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2016 DIGILAW 952 (ORI)

Balakrushna Panda v. Bilasini Das

2016-10-18

D.DASH

body2016
JUDGMENT : The unsuccessful defendant as the appellant here being aggrieved by the judgment and decree passed by the learned Civil Judge (Senior Division), Berhampur in T.S. No. 130 of 1997 directing him to deliver the possession of the suit land together with the construction standing thereon to the plaintiff-respondent has filed this appeal. 2. Plaintiff’s case is that the defendant was the original owner of the land under plot no. 1820/3235 of khata no.1030/893 of mouza Baidyanathpur in the township of Berhampur in the district of Ganjam. Being the owner in possession of the suit land, the defendant had sold the land measuring Ac 0.020 decimals from out of that plot in total Ac 0.055 decimals to the plaintiff by registered sale deed dated 25.02.1983 for valuable consideration followed by delivery of possession. Accordingly, the plaintiff deriving the title over that purchased land, possessed the same. It is her further case that she had raised foundation for the building over the suit land and then proceeded with the construction of the house which had not been completed. It is alleged that one day in the month of March, 1995 defendant openly declared in the locality that he would trespass upon the suit land and dispossess the plaintiff. Thus apprehending dispossession from the suit land in the hands of the defendant, the plaintiff filed the suit for permanent injunction and in the alternative for recovery of possession. 3. The defendant coming to contest the suit stoutly denied to have sold the suit land to the plaintiff by executing the registered sale deed on 25.02.1983. He has also denied to have ever delivered the possession of the suit land to the plaintiff and the plaintiff to have ever possessed the suit land. According to him, the plaintiff has never possessed the suit land carrying the title and has asserted that the possession of the suit land had remained with him all along as its owner and accordingly the revenue records is standing in his name. The claim of the plaintiff that he had made the foundation and constructed the house over the suit land is also denied. It is his specific case that he has constructed the house over the northern portion of the suit land and the southern portion still remains vacant. The claim of the plaintiff that he had made the foundation and constructed the house over the suit land is also denied. It is his specific case that he has constructed the house over the northern portion of the suit land and the southern portion still remains vacant. The suit land is said to have been given in mortgage to the Bank for obtaining the house building loan for construction of another house on that southern portion of the suit land. The first installment of the loan having been disbursed, the defendant claimed to have also made construction of the house on the southern portion of the suit plot. Again when in second phase, the installment was released, he asserted to have completed the roof work of the house. Thus the claim of the plaintiff as regards her right, title and interest over the suit land and the constructive possession stand denied with further pleading that there remains no cause of action to file the suit which is also said to be imaginary and the suit is further said to be barred by limitation. 4. Faced with the rival pleadings, the trial court framed as many as five issues, which are the followings:- “(1) Whether the plaintiff has right, title and possession over the suit property? (2) Whether the defendant has executed the registered sale deed dated 25.02.1983 in favour of the plaintiff? (3) Whether the defendant trespassed into the suit property and dispossesses the plaintiff from the lawful possession? (4) Whether the suit is maintainable? (5) To what relief plaintiff is entitled to?” 5. The trial court has rightly taken up issue nos. 1 to 3 for decision as in that way it can be properly decided by clubbing by proper discussion of the evidence in the touch stone of the pleadings since one is having the impact over the other. The trial court thus taking up the above three issues together for decision has answered at the ultimatum that the plaintiff has the exclusive right, title and interest over the suit land by virtue of her purchase by registered sale deed dated 25.02.1983, Ext.1. The consequential answer has been rendered on issue nos. 4 and 5 holding at the end that the plaintiff is entitled to get recovery of possession of the suit land from the defendant. 6. The consequential answer has been rendered on issue nos. 4 and 5 holding at the end that the plaintiff is entitled to get recovery of possession of the suit land from the defendant. 6. Learned counsel for the appellant contends that the findings rendered by the trial court on those three crucial issues no. 1, 2 and 3 are unsustainable both in law and fact. According to him, the evidence which are on record have not been appreciated in their proper perspective and rather the same as available on record even though have no foundation in the pleading of the plaintiff yet have been very much pressed into service. It is further argued that the trial court has unnecessarily given the importance to the report of the finger print expert which report has not been proved through its author. The same ought not to have been in any way utilized in the suit either in favour of the party or against. He further contends that the settled position of law being that the plaintiff has to independently prove her own case so as to either stand or fall without receiving any aid from the case of the defendant or failure to prove his case; here in the case the trial court committed grave illegality by shifting onus upon the shoulder of the defendant to prove his case, so as to non-suit the plaintiff when the plaintiff has failed to discharge the burden of proof resting upon her. He also submits that the appreciation of evidence by the trial court in arriving at a conclusion as regards the factum of possession of the suit land by the plaintiff and the construction standing thereon is not just and proper and the reason assigned for the same, according to him are far from satisfaction of a prudent person. 7. He also submits that the appreciation of evidence by the trial court in arriving at a conclusion as regards the factum of possession of the suit land by the plaintiff and the construction standing thereon is not just and proper and the reason assigned for the same, according to him are far from satisfaction of a prudent person. 7. Learned counsel for the respondent in supporting the findings of the trial court as also the decree passed at the end in favour of the plaintiff-respondent contends that here in the case, there is absolutely no infirmity in the matter of appreciation of the evidence by the trial court in arriving at the conclusion that the plaintiff has discharged the burden of proof of having acquired title over the suit land by virtue of her purchase by registered sale deed Ext.1 and as the settled law stands, the trial court has rightly shifted the onus upon the defendant to establish his case as projected in the written statement, so as to thwart the plaintiff from her entitlement to the reliefs claimed. He for the purpose has placed the evidence of witnesses examined on behalf of the plaintiff as also the defendant in pointing out as to how those have been properly appreciated in recording the finding. It is next submitted that here when the defendant had taken the plea to have never executed the sale deed Ext.1 which has been registered, the same has not been established by him when the plaintiff has duly proved it. Therefore, according to him, the trial court has rightly discarded the plea of the defendant at the threshold after it has found the plaintiff to have proved through evidence by preponderance of probability that the Ext. 1 has been duly executed by the defendant who admitted it before the Sub Registrar where after it has been registered which squarely draws the presumption under law as provided in section 60 of the Registration Act. It is also submitted that the Director, State Finger Prints Bureau in his report has made it clear by concluding that the disputed thumb impressions are identical and tally with the specimen impression of the defendant and the defendant having challenged the report on being asked to cross-examine the said expert has not taken any step despite the opportunities being given. So, the matter had been put to an end, and therefore, the report has been accepted which now cannot be questioned as faulty. In view of all these above, he contends that the appeal bears no merit. 8. This Court is now called upon to judge the sustainability of the finding of the trial on issue nos. 1, 2 and 3 which would practically decide the fate of the suit as regards grant of the decree in favour of the plaintiff holding her to have proved her case as also holding the defendant to have failed to establish the plea taken in the written statement, or its refusal by non-suiting the plaintiff. This exercise of course has to be done by looking at the evidence keeping in mind the rival case of the parties as projected in their pleadings, simultaneously addressing the rival contentions as advanced. 9. When the plaintiff asserted to have purchased the suit land from the defendant by registered sale deed dated 25.02.1983 admitted in evidence and marked as Ext.1, the defendant denies it to have at all been executed by him. The sale deed said is attacked as under :- “It is submitted that the defendant never sold the suit property to the plaintiff nor executed any sale deed dated 25.02.1983 for the same in favour of the plaintiff. The plaintiff has manipulated the sale deed with a view to grab the suit property”. From the aforesaid two inferences are drawn; (i) it is either said to be a fraudulent one created by impersonation or (ii) it has been brought into existence as such taking the signatures from the defendant surreptiously without his knowledge that it would be utilized. The defendant as D.W.3 in his evidence has merely denied the signatures on the deed to be his own and to have put any LTI in the concerned office. 10. Admittedly, the husband of the plaintiff and the defendant are colleagues. Plaintiff has first examined the scribe as P.W.2, who has deposed on oath to have scribed the sale deed as per the instruction of the defendant in presence of the witnesses. His further evidence is that he himself went through the sale deed giving a reading to it and thereafter having found those to have been correctly written, signed on it. His further evidence is that he himself went through the sale deed giving a reading to it and thereafter having found those to have been correctly written, signed on it. The witnesses to the sale deed have also been examined from the side of the plaintiff, P.W.3 whose evidence runs in the same vein as that of P.W.2. The witnesses being cross-examined, no such material has surfaced therein to disbelieve the positive evidence tendered by them and no such doubtful features have either been pointed out or seen. On carefully going through the evidence of those two witnesses, this Court also finds no such material discrepancy in the evidence of those two witnesses so as to say that both have stated differently on the substratum as regards execution of sale deed by defendant; admitting the same and the registration thereafter. These evidence being taken together with the evidence of the plaintiff as also viewed with the document in question Extr.1 leaves no room for doubting the execution of Ext.1 by the defendant, its admission before the registering authority and registration as per the certificate which calls for drawal of the presumption under section 60 of the Registration Act. Even with such evidence on record, the thumb impression register maintained in the office of the Sub Registrar concerning the sale deed under consideration had been called for and that has been sent to the State Finger Prints Bureau for comparison by taking a finger print of the defendant during the trial. The report has been specific that those are identical with each other and tally with the specimen impressions of the defendant. When such report came to be received, the defendant filed the objection and then he was asked to take all required steps for examination of the finger print expert. The fact remains that he did not take any step thereon and availed the opportunity of disproving the report placed before the court. It is now contended that for that the expert’s conclusions are not acceptable and cannot come to the aid of the plaintiff. It had been also contended in the trial court and now it is contended that the report ought not been used in the evidence in support of the plaintiff in holding that the plea of the defendant on that score is false. It had been also contended in the trial court and now it is contended that the report ought not been used in the evidence in support of the plaintiff in holding that the plea of the defendant on that score is false. Without entering into that arena of controversy when as already discussed and held that the evidence of execution of the sale deed, its admission and registration are found to be satisfactory, even without taking any aid from the expert’s report, the burden of proof resting upon the plaintiff in proving the acquisition of title over the suit land by said Ext.1 has to be said to have been well discharged. Thus the onus shifts to the defendant in disproving the same. For the purpose, let us go through the evidence of the defendant to find out as to how he has tackled the onus falling on his folded palm shifting upon him so as to receive a finding on that score in his favour. The defendant in the case examined as D.W.3, whereas his brother has come to the witness box as D.W.1. Most interestingly, when defendant himself has admitted the signature on the vakalatnama filed in the suit while entering appearance through the learned counsel to be his own, his brother D.W.1 has categorically deposed that said signature is not that of his brother i.e. defendant (D.W.3). This therefore leads the court to say assertively that D.W.1 is a witness who is not telling truth which renders his evidence unbelievable and highly exaggerated. He has not stopped there but has further gone to deny the signature of his brother even on the written statement filed in the suit. Then he has deposed that none of the signature which appeared in the sale deed to be belonging to his brother. The defendant as D.W.3 has also denied the signature appearing on Ext.1 to be his own and he has merely stated to have never put his LTI before the Sub Registrar in connection with the Ext.1. It further reveals from the case record that he has not taken the step as directed to challenge the report although opportunities had been provided for the same. Thus even though the report appears to have been admitted in evidence without objection, such conduct of the defendant itself casts grave doubt on truthfulness of the plea taken by him. It further reveals from the case record that he has not taken the step as directed to challenge the report although opportunities had been provided for the same. Thus even though the report appears to have been admitted in evidence without objection, such conduct of the defendant itself casts grave doubt on truthfulness of the plea taken by him. When the evidence let in by the plaintiff with regard to the execution of document and its admission by the defendant before the registering authority followed by registration are found acceptable being further backed by the statutory presumption as above and here the defendant being neither illiterate nor old or infirm, the evidence tendered from the side of the defendant in denial of the same being not acceptable, this Court finds no reason to disagree with the finding of the trial court on that score. In so far as factum of possession of the suit land is concerned, the evidence of plaintiff, examined as P.W.1 and her witness P.W.4 being gone through are not found in any way as deficient for being discarded. Their evidence have not been shaken. On the other hand, the counter evidence let in by the defendant through D.W.2, a mason do not stand to scrutiny, more so while stating that the contractor was looking after the construction of the house, he goes to produce some receipts showing payment for different item of works which perse appears to be unbelievable. The trial court upon vivid analysis has found the receipts to have been manipulated for the said purpose. The plaintiff through evidence has further proved the illegal act of trespass upon the suit land by the defendant. For the aforesaid discussion and reason, I hold that the plaintiff has established her right, title and interest over the suit land to have been so acquired by purchasing the same from the defendant and as such her right to possess. Thus, her entitlement to the relief claimed in the suit for recovery of the suit land from the defendant firmly stands. Accordingly, I find no reason to disturb the decision of the trial court on all the issues and the judgment and decree as passed by the trial court are hereby confirmed. 11. Resultantly, the appeal stands dismissed. In the facts and circumstance with cost throughout.