 224/2004 was dismissed on the point of maintainability is not perverse. Besides at the last line of the judgment in Title Suit No. 224/2004, the learned Court below has clarified that the plaintiff would be at liberty to approach competent Civil Court for redressal if so desired. Besides, this part of the judgment also attained finality as the defendants did not challenge the judgment and order before the appellate forum. 7. After hearing the learned counsel for the parties and after going through the judgment passed by the appellate Court it appears that the plaintiff’s suit is for declaration of the right, title and interest of 1/6th of the property left behind by Asim Ali, the predecessor of both the plaintiff and the defendants. 7. After hearing the learned counsel for the parties and after going through the judgment passed by the appellate Court it appears that the plaintiff’s suit is for declaration of the right, title and interest of 1/6th of the property left behind by Asim Ali, the predecessor of both the plaintiff and the defendants. Her further prayer was that Ext.1 & 2 were never executed and the sale is fabricated by the defendants. Both the learned Courts below held that plaintiff successfully proved that she did not subscribe her hand on Ext.1 & 2 sale deeds and accordingly the sale deeds are fabricated, collusive and void ab initio. As these findings are based on facts and they have not been challenged in the second appeal, under such circumstances, I do not feel that any substantial question of law does arise in this case and accordingly the second appeal is not admitted. It is dismissed.