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2016 DIGILAW 177 (GAU)

Bhabesh Das v. Dilip KR. Das

2016-03-10

N.CHAUDHURY

body2016
JUDGMENT AND ORDER N. Chaudhury, J. - Having lost successively in two courts below, the three defendants of Title Suit No. 45 of 1995 have approached this court by preferring the second appeal against concurrent findings of learned two courts below. The suit of the plaintiff was decreed on 30.7.2002 declaring right, title and interest of the plaintiff over the suit land for recovery of possession and adjudging the sale deed described in Schedule-B to the plaint as forged, fraudulent and illegal etc. the defendants unsuccessfully fought before the learned first appellate court and hence this second appeal. This court while admitting this appeal on 17.6.2015 framed the following substantial question of law: (i) Whether the learned courts below misunderstood the true purport and intents of Section 101 and 102 of the Indian Evidence Act and misplaced the burden of proof upon the defendant based on which the plaintiff suit has been decreed? 2. The sole respondent as plaintiff instituted Title Suit No.45 of 1995 in the court of learned Civil Judge, Junior Division at Hojai stating that land measuring 4B covered by Dag No.525 of P.P.No.16 of Pamgaon Kiramat originally belonged to his father late Binod Bihari Das. He died leaving behind four sons namely, Babul Das, Anukul Das, Nara Das and plaintiff Dilip Das. The three sons, namely, Babul, Anukul and Nara sold their shares in the land by executing sale deed and it is only plaintiff Dilip Das who retained 1B of his ancestral land under his possession. He thereafter purchased another 2B of land from one Baldev Teli jointly and thereafter he and Nara got the partition. This is how plaintiff was enjoying 2B of land in all out of which 1B of land was ancestral and 1B was acquired. He further states that in the year 1996 he wanted to sell whole of the land to Nantu, Barada and Arunbala and accordingly these three persons made enquiry in the Sub-Registry to find out as to whether the plaintiff had clear title over the land or not. Upon such enquiry it came to light that by a Registered sale deed dated 4.5.1993, the land had already been sold in favor of the defendants, Bhavesh Chandra Das, Pabitra Das and Narayan Chandra Das.The plaintiff thereafter obtained certified copy of the sale deed and found that it was never executed by him. Upon such enquiry it came to light that by a Registered sale deed dated 4.5.1993, the land had already been sold in favor of the defendants, Bhavesh Chandra Das, Pabitra Das and Narayan Chandra Das.The plaintiff thereafter obtained certified copy of the sale deed and found that it was never executed by him. He, therefore, instituted the title suit for declaration that the sale deed is forged fraudulent and void. In the meantime, plaintiff was dispossessed from the suit by the defendants from the suit land on 6.6.1995 and so prayer for recovery of khas possession was also made. 3. On being summoned, defendants appeared and submitted written statement. They claimed that the plaintiff approached them in the year 1985 for sale of the aforesaid land. At that stage, it was decided between the parties that the defendants would pay half of the price to the plaintiff and would hand over possession of the land and the sale deed would be executed and registered after permission is obtained from the concerned authorities and after payment of the balance sum of money. Accordingly, in the year 1993 permission was obtained and thereafter sale deed was executed and registered by the plaintiff. According to the defendants, they were all along in possession of the land since 1985 and the story of dispossession was incorrect. 4. Upon consideration of aforesaid rival contentions of the parties, the learned trial court framed as many as nine issues which are quoted below:- (i) Is the suit maintainable in its present form? (ii) Is the suit bad for waiver, estoppels and acquiescence? (iii)Is the suit is barred by law of limitation? (iv)Is the suit bad for mis-joinder or non-joinder of necessary parties? (v)Is there any cause of action for the suit? (vi)Whether the plaintiff has any right, title and interest in the suit land? (vii)Whether the Registered sale deed No.1110/93 was forged one? (viii)Whether the plaintiff is entitled to get a decree as prayed for? (ix) What relief, if any the plaintiff is entitled to? 5. Plaintiff examined three witnesses including himself and adduced certified copy and Zamabandi as Exhibit-1. (vi)Whether the plaintiff has any right, title and interest in the suit land? (vii)Whether the Registered sale deed No.1110/93 was forged one? (viii)Whether the plaintiff is entitled to get a decree as prayed for? (ix) What relief, if any the plaintiff is entitled to? 5. Plaintiff examined three witnesses including himself and adduced certified copy and Zamabandi as Exhibit-1. Plaintiff did not produce or exhibit sale deed by which he claimed to have purchased 2B of land although he claimed declaration of right, title and interest with respect to that land in addition to further prayer that sale deed described in Schedule-B to the plaint is forged, fraudulent etc. On the other hand, defendants examined four witnesses and exhibited as many as six documents. They proved certified copy of sale deed No.1110 as Exhibit-Kha, Zamabandi as Exhibit-Ga, Revenue paying receipts Exhibit-Gha, Unga and cha and summons to witness as Exhibit-Ka. 6. The learned trial court after considering the materials available on record held that proof of sale deed No.1110/93 by exhibiting certified copy of the sale deed was impermissible and so plaintiff has right, title and interest over the suit land. Consequently all the issues were decided in favour of the plaintiffs. The impugned judgment and decree passed by the learned trial court on 30.7.2002 declaring right, title and interest of the plaintiff over 3B of land described in Schedule-A to the plaint and adjudging sale deed described in Schedule-B to the plaint as forged and fraudulent, has been challenged by defendants before the learned first appellate court leading to registration of title Appeal No.17 of 2002. The learned Civil Judge, Senior Division, Nagaon after hearing the parties upheld the findings of the learned trial court and held that in the absence of the original sale deed, learned court did not commit any error in adjudging the same as forged one and there was no error in declaring title of the plaintiff over the suit land. This judgment and decree dated 20.12.2004 is under challenge in the present second appeal. 7. I have heard Mr. MH Rajbarbhabhuiya, learned counsel for the appellant and Mr. SSS Rahman, learned counsel for the sole respondent. I have perused the lower court records including the deposition of the witnesses and the documents adduced by them. 8. Mr. This judgment and decree dated 20.12.2004 is under challenge in the present second appeal. 7. I have heard Mr. MH Rajbarbhabhuiya, learned counsel for the appellant and Mr. SSS Rahman, learned counsel for the sole respondent. I have perused the lower court records including the deposition of the witnesses and the documents adduced by them. 8. Mr. MH Rajbarbhabhuiya learned counsel for the appellant would argue that the defendants having specifically stated that Exhibit-kha sale deed was executed and registered by the plaintiff after obtaining permission from the appropriate authority, burden heavily fell on the plaintiff to show that his case of non-execution of the sale deed is correct. According to him, the learned courts below wrongly shifted burden to the defendants for disproving the case of the plaintiff. He has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anil Rishi v. Gurba Singh reported in (2006) 5 SCC 558. In that judgment, the Hon'ble Supreme Court held that ordinarily burden of proving a fact rests on a party which substantially asserts the affirmative of the issue. Difficulties which may be faced by a party to a lis can never be determinative of party on whom burden of proof would lie. With a view to proving forgery or fabrication in a document, possession of the original document by the defendant would not change the legal position. 9. Mr. MH Rajbarbhabhuiya would further argue that the defendants are admittedly in possession of the land and so it is a case where Section - 110 of the Evidence Act will apply. Section - 110 of the Evidence Act provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner, lies on the person who affirms that he is not the owner. Under such circumstances, it was the burden on the plaintiff to prove that defendants do not have right, title and interest with respect to the suit land and there are now the owner there of. Plaintiff did not lead any evidence to that effect and so in terms of section 110 of the Evidence Act, judgments and decrees passed by the learned trial court are vitiated. 10. Mr. Plaintiff did not lead any evidence to that effect and so in terms of section 110 of the Evidence Act, judgments and decrees passed by the learned trial court are vitiated. 10. Mr. SSS Rahman, learned counsel for the sole respondent on the other hand would argue that the findings that the sale deed is forged one is a finding of fact and such finding having been concurrently arrived at by the learned courts below, such finding cannot be interfered in the second appeal unless the same is said to be perverse. In the case in hand, plaintiff examined as many as three witness and showed that till the plaintiff was dispossessed, he was in possession of the land. This being the position, the argument of Mr. MH Rajbharbhuiya that Section 110 of the Evidence Act would apply in the case of the cannot arise. 11. Having heard the learned counsel for parties and after perusing the materials available on record what is conspicuous is that plaintiff has not only prayed for declaration that the sale deed No.1110/93 is forged and fraudulent plaintiff also made a prayer for declaration of his title over 3B of land described in Schedule-A to the plaint. In his pleadings as well as in his examination-in-chief, plaintiff as PW-1 asserted that he purchased 2B of land from Baldev Teli and inherited 1B of land from his father. The purchase of 2B of land from Baldev Teli or somebody else could have been proved by producing and proving the relevant title deeds. The plaintiff has failed to produce any document of title to prove such purchase. Merely by declaring that the sale deed Exhibit-Kha is a forged one, there cannot be a consequent declaration of title of plaintiff over Exhibit-A land unless plaintiff succeeded to establish his title by proving relevant title deed. The plaintiff has claimed declaration of title over the land and so obviously burden of proving the same lies on him under Section 101 and 102 of the Evidence Act. The suit of the plaintiff in so far as it relates to declaration of right, title and interest over 3B of land under the aforesaid circumstances, and in absence of production of any title deed could not have been decreed by the learned trial court. The suit of the plaintiff in so far as it relates to declaration of right, title and interest over 3B of land under the aforesaid circumstances, and in absence of production of any title deed could not have been decreed by the learned trial court. There is no discussion in any of the judgments impugned in the present second appeal to the effect that plaintiff succeeded to establish his title over suit land measuring 3B. In plaint, he stated that he purchased 1B of land from Baldev Teli but in course of his examination-in-chief he claimed that he purchased 2B of land in addition to 1B of land inherited by him. Even he did not examine his own brothers to show that he was in possession of the land of 3B of land as claimed by him. Such declaration given by the learned trial court as well as the first appellate court, therefore, being devoid of any material whatsoever on record cannot be upheld. 12. Moreover, plaintiff stated that he was dispossessed from the suit land only in the year 1995 and that there was a proceeding under Section 144 Cr.P.C. with regard to the dispossession. Having so claimed, he did not bring on record any of the materials to show that there was any proceeding in regard to dispossession. He has not examined any witness to show that he was so dispossessed from the suit land on 4.5.1995. Here the plaintiff has failed to prove dispossession while it is admitted fact that the defendants are in possession of land but for which plaintiff has instituted the suit for recovery of khas possession, and so there is no doubt that defendants is in possession of the suit land. If the defendant is in possession of the suit land and that, too, on assertion of title, the mischief of Section 110 of the Evidence Act is bound to come in. The burden, therefore, would lie on plaintiff to show that though the defendant is in possession of the suit land, yet he is not the real owner and it is the plaintiff who is the owner of the land. 13. The burden, therefore, would lie on plaintiff to show that though the defendant is in possession of the suit land, yet he is not the real owner and it is the plaintiff who is the owner of the land. 13. In view of what has been stated above, it would have been possible that the appeal could have been concluded but at the same time, it cannot be lost sight of that defendants having claimed to have purchased the land by Exhibit-kha sale deed did not play their part as well. They claimed that they obtained permission from the appropriate authority for the purpose of making the sale. If the sale permission records would have been called for under Section 30 of the Code of Civil Procedure, in that event it would have been clear as to whether the plaintiff as owner had at all made any prayer before appropriate authority for making sale in favour of the defendants. The evidence of the defendants are deficient to that extent as well. This shows that not only plaintiff failed to lead evidence from their part, the defendants also did not lead evidence to prove his own case as made out in the written statement. Faced with such circumstances, the learned trial court could have exercised power under Section 30 of the CPC either asking the parties to bring the relevant documents in regard to permission of sale or could have called for witnesses to produce the same and in that event, the riddle created on facts as to execution of the sale deed would have been solved. Adjudication of a suit is nothing but a journey in quest of truth. So the court is also duty bound to see that truth lying in a dispute is found out by taking recourse to the procedure prescribed by law. Section 30 CPC is an instrument whereby Civil court has been vested with power and jurisdiction to make enquiry. This has not been done by the learned courts below. In the case of Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack De Sequieria (dead through L.Rs) reported in (2012) 5 SCC 370 , Hon'ble Supreme Court felt the need for giving appropriate direction to the civil courts for taking recourse to Section 30 of the CPC. 14. This has not been done by the learned courts below. In the case of Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack De Sequieria (dead through L.Rs) reported in (2012) 5 SCC 370 , Hon'ble Supreme Court felt the need for giving appropriate direction to the civil courts for taking recourse to Section 30 of the CPC. 14. In view of discussion made herein above, the sole substantial question of law is decided in favour of the appellant holding that the learned trial court committed error in shifting burden to the defendant. The plaintiff was duty bound to prove his own case of title over 3B of land. The second appeal accordingly stands allowed and the impugned judgment and decrees are hereby set aside. Since the matter needs further evidence by both the sides accordingly the matter is remanded to the learned trial court for giving appropriate opportunities to both sides so as to enable the learned court to arrive at decision in regard to the claim made in the plaint. Since it is suit of 1995 and 20 years have elapsed in the meantime, the learned trial court shall make an endeavour to dispose of the suit as expeditiously as possible preferably within 6 (six) months from the date of receipt of records. The second appeal stands allowed. 15. No order as to cost. 16. Send down the records to the learned trial court. Parties shall appear before the learned trial court on 16.5.2016. In the meantime, records shall be transmitted to the learned trial court.