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2016 DIGILAW 452 (GAU)

Md. Hadi Hussain v. Md. Safiqul Hussain

2016-05-24

N.CHAUDHURY

body2016
JUDGMENT : 1. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred challenging the appellate judgment and decree dated 30.09.2015 passed in Title Appeal No.2/2007 of the Court of learned District Judge, Jorhat whereby the appellate court allowed the suit of the plaintiff for declaration of his right, title and interest with respect to suit land with consequent prayer for cancellation of deed No.1162 dated 14.09.1995 as void, illegal and inoperative etc. 2. The respondent herein as plaintiff instituted Title Suit No.26/1996 in the Court of learned Assistant District Judge, Jorhat on 29.03.1996 stating that suit land measuring 1 K 10 Ls was originally owned and possessed by defendant No.1 who made gift in favour of the plaintiff by executing a registered deed dated 07.09.1993. He also accepted Rs.50,000/- from the plaintiff at the time of execution of the deed. According to the plaintiff, the defendant No.1 handed over possession of the suit land and thereafter he developed the land and made construction thereon when none of the other defendants raised any objection either as to the gift or as to possession of the plaintiff. The gift deed dated 07.09.1993 was followed by a rectification deed dated 22.09.1994 by the defendant No.1 but on 01.03.1996 a learned counsel of the defendants issued a notice upon the plaintiff informing that the gift deed dated 07.09.1993 and the rectification deed dated 22.09.1994 had been cancelled by the defendant No.1 by executing a deed of cancellation being No.1162 on 14.09.1995. The plaintiff thereafter obtained certified copy of the aforesaid deed and instituted the suit for declaration that the said cancellation deed No.1162 dated 14.09.1995 is void, illegal, inoperative and liable to be cancelled and also for declaration of his right, title and interest with respect to the suit schedule land on the basis of the gift deed dated 07.09.1993 and the rectification deed dated 22.09.1994 and also for confirmation of his possession. The plaintiff also made prayer for a decree of injunction to restrain the defendants from interfering with his peaceful possession over the suit land. 3. On being summoned the defendant Nos.1 and 2 appeared and submitted written statement wherein a plea was taken in paragraph 4 of the written statement that the defendant No.1 was suffering from mental disorder for certain period. 3. On being summoned the defendant Nos.1 and 2 appeared and submitted written statement wherein a plea was taken in paragraph 4 of the written statement that the defendant No.1 was suffering from mental disorder for certain period. During that period the gift deed was executed on 07.09.1993 under inducement of the plaintiff as at that time he was not keeping sound mind and health. The gift deed was drafted by somebody at the instance of the plaintiff. No relative was present at the time of registration of the said deed of gift. Since it was not the result of his free and independent will he subsequently cancelled the same by registered deed No.1162. The defendants also denied delivery of possession of the suit land after execution of the gift deed on 07.09.1993. The defendants, however, did not file any counter-claim and did not make any prayer for adjudging the aforesaid gift deed dated 07.09.1993 and the rectification deed dated 22.09.1994 as illegal, inoperative, fraudulent or void on the ground that the donor was not competent at the time of execution of the deeds or that possession was not handed over to the donee in any point of time. 4. Upon consideration of the rival pleadings of the parties the learned trial court framed as many as seven issues and the same are quoted below :- “1. Whether there is cause of action for the suit? 2. Whether defendant No.1 voluntarily gifted out the suit land as stated in the plaint by registered gift deed? 3. Whether the gift deed was later on cancelled by defendant No.1 on ground that at the time of gift he was not proper health and mind? 4. Whether the possession of the suit land was handed over to the plaintiff and whether the plaintiff is in possession of the suit land? 5. Whether the plaintiff has right, title and interest over the suit land? 6. Whether the plaintiff is entitled to relief/reliefs claimed? 7. To what other relief/reliefs the parties are entitled?” 5. Plaintiff examined six witnesses including himself and defendants examined two witnesses in support of their respective cases. 5. Whether the plaintiff has right, title and interest over the suit land? 6. Whether the plaintiff is entitled to relief/reliefs claimed? 7. To what other relief/reliefs the parties are entitled?” 5. Plaintiff examined six witnesses including himself and defendants examined two witnesses in support of their respective cases. After consideration of the evidence led by the parties the learned trial court decided Issue Nos.2, 4 and 5 together and thereupon held that since the plaintiff failed to prove competency of the donor to make gift as well as the validity of the execution of the gift deed and delivery of possession of the gifted land, it can be said without hesitation that the plaintiff has failed to prove the gift in his favour in respect of the suit land. Coming to Issue No.3, however, the learned trial court hesitated to support the deed of cancellation No.1162. It was observed by the learned trial court that a gift can be revoked either with the consent of the donee or by a decree of the court and there is no evidence that the gift deed was cancelled by any decree of competent court or with the consent of the donee. But since it was held that the gift deed itself is illegal the Issue No.3 was left undecided. With the aforesaid findings the other issues i.e. Issue No.1 and Issue Nos.6 and 7 were decided in favour of the defendants and consequently the suit of the plaintiff was dismissed in entirety. 6. The aforesaid judgment and decree dated 27.04.2005 passed by the learned Civil Judge (Senior Division), Jorhat was challenged by the plaintiff before the learned District Judge, Jorhat in Title Appeal No.2/2007. During pendency of the appeal the defendants filed an application under Order XLI Rule 27 of the Code of Civil Procedure seeking leave to adduce additional evidence. The necessary evidence to prove insanity of the defendant No.1 was not proved in course of trial. The prayer so made was rejected by the learned First Appellate Court. During pendency of the appeal the defendants filed an application under Order XLI Rule 27 of the Code of Civil Procedure seeking leave to adduce additional evidence. The necessary evidence to prove insanity of the defendant No.1 was not proved in course of trial. The prayer so made was rejected by the learned First Appellate Court. Situated thus, the defendants approached this Court through CRP No.46/2014 and this Court by order dated 26.02.2014 directed the learned First Appellate Court to consider the application under Order XLI Rule 27 CPC afresh at the time of hearing of the main appeal so as to ascertain whether adducing of additional evidence is necessary under clause (1) (b) of Order XLI Rule 27 of the CPC. Accordingly, both the application for adducing additional evidence at appellate stage as well as the main appeal was heard by the learned First Appellate Court and thereupon the impugned judgment and decree dated 30.09.2015 was passed allowing the appeal and decreeing the suit of the plaintiff in entirety. 7. The learned First Appellate Court although did not frame any point for determination as required under Order XLI Rule 31 CPC but proceeded to decide the appeal issue-wise. The learned First Appellate Court also considered the application under Order XLI Rule 27 CPC and after consideration of a number of reported judgments of the Hon’ble Supreme Court arrived at the finding that it was possible on the part of the First Appellate Court to pass the judgment on the question in dispute without further evidence and accordingly it was held that the application under XLI Rule 27 CPC is liable to be rejected. The learned First Appellate Court coming to the merit of the case arrived at the finding that the approach of the learned trial court in holding the gift deed illegal was contrary to the provision of law. In view of admitted position of execution of Ext-1 gift deed dated 07.09.1993 and the rectification deed dated 22.09.1994 (Ext-2) and the admission made by DW 1 during cross-examination that defendant No.1 used to discharge the duty of Maujadar of Gakhirkhowa Mauza till his death actually burden heavily fell on the defendants to prove that the defendant No.1 was suffering from mental illness and thereby he was incapable of understanding his business. The defendants utterly failed to discharge their burden and having discovered that the lacunae in their case came up with petition under Order XLI Rule 27 CPC to patch up the weak part of their case which cannot be permitted at this belated stage. With these findings the learned First Appellate Court was of the view that since the gift deed and the rectification deed have been admittedly executed by the defendant No.1 in a sound state of mind and health and moreover the attesting witness (PW 3) of the gift deed was cross-examined who confirmed execution of the deed and delivery of possession of the gifted property and so deceased Alimuddin Ahmed Hazarika gifted the suit land to the plaintiff by executing registered deed of gift dated 07.09.1993 (Ext-1) and delivered possession to him and the latter continued to possess the same on the strength of the gift deed. Having arrived at this finding the subsequent cancellation deed No.1162 dated 14.09.1995 was found to be void, illegal and inoperative and accordingly it was cancelled. This was so done in view of the fact that the learned trial court had indicated in the penultimate paragraph of the judgment that a gift deed once executed can be cancelled only with the consent of the donee or by a decree of a competent court and neither of these two were done in the present case. Such findings of the learned trial court was not challenged by the defendants by filing an application under Order XLI Rule 22 of the CPC or by preferring a cross appeal and so there was no reason on the part of the First Appellate Court to hold to the contrary. The invalidity of the cancellation deed has really been inferred by the learned trial court itself and it attained finality as no cross-appeal was preferred by the defendants or no cross-objection under Order XLI Rule 22 CPC was preferred. Situated thus, the learned First Appellate Court allowed the appeal and set aside the judgment and decree passed by the learned trial court and decreed the suit of the plaintiff for declaration of his right, title and interest over the suit land on the basis of the gift deed dated 07.09.1993 and the rectification deed dated 22.09.1994. The possession of the plaintiff was also confirmed by the learned First Appellate Court. The possession of the plaintiff was also confirmed by the learned First Appellate Court. This appellate judgment and decree passed on 30.09.2015 has been called in question in the present Second Appeal. 8. I have heard Mr. T. J. Mahanta, learned senior counsel assisted by Ms. P. Bhattacharya, learned counsel for the appellants and Mr. B. Banerjee, learned senior counsel assisted by Mr. Sheikh Muktar, learned counsel for the respondent. I have perused the plaint, the written statement and the two judgments passed by the learned two courts below. 9. Having gone through the pleadings of the parties and the two judgments passed by the learned Courts below it appears that plaintiff made a prayer for declaration of his right, title and interest over 1 K 10 Ls of land described in the schedule to the plaint on the basis of two deeds. The gift deed dated 07.09.1993 was alleged to have been executed by defendant No.1 and the same was registered and possession of the land was also handed over to the plaintiff. The defendant No.1 thereafter executed another rectification deed dated 22.09.1994. The plaintiff, in the meantime, developed the land, made construction of the house and started enjoying the same. Around three years thereafter in the year 1996 he received a notice from the learned counsel of the defendants informing him that the two deeds, namely, the gift deed dated 07.09.1993 (Ext-1) and the rectification deed dated 22.09.1994 (Ext-2) had been unilaterally cancelled by the defendant No.1 on 14.09.1995 by a deed of cancellation No.1162. As has been pointed out above, the defendants did not prefer any counter-claim for adjudging the aforesaid Ext-1 and Ext-2 as illegal, inoperative, fraudulent or void on the ground that the donor was not competent at the time of execution of the deeds or that possession was not handed over to the donee in any point of time. The two gift deeds Exts-1 and 2 are registered deeds and were executed in terms of Sections 122 and 123 of the Transfer of Property Act. These deeds were witnessed by PW 3 as an attesting witness. Under Section 68 of the Evidence Act a deed which is required to be attested by law would not be admissible unless and until at least one of the attesting witnesses are examined. These deeds were witnessed by PW 3 as an attesting witness. Under Section 68 of the Evidence Act a deed which is required to be attested by law would not be admissible unless and until at least one of the attesting witnesses are examined. Being aware about such legal position, plaintiff examined PW 3, the attesting witness and so Ext-1 and Ext-2 are admissible in evidence in terms of Section 68 of the Indian Evidence Act. These deeds are registered deeds containing assertion that defendant No.1 had made gift in favour of the plaintiff, that the land stood handed over to the donee and that the donee had accepted the same and so at the same time it also satisfied the conditions of Mahamedan gift. If these gift deeds were not valid or were vitiated by any reason as mentioned by the defendants in their written statement in paragraph 4, in that event, it was upon the defendants to prove the same and then the deeds were liable to be adjudged as illegal, inoperative etc. The defendants admittedly did not make any endeavour in that regard. The defendant No.1 also did not approach the plaintiff for mutually executing a cancellation deed. Thus, as rightly observed by the learned trial court in paragraph 10 of the judgment that unless there is a mutual cancellation or there is a decree of competent civil court a deed cannot be unilaterally cancelled by the executor/donor. There was no issue before the learned courts below to adjudge the gift deed as illegal and inoperative. Under such circumstances, there was no occasion on the part of the learned trial court to arrive at the finding that the gift deeds were illegal, inoperative etc. It is the defendants who raised the plea in paragraph 4 of the written statement that the gift deed was executed by defendant No.1 but at that time he was incompetent being in unsound health and mind. So, obviously burden fell upon defendants to prove that such a stand taken in paragraph 4 of the written statement was correct. They had failed to discharge their burden but even thereafter the learned trial court was of the view that the plaintiff could not disprove the case of the defendants. So, obviously burden fell upon defendants to prove that such a stand taken in paragraph 4 of the written statement was correct. They had failed to discharge their burden but even thereafter the learned trial court was of the view that the plaintiff could not disprove the case of the defendants. Such finding was untenable and so the learned First Appellate Court has not committed any error in setting aside such a judgment passed by the learned trial court. The impugned first appellate judgment and decree, therefore, appears to be correct and no substantial question of law does arise from any of the findings made therein. This being the position, there is no scope to admit the Second Appeal. It is accordingly dismissed. No order as to cost.