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2015 DIGILAW 1475 (GAU)

Narendra Chandra Roy v. Manjula Bala Roy

2015-12-01

N.CHAUDHURY

body2015
JUDGMENT : This first appeal has been preferred by the defendant of Title Suit No. 20/2007 of the Court of learned Civil Judge, Bongaigaon challenging the judgment and decree dated 04.06.2009 passed therein declaring right, title and interest of the plaintiff over the suit land and for recovery of khas possession by evicting the defendant. 2. The facts involved in the appeal are required to be stated at the threshold. One Manjula Bala Roy, as plaintiff, instituted Title Suit No. 20/2007 in the court of learned Civil Judge, Bongaigaon stating that three plots of land covered by Dag No. 1961, 1161 and 1169 pertaining to khatian No. 416 of Bangaigaon Town Ward No. 3 under Bongaigaon Revenue Circle originally belonged to Amani Bala Roy. Dag No. 1961 and Dag No. 1161 measured 2 bighas each and Dag No. 1169 measured 3 K 3 L in all. It is stated that Amani Bala Roy died leaving behind her only son Jaleswar Roy, the father of the plaintiff. Jaleswar died when the plaintiff was a student of Class-VIII in Barshamgaon High School and she being the only legal heir of Jaleswar Roy became owner of the property described in schedule to the plaint. She further stated that the defendant who is none other than a friend of his father requested her to stay in the suit land posing to be well wisher and good friend and accordingly she permitted him to stay in her land. In the month of February, 1994 this defendant took her to the Office of the Sub-Registrar in the pretext of execution and registration of a power of attorney stating that it would be necessary for mutation of her paternal property in her name and in this regard she signed some documents in good faith. Thereafter in the year 1996, again the same defendant took her to the Office of the Sub-Registrar in the pretext of execution and registration of another deed being the Deed of Power of Attorney for correction of some mistakes in the previously executed deed. At that time also she did not have any reason to disbelieve him and accordingly singed on the dotted line. At that time also she did not have any reason to disbelieve him and accordingly singed on the dotted line. However, all along she was staying on the suit land but following her marriage in the year 1997, she initially started living at her matrimonial house but in 2002, she came back with her husband and children and started staying at the suit land. In the month of January, 2006 plaintiff stated to have requested the defendant to part with necessary land documents of the suit land but the latter went on dillydallying. Ultimately, on 22.01.2007, the defendant finally denied to hand over the documents whereupon she enquired in the Office of the Sub-Registrar at Bongaigaon and thereupon came to know that the deed executed by her in 1994 was not at all a Deed of Power of Attorney but was actually a gift deed in favour of the defendant. Similarly, the deed executed and registered by her in the year 1996 was a sale deed in favour of the same defendant. The gift deed dated 02.02.1994 and the sale deed dated 12.01.1996 have been mentioned at Schedule B to the plaint whereas the suit land has been described in Schedule A to the plaint. According to the plaintiff, she did neither execute a gift deed nor did she execute any sale deed in favour of the defendant and these two documents are vitiated by fraud. With these statements of facts, she prayed that a decree be passed declaring her right, title and interest over the suit land described in Schedule A to the plaint and also for a declaration that the defendant does not have any right, title and interest on the basis of deeds mentioned in Schedule B. She also made a prayer for declaration that the aforesaid deeds described in Schedule B to the plaint are illegal, fraudulent and void ab-initio and prayed for decree for khas possession by evicting the defendant from the suit land. 3. On being notified, the sole defendant appeared and submitted written statement and he disclosed that the averments made in the plaint in regard to his identity and status are out and out misleading and incorrect. 3. On being notified, the sole defendant appeared and submitted written statement and he disclosed that the averments made in the plaint in regard to his identity and status are out and out misleading and incorrect. He stated that original owner Amani Bala Roy had as many as 5 (five) legal heirs, namely, late Lunduri Barman (married daughter), late Bhunduri Barman (married daughter), late Shashin alias Sushil Roy (son) who is father of defendant, late Jaleswar Roy (son) who is father of the plaintiff and Smt. Moukhai (married daughter). Thus, the averments made in the plaint that Jaleswar Roy was the only legal heir of deceased Amani Bala Roy and that defendant was merely a friend of Jaleswar Roy were incorrect. The defendant claimed to be the son of the own paternal uncle of the plaintiff. He further disclosed that after death of Jaleswar on 11.07.1972, his wife who is the mother of the plaintiff, had married one Dwipen Barua alias Kala in the year 1974 and thereafter she went to her matrimonial house at Jelkajhar taking the plaintiff with her. However, subsequently one Ratneswar Roy, an elderly member and family relation of Amani Bala Roy intervened through a family settlement for not depriving the plaintiff from her paternal property whereupon it is decided that the plaintiff would be given her paternal property who on turn would also hand over the legal dues of the defendant by executing gift deed and sale deed for 2B 3K 3L of land after attaining majority. This is because during the life time of Jaleswar he had obtained a gift deed from original owner Amani Bala Roy by depriving the father of the defendant and other legal heirs. It is further stated that pursuant to such decision the defendant ultimately executed a registered gift deed No. 82 on 02.02.1994 with respect to 2B 3K 3L of land in favour of the defendant. It is further stated in paragraph 9 of the written statement that the plaintiff had been executing one sale deed after another and realising money from the purchasers to meet her needs. As many as 7 sale deeds said to have been executed by the plaintiff were mentioned in this paragraph. It was stated that registered sale deed No. 648 dated 15.05.1990 was executed by the plaintiff for 17L of land in favour of one Ramesh Ch. Chakraborty. As many as 7 sale deeds said to have been executed by the plaintiff were mentioned in this paragraph. It was stated that registered sale deed No. 648 dated 15.05.1990 was executed by the plaintiff for 17L of land in favour of one Ramesh Ch. Chakraborty. Another registered sale deed No. 278 dated 18.12.1992 was executed by the plaintiff in favour of Sri Ramkishore Roy for 2B 2K 10L. She executed registered sale deed No. 39 dated 18.01.1994 for 2B 2K 10L in favour of Sri Pradeep Sarkar. On 12.01.1996 she executed another registered sale deed No. 39 dated 12.01.1996 in favour of Tarani Kanta Roy for 2B of land and in between on 02.02.1994 and on 12.01.1996 she executed two documents in favour of the defendant being registered document No. 82 and 38 respectively. With these averments, the defendant claimed that the claim of the plaintiff of not executing gift deed in the year 1994 and sale deed in the year 1996 are incorrect. The grounds stated in the plaint by the plaintiff that she was minor as on the date of execution of these deeds and that she was not aware of the execution were also denied being incorrect and fabricated. The defendant prayed that the suit be dismissed with cost. 4. On the basis of the aforesaid rival contentions of the parties, the learned trial court framed as many as 12 issues and the same are quoted below:- 1. Whether there is cause of action for filing of the suit? 2. Whether suit is maintainable in its present form and manner? 3. Whether suit is barred by limitation? 4. Whether suit is bad for non-joinder of necessary parties? 5. Whether plaintiff allowed defendant to stay over the suit land and defendant is a licensee? 6. Whether regd. Sale deed No. 38 dated 12.01.1996 and regd. Gift Deed No. 82 dated 02.02.1994 are illegal, fraudulent, void and inoperative and not binding upon the plaintiff? 7. Whether plaintiff got her right, title and interest over suit land? 8. Whether defendant got right, title and interest over the suit land? 9. Whether plaintiff sold away land by executing regid. Deed No. 648 dated 15.05.1990, deed No. 278 dated 18.12.1992, deed No. 39 dated 18.01.1994, deed No. 82 dated 02.02.1994, deed No. 38 dated 12.01.1996 and deed No. 39 dated 12.01.1996? 10. 8. Whether defendant got right, title and interest over the suit land? 9. Whether plaintiff sold away land by executing regid. Deed No. 648 dated 15.05.1990, deed No. 278 dated 18.12.1992, deed No. 39 dated 18.01.1994, deed No. 82 dated 02.02.1994, deed No. 38 dated 12.01.1996 and deed No. 39 dated 12.01.1996? 10. Whether suit land is identified as patta No. 621 (old)/84(new), Dag No. 1161 (old), 1(new) and 1169 (old), 12 (new) for 2B 3K 3L? 11. Whether plaintiff is entitled to the reliefs as prayed for? In course of trial, plaintiff examined 3 witnesses and exhibited as many as 20 documents. The defendant examined 3 witnesses and exhibited 14 documents. 5. Upon perusal of the evidence, the learned trial court held that there is cause of action for the suit, that the suit is maintainable in the present form, that the suit is not barred by limitation and that the suit is not bad for non-joinder of necessary parties. Coming to the issue No. 7, the learned trial court found that the plaintiff got right, title and interest over the suit land and that the gift deed dated 02.02.1994 and sale deed dated 12.01.1996 are not binding upon her. Coming to issue No. 9, the learned trial court held that the plaintiff did not execute sale deed No. 648 dated 15.05.1990, deed No. 278 dated 18.12.1992, deed No. 39 dated 18.01.1994, deed No. 82 dated 02.02.1994, deed No. 39 dated 12.01.1996, deed No. 38 dated 12.01.1996. The learned trial court decided these issues in favour of the plaintiff only on the ground that the defendant could not produce the original sale deeds and merely exhibited the certified copies. Having arrived at the aforesaid findings the learned trial court decreed the suit in entirety by his judgment and decree dated 04.06.2009. It is this judgment which has been called in question in the present appeal. 6. I have heard Mr. D Baruah, learned counsel for the appellant and Mr. DN Bhattacharjee, learned counsel for the sole respondent. I have perused the lower court records. It is this judgment which has been called in question in the present appeal. 6. I have heard Mr. D Baruah, learned counsel for the appellant and Mr. DN Bhattacharjee, learned counsel for the sole respondent. I have perused the lower court records. Having heard the learned counsel for the parties it appears that the points for determination in the appeal would be as follows:- (i) Whether defendant played fraud on the plaintiff for obtaining registered gift deed No. 82 dated 02.02.1994 and sale deed No. 38 dated 12.01.1996 taking opportunity of the minority of the plaintiff and pretending to obtain deed of power of attorney from her? (ii) Whether plaintiff succeeded to prove her right, title and interest with respect to the suit land? 7. Mr. D Baruah, learned counsel for the appellant, argues that the gift deed has been exhibited as Ext. A by the defendant. This is a certified copy and it shows that mother of the plaintiff, Pujari Bala Roy was identifier of the document. This question was put to the plaintiff in course of her cross examination when she admitted that her mother put signature on the gift deed and subsequently she stated that this signature is given as witness. He further argues that plaintiff herself stated in course of cross examination that she was 14/15 years old when her father had died and her father having died on 11.07.1972 she could not have been a minor on 02.02.1994 on which date gift deed was executed by the plaintiff. Apart from that she having admitted in her cross examination that she had executed sale deed in favour of Tarani Kanta Roy and a certified copy of the said sale deed having been presented and produced on record as an Exhibit by the defendant, it cannot be said that she was minor at the time of execution of the sale deed. Apart from that all the sale deeds which were executed by the plaintiff in favour of various persons as mentioned in paragraph 9 to the written statement only indicate that plaintiff was not telling the truth when she claimed that she was a minor in 1994 and 1996 and that defendant was a friend and acquintance of her father. Drawing attention of the court to the cross examination of PW 1 (plaintiff), Mr. Drawing attention of the court to the cross examination of PW 1 (plaintiff), Mr. Baruah would argue that the plaintiff had specifically admitted that grand-mother of the plaintiff Amani Bala Roy had four other legal heirs other than Jaleswar, the father of the plaintiff. Plaintiff admitted that Sachin alias Sushil Roy was elder brother of the plaintiff’s father and thus defendant being the son of the same Sushil Roy was first cousin of the plaintiff. But the plaintiff by suppressing this fact described defendant to be a mere friend and acquintance of late Jaleswar Roy. This shows that plaintiff did not approach this court with clean hands. Moreover, if the original owner Amani Bala Roy had other legal heirs except Jaleswar Roy in that event, non-impleading those legal heirs is fatal for the suit. With these arguments, Mr. D Baruah, learned counsel for the appellant, submits that appeal be allowed by setting aside the impugned judgment and decree. 8. Per contra, Mr. DN Bhattacharjee, learned counsel for the respondent, submits that plaintiff having pleaded that she was minor at the time of execution of gift deed dated 02.02.1994, has placed on record a school certificate as Ext. 20 which shows that the plaintiff was born on 03.01.1977. According to Mr. Bhattacharjee, school certificate is a valid document to prove the age of the plaintiff and if this is taken into consideration in that event, learned trial court has not committed any error holding that the plaintiff was a minor on 02.02.1994 when the alleged gift deed was executed. According to him, the independent witnesses being PW 2 and PW 3 have proved that the plaintiff never intended to execute a sale deed in favour of the defendant and so there is no scope to interfere with the impugned judgment and decree. He prays that the appeal be dismissed with cost. 9. To find answer to the points for determination as mentioned above, this court has perused the evidence led by the parties. PW 1 stated at the first part of her cross examination that she knows defendant only as a friend of her father. She claimed that her mother died when she was 15/16 years old and that she does not know her date of birth. Whatever the Headmaster has written to be her age is correct and Ext. 20 is the certificate given by the Headmaster in this respect. She claimed that her mother died when she was 15/16 years old and that she does not know her date of birth. Whatever the Headmaster has written to be her age is correct and Ext. 20 is the certificate given by the Headmaster in this respect. She stated that on 01.12.1975 when Ext. 1 mutation order was passed, she was a minor. But she stated that at the time of the mutation of the land in her favour, she was 15/16 years old. The mutation was granted on 01.12.1975 by Ext. 1 adduced by the PW 1 and so even if her statements are taken into consideration that she was 15/16 years old as on 01.12.1975 that means that she was not a minor on 02.02.1994. She further stated that even during mutation vide Ext. 3 she was 15/16 years old. She admitted that the elder sisters of her father was Lunduri Barman and Bhunduri Barman and that Sushil Roy alias Sachin is the elder brother of her father. The younger sister of her father is still surviving. She further stated that this Sushil Roy, elder brother of her father, is also the father of the defendant and so defendant is the son of her paternal uncle. She further stated that in Ext. 3 mutation order, the name of her mother is there as legal heir but still then she denied that age recorded in Ext. 20 was wrong. In course of cross examination she further admitted that she sold land to Tarani Kanta Roy at the adjacent border of the suit land but she could not say the date of execution of the sale deed. But producing the certified copy of the sale deed the defendant, however, could show that the sale deed, executed in favour of Tarani Kanta Roy, was exhibited on 12.01.1996 i.e. the date on which the registered sale deed No. 38 was executed in favour of the defendant but on the following moment she had denied to have executed the registered sale deed No. 38 in favour of Tarani Kanta Roy on the same date. She claimed that the brother and sisters of her father were not entitled to any property left behind by Amani Bala Roy. She claimed that the brother and sisters of her father were not entitled to any property left behind by Amani Bala Roy. She, however, admitted that her father died on 11.07.1972 and thereafter her mother got married to one Dwipen Barua and started living in Jelkajhar where she started schooling from class-I. She denied the suggestion given to her that Jaleswar Roy by influencing Amani Bala Roy obtained gift deed in his favour depriving Sachin alias Sushil Roy and others. She also denied that Sushil Roy was not entitled to any share to the property at all. At the last part of her cross examination she admitted that in the gift deed her mother had also put signature as witness. At this, the Ext. A gift deed is also perused whereupon it is found that there is a mention of the signature of Pujari Bala Roy as witness to Ext. A gift deed dated 02.02.1994. Thus, from perusal of the cross examination of the plaintiff it appears that her averments made in the plaint that defendant was a stranger and was at best a friend of her deceased father is not correct. Father of the defendant was none other than the full brother of her deceased father and thus the defendant was the first cousin of the plaintiff which fact she appears to have suppressed in the plaint. The plaintiff has also failed to disclose in her pleading that Amani Bala Roy left behind other legal heirs or that she had executed gift deed in favour of Jaleswar Roy. In the absence of any pleading to that effect, plaintiff could not have claimed exclusive right, title and interest to the property left behind by Amani Bala Roy. This is because Amani Bala Roy left behind as many as 5 legal heirs including Jaleswar Roy and she died much after the Hindu Succession Act, 1956 came into force and so all the sons and daughters of Amani Bala Roy inherited title to the estate left behind by Amani Bala Roy. However, if the plea taken by the defendant that Amani Bala Roy had executed a gift deed in favour of Jaleswar Roy is correct in that event, the other legal heirs might have been disinherited. However, if the plea taken by the defendant that Amani Bala Roy had executed a gift deed in favour of Jaleswar Roy is correct in that event, the other legal heirs might have been disinherited. But plaintiff failed to make mention of such gift deed in her plaint and so she failed to lay foundation for making claim as to exclusive right, title and interest to the suit land. 10. If the disclosure made by PW 1 in course of cross examination is taken into consideration then what is apparent is that in 1975 she was a minor and she was 15/16 years of age at that time. Her father died on 11.07.1972 and so her date of birth cannot be later than 01.04.1973 and in that event, she attained 18 years of age in the year 1991. So as on 02.02.1994 the plaintiff was definitely a major. So, the ground taken by the plaintiff in her pleading that she was minor as on 02.02.1994 is found to be incorrect. Moreover, Ext. A gift deed dated 02.02.1994 was a registered document as required under section 122 and 123 of the Transfer of Property Act, 1882. Plaintiff’s mother Pujari Bala Roy was a signatory to this document as a witness and so the statement made by the plaintiff either in her pleading or in her deposition in course of deposition under Order XVIII Rule 4 of the Code of Civil Procedure that she was not aware about the content of the document does not appear to be convincing. Moreover, section 92 of the Evidence Act postulates that no amount of oral evidence can override the document unless and until a specific case of fraud has been set up. In the present case, plaintiff has failed to lead any evidence to establish that fraud has been perpetrated on her. Rather, it has come to light that the same plaintiff had executed sale deeds in favour of different persons at the relevant time and this fact has been admitted in course of her cross examination. This being the position, the two grounds taken by the plaintiff for getting rid of gift deed dated 02.02.1994 and sale deed dated 12.01.1996, namely, minority and lack of knowledge do not appear to exist under the facts and circumstances of the case. This being the position, the two grounds taken by the plaintiff for getting rid of gift deed dated 02.02.1994 and sale deed dated 12.01.1996, namely, minority and lack of knowledge do not appear to exist under the facts and circumstances of the case. The learned first appellate court has failed to consider the aforesaid aspects of the matter and has merely refused to rely on the case of the defendant that plaintiff had executed sale deeds at the same time in favour of the other persons merely for the reason that defendant could not produce the originals of the sale deeds. Nevertheless, defendant produced the certified copy of sale deed and the plaintiff had executed the sale deed in favour of Tarani Kanta Roy. On the face of such revelation, the ground on which this plea of the defendant has been disbelieved by the learned trial court cannot be sustained. Accordingly, the first point for determination is decided in favour of the appellant and against the plaintiff. 11. Since it has been held while deciding first point for determination that the plaintiff was neither a minor as on 02.02.1994 nor was she misled by the defendant for executing the gift deed dated 02.02.1994 and the sale deed dated 12.01.1996, the findings arrived at by the learned trial court that plaintiff had right, title and interest over the suit land cannot be upheld. Virtually corollary to the finding to the first point for determination, referred to above, the second point for determination is also liable to be decided in favour of the appellant and against the plaintiff. Consequently, the appeal stands allowed. The impugned judgment and decree is set aside. 12. No order as to costs. Send down the lower court records immediately. 13. Interim order, if any, stands automatically vacated.