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Tripura High Court · body

2016 DIGILAW 79 (TRI)

Prativa Dey (Deb) v. Saraswati Joy

2016-03-22

S.TALAPATRA

body2016
JUDGMENT : This is an appeal under Section 100 of the C.P.C. from the judgment and decree dated 21.03.2012 delivered in Title Appeal No.14 of 2011 by the Additional District Judge, No.4, West Tripura, Agartala reversing the judgment and decree dated 31.03.2011 delivered in Title Suit No. 20 of 2009 by the Civil Judge, Jr. Division, No.1, Agartala, West Tripura. The suit has been decreed by the first appellate court. By means of the said judgment it has been declared that the plaintiff has got right, title and interest over the suit land and the plaintiff is in the possession of the suit land and simultaneously, the recovery of possession of the suit land by evicting the principal defendant, the appellant herein, by removing all obstructions has been allowed. 2. This appeal had been admitted on the following substantial question of law by the order dated 29.04.2013: “Whether the title of the plaintiff has been proved as required by law, in respect of the suit land?” 3. The essential facts which are necessary to lay the perspective of this appeal are required to be introduced at the outset. The plaintiff, the respondent No.1 herein, instituted a suit for declaration of right, title and interest over the suit land and for recovery of possession by evicting the defendants from the suit land by removing all obstructions. The plaintiff purchased the suit land from the respondent No.2 by the sale deed No.1668 dated 21.09.2007 by paying the consideration money amounting to Rs.2,30,000/- (Rupees Two lacs Thirty thousand). The possession of the suit land was also delivered to the plaintiff and she started possessing the same peacefully after purchase of the suit land on 21.09.2007. The principal defendant, the appellant herein, being deserted by the respondent No.2, the proforma defendant in the suit approached the plaintiff to allow her to stay in the suit land for a brief period. The principal defendant urged that within such brief period she would find out her alternative accommodation. It was also agreed that that the appellant would return the possession on 31.12.2008. But in the first week of January, 2009, the plaintiff asked the principal defendant why she had not vacated the suit land despite her assurance to vacate the same within 31.12.2008. The principal defendant asked for some more time but the plaintiff denied to provide such time. But in the first week of January, 2009, the plaintiff asked the principal defendant why she had not vacated the suit land despite her assurance to vacate the same within 31.12.2008. The principal defendant asked for some more time but the plaintiff denied to provide such time. On 3rd week of February, 2009, the plaintiff again requested the principal defendant to vacate the suit land but the said defendant showed a volteface and stated on the face of the plaintiff that she would not vacate the suit land as she was the owner of the suit land. Such cause persuaded the plaintiff to institute the suit. 4. By filing the written statement, the principal defendant has stated that the land was originally belonged to her husband, the proforma defendant, the respondent No.2 in this appeal. At time of purchasing the said suit land by her husband, she had also contributed some money. After purchase, the principal defendant had been residing in the said suit land with her son. It has been also asserted in the written statement that there was no sale of the suit land as claimed by the plaintiff and the possession was never handed over to the plaintiff inasmuch as it was a paper transaction to deprive the principal defendant and her minor son and as such, the said transaction was void. Several issues were framed by the court of the Civil Judge, Jr. Division, No.1, Agartala, West Tripura, interalia that: (i) Whether the plaintiff has right, title and interest over the suit land and (ii) Whether the plaintiff is entitled to get recovery of possession of the suit land by evicting the defendant? 5. It is discernible from the records that the plaintiff in order to prove her case has examined 3(three) witnesses and admitted one documentary evidence and to resist the case of the plaintiff, the principal defendant has also examined 3(three) witnesses and admitted 6(six) documentary evidence. The relevant sale deed (Exbt.1) having been admitted was considered by the trial court. The plaintiff (PW1) has categorically stated that the proforma defendant executed the sale deed and handed over the possession to the plaintiff. The relevant sale deed (Exbt.1) having been admitted was considered by the trial court. The plaintiff (PW1) has categorically stated that the proforma defendant executed the sale deed and handed over the possession to the plaintiff. The other two witnesses namely, Sri Rajat Ghosh (PW2) and Sri Subrata Pal (PW3) have corroborated the said statement of the plaintiff that the proforma defendant executed the sale deed dated 21.09.2007 (Exbt.1) in consideration of payment of Rs.2,30,000/-, in favour of the plaintiff. They have further stated that when the negotiation for sale was going on, the principal defendant had developed intimacy with the plaintiff. On the other hand, the principal defendant, the appellant herein, has stated that her husband did not execute any sale deed and no possession of the suit land has been delivered. There had been no consideration money at all. Her other two witnesses namely, Samar Roy (DW1) and Sri Sanjib Deb (DW3) have corroborated that part of the statement of the principal defendant and they have categorically stated that the plaintiff never visited the suit land and hence, the question of handing over the possession was not there. In the cross-examination, the plaintiff did admit that she did not meet the respondent No.2 for presale negotiation and hence, there was no such negotiation. 6. The trial court has recorded the manifest incongruity in the position taken by the plaintiff and observed that the story of presale negotiation is not believable. Thus, the trial court has observed as under: “Therefore, considering all these aspect I find plaintiff has failed to discharge the burden of proof of execution of sale deed vide No.16688 in her favour by proforma defendant on payment of consideration money of Rs.2,30,000/- coupled with a delivery of possession of the suit land.” Besides that, according to the trial court Exbt.1 has not been exhibited following the provisions of Section 67 of the Indian Evidence Act which provides that ‘if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person’s hand writing must be proved to be in his hand writing’ and hence, the principal issues as reproduced were decided against the plaintiff and ex-consequenti, the suit was dismissed by the judgment and decree dated 31.03.2011. 7. 7. Being aggrieved by that judgment and decree, the plaintiff filed an appeal to the court of the District Judge, West Tripura, Agartala. Subsequently, the said appeal was transferred to the court of the Additional District Judge, No.4, West Tripura, Agartala. The said appeal being Title Appeal No.14 of 2011 was allowed by the judgment dated 21.03.2012 decreeing the suit. The present appeal as filed by the principal defendant has questioned the legality of the said judgment. While reversing the findings, the first appellate court has observed that by the registered sale deed, the plaintiff purchased the suit land. In the suit, the original owner, the husband of the principal defendant was made party. The said defendant appeared in the trial court but he has preferred not to contest the original suit or the appeal. It has been observed in the impugned judgment that admittedly, the proforma-respondent was the owner of the suit land originally and the principal respondent is his wife. Since the proforma-respondent was the actual owner who sold out the suit land to the appellant, he had no locusstandi to challenge the sale deed in question by which the appellant, the respondent No.1 herein, claimed to be a rightful owner of the suit land. It has been further observed as under: “It is true that during cross-examination of the appellant and his witnesses by the respondent’s side were slightly shaken but the materials so come out from the PWs during cross-examination are irrelevant since the proforma-respondent did not challenge the deed in question which was executed by him in favour of the appellant. At best, from the pleadings it seems to me that the respondent is the permissive possessor under the appellant. Since the proforma-respondent being the husband of the respondent sold out the suit land to the appellant, the respondent has no locastandi to possess the land if the appellant does not provide her to possess the land in question. From the total circumstances it appears that the sale as defined in Section 54 of Transfer of Property Act is completed and the appellant has the better title on the suit land and as such, delivery of possession, by the proforma-respondent to the appellant is implied. From the total circumstances it appears that the sale as defined in Section 54 of Transfer of Property Act is completed and the appellant has the better title on the suit land and as such, delivery of possession, by the proforma-respondent to the appellant is implied. Furthermore, if the proforma-respondent came to the field of the litigation to contest the suit, the Court could have taken cognizance on the materials which came out from the cross-examination of the PWs during their cross-examination. So, being such a position, the respondent cannot come forward to challenge the deed in question on the basis of materials as her capital since she is the intruder.” 8. Even the observation as made by the trial court in respect of the admissibility of the sale deed in question in terms of Section 67 of the Indian Evidence Act has been discarded by the first appellate court on the ground that the proforma-defendant who had executed the sale deed did not raise any objection either as to the execution of the sale deed or as to the admissibly of the sale deed. 9. Mr. P.K. Dhar, learned counsel appearing for the appellant has submitted that the sale deed, Exbt.1 has not been admitted following the due process of law and as such, it has to be held that the content of the deed has not been proved. Therefore, the transfer of the suit land has remained completely unproved. As the title has been declared for purpose of recovery and since the title has not been proved, the impugned judgment and decree cannot be sustained in law. In support of his contention, he has relied on a decision of the Gauhati High Court in Manindra Kumar Dey and another vs. Mahendra Sukla Baidya and others, reported in (1999) 2 GLR 219, where it has been observed that mere registration of a deed or proof thereof cannot take place of the proof as required by Section 67 of the Indian Evidence Act when witnesses are available to prove the document in the manner as laid down. For purpose of reference, Para16 of Manindra Kumar Dey and another vs. Mahendra Sukla Baidya and others is reproduced hereafter: “16. The next question is the presumption of execution under Registration Act and how far it dispenses with the proof as required under section 67 of the Evidence Act. For purpose of reference, Para16 of Manindra Kumar Dey and another vs. Mahendra Sukla Baidya and others is reproduced hereafter: “16. The next question is the presumption of execution under Registration Act and how far it dispenses with the proof as required under section 67 of the Evidence Act. The sections throwing light on this are the sections 58, 59 and 60 of the Registration Act. Section 58 provides for particulars to be endorsed on documents admitted to registration, section 59 provides that the endorsement are to be dated and signed by registering officer, section 60 provides for certificate of registration. The law on this point is that presumption under section 60(2) of the Registration Act cannot take the place of proof as required by section 67 of the Evidence Act when witnesses are available to prove the document in the manner as laid down in Evidence Act. If that is not adhered to it may operation floodgate of fraud and a Court has a duty/obligation to close it. A certified copy usually will 8 be weak piece of evidence and it can never take place of the original, the original has its own worth and value as a piece of evidence. Under the Registration Manual signatures/thumb impression of the executant are to be taken in a Register by the Registering Officer, in case of certified copied even that may be proved.” 10. From the other side, Mr. S. Deb, learned senior counsel appearing for the respondents in order to rebut such submission of Mr. Dhar, learned counsel appearing for the appellant has stated that the objection as to the admissibility of a document has to be raised at the time when it is admitted. If such objection is not raised, subsequently such objection cannot be entertained. In the case in hand, it would appear from the records that the principal defendant did not raise any such objection at the time of admission of the sale deed (Exbt.1). To buttress his contention, Mr. Deb, learned senior counsel has relied a decision of the apex court in R.V.E Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another, reported in (2003) 8 SCC 752 . The apex court has enunciated the law therein as under: “18. To buttress his contention, Mr. Deb, learned senior counsel has relied a decision of the apex court in R.V.E Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another, reported in (2003) 8 SCC 752 . The apex court has enunciated the law therein as under: “18. The abovesaid facts have been stated by us in somewhat such details as would have been otherwise unnecessary, only for the purpose of demonstrating that the objection raised by the defendant-appellant before the High Court related not to the admissibility of the documentary evidence but to the mode and method of proof thereof. 19. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced. “20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above-said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the made of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.” 21. In the first case, acquiescence would be no bar to raising the objection in superior Court.” 21. Privy Council in Padman v. Hanwanta [ AIR 1915 PC 111 ] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed : ‘The defendants have now appeal to the Majesty-in-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.’ 22. Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S. Perumal [ 1972 (2) SCR 646 ]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed : ‘Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Headconstables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility See Bhagat Ram v. Khetu Ram and Anr. [ AIR 1929 PC 110 ].’ ” [Emphasis supplied] 11. While appreciating the submissions made by the learned counsel appearing for the parties having due regard to the records, this Court would observe that there is another aspect in this matter which as well requires consideration. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counterevidence; and (iii) an indiscriminate use in which it may mean either or both the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 of the India Evidence Act, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 12. In this case in hand, the plaintiff has proved the sale deed, Exbt.1. On the basis which she had instituted the suit for declaration and recovery of the suit land. She has discharged her initial onus apparently by proving that she permitted the principal defendant to possess for a short period in the suit land but while the principal defendant denied to vacate the land, she had instituted the suit. To resist such claim, the principal defendant has stated that no sale deed was ever executed and if executed that was to deprive her and that the plaintiff did never come in the possession and she was all through in the possession. It is not in dispute that the proforma defendant, the respondent No.2 herein was in the proceeding and he did not deny execution of the sale deed or putting the plaintiff in possession. Even the principal defendant did not take any initiative to examine him as the witness even though she could have examined him following the due process of law. 13. The solitary question that has been debated in this appeal is that whether the sale deed, Exbt.1 was admitted as required in law meaning as provided under Section 67 of the Indian Evidence Act. 13. The solitary question that has been debated in this appeal is that whether the sale deed, Exbt.1 was admitted as required in law meaning as provided under Section 67 of the Indian Evidence Act. The apex court has enunciated the law very clearly in R.V.E Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another that if any objection as to the admissibility is to be raised that has to be raised at the time of tendering the document and marking of the same by the trial Judge. Unless the mode is objected at that time, subsequently, on the ground of the adopted mode no such objection can be sustained, if the document is otherwise admissible in evidence. This observation is based on the principle of waiver. But at the same time the objection can always be raised if the document is inadmissible in the evidence. In this case, the sale deed is an admissible document. But there was no objection to its mode of admissibility at the time when the document was marked by the trial Judge. As such, this Court does not have any other option but to hold that the law as decided by the Gauhati High Court has not dealt with all relevant aspects of the matter. In Javer Chand and others vs. Pukhraj Surana, reported in AIR 1961 SC 1655 , it has been enunciated by the apex court that ‘once a document has been marked as an exhibit in the case and has been used by the parties in examination, cross-examination of the witness...., it is not open either to the trial court itself or to court of appeal or revision to go be hind that order.’ To the same effect in Purushothama Reddiar vs. S. Perumal, reported in AIR 1972 SC 608 , the apex court has laid down the law as under: “It is not open to a party to object to the admissibility of documents which are marked as exhibits without any further objection from such parties.” As such, the plea of admissibility is rejected by this Court. Since the principal defendant, the appellant herein, has not discharged her onus as to the non-execution of the sale deed, Exbt.1 or any right that she is entitled to, in respect of the possession, this Court is of the considered opinion that the impugned judgment does not warrant any interference at all. Since the principal defendant, the appellant herein, has not discharged her onus as to the non-execution of the sale deed, Exbt.1 or any right that she is entitled to, in respect of the possession, this Court is of the considered opinion that the impugned judgment does not warrant any interference at all. 14. In the result, this appeal stands dismissed. Prepare the decree accordingly. Thereafter, send down the LCRs.