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2017 DIGILAW 1120 (GAU)

Babul Das v. Kanram Das

2017-08-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Mr. DN Bhattacharyya, learned counsel, appearing on behalf of the plaintiff/appellant and Mr. M.A. Sheikh, learned counsel, appearing for the respondents/defendants. 2. This second appeal is preferred by the plaintiff/appellant against the defendants/respondents challenging the impugned judgment and decree dated 27.5.2005, passed in Title Appeal No. 1/1999 by the learned Civil Judge (Senior Division) Golaghat upholding the judgment and decree dated 9.12.1998, passed in T.S. No. 13/1995 by the Civil Judge (Junior Division) No.1, Golaghat. The facts of the suit in brief are that Ahina Das and Mekera Das jointly possessed 14 Bighas 2 Kathas and 3 Lechas of land covered by Periodic Patta No. 6. They divided the suit land into two equal shares and possessed separately their respective shares. On the death of Ahina Das, his share of land measuring 7 Bighas 1 Katha was inherited by his two daughters, Pahita Das and Moheswari Das. The said share of land of Ahina Das was physically possessed by Moheswari Das and her husband Kulai Das. It was also pleaded that they possessed the share of Pahita Das also. 3. On the death of Mekera Das, his only son, Kalu Das inherited his share of land and enjoyed it till 1990. On the death of Kalu, his three sons came to occupy the said land by way of inheritance. In the year, 1990-91, the entire land covered by Periodic Patta No. 6 was partitioned and total share of 7 Bighas 1 Katha of Ahina Das occupied by Maheswari Das and Pahita Das was covered under a new Patta i.e. Periodic Patta No. 153. The defendants/respondents on 10.8.1991 encroached the said land measuring 7 Bighas 1 Khata covered by Periodic Patta No. 153, following which a proceeding under Section 145 Cr.P.C. was drawn up. However, the learned trial Magistrate failed to give any decision with regard to the possession of either of the parties to the suit and advised the parties to approach the civil court. Pahita Das and Maheswari Das executed a registered gift deed bearing No. 704 dated 4.4.1994 (Ext. 1) in favour of one Bubul Das, the plaintiff/appellant No. 1. 4. The said Bubul Das accepted the said gift and has been enjoying the suit land along with his father, Kulai Das. On the strength of the said gift, the name of Bubul Das was mutated. 1) in favour of one Bubul Das, the plaintiff/appellant No. 1. 4. The said Bubul Das accepted the said gift and has been enjoying the suit land along with his father, Kulai Das. On the strength of the said gift, the name of Bubul Das was mutated. The suit was filed by Bubul Das, i.e. the present sole appellant and Kulai Das and prayed for declaration that the present plaintiff/appellant had acquired the right, title and interest over the suit land and also for recovery of khas possession after evicting the defendants/respondents. The respondents/defendants contested the suit by filing a joint written statement. It is the defence taken by them that the original land belonged to one Kalu Koiborta, who owned 14 Bighas 2 Khatas 14 Lechas of land covered by Dag No. 127 of Periodic Patta No. 10. He died leaving behind his three sons i.e. the defendant/respondent Nos. 1, 2 and 3 and six daughters. 5. The said land was possessed by all the sons and daughters of Kalu Kaiborta, who died in the year 1989. Ahina Das had no right, title and interest and possession over the suit land and his two daughters Pahita Das and Maheswari Das were married off to faraway places. Though late Ahina Das lived at a distance about 40 Kilometers from the suit land, he had surreptitiously inserted his name in the Chita Jamabandi Book pertaining to the suit land whereafter managed to cause partition of the suit land. With regard to the gift deed, it is the stand taken by the defendants/respondents that there was no delivery of possession on the strength of the gift deed and as such the said gift deed was an illegal deed. Accordingly, the said defendants/respondents prayed for dismissal of the suit. 6. The said Pahita Das and Maheswari Das were made proforma defendants in the suit. They also filed a common separate written statement in the title suit and in the said written statement they supported the plaintiff/appellant including the fact of execution of the gift deed. 7. Based on the pleadings, the following issues were framed:- (1) Is there any cause of action for the suit? (2) Whether the gift deed executed by Pahita Das and Maheswari Das in favour f the plaintiff is a collusive deed? (3) Whether the plaintiff has right, title, interest over the suit land? 7. Based on the pleadings, the following issues were framed:- (1) Is there any cause of action for the suit? (2) Whether the gift deed executed by Pahita Das and Maheswari Das in favour f the plaintiff is a collusive deed? (3) Whether the plaintiff has right, title, interest over the suit land? (4) Whether the plaintiff has entitled to get decree as prayed for? (5) To what relief or reliefs, if any, the parties are entitled to get? 8. The learned trial court during the trial recorded the evidence adduced by the parties alongwith the exhibits. The trial court took the Issue No. 2 considered the evidence of PW 1, who deposed that he accepted the said gift, took the possession of the suit land vide gift deed (Ext. 1). However, in the cross examination he stated that at the time of execution of the Ext. 1, Pahita Das and Mahesweari Das had no possession in respect of the said land as the land was attached at that time when the proceeding under Section 125 Cr.P.C. was on. PW 3 Pahita Das, one of the executants of the gift deed (Ext. 1) deposed that on 4.4.1994 she along with her sister gifted the said land to the plaintiff/appellant No.1, Bubul Das by way of registered gift deed (Ext. 1). She exhibited the signatures of herself and her sister, Maheswari Das and other witnesses of the Ext. 1. She denied that the said gift deed was collusive one. 9. The trial court also examined the evidence of DW 1 i.e. the defendant/respondent No. 1, Konram Das. The said DW 1 admitted that there was a proceeding under Section 145 Cr.P.C. with respect to the suit land. In the said proceeding Pahita Das and Maheswari Das alongwith their husbands were the first party and he alongwith his brothers was the second party. He also further admitted that the court could not decide who was in possession of the suit land and as a result directed the parties to approach civil court. He also deposed that after execution of the gift deed, Pahita Das and Maheswari Das did not handover the possession of the suit land to the donee, Bubul Das. 10. In his cross-examination, he further deposed that he had not sought for any relief for cancellation of the gift deed (Ext. 1). He also deposed that after execution of the gift deed, Pahita Das and Maheswari Das did not handover the possession of the suit land to the donee, Bubul Das. 10. In his cross-examination, he further deposed that he had not sought for any relief for cancellation of the gift deed (Ext. 1). Before the trial court, the defendants/respondents raised the issue that the Ext. 1 (gift deed) is a certified copy and the original was not exhibited and as such the same is hit under Section 65 of the Indian Evidence Act, 1972. Finally on the basis of the said materials on record, the trial court held that the gift deed (Ext. 1) was not a collusive one as both the executants admitted about the due execution of the said Ext. 1 knowing fully well the fact that they have gifted the suit land to the plaintiff/appellant. The trial court accordingly held that as the executants had admitted the execution of Ext. 1, thereby invoking the provision of Section 68 of the Indian Evidence Act held that the gift deed, Ext. 1 executed by the donors, a valid one without there being any collusion. While deciding the Issue Nos. 3 and 4, the trial court accepted the evidence of PW 3, Pahita Das. 11. From the said evidence of PW No. 3, the trial court considered the fact of objection raised by the present defendants/respondents in the regular partition case preferred by them. The objection raised by the defendants/respondents was disallowed by the Deputy Commissioner and as against that they did not prefer any appeal. She specifically admitted the execution of the gift deed, i.e. Ext. 1. The trial court also considered the evidence of Lat Mandal, the PW 4 who supported that a separate periodic Patta had been issued in the names of Pahita Das and Maheswari Das. As against the evidence of DW 1, Konram Das, who deposed that the suit land forms a part of the total 14 Bighas 2 Kathas 14 Lechas of land which exclusively belonged to his father and on the death of his father he along with his two brothers were possessing the same by the right of inheritance, the same was not accepted by the trial court. Finally after considering the evidence, the trial court decreed the suit in favour of the plaintiff/appellant. 12. Finally after considering the evidence, the trial court decreed the suit in favour of the plaintiff/appellant. 12. The said judgment of the trial court was challenged in T.A. No. 1/1999 in the court of the learned Civil Judge (Senior Division), Golaghat. The first appellate court while deciding the Issue No. 2 reversed the findings of the trial court and finally dismissed the suit of the plaintiff/appellant. 13. The first appellate court held that a gift deed is a private document, certified copy of such gift deed is not admissible in evidence. The trial court was wrong in interpreting the legal provision and as such wrongly decided the issue in favour of the plaintiff/appellant. It finally held that the plaintiff/appellant failed to prove the gift deed in accordance with the procedure laid down by law. It is pertinent to mention here that the said registered gift deed (Ext 1) is the certified copy of the original gift deed. On the basis of the said finding, the appeal was allowed. 14. Being aggrieved, the present appellant has preferred this second appeal, which was admitted on 31.8.2005 on the following substantial questions of law:- (a) Whether the learned lower appellate Court erred in dismissing the suit of the appellant on the ground that the Gift deed, Exhibit 1, was a collusive one, in absence of any evidence to the said effect, admission of its execution by the respondents notwithstanding? 15. Mr. Bhattacharyya, learned counsel, appearing for the appellant/plaintiff submits that the first appellate court was totally wrong in reversing the finding of Issue No. 2 and coming to the conclusion that the said gift deed is a collusive one inasmuch as there is no pleading to that effect in order to show in what manner the defendants/respondents pleaded the same to be a collusive one. It is submitted that the Ext. 1 while at the time of producing the same before the court below at the time of evidence of plaintiff’s side, the respondents/defendants nor the trial court objected in marking the same as exhibit. 16. There is an admission on the part of the defendants/respondents with regard to the gift deed (Ext. 1). The fact which is admitted, requires no further proof. It is also submitted further that the gift under the Hindu Law is to be completed as per Section 123 of the T.P. Act. 16. There is an admission on the part of the defendants/respondents with regard to the gift deed (Ext. 1). The fact which is admitted, requires no further proof. It is also submitted further that the gift under the Hindu Law is to be completed as per Section 123 of the T.P. Act. There must be two attesting witnesses and in order to prove the gift deed, it is governed by Section 68 of the Indian Evidence Act as the attestation is mandatory as per the provision of the T.P. Act to be a valid gift. The possession is not required to be delivered in a gift under the Hindu Law. Acceptance is sufficient in order to form a valid gift. Accordingly Mr. Bhattacharyya submits that there was no illegality in the findings of the first appellate court. Hence, the substantial question of law is to be decided in the affirmative. 17. Mr. M.A. Sheikh, learned counsel, appearing for the respondents/defendants argued that gift deed which is exhibited as Ext. No. 1 is a certified copy and in order to prove the same to be a valid documentary piece of evidence, it must comply with the stipulations made in Section 65 of the Indian Evidence Act, 1972. There is nothing on record to show as to why the plaintiff/appellant was compelled to prove the gift deed in the form of secondary piece of evidence. Under such circumstances, acceptance of the said Ext. 1, gift deed is totally illegal on the part of the trial court and the first appellate court rightly concluded and reversed the finding of Issue No. 2. Mr. Sheikh accordingly submits that the findings of the first appellate court are correct and it requires no interference by this court. 18. Considered the submissions of both the learned counsels, appearing for the parties to this suit. The trial court allowed to exhibit the certified copy of the original gift deed without recording any reasons nor there was any objection on the part of the defendants/respondents at the time of marking the said secondary piece of evidence as the exhibit. 18. Considered the submissions of both the learned counsels, appearing for the parties to this suit. The trial court allowed to exhibit the certified copy of the original gift deed without recording any reasons nor there was any objection on the part of the defendants/respondents at the time of marking the said secondary piece of evidence as the exhibit. From the ratio laid down by the Hon’ble Apex Court in R.V.E. Venkatachala Gounder Vs Arulmigu Viswesaraswami and V.P. Temple and another, reported in AIR 2003, SC 4548, it is observed that there are two types of admissibility of document in evidence- (i) mode of proving the document and the other one (ii) with respect to admissibility of the document itself. Admissibility with respect to mode of proving of a document can be objected at the very stage of marking the same as exhibit. Once there is no objection, with regard to the mode of proof that cannot be raised in the subsequent higher courts. But if the document is inherently inadmissible itself, then even if the same is marked as exhibit, the question of the admissibility of the said document can be raised even at the second appellate stage. 19. In the present case in hand, it is not the inherent inadmissibility that is questioned by the defendants/respondents, so far the gift deed, Ext. 1 is concerned. The fact of the gift is admitted but it is the question of collusion raised by the defendants/respondents. From the argument of Mr. Sheikh, it is very much clear that he is disputing the mode of proof of Ext. 1 as his submission itself is confined to Section 65 of the Indian Evidence Act. As per the ratio discussed hereinabove, laid down by the Hon’ble Apex Court, the question of mode of proof cannot be raised, once document is marked as exhibit without any objection by the defendants/respondents. Regarding collusion, there is no specific pleading in the written statement and merely the same was executed during the pendency of the proceeding under Section 145 Cr.P.C. cannot, under any circumstances, be held that the said Exhibit 1 is collusive. 20. Regarding collusion, there is no specific pleading in the written statement and merely the same was executed during the pendency of the proceeding under Section 145 Cr.P.C. cannot, under any circumstances, be held that the said Exhibit 1 is collusive. 20. It is apparent from the materials available on record that Pahita Das and Maheswari Das became the absolute owner with respect to the suit land after the same was partitioned by the Revenue Authority and separate periodic patta was issued in the names of Pahita Das and Maheswari Das. After being partitioned, the said two sisters became the joint owners with respect to the said land and on the strength of their said title, both the co-sharers of the land executed the gift deed (Ext. 1) which is admitted by none other than Pahita Das, one of the executants of Ext. 1. The delivery of possession is not a pre-requisite to be a valid gift under the Hindu Law, rather it is the acceptance by the donor during the life time of the donees. As against this under the Mohamedan Law, a gift requires delivery of possession to become the said gift a valid one under the law. The ingredients required for a valid gift under the Hindu Law in the present case in hand the act that the plaintiff/appellant himself claimed right, title, interest over the suit land on the basis of the gift itself amounts to acceptance of the same. Accordingly, this court holds that the first appellate court decided wrongly the issues and reversed the findings of the trial court. As such, the substantial question of law is decided in the affirmative in favour of the plaintiff/appellant. 21. The judgment and decree dated 27.5.2005 passed by the first appellate court in Title Appeal No. 1/1999, by the learned Civil Judge (Senior Division), Golaghat is set aside, upholding the findings of the judgment and decree dated 9.12.1998 passed by the learned Civil Judge (Junior Division) No. 1, Golaghat in T.S. No. 13/1995. 22. Accordingly, this second appeal succeeds. Send back the LCR. No costs.