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2017 DIGILAW 1488 (GAU)

Nasiruddin Ahmed v. Badiuz Zamal

2017-11-30

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Ms. R. Choudhury, learned counsel for the appellants. None has entered appearance on behalf of the respondents though from the office note it is seen that the Dasti service was taken for service of notice on the respondents and from the affidavit sworn by the appellants it appears that they refused to accept the notice and as such service was presumed to be completed on the respondents and the matter is taken up for hearing for its final disposal. 2. The present appellants are the defendants in Title Suit No. 5/2000 in the Court of learned Civil Judge (Jr. Divn.) No. 1, Mangaldoi filed by the respondent-plaintiffs. It is the case of the plaintiff-respondents that on 20.1.1959 one Kanchu Sheikh, father of the plaintiff-respondents purchased the suit 1 and by registered deed No. 318 from one Rahman Mandol who was one of the pattadars which is described in Schedule B of the plaint. After the said purchase, Kanchu Sheikh got possession thereon. The father of the plaintiff-respondents and the father of the defendant-appellant Nos. 1 and 2 were brother in law (defend ants). When the father of the plaintiff-respondents suffered from ailment, he allowed Fazar Ali to cultivate the land on his behalf before his death and accordingly Fazar Ali cultivated the land for and on behalf of the father of the plaintiff-respondents and used to give proceeds of the land. Fazar Ali, the father of the defendant-appellant Nos. 1 and 2 died in the month of July 1997 and thereafter the plaintiff-respondents brought the land under their control and possession and constructed house thereon and paid the revenue for the land. On 31.3.1999 the defendant-appellants tried to dispossess the plaintiff-respondents from the suit land whereafter the plaintiff-respondents initiated M.R. Case No. 43/1999 under section 145/146, Cr.PC and the disputed land was attached. The defendant-appellants thereafter preferred a criminal revision against the order of attachment and the learned Sessions Judge, Darrang by his order dated 26.11.1999 set aside the order of attachment of the Executive Magistrate, Mangaldoi. The plaintiff-respondents are still in possession of the Schedule B land which is the suit land and during the 145, Cr. The defendant-appellants thereafter preferred a criminal revision against the order of attachment and the learned Sessions Judge, Darrang by his order dated 26.11.1999 set aside the order of attachment of the Executive Magistrate, Mangaldoi. The plaintiff-respondents are still in possession of the Schedule B land which is the suit land and during the 145, Cr. PC proceeding, the plaintiff-respondents got the copy of Jamabandi on 6.1.2000 and came to know that the old periodic patta number was converted to new periodic patta number and that the name of Fazar Ali, father of the defendant-appellant Nos. 1 and 2 was fraudulently mutated in respect of Schedule B suit land and as such the name of Fazar Ali which was mutated fraudulently and collusively is liable to be set aside. On 4.2.2000, the main defendant-appellants again threatened that the plaintiffs-respondents would be forcibly dispossessed from the suit land. The defendant-appellants had no right, title and interest over the suit land but owing to the mutation of name of Fazar Ali over the suit land, the right, title and interest of the plaintiff-respondents became clouded, therefore, they have filed the suit for declaration of their right, title and interest over the Schedule B land and for further declaration that the mutation of the name of Fazar Ali (father of the defendant-appellant Nos. 1, 2 and 3) over the Schedule B land is illegal, collusive and liable to be cancelled and for precept to the Collector, Darrang. It is pertinent to mention here that after filing of the written statement-cum-counter-claim by the defendant-appellants, the plaintiff-respondents amended the plaint by introducing that the registered sale deed No. 2504 dated 28.5.1962 purportedly executed by their father Kanchu Sheikh selling the suit land to one Keshab Chandra Sarkar and the subsequent registered sale deed No. 3542 dated 6.12.1993 executed by the said Keshab Chandra Sarkar in favour of Fazar Ali, the father of the defendant-appellants are forged and accordingly sought for relief for declaration of the said registered sale deeds as illegal, fraudulent and collusive and for its cancellation along with permanent injunction restraining the defendant-appellants from dispossessing the plaintiff-respondents. 3. The defendant-appellants contested the suit by filing joint written statement along with counter claim raising the plea that there was no cause of action for the suit, that the suit is barred by law of limitation and the suit is bad for non-joinder of necessary parties. 3. The defendant-appellants contested the suit by filing joint written statement along with counter claim raising the plea that there was no cause of action for the suit, that the suit is barred by law of limitation and the suit is bad for non-joinder of necessary parties. It was further pleaded that Kanchu Sheikh, father of the plaintiff-respondents purchased the suit land on 20.1.1959 vide registered sale deed No. 318 from one Rahman Mandol, the original pattadar and he continued his possession over the suit land till 28.5.1962. Thereafter, on the said date Kanchu Sheikh by way of a registered sale deed No. 2504 sold the same and delivered possession to one Keshab Chandra Sarkar. On 6.12.1963, the said Keshab Chandra Sarkar sold out the suit land to Fazar Ali, father of the defendant-appellant Nos. 1, 2 and 3 by giving delivery of possession and since then Fazar Ali continued his possession over the suit land till his death and after his death the same devolved upon the defendant-appellants whereafter they have been possessing the suit land by paying land revenue. It is further stated that while the defendant-appellants were possessing the suit land, the plaintiff-respondent No. 2 initiated a proceeding under section 145, Cr. PC and a preliminary order was passed in the said proceeding on 1.4.1999 by the learned Executive Magistrate, Mangaldoi. Against the said order dated 1.4.1999, the defendant-appellant Nos. 1 and 2 preferred a revision application before the learned Sessions Judge, Darrang who vide his order dated 26.11.1999 passed in C.M. 22(D-2)/1999 set aside the preliminary order dated 1.4.1999. After the said order the learned Executive Magistrate vide his order dated 17.12.1999 through the police, released the disputed land from the attachment in favour of the defendant-appellants and thereafter they started ploughing over the suit land. During the said possession the plaintiff-respondents on 11.3.2000 dispossessed them from the suit land by constructing two thatched houses and planted betel nut trees and for the said illegal action the defendant-appellants were compelled to bring their counter-claim for declaration of their right, title and interest over the suit land and for ejectment of the plaintiff-respondents from the suit land by demolishing the standing structures thereon. 4. 4. Against the counter-claim the plaintiff-respondents filed written statement and amended plaint as hereinabove stated denying the execution of the sale deed by Kanchu Sheikh and that Fazar Ali never purchased the suit land from Keshab Chandra Sarkar and the said deeds were forged documents conferring no right, title and interest upon Keshab Chandra Sarkar. 5. Based on the pleadings, the learned trial court framed the following issues: (i) Whether the plaintiffs have got any cause of action? (ii) Whether the plaintiffs have got right, title, interest, possession over the S/L? (iii) Whether the suit is barred by limitation? (iv) Whether the suit is bad for Mis-joinder and non-joinder of necessary parties as stated in para 4 of the written statement? (v) Whether the plaintiffs have possession over the suit land at the time of filing the suit? (vi) Whether the suit land originally appertained to old Dag No. 259 and New Dag No. 309 of original P.P. No. old 177 and new 164? (vii) Whether Kanchu Seikh father of the plaintiff had purchased 4 Bighas of land out of old Dag No. 259 and New Dag No. 309 from Co-pattadars Rahman Mandal, whether Kanchu Seikh sold the 4 Bighas of land to Keshab Chandra Sarkar and whet her Keshab Chandra Sarkar sold 4 Bighas of land to Faraz Seikh father of defendant Nos. 1, 2 and 3 as stated on para 26(iii) of the counter-claim? (viii) Whether defendant Nos. 1,2, 3 and 4 acquired right, title possession over the suit land on the death of Faraz Seikh in July 1990? (ix) Whether the mutation of S/L in the name of Faraz Ali alias Seikh is illegal, collusive, void and liable to be cancelled? (x) Whether the plaintiff dispossessed the main defendants on 1.3.2000 and whether they had constructed the thatched houses on the S/L as alleged in para 26(vii) of the counter-claim? (xi) Whether the defendant Nos. 1, 2, 3 and 4 are entitled to declaration of their right, title interest over the suit land and whether they are entitled to decree of ejectment as prayed in the counter-claim? (xii) Whether registered Sale Deed No. 2504 dated 28.5.62 and Sale Deed No. 3542 dated 6.12.63 are forged fraudulent and collusive as alleged in the amended plaint and liable to be cancelled? (xiii) To what relief or reliefs the plaintiffs and defendants are entitled to? (xii) Whether registered Sale Deed No. 2504 dated 28.5.62 and Sale Deed No. 3542 dated 6.12.63 are forged fraudulent and collusive as alleged in the amended plaint and liable to be cancelled? (xiii) To what relief or reliefs the plaintiffs and defendants are entitled to? The plaintiff-respondents examined 6 witnesses and also exhibited documents and the defendant-appellants also examined 5 witnesses and exhibited some documents. 6. It is pertinent to mention here that during pendency of the suit, the original sale deeds No. 2504 dated 28.5.1962 and 3542 dated 6.12.1963 showing the sale transactions of the suit land by Kanchu Seikh to Keshab Chandra Sarkar and Keshab Chandra Sarkar to Fazar Ali, respectively which were deposited in the court along with a list of documents got misplaced following which an enquiry was conducted by the learned SDJM, Mangaldoi whereafter the defendant-appellants were allowed to adduce secondary evidence with respect to the said sale deeds. The learned trial court vide judgment and decree dated 23.7.2005 decreed the suit. The learned trial court while deciding issue Nos. 2 and 7 held that the fact Kanchu Seikh purchased the suit land from Rahman Mandol was not disputed by the defendant-appellants. It was also observed by the learned trial court that the names of defendant-appellants, namely, Nasiruddin, Hanif and Mahiran Nessa were found mutated on 25.10.2000 in KP Patta No. 144 in place of Fazar Ali, the predecessor in interest of the defendant-appellants. Discussing the claim of the defendant-appellants, the learned trial court held that two certified copies of the registered sale deeds, i.e., 2504 and 3542 were exhibited through one Gajendra Nath Sarma, the official from the office of the Sub-Registrar at Tezpur as DW 5 but neither of these two certified copies were compared and proved with the original abstract from the volume Register nor the Volume Register was exhibited. It was also observed that the DW 5 simply exhibited the certified copies of the said deeds which is not at all sufficient to prove the execution of the said deeds under section 63 of the Indian Evidence Act. Further, considering the evidence of DW 5, the learned trial court came to the finding that in the Schedule of Exhibit-’Tha’, sale deed number is written as 250 but in the Volume Register it is written as 2504. Further, considering the evidence of DW 5, the learned trial court came to the finding that in the Schedule of Exhibit-’Tha’, sale deed number is written as 250 but in the Volume Register it is written as 2504. Further, scrutinising the evidence of DW 2 and DW 3, the learned trial court came to the finding that they are not aware with regard to the execution of the deed as they were not present as witnesses at the time of execution and the same was a piece of hearsay evidence. Keshab Chandra Sarkar who deposed as DW 4 claimed that he purchased the suit land from Kanchu Seikh vide registered sale deed No. 2504. However, in his subsequent piece of evidence in cross, he deposed that Kanchu Seikh used to plough the land after purchase though he was delivered possession after 1-2 days from the date of execution of the sale deed. Bringing into the reference of the pleadings of the plaintiff-respondents, the learned trial court believed the fact that owing to illness of Kanchu Seikh, Fazar Ali, the father of the defendant-appellants was allowed to cultivate the suit land on their behalf. Considering further the piece of evidence of corroboration that both Kanchu Seikh and Fazar Ali used to cultivate the land jointly as deposed by DW 3, the learned trial court finally held that the defendant-appellants could not prove the delivery of possession by Kanchu Seikh to Keshab Chandra Sarkar after his purchase to complete the sale under section 55 of the Transfer of Property Act. It was also held that defendant-appellants could not establish that Keshab Chandra Sarkar purchased the suit land from Kanchu Seikh and Fazar Ali purchased the same from Keshab Chandra Sarkar. The learned trial court accordingly decided the said issue Nos. 2 and 7 against the defendant-appellants. The learned trial court further held that the plaintiff-respondents are holding the possession of the suit land as the defendant-appellants could not substantiate that they were dispossessed on 11.3.2000. The suit was decreed in favour of the plaintiff-respondents. 7. Being aggrieved, the defendant-appellants preferred Title Appeal No. 10/2005 in the Court of learned Civil Judge, Darrang at Mangaldoi challenging the judgment and decree passed by the learned trial court in Title Suit No. 5/2000. The learned First Appellate Court vide judgment and decree dated 28.9.2006 dismissed the said Title Appeal 10/2005. 7. Being aggrieved, the defendant-appellants preferred Title Appeal No. 10/2005 in the Court of learned Civil Judge, Darrang at Mangaldoi challenging the judgment and decree passed by the learned trial court in Title Suit No. 5/2000. The learned First Appellate Court vide judgment and decree dated 28.9.2006 dismissed the said Title Appeal 10/2005. The learned First Appellate Court while dismissing the appeal again scrutinised the findings of the learned trial court so far issue Nos. 2 and 7 are concerned. Appreciating the evidence on record in the same perspective as that of the learned trial court, the learned First Appellate Court entered into discussion with regard to the fact as to whether the sale deeds, i.e., the Exhibits-’Ta’ and ‘Tha’ on the strength of which the defendant-appellants claimed title over the suit land had been proved as required under section 67 of the Indian Evidence Act on the ground that mere production of a certified copy of the sale deed is not sufficient and to take it on record until the same is proved. The learned First Appellate Court delved into the basics as to how the writing or signature of a person could be proved discussing the various modes including the hand writing and signatures of an executant. Discussing sections 58, 59 and 60 of the Indian Registration Act, 1908, the learned First Appellate Court held that presumption under section 62 of the Indian Registration Act, 1908 cannot take the place of proof as required by section 67 of the Indian Evidence Act when witnesses are available to prove the document in the manner as 1 aid down in the Evidence Act. Keeping the same in view, the learned First Appellate Court took into consideration the Exhibits-’Ta’ and ‘Tha’ in the light of his discussions made and it came to the finding that DW 5, the official witness from the office of the Sub-Registrar, Tezpur merely exhibited the certified copies of the deeds which were not at all sufficient to dispense with the proof of the certified copies of the sale deeds, i.e., Exhibits-Ta and Tha as required under section 67 of the Indian Evidence Act. The defendant-appellants failed to produce and prove the thumb impression of the executant Keshab Chandra Sarkar who alleged to have executed the sale deed in favour of the Fazar Ali. The defendant-appellants failed to produce and prove the thumb impression of the executant Keshab Chandra Sarkar who alleged to have executed the sale deed in favour of the Fazar Ali. Taking into cons ideration the deposition of the DW 5 that in the schedule of Exhibit-’Tha’, the sale deed number is written as 250 whereas in the Volume Registrar it is written as 2504, the learned First Appellate Court conclusively held that the defendant-appellants failed to prove the execution of Exhibits-’Ta’ and ‘Tha’ in letter and spirit as required under section 67 of the Evidence Act. Coming to the issue of possession of the suit land and blending it with the failure on the part of the defendant-appellants in proving the execution of the sale deeds, the learned First Appellate Court held that the DW 4, Keshab Chandra Sarkar failed to establish that he took delivery of possession of the suit land after his purchase and as such the sale was not complete under section 55 of the Transfer of Property Act. Discussing as such, the learned First Appellate Court upheld the findings of the learned trial court. Before concluding, the learned First Appellate Court held that the defendant-appellants were not dispossessed by the plaintiffs-respondents as the defendant-appellants could not prove the due execution of the sale deed No. 2504 dated 28.5.1962 and sale deed No. 3542 dated 6.12.1963 regarding the genuineness of the sale deeds, the same have no probative value and as such liable to be cancelled. 8. The defendant-appellants thereafter preferred the second appeal which was admitted on 31.1.2007 on the following substantial question of law: Whether the learned court below committed any error in law in passing the judgment and decree dated 28.9.2006 and the claim of the plaintiff holding that Exts-‘ta’ and ‘tha’, the Sale deeds by which the defendants and the predecessor in interest purchased the suit land are fraudulent is vitiated in law on failure to comply with order 6, rule 4, CPC, and proof of fraud as declared under the law? 9. Ms. Choudhury, learned counsel for the appellant, submits that both the courts below went wrong in giving the findings that the execution of the sale deeds could not be proved and as such the same were fraudulent and liable to be dismissed. 9. Ms. Choudhury, learned counsel for the appellant, submits that both the courts below went wrong in giving the findings that the execution of the sale deeds could not be proved and as such the same were fraudulent and liable to be dismissed. It is submitted that the plea of fraud was taken by the plaintiff-respondents and they failed to discharge their burden, the learned courts below put the said burden on the said defendant-appellants and decreed the suit in favour of the plaintiff-respondents. It is further submitted that after the original sale deeds were lost, the court allowed the defendant-appellants to adduce secondary evidence with respect to the sale deeds Exhibits-Ta and Tha and in pursuance of the said order the defendant-appellants exhibited the certified copies of the sale deeds and the courts below ought to have accepted the said piece of evidence. More so, when the same was proved by the official from the concerned office of the Sub-Registrar, Tezpur. On the other hand, not even a single iota of evidence is on record to disprove the execution of the said sale deeds by the plaintiff-respondents. It is also submitted that the pleadings in the plaint is a bald pleading so far the fraud is concerned. As required under order 6 of the CPC, a duty is cast upon the plaintiff-respondents the manner in which the fraud was acted upon by the defendant-appellants. There being no such pleadings and mere denial of execution of Exhibit-’Ta’ by Kanchu Seikh is not at all sufficient to hold that the said sale deeds Exhibits-’Ta’ and ‘Tha’ were fraud. Summing up, Ms. Choudhury, learned counsel for the appellants, relies on the case laws of Ranganayakamma v. K.S. Prakash (dead) by LRs, (2008) 15 SCC 673 and Varanaseya Sanskrit Vtshwavidyalaya v. Dr. Rajkishore Tripathi, (1977) 1 SCC 279 in order to buttress her argument to the aspect that mere pleading of fraud is not sufficient but some more particulars are required. Non-pleading as per requirement of order VI, rule 4 of the CPC cannot help the plaintiff-respondents in order to believe that they were victims of the fraud played by the defendant-appellants. 10. Considered the submission of the learned counsel. Perused the case record and the piece of evidence of each and every witness on record. Non-pleading as per requirement of order VI, rule 4 of the CPC cannot help the plaintiff-respondents in order to believe that they were victims of the fraud played by the defendant-appellants. 10. Considered the submission of the learned counsel. Perused the case record and the piece of evidence of each and every witness on record. It is an admitted fact that after filing of the written statement-cum-counterclaim by the defendant-appellants, the plaintiff-respondents amended their plaint and introduced the plea that no sale deed was executed by Kanchu Seikh in favour of the said Keshab Chandra Sarkar. The said sale deeds were obtained fraudulently and as such, the same are liable to be cancelled. On scrutiny of the pleadings of the plaintiff-respondents it is seen that there is no specific pleading as to in what manner the defendant-appellants played the fraud on the said plaintiff-respondents and/or the officials of the Sub-Registry, Tezpur in manufacturing the sale deeds. In the written statement against the counter-claim, the plaintiffs-respondents also pleaded in the similar line as to what they pleaded in the plaint. The plaintiff-respondents having pleaded about the fraud have taken up the burden to prove as to in what manner they are victims of the fraud played on the by the defendant-appellants. But from the whole discussions of the issues Nos. 2 and 7 by the courts below, the burden had been shifted on the defendant-appellants without there being discussion as to what extent the plaintiff-respondents had proved and/or tried to prove the fact of fraud played on them by the defendant-appellants. It is a fact that the originals of the registered sale deeds No. 2504 dated 28.5.1962 and 3542 dated 6.12.1963 Exhibits-Ta and Tha, respectively were lost from the case records. To that effect, an application was preferred before the learned District Judge, Mangaldoi who directed to cause an enquiry by the learned SDJM, Mangaldoi. On the other hand, owing to such mishap, the learned trial court allowed the defendant-appellants to adduce secondary evidence so far the sale deeds are concerned. 11. In terms of the order of the court the defendant-appellants through the DW 5, Gajendra Nath Sarma, an official of the Sub Registry office, Tezpur exhibited the said sale deeds as Exhibits-Ta and Tha as the secondary evidence. 11. In terms of the order of the court the defendant-appellants through the DW 5, Gajendra Nath Sarma, an official of the Sub Registry office, Tezpur exhibited the said sale deeds as Exhibits-Ta and Tha as the secondary evidence. The said DW 5 while deposing before the learned trial court brought the Book No. I wherein the said registered sale deeds Exhibits-‘Ta’ and ‘Tha’ were copied. The said Volume Book No. I is a creation of the statute, the Registration Act, 1908. Section 51 of the said Registration Act, 1908 stipulates that Book No. I is the register of non-testamentary documents relating to immovable properties. Under section 61 of the Registration Act, 1908, the endorsement and the certificate of registration are to be copied into the margin of the register book, i.e., Book No. I. After such process of ‘copy’ is completed then only the registration of the document is deemed to be completed and the original of the said registered document is returned to the person who presented the same for registration. Under section 57 of the Registration Act, it is stipulated that the officers of the Sub-Registry to give certified copies of entries and under section 57(5) of the said Act stipulates that all copies given under the said section shall be signed and sealed by the officers of the Sub-Registry and shall be admissible for the purpose of proving the contents of the original documents. Section 79 of the Indian Evidence Act, 1872 stipulates that the court shall presume every document to be genuine purporting to be a certified copy which by law declared to be admissible as evidence of any particular fact provided that such document is substantiated in the form and in the manner directed by the law in that behalf. Thus, the correctness of certified copy can be presumed under section 79 of the Indian Evidence Act, 1972. This proof may be afforded by calling witness who can swear that he had compared the copy tendered in evidence with the original. Section 61 of the Registration Act as referred hereinabove directs that the endorsement and the certificate of registration as mentioned in sections 59 and 60 of the Registration Act be copied into the margin of the Registry Book and then only the process of registration of the document is completed. Section 61 of the Registration Act as referred hereinabove directs that the endorsement and the certificate of registration as mentioned in sections 59 and 60 of the Registration Act be copied into the margin of the Registry Book and then only the process of registration of the document is completed. The said person who is called as a witness to depose that he had compared the copy tendered in evidence brings with him the said Book No. I to the court and in the court itself compared the contents of the certified copies introduced as the secondary piece of evidence thereby proving the contents of the original sale deeds. The entry of the said exhibits, i.e., Exhibits-’Ta’ and ‘Tha’ in the said book itself draws a presumption that prior to its entry into the said book, the requisite process of execution and registration were duly followed inasmuch as the process of copying as prescribed under section 61 of the Registration Act, 1908 is part and parcel of the process of registration. From the discussions hereinabove mentioned it can be concluded that when a registered sale deed is copied in the book under the Registration Act, 1908, which is a public document, the certified copy of the sale deed issued by the office of the Sub-Registrar can be admitted as secondary piece of evidence. 12. The defendant-appellants produced the certified copy of the sale deeds Exhibits-Ta and Tha supported by the evidence of DW 5, the official from the office of the Sub-Registrar, Tezpur which draws the presumption that the same was executed and registered properly as required under the law inasmuch as the same was copied in the book. It is the plaintiff-respondents who disputed with regard to the validity of the said Exhibits-Ta and Tha by terming the same to be fraudulent. The plaintiff-respondents have sought for relief for its cancellation and under such circumstances, the burden taken up by the plaintiff-respondents to get the relief of cancellation of the said sale deeds lies upon them right from the beginning of the suit till the evidence is completed. Knowing fully well, the defendant-appellants discharged their onus that the Exhibits-Ta and Tha were duly executed by its executant and the same were registered. On the other hand, the burden undertaken by the plaintiff-respondents have not at all been discharged. Knowing fully well, the defendant-appellants discharged their onus that the Exhibits-Ta and Tha were duly executed by its executant and the same were registered. On the other hand, the burden undertaken by the plaintiff-respondents have not at all been discharged. In order to hold the said Exhibits-‘Ta’ and ‘Tha’ are fraudulent deeds, the plaintiff-respondents are duly bound to show/prove that defendant-appellants had played fraud while the stipulated procedure in the Registration Act, 1908 were on and the said deeds were heading towards the completion of the process of Registration. Such acts may be misrepresentation and on the basis of such misrepresentation the process of registration was cut short by omitting to follow the stipulated procedure. 13. The learned courts below put the burden on the defendant-appellants that they have not proved the execution of the said registered sale deeds by its executants by bringing the thumb impression register. In fact, the said burden ought to have been placed on the plaintiff-respondents by the learned courts below. It is not the defendant-appellants who disputed the said sale deeds to be fraud. Keshab Chandra Sarkar deposed that Kanchu Seikh executed the said registered sale deed. It is the burden on the plaintiff-respondents to disprove that the thumb impression of Kanchu Seikh is not available in the thumb register in the custody of the Office of the Sub-Registry at Tezpur or at Mangaldoi. There is no question in disbelieving the fact of execution of the said Exhibit-’Ta’ by Kanchu Seikh more so, when the plaintiff-respondents failed to discharge their burdens by producing the said thumb impression register or any other cogent evidence. Exhibit-’Tha’ is the registered sale deed executed by Keshab Chandra Sarkar, the DW 4. He has not disputed the execution of the said sale deed. Under such circumstances, the execution and the contents of both the sale deeds are proved as required under the law and the facts surrounding the circumstances of the case. Exhibit-’Tha’ is the registered sale deed executed by Keshab Chandra Sarkar, the DW 4. He has not disputed the execution of the said sale deed. Under such circumstances, the execution and the contents of both the sale deeds are proved as required under the law and the facts surrounding the circumstances of the case. In Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706 , the hon'ble Apex Court in a case wherein a suit suffers from the initial difficulty faced by defendants on the ground that the sale deeds relied upon by them in aid of the plea of limitation under article 134 of the Limitation Act had not been brought on record and as such the court was not in a position to know the exact terms of the sale deeds, held that if the sale deeds which were primary evidence of the interest sold and were registered documents were not available for any reasons, certified copies thereof could be adduced as the secondary evidence. Herein also there is no dispute that the secondary evidence of the certified copies of the sale deeds can be accepted for proving a sale and the contents therein with the aid of section 79 of Indian Evidence Act, 1872. In order to disprove the said execution of the said sale deeds it is the burden upon the party who disputes the said execution. From the discussions made hereinabove the court comes to the conclusion that the defendant-appellants had proved the execution and the contents of the registered sale deeds thereby proving the transfer of the said suit land. Delivery of possession is not a criteria to complete a sale transaction which both the courts below had wrongly held that as the fact of possession could not be proved by DW 4, Keshab Chandra Sarkar, so the sale was not complete under section 55 of the T.P. Act which is totally a wrong finding of the courts below. 14. The pleadings of the plaintiff-respondents are totally insufficient so far the fact of fraud is concerned. 14. The pleadings of the plaintiff-respondents are totally insufficient so far the fact of fraud is concerned. In Varanaseya Sanskrit Vishwavidyalaya (supra), the hon'ble Apex Court while relying the findings of the hon'ble Apex Court in Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280 held that general allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence and coercion. In Ranganayakamma (supra), the hon'ble Apex Court while discussing the necessity of order VI, rule 4 of the CPC held that when a fraud is alleged the particulars thereof are required to be pleaded. 15. In the present situation, as referred herein above, there is no substantive pleading in the plaint so far the allegation of fraud is concerned. A mere bald pleading of the fraud is not sufficient to appreciate any fact of fraud even if produced as a piece of evidence without any pleading. From the discussions hereinabove this court finds no other alternative but to answer the substantial question of law in the affirmative that the courts below committed error in law in passing the judgment and decree dated 28.9.2006 by holding the Exhibits-’Ta’ and ‘Tha’ to be fraudulent and as such liable to be cancelled more so, on the failure on the part of the learned court below to appreciate non-compliance of the provisions of order VI, rule 4 of the CPC by the plaintiff-respondents and the proof of fraud. Resultantly, this second appeal is allowed thereby setting aside the judgment and decree passed by the learned First Appellate Court in Title Appeal No. 10/2005 by the learned Civil Judge (Sr. Divn.), Darrang at Mangaldoi upholding the judgment and decree passed by the learned trial court in Title Suit No. 5/2000 in the Court of learned Civil Judge (Jr. Divn.) No. 1, Mangaldoi and thereby decreeing the counter-claim of the defendant-appellants with cost. 16. Prepare the decree accordingly. 17. Send back the LCRs.