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Gauhati High Court · body

2015 DIGILAW 604 (GAU)

Paresh alias Prabodh Hazarika v. Puthimai Das

2015-05-20

A.K.GOSWAMI

body2015
Order This second appeal is preferred against the judgment and decree dated 5.9.2003 passed by the learned Civil Judge (Senior Division), Morigaon in Title Appeal No. 15/2003 affirming the judgment and decree dated 11.4.2003 passed by the learned Civil Judge (Junior Division), Morigaon in Title Suit No. 26/1995. 2. The suit was filed by Paresh Chandra Hazarika @ Probodh Chandra Hazarika and Prodip Chandra Hazarika. It is not disputed that Prodip Chandra Hazarika died a bachelor during pendency of the suit. 3. The case of the plaintiffs, as projected in the plaint, is that land measuring 2 bighas 3 kathas 17 lechas covered by Dag No. 252 of Periodic Patta No. 21 of Rajagaon Kissam under Mouza-Morigaon belonged to one Kera Kaibarta and Bijia Das @ Bejia Das purchased a portion of land measuring 1 bigha 2 kathas 10 lechas out of the said land and his name was accordingly mutated on 24.1.1975 and subsequently, based on the mutation, land record was corrected on 6.6.1978. Bijia Das sold 1 bigha of land to the plaintiffs by executing a registered sale deed No. 991 dated 9.6.1978 for a consideration amount of Rs. 2,000/- and delivery of possession of the land was given on the date of execution and accordingly, the plaintiffs were in possession of the suit land by erecting bamboo fencing and planting various kinds of trees. The names of the plaintiffs were mutated on 4.12.1986 in Misc. Case No.499/85-86 and consequently, land record was also corrected on 18.7.1987. The plaintiff No. 1 applied for obtaining permission on 23.9.1992 for constructing a residential building to the Morigaon Town Committee and after obtaining permission, the plaintiffs had made preparation for construction of the building by collecting building materials. As the construction works were about to be started, the defendants on 1.10.1992 approached the plaintiff No. 1 with a request to allow them to reside in a small portion of the suit land till the construction works were completed as they had become landless consequent upon sale of the entire land belonging to Bijia Das. The plaintiffs allowed the defendants to stay on one portion of the land. Accordingly, the principle defendants constructed a thatched house on the land measuring 10 lechas, which is described in Schedule C to the plaint. The plaintiffs allowed the defendants to stay on one portion of the land. Accordingly, the principle defendants constructed a thatched house on the land measuring 10 lechas, which is described in Schedule C to the plaint. For financial constraint, the construction work could not be undertaken and taking advantage of the situation, the defendants filed a mutation appeal before the Additional Deputy Commissioner, Revenue, Morigaon for cancellation of the mutation granted on 4.12.1986. Failure of the defendants to vacate the land despite repeated requests necessitated the plaintiffs to file the suit. Accordingly, in the suit, prayer was made for decree of declaration of right, title and interest over the suit land described in Schedule A to the plaint, confirmation of possession in respect of the land described in Schedule B to the plaint and for recovery of possession in respect of the land described in Schedule C to the plaint. 4. The principle defendant Nos.1 to 3 filed written statement. It was pleaded in the written statement, apart from other legal pleas, that the suit is barred by principle of adverse possession. Boundary of the land described in Schedule B was disputed. It was admitted that Bijia Das @ Bejia had purchased 1 bigha 2 kathas 10 lechas out of 2 bighas 3 kathas 17 lechas from Kera Kaibarta and accordingly, mutation was granted in his favour. The sale allegedly made by Bijia Das measuring 1 bigha to the plaintiffs by registered sale deed No. 991 dated 9.6.1978 and delivery of possession was denied with the assertion that Bijia Das and his family members were continuously in possession of the suit land till his death in the year 1987 and after his death, the defendants are continuously in possession of the suit land by residing in the dwelling houses constructed by Bijia Das. The averments made in the plaint to the effect that possession was delivered was stoutly denied and it was pleaded that mutation granted without possession was not valid in law. The plea of the plaintiffs that on the request of the defendants the plaintiff No. 1 allowed them to reside on a small portion of the suit land was also specifically denied. The plea of the plaintiffs that on the request of the defendants the plaintiff No. 1 allowed them to reside on a small portion of the suit land was also specifically denied. It was also pleaded that the registered deed, by virtue of which the plaintiffs allegedly claimed the suit land, is a forged deed executed by impersonation and as such no rights can flow to the plaintiffs by virtue of such fraudulent registered deed without any delivery of possession. 5. On the basis of the aforesaid pleadings, the learned trial court framed the following issues: “i) Whether there is any cause of action for the suit? ii) Whether the suit is maintainable in its present form? iii) Whether the suit is barred by the principle of adverse possession? iv) Whether the suit is barred by waiver, estoppel and acquiescence? v) Whether the plaint is properly signed, verified and presented according to law? vi) Whether the suit is hit by Sec. 34 of the Specific Relief Act? vii) Whether Bejia Das during his life time sold the suit land 1 bigha to the plaintiffs by executing a registered sale deed No. 991 on 9.6.1978 and delivered khas possession thereof, on the date of execution of sale? viii) Whether the plaintiffs have any right, title and interest over the suit land? ix) Whether the plaintiffs are entitled for recovery of khas possession of the Schedule C land by evicting the principle defendants therefrom and also by demolishing all structures standing thereon? x) To what relief, if any, the plaintiffs are entitled to?” 6. During trial, the plaintiffs examined four witnesses including the scribe of the sale deed dated 9.6.1978 (Ext. 1) as PW 1. The identifier and witness of the aforesaid sale deed were examined as PW 2 and PW 3 and the surviving plaintiff examined himself as PW 4. The defendants had examined three witnesses with defendant No. 1 examining himself as DW 1. One Rama Kanta Das and Nazira Das, who were neighbours, were examined as DW 2 and DW 3, respectively. 7. The suit was initially dismissed. However, in the appeal being Title Appeal No. 22/2002, the learned lower appellate court remanded the suit to the learned trial court by framing the following additional issue:- “Whether the sale deed No. 991 dated 9.6.1978 executed by Bijia Das @ Bejia Das is a forged deed executed by false impersonation”. 7. The suit was initially dismissed. However, in the appeal being Title Appeal No. 22/2002, the learned lower appellate court remanded the suit to the learned trial court by framing the following additional issue:- “Whether the sale deed No. 991 dated 9.6.1978 executed by Bijia Das @ Bejia Das is a forged deed executed by false impersonation”. Thus, the said issue was numbered as issue No.(xi) when the learned trial court again took up the matter for fresh consideration. 8. After remand, PW 3 once again deposed on behalf of the plaintiffs as PW 3. Two other witnesses, namely, DW 4 and DW 5 were examined on behalf of the defendants. DW 4, Tolen Das, is the grandson of Kera Kaibarta, the vendor of Bijia Das and DW 5 is the defendant No. 2. 9. The learned trial court decided issue No.(xi) by holding that the sale deed dated 9.6.1978 was a forged deed and accordingly, negated the claim of the plaintiffs for right, title and interest. Side by side, the issue No. 3 was also decided in favour of the defendants holding that the suit is barred by the principles of adverse possession. In the appeal preferred by the plaintiffs, the learned lower appellate court concurred with the findings of the learned trial court with regard to issue No. (xi). However, no finding was recorded with regard to the issue of adverse possession. 10. This second appeal was admitted for hearing by an order dated 8.4.2004 on the following substantial question of law:- “1. Whether the execution of the sale deed being No. 991 dated 9.6.1978 not having been challenged in any manner the lower appellate court and the trial court committed grave error of law in holding the said deed to be a forged one and the said conclusion resulted in great injustice to the plaintiff/appellant and the said finding cannot be sustained and is liable to be set aside?” 11. Mr. N Deka, learned counsel for the appellant has submitted that the vendor of the plaintiffs expired in the year 1987. Consequent upon the defendants filing the mutation appeal, challenging, in essence, the right, title and interest of the plaintiffs, the plaintiffs had to file the suit. Mr. N Deka, learned counsel for the appellant has submitted that the vendor of the plaintiffs expired in the year 1987. Consequent upon the defendants filing the mutation appeal, challenging, in essence, the right, title and interest of the plaintiffs, the plaintiffs had to file the suit. As the original vendor was no more, it was not possible for the plaintiffs to examine the vendor and accordingly, the scribe, the witness and the identifier in the sale deed were examined to prove execution of the sale deed Ext. 1. It is in these circumstances, learned counsel submits that the burden shifted to the defendants to prove that there was impersonation. It is submitted by him that though plea was taken in the written statement that the sale deed in question was executed by impersonation, no counter-claim was filed to adjudge the said sale deed to be fraudulent, void and inoperative in law. In this context, the learned counsel referred to Section 31 of the Specific Relief Act, 1963. He has also submitted that while it is correct that an application for amendment of the written statement was filed to include a counter-claim, the same being rejected, the defendant did not agitate the matter thereafter and the defendants are, therefore, precluded from raising the plea of counter-claim. It is not in dispute that Ext. 1 was admitted without any objection. It is also submitted that if the sale deed is disbelieved, there would have been no occasion for adverse possession. The learned trial court committed manifest error of law in recording the finding of adverse possession in favour of the defendants and at the same time holding that the sale deed is fraudulent. According to Mr. Deka, both these findings cannot go together and therefore, the learned lower appellate court did not advert at all to the plea of adverse possession. The learned counsel relies on the following decisions of the Apex Court in (i) Abdul Rahim and ors., vs. Sk. According to Mr. Deka, both these findings cannot go together and therefore, the learned lower appellate court did not advert at all to the plea of adverse possession. The learned counsel relies on the following decisions of the Apex Court in (i) Abdul Rahim and ors., vs. Sk. Abdul Zabar and ors., reported in (2009) 6 SCC 160 , Vimal Chand Ghevarchand Jain and ors., vs. Ramakant Eknath Jadoo, reported in (2009) 5 SCC 713 , Amiya Bala Dutta vs. Mukut Adhikari and ors., reported in 1998 (4) GLT 137, Mamndra Kumar Dey and ors., vs. Mahendra Suklabaidya and ors., reported in 1999 (1) GLT 30, Abdul Gam and ors., vs. Jarun Ali Mandal, reported in 1999 (1) GLT 196, and Manmatha Ranjan Trivedi vs. Gopal Krishna T.E. Co. (P) and ors., reported in (2006) (Supp) GLT 718. 12. Mr. P. Sen Deka, learned counsel for the respondents submits that the evidence of PW 3 after remand is an improved version. After remand, PW 3 had deposed that after PW 1 had explained the contents of the documents, Bijia Das had signed Ext. 1, but the same is not corroborated by PW 1. Further, it is submitted by him that according to PW 1, he had not taken the signature of Bijia Das but PW 3, after remand, had stated that Bijia Das had put his signature in front of him and therefore, the conclusion is to be derived that the vendor did not put his signature in front of PW 1 and therefore, no reliance can be placed on the evidence of PW 3. If the evidence of PW 3 is discarded, the only logical conclusion would be that the Ext. 1 was not proved in accordance with law and in that event, the burden does not shift to the defendants. 13. With regard to the submission made by Mr. N. Deka that admission of a document in evidence proves the contents, Mr. P.S. Deka submits that mere admission of the document does not prove the contents and therefore, the fact that the defendants did not object admissibility of the document is of no consequence. When the plaintiffs have failed to produce acceptable evidence to prove Ext. N. Deka that admission of a document in evidence proves the contents, Mr. P.S. Deka submits that mere admission of the document does not prove the contents and therefore, the fact that the defendants did not object admissibility of the document is of no consequence. When the plaintiffs have failed to produce acceptable evidence to prove Ext. 1 coupled with the evidence of the defendants that all along the defendants were in possession of the suit land, no case arises for interference with the concurrent finding of facts recorded by the courts below. 14. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 15. In Amiya Bala Dutta (Supra), this court held that mutation entries, though may not be the basis of title, yet the same cannot be totally brushed aside. In the instant case, it is on record that after about 7 years of grant of mutation in favour of the plaintiff, an appeal was preferred by the defendants. Therefore, in coming to a conclusion in this case, grant of mutation in favour of the plaintiffs has to be kept outside the purview of consideration. 16. PW 1 had stated in his evidence that he had written Ext. 1 and he had taken the signature of the witnesses Dhan Singh Bishaya, PW 3 and Satindra Medhi. Satindra Medhi is not examined. He had stated that he had not taken the signature of Buddhiman Das, PW 2, and the thumb impression of Bijia Das. He had also stated that he did not know Bijia Das and Buddhiman Das and he was not aware who had put signature inside the office as he wrote the deed sitting in the verandah of the office. PW 2 Buddhiman Das had stated that Bijia Das had sold land to Deben Hazarika and in cross-examination he had stated that house constructed during the lifetime of Bijia Das is in the disputed land and after his death, his legal representatives are residing thereon. PW 3 in his evidence before remand had stated that petition writer Pushpendra Medhi had identified the seller. It is also stated by him that Buddhiman Das, whom he knew, had also signed in the deed but he did not know whether he was a witness. PW 3 in his evidence before remand had stated that petition writer Pushpendra Medhi had identified the seller. It is also stated by him that Buddhiman Das, whom he knew, had also signed in the deed but he did not know whether he was a witness. PW 4 had stated in evidence that there was a house wherein he permitted the family of Bijia Das to live. In cross-examination he had stated that he had come along with his father to the Office of the Sub-Registrar and that he knew Buddhiman Das. After remand PW 3 had stated that the deed was written by PW 1 and after he had read over the contents of the petition, Bijia Das was paid Rs. 2,000/- and he signed the deed in his presence and thereafter he signed as witness. It was further stated that someone by the name of “Medhi” of Dali Suba had signed as witness No. 2. 17. The learned trial court opined that the evidence of PW 3 is not reliable on the grounds that he had named two different deed writers as the scribe, namely, Pushpendra Medhi and Upen Das and that Pushpendra Medhi did not identify the vendor but according to the sale deed, the vendor was identified by Buddhiman Das PW 2. After remand he had stated that it was he who identified Bijia Das but he was asked to sign as a witness. While PW 3, after remand, had stated that the deed was written by PW 1 and he had read over the contents and only thereafter Rs. 2,000/- was paid in front of him but PW 1 had categorically stated that he did not take the signature or thumb impression of Bijia Das. It was also noted that PW 2 did not say anything about putting any signature. On the basis thereon, the learned trial court had come to the conclusion that Ext. 1 is a forged deed and executed by false impersonation. The learned appellate court concurred with the findings of the learned trial court. 18. It is to be noted that the registered sale deed was executed in the year 1978 and the suit came to be filed in the year 1994. A registered document carries with it a presumption that it was validly executed. There is also a presumption that the transaction was a genuine one. 18. It is to be noted that the registered sale deed was executed in the year 1978 and the suit came to be filed in the year 1994. A registered document carries with it a presumption that it was validly executed. There is also a presumption that the transaction was a genuine one. It is for the parties questioning the genuineness of the transaction to show that in law the transaction was not valid or that the execution was done through impersonation. The above view finds support from the judgments rendered in the case of Abdul Rahim (supra) and Vimal Chand (supra). 19. It is to be borne in mind that Ext. 1 was proved by Upen Das, PW 1, and he had come to depose in court after 19 years. He had not stated anything about the signature of Bijia Das. What he had stated is that he had not taken the thumb impression of Bijia Das. The thumb impression of Bijia Das along with the signature appears in the registration part of the document. Apart from that, signature of Bijia Das also appears in the deed in both the pages. It is, however, correct that he did not know Bijia Das and the identifier personally. It is to be remembered that Ext. 1 was proved in original and was admitted into evidence without any objection. 20. It appears from the evidence of PW 2 that he knew the defendants and the father of the plaintiffs. He does not dispute the sale of the land in question by execution of a deed by Bijia Das. According to him, Deben Hazarika, father of the plaintiffs had purchased the land in question from Bijia Das and not by the plaintiffs. Such statement is to be understood in the sense that Deben Hazarika had taken all the steps for the purchase of the land. It is not correct as held by the learned trial court that PW 3 had named two persons as the scribe. His evidence is clear that PW 1 was the scribe. The words ‘deed writer’ was used by him to indicate the profession of the identifier. Pushpendra Medhi was neither the identifier nor a witness to the deed. To that extent, there is no doubt there is a discrepancy in the deposition of PW 3 with regard to identification. His evidence is clear that PW 1 was the scribe. The words ‘deed writer’ was used by him to indicate the profession of the identifier. Pushpendra Medhi was neither the identifier nor a witness to the deed. To that extent, there is no doubt there is a discrepancy in the deposition of PW 3 with regard to identification. But that will not be of much consequence as PW 2 had not disowned the fact that he had not identified Bijia Das. There was also no suggestion put to him that Bijia Das had not put thumb impression in the deed or that he had not identified Bijia Das. This assumes importance in view of the fact it was suggested by the defendants during the cross-examination of PW 3 and PW 4 that they had forged the signature of Buddhiman Das, PW 2. 21. The defendants not only did not pursue the matter with regard to rejection of the prayer for counter-claim praying for cancellation of the instrument Ext. 1 but also allowed the same to be admitted into evidence without any objection. The learned courts below did not at all take into consideration the presumptive value of the registered deed Ext. 1. It is to be noted that the defendants did not even pray for examination by handwriting expert as to whether the signature bearing in Ext. 1 was that of Bijia Das. 22. In Abdul Rahim (supra) also, this Court had held that when a document had been marked as exhibit without any objection, no objection can be raised regarding its execution and mode of proof. In Mamndra Kumar (supra), this court held that when the objection to the mode of proof put forward is irregular or insufficient, such objection must be taken before the document is marked as exhibit and admitted to the record. The courts below also erroneously held that the sale was not complete as there had been no delivery of possession. As already noted that in respect of immovable property value of which is more than Rs. 100/-, delivery of possession is not a condition precedent. This Court in Manmatha Ranjan Trivedi (supra) had held that Section 54 of the Transfer of Property Act does not lay down any condition that in order to acquire title after purchase by execution of a registered sale deed, the delivery of possession is a condition precedent. 23. 100/-, delivery of possession is not a condition precedent. This Court in Manmatha Ranjan Trivedi (supra) had held that Section 54 of the Transfer of Property Act does not lay down any condition that in order to acquire title after purchase by execution of a registered sale deed, the delivery of possession is a condition precedent. 23. The admitted position is that Bijia Das had purchased 1 bigha 2 kathas and 10 lechas from Kera Kaibarta. Case of the plaintiff is that 1 bigha out of the said land was purchased, which is disputed by the legal representatives of the vendor. Apart from the land involved in the disputed sale, evidently Bijia Das had 2 kathas 10 lechas land. PW 3 had stated that he had also gone to deliver possession. PW 2, though had stated that the defendants are in possession of the land, he had stated that he does not know the boundary of the land fully. Once title is established on the basis of relevant documents and other evidence, unless the defendants prove adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Mere possession for howsoever long period does not constitute adverse possession. 24. In view of the above discussions, this court is of the considered opinion that the finding recorded by the learned courts below that the sale deed being No.991 dated 09.06.1978 executed by Bijia Das is a forged deed executed by false personation is not sustainable in law. 25. Resultantly, this second appeal is allowed and impugned judgment of the learned courts below are set aside and quashed. Suit of the plaintiff is decreed in terms of the prayers made in the plaint. No cost. 26. Registry will send back L.C.R.