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2016 DIGILAW 921 (ORI)

Bishnu Charan Dash v. Sripati Kumar Kar

2016-10-06

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Civil Judge (Sr. Division), Bhubaneswar in C.S. No. 1345 of 2011. 2. The appellants as the plaintiff had filed the suit praying for following reliefs:- (i) let a decree be passed declaring the deed of General Power of Attorney No. 1081021769 dated 03.09.2010 elaborately described in Schedule-‘B’ below, the R.S.D. No. 1081026361 dated 27.10.2010 elaborately described in Schedule – ‘C’ below and the R.S.D. No. 1081027452 dated 09.09.2011 elaborately described in the Schedule –‘D’ below are void deeds and the same have no legal entity in eye of law. (ii) let a decree be passed permanently injuncting the defendant from lying any claim over the suit Schedule –‘A’ lands for all times to come in future, from interfering and from causing any disturbances on the rights and titles of the plaintiffs to enjoy the suit Schedule –‘A’ lands; in future and from alienating transferring and selling away the Schedule –‘A’ lands to others during the pendency of the suit. (ii) let a decree be passed for costs of the suit and the costs which the plaintiffs would incure till the final disposal of the suit. (iv) let a decree be passed for any other reliefs which the plaintiffs are otherwise entitled to and the reliefs which your honour may deem fit and proper to be given in the suit. The suit having been dismissed exparte against the respondents-defendant, the same is now under challenge. 3. The plaintiffs case is that one Sabitri Dash who happens to their mother was the owner and recorded tenant of the land under consolidation Khata no. 303, plot no. 481 measuring Ac. 245 decimals in mouza Banaguari and this land, she had got from her mother, Nishamani Dibya under registered gift deed dated 29.09.1961. It is stated that Sabitri with the assistance of her sons (plaintiffs) and one Dwijabar Mohanty was cultivating the suit land. After death of Dwijabara, his son Basanta Kumar Mohanty took up the cultivation over the suit land. Sabitri died on 09.08.1990. So these plaintiffs being her sons remained in cultivating possession of the suit land by growing paddy and other seasonal crops. It is stated that defendant no. 1 is a stranger to their family. It is alleged that on 03.09.2010 said defendant no. Sabitri died on 09.08.1990. So these plaintiffs being her sons remained in cultivating possession of the suit land by growing paddy and other seasonal crops. It is stated that defendant no. 1 is a stranger to their family. It is alleged that on 03.09.2010 said defendant no. 1 has brought into existence a deed Power of Attorney showing it to have been so executed by Sabitri Dash in his favour, though Sabitri had by then left this mortal world, having died much prior to it i.e. on 09.08.1990. It is also their case that the Power of Attorney dated 03.09.2010 has been created by way of impersonation by making another old lady to stand and put her LTIs etc. being put for the purpose. The person whose photograph finds place in the said deed has been made to stand in place of Sabitri Dash and accordingly everything have been stage managed. That old lady is not known to the plaintiffs. This defendant no. 1 on the basis of said forged Power of Attorney has proceeded to execute a registered sale-deed in favour of defendant no. 2 on 27.10.2010 for a huge consideration and that defendant no. 2 in turn has further executed another registered sale-deed on 09.11.2010 in favour of defendant no. 3 showing the property to have been so sold for a consideration of Rs. 40,42,500/-. All these documents are put to serious challenge as fake forged and fabricated and it is stated that defendant no. 1 is the chief architect of the same. Pleading the above facts, the plaintiffs filed the suit claiming the reliefs as aforesaid. 4. The defendant no. 1 appeared to contest on being noticed in the suit. However, after filing the written statement by denying the plaint averments, he remained absent and did not participate in the hearing of the suit and as such was set exparte. The other two defendants did not neither file any written statement nor contested the suit. 5. During exparte hearing, the plaintiff No. 2 examined himself as P.W. 1 and proved the following document:- Voter Identity Card of plaintiff no. 1 Ext. 1. Voter Identity Card of plaintiff no. 2 Ext. 2 Legal heir certificate Ext. 3 Pension order of Sabitri Dash Ext. 4 Death Certificate of Sabitri Dash Ext. 5 Gift Deed Ext. 6 Certified copy of ROR of Khata No. 303 Ext. 1 Ext. 1. Voter Identity Card of plaintiff no. 2 Ext. 2 Legal heir certificate Ext. 3 Pension order of Sabitri Dash Ext. 4 Death Certificate of Sabitri Dash Ext. 5 Gift Deed Ext. 6 Certified copy of ROR of Khata No. 303 Ext. 7 Certified copy of Power of Attorney Dated 03.09.2010 Ext. 8 Certified copy of sale-deed No. 1081026361 Dated 09.11.2010 executed by defendant No. 1 in favour of defendant no. 2. Ext. 9 Certified copy of sale-deed No. 1081027452 Dated 09.11.2010 executed by defendant No. 2 in favour of defendant no. 3. Ext. 10 In the written statement, the defendant no. 1 has asserted the said Power of Attorney to be a genuine duly executed by said Sabitri Dash in respect of her property as described therein appointing him as the attorney for all the purpose as indicated in the said deed of Power of Attorney to do all such acts as stated in detail on her behalf. 6. The trial court as is seen from the judgment after noting the evidence of P.W. 1 as deposed to on oath has abruptly jumped to say the following:- “It is pertinent to mention that the defendants have been set exparte. On perusal of the materials on record it appears that the plaintiffs have not examined any person who were the witnesses to Power of Attorney (Ext. 8) to prove the fraud committed on the plaintiffs that the defendant no. 1 impersonated the mother of the plaintiffs and created Ext. 8. Mere pleading without filing any supporting material cannot be accepted. So, the plaintiffs are not entitled to the sought for. ” With the aforesaid, the result has been recorded as under:- “The suit of the plaintiffs is dismissed on exparte against the defendants without cost.” 7. It is pertinent to state here that respondent no. 1 and 2 (defendant no. 1 and 2 in the trial court) have not entered appearance despite due to service of notice of hearing of this appeal. It is now the respondent no. 3 who was the defendant no. 3 in the court below has come to contest here in this appeal. 8. Learned counsel for the appellant strenuously contends that when the evidence of P.W. 1 and all the documents right from Ext. It is now the respondent no. 3 who was the defendant no. 3 in the court below has come to contest here in this appeal. 8. Learned counsel for the appellant strenuously contends that when the evidence of P.W. 1 and all the documents right from Ext. 1 to 10 have gone unchallenged, there was no justification for the trial court to discard those from considerations and decide the suit as regards entitlement of the reliefs prayed for by the plaintiff instead of putting further load on the plaintiffs to prove the case of fraud and impersonation by examining the witnesses as find mention in the deed of Power of Attorney, Ext. 8. According to him, when the genuineness of the document is under challenge and the allegation remains that it has been created by impersonation, the court ought not to have so insisted to examine the witnesses by forgetting for a moment that those witnesses have simply been put for namesake and the question of their impersonation is also not ruled out as also they being parties to the fraud. According to him, the evidence on record are overwhelming to record a clear finding that said deed of Power of Attorney was never executed by Sabitri Dash who is the mother of the plaintiffs. In this connection, he has taken the pain of placing each of the documents proved from the side of the plaintiff in showing the impact of those in the matter, in support of the plaintiff’s case explaining as to how those go to provide full support to the case of the plaintiffs in entitling them to get the reliefs. Learned counsel for the respondent no. 3 submits that since the respondent no. 3 had not got the opportunity to participate in the suit, it is a fit case for remand of the suit to the court below for their disposal in accordance with law. 9. The disputed document is Ext. 8 which has been nomenclatured is Irrevocable General Power of Attorney. The photograph of the executant of the said document Sabitri Dash finds place therein. The plaintiffs case is that Sabitri Dash was getting pension from the State. Photograph of said Sabitri Dash who is the mother of the plaintiffs has been affixed thereto. This Sabitri Dash, wife of Jayakrushna Dash as it reveals from the Ext. The photograph of the executant of the said document Sabitri Dash finds place therein. The plaintiffs case is that Sabitri Dash was getting pension from the State. Photograph of said Sabitri Dash who is the mother of the plaintiffs has been affixed thereto. This Sabitri Dash, wife of Jayakrushna Dash as it reveals from the Ext. 5, the death certificate is found to have died on 09.08.1990 and the registration of the said death has been made in the register of birth and death duly maintained under Registration of Births and Deaths Act 1969 read with Odisha Births and Deaths Rule 2001 on 17.08.1990. So, it is not a case where one can even infer that the document has been obtained after the deed so as to raise a dispute in questioning the document on that ground. The plaintiffs have also proved the legal heir certificate of Sabitri Ext. 3 and that is dated 26.03.2003 which shows the name of the plaintiffs as two sons of Sabitri Dash. To establish the nexus, the plaintiffs have also proved their voter identity cards as also the original deed of gift by which Sabitri had got the property. The photograph of Sabitri as it finds pasted on the pension payment order book marked Ext. 4 appears to be of a different woman from that of the photograph as we see on Ext.8. The very facial expression in both the photographs to the naked eye do not at all go to match at any point. The pension book also shows that Sabitri had received pension last on 03.08.1990 as against her death on 09.08.1990. The original record of right of the land in question has come from the custody of the plaintiffs marked as Ext. 7. Such evidence on record in support of the case projected by the plaintiffs in their pleadings, when there remains absolutely no evidence from the side of the defendants to counter the same. No other glaring suspicious features also emerge out of the evidence on record so as to doubt the evidence let in by the plaintiffs. The sole reason assigned by the trial court for being not able to record a finding that the deed of Power of Attorney is a forged one as above stated in para -6 as highlighted does not at all appeal to the judicial conscience. The sole reason assigned by the trial court for being not able to record a finding that the deed of Power of Attorney is a forged one as above stated in para -6 as highlighted does not at all appeal to the judicial conscience. The trial court has lost sight of the important facet that here when the deed in question is attacked to be a forged one and to have been created by the impersonation of the executant whose architect according to the case of the plaintiff is defendant no. 1, it is not necessary for the plaintiffs to examine the witness named there, on the deed to establish the case of forgery as if the evidence of those witnesses could have only given rise to the finding that the deed is a forged one and other evidence let in the case by the plaintiffs in that event get thrown to the dustbin when the possibility of forgery in relation to showing those named persons as witnesses in the disputed deed is not ruled out and so also their involvement in that act of forgery. The trial court by completely whittling down the evidence let in by the plaintiffs as discussed above merely for the aforesaid reason of non-examination of those witnesses in the deed as named, without any evidence and ascertainment as to if they have been correctly so named is thus found to have committed gross error both in fact and law in not accepting the plaintiff’s case. In fact, the defendants having come into contest the suit so as to sustain disputed document Ext. 8, if would not have examined those witnesses to the deed, said non-examination on their part rather would have certainly been visited with fatal consequences in so far as defendants case is concerned but that itself is not fatal to the case of the plaintiffs. This Court after thorough scrutiny of evidence both oral and documentary finds that the plaintiffs have established their case that the said Power of Attorney, Ext. 8 is a forged one and as such having no value in the eye of law. Therefore, the finding of the trial court is held as erroneous and so also the final decision in non-suiting the plaintiffs. 12. In the result, the appeal stands allowed with cost throughout. 8 is a forged one and as such having no value in the eye of law. Therefore, the finding of the trial court is held as erroneous and so also the final decision in non-suiting the plaintiffs. 12. In the result, the appeal stands allowed with cost throughout. The judgment and decree passed in C.S. No. 1345 of 2011 by the learned Civil Judge (Sr. Division), Bhubaneswar are hereby set aside. The suit is decreed holding the plaintiffs to be entitled to all the reliefs as aforestated at paragraph 2 of this judgment.