Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 967 (GAU)

Pradyut Kumar Chanda v. Girija Ram Lohar

2015-08-05

A.K.GOSWAMI

body2015
A.K. Goswami, J.:-- Heard Ms. T. Goswami, learned counsel for the appellant. Also heard Mr. M. H. Rajbarbhuiyan, learned counsel for the respondents. 2. This Second Appeal is preferred against the judgment and decree dated 09.09.2004, passed by the learned Civil Judge, Senior Division No.2, Cachar, Silchar, in Title Appeal No.22/2003, dismissing the appeal and affirming the judgment and decree dated 30.07.2003, passed by the learned Civil Judge, Junior Division No.1, Silchar, Cachar, in Title Suit No.36/2001. 3. By an order dated 31.01.2006, the appeal was admitted to be heard on the following substantial question of law: "Whether the findings of the learned Courts below on Issues No.4, 5 and 6 were arrived at without considering the relevant evidence of DW1 - Girija Ram Lohar (Defendant No.1) and as such perverse and liable to be set aside." 4. The plaintiff filed the suit stating that on 11.12.2000, the defendants executed a Bainama (Agreement for sale) in favour of the plaintiff for sale of the suit land measuring 3 Katha, in Dag No.34 of 2nd RS Patta No.9 of Dayapur, Part-1, District - Cachar, for a consideration amount of Rs. 25,000/- and, accordingly, the defendants received a sum of Rs. 5,000/-, as advance money, on condition that after obtaining necessary permission for sale from the Deputy Commissioner, Cachar, they will execute a registered sale deed in favour of the plaintiff within three months after receiving the balance amount of Rs. 20,000/- only and deliver possession thereof. But though the plaintiff, on many occasions, offered the balance consideration amount to the defendants, the defendants refused to accept same necessitating the plaintiff to serve a registered notice dated 19.02.2001 upon the defendants. The defendants did not respond to the said notice and, accordingly, the suit was filed praying for specific performance of the contract by way of execution of the sale deed. 5. The defendants contested the suit by filing written statement taking a stand that the plaintiff had entered into an agreement with the defendants for purchase of 3 Katha of land appertaining to Dag No.34 of 2nd RS Patta No.9 from the defendants. 5. The defendants contested the suit by filing written statement taking a stand that the plaintiff had entered into an agreement with the defendants for purchase of 3 Katha of land appertaining to Dag No.34 of 2nd RS Patta No.9 from the defendants. Sale permission was also obtained for 3 Katha of land, but, subsequently a registered sale deed was executed on 11.12.2000 only in respect of 1 Katha 8 Chattak of land as the plaintiff was unable to purchase 3 Katha of land because of his financial constraints and this fact was also incorporated in the sale deed. It was alleged that the plaintiff, in collusion with the scribe of the agreement for sale, had erased the date and put the date "11.12.2000", which is the very date of execution of the sale deed. It was specifically pleaded that on 11.12.2000, the defendants had not executed any deed of agreement. 6. During trial, the plaintiff examined two witnesses, whereas the defendants examined defendant No.1 as DW1. 7. Issues No.4, 5 and 6 are relevant for the purpose of this appeal and, therefore, they are quoted herein-below: "4. Whether the defendants entered into an agreement on 11.12.2000 for sale of any land to the plaintiff as alleged in the plaint? 5. Whether the said bainama dated 11.12.2000 is a forged document? 6. Whether the plaintiff is entitled to a decree as prayed for?" 8. Issues No.4, 5 and 6 were decided against the plaintiff and, accordingly, the suit was dismissed and the learned Lower Appellate Court also affirmed the judgment of the learned Trial Court holding that the Bainama (Ext.-1) is a forged document. 9. Ms. T. Goswami, learned counsel for the appellant has submitted that though the defendants had pleaded that there was an agreement for sale, which culminated in execution of sale deed dated 11.12.2000 (certified copy, Ext.-7, and Original sale deed, Ext.-8), they had not produced such agreement for sale and it is the positive case of the plaintiff that there was no written agreement for sale, which led to execution of the aforesaid sale deed. She has submitted that the impugned judgment of the learned Courts below had been passed without at all adverting to the evidence of DW1, wherein he admitted execution of Ext.-1 agreement for sale by himself as well as by other defendants. She has submitted that the impugned judgment of the learned Courts below had been passed without at all adverting to the evidence of DW1, wherein he admitted execution of Ext.-1 agreement for sale by himself as well as by other defendants. In view of the admission of the defendant No.1 regarding execution of the document, the observation of the learned Courts below that the date "11.12.2000" was written after eraser had been applied thereon, thereby harbouring some doubt, is totally misplaced, she submits. According to her, the finding, as recorded by the learned Courts below that Ext.-1 is a fraudulent document is based on no evidence and, therefore, the impugned judgments are liable to be set aside with a direction to the learned Trial Court to execute the sale deed after obtaining necessary permission from the Deputy Commissioner, Cachar. 10. Mr. Rajbarbhuiyan, learned counsel for the respondents, on the other hand, has submitted that both the Courts below, on appraisal of the evidence on record, have rendered concurrent finding of fact that Ext.-1 is a fraudulent document and, therefore, in absence of any perversity, no interference is called for in the Second Appeal. It is submitted by him that it cannot be construed, on a fair reading of the evidence of DW1, that there was any admission on his part with regard to the execution of Ext.-1. It is submitted that while not denying the signatures appearing in Ext.-1, DW1 was disputing the date of the Bainama. Such evidence has to be understood in the context of the case of the defendants that the date "11.12.2000" was put after erasing the date of the earlier Bainama. 11. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. Since the Second Appeal was admitted on the substantial question of law regarding non-appreciation of relevant evidence of DW1, the portion highlighted by Ms. Goswami needs to be reproduced, and, accordingly, the same is reproduced below: "Ext. 1 was executed by myself, defendant No.2 and 3. Ext.1(1), 1(2) are my signatures. Ext. 1 (3) and 1(4) are signatures of defendant No.2. Ext.1(5) and 1(6) are the signatures of defendant No.3. In Ext.7 there was no mention of any deed of agreement for sale which was executed between the purchaser plaintiff and sellers before execution of Ext.7. 1 was executed by myself, defendant No.2 and 3. Ext.1(1), 1(2) are my signatures. Ext. 1 (3) and 1(4) are signatures of defendant No.2. Ext.1(5) and 1(6) are the signatures of defendant No.3. In Ext.7 there was no mention of any deed of agreement for sale which was executed between the purchaser plaintiff and sellers before execution of Ext.7. Suit land and land of Ext.7 are two different lands. Owners of the suit land are the defendants. Owners of land of Ext. 7 are four persons. ............. Ext. 7 was written according to our instruction. ...............Ext. 8 is the original of Ext. 7.............. Witnesses of Ext. 7 are also witnesses of Ext. 1 and the writer is also same. Ext. 7 was executed and registered on 11.12.2000 at Silchar and Ext. 1 also written and executed at Silchar on 11.12.2000..........." 13. It is not in dispute that on 21.11.2000, vide Ext.-7, certified copy, and Ext.-8, Original Sale Deed, 4 vendors, which included the present defendants as well as one Shaibal Lohar, sold 1 Katha 8 Chattak of land to the plaintiff. There is also no dispute that 1 Katha 8 Chattak is equivalent to 1-1/2 Katha. It appears from the recital in the sale deed that permission was obtained for selling of 3 Katha of land, but, ultimately, the plaintiff purchased 1 Katha 8 Chattak (1-1/2 Katha) of land because of his financial constraints. It is also recited that no sale deed would be executed with regard to the balance 1 Katha 8 Chattak of land. 14. The defendants, in their written statement, had taken the stand that there was an earlier agreement for sale of 3 Katha leading to execution of Ext.-7 and Ext.-8, though in respect of a reduced area measuring 1 Katha 8 Chattak, and DW1 had also led evidence to that effect. In his evidence, DW1 had stated that the suit land and the land mentioned in Ext.-7 are two different plots of land. It has also appeared from the evidence of DW1 that while the suit land was owned by three defendants, the land involved in Ext.-7 was owned by 4 persons including the present defendants. A perusal of the application filed before the Deputy Commissioner for grant of permission also goes to show that the application was filed by four persons, who were prospective vendors. A perusal of the application filed before the Deputy Commissioner for grant of permission also goes to show that the application was filed by four persons, who were prospective vendors. The defendants had not, at any point of time, disclosed the date of the alleged agreement for sale executed earlier. They had also not brought on record the said document. There is no reference to any agreement for sale either in the said application to the Deputy Commissioner, or in the sale deed. It is noticed that the witnesses, in Ext.-1 and Ext.-8, are same persons. Both the said documents were also of the same date. Ext.-1 is comprised of two pages and the date "11.12.2000" appears in the second page. By Ext.-1, 3 Katha of land was proposed to be sold at Rs. 25,000/- out of which Rs. 5,000/- was paid as advance. The consideration amount is mentioned in first page of Ext.-1. There is no allegation of any tempering of first page. The figure 25,000/- does not tally with the consideration amount for Rs. 15,000/- for 1-1/2 Katha of land in Ext.-8 as for 3 Katha of land the consideration amount would have been Rs. 30,000/- and, therefore, when the defendant No.1 had admitted the signature appearing in Ext.-1 to be his signature and had also vouched for the signatures of the other two defendants, I am of the considered opinion that the learned Courts below committed manifest error in holding the document to be forged one. The evidence of defendant No.1 was not taken into consideration at all; rather, the same was overlooked. The learned Courts below were persuaded merely because of some smudges around the area where the date is written to take the view that the document is a forged one. The plea taken by the defendants would have been found to be of some merit if the deed of agreement, purported to have been executed earlier, was brought on record by them and some explanation was furnished for variation of the consideration amount vis-`-vis Ext.-1 and Ext.-8. Even if the date "11.12.2000" is written after using eraser to erase whatever was written, the same cannot, in view of the stated stand of the defendants, be of any consequence. The plaintiff has proved Ext.-1 in accordance with law and, therefore, the impugned judgments of the learned Courts below cannot be sustained in law. Even if the date "11.12.2000" is written after using eraser to erase whatever was written, the same cannot, in view of the stated stand of the defendants, be of any consequence. The plaintiff has proved Ext.-1 in accordance with law and, therefore, the impugned judgments of the learned Courts below cannot be sustained in law. Accordingly, the same are set aside and quashed. 15. Substantial question of law is answered in favour of the appellant. The plaintiff's suit is decreed in terms of the prayers made subject to grant of permission by the Deputy Commissioner, Cachar, Silchar. No cost. 16. Registry will send back the records. Appeal allowed.