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2017 DIGILAW 352 (TRI)

Subrata Ghosh, S/O. Lt. Sadhan Ch. Ghosh v. Nababrata Ghosh, S/O. Lt. Sadhan Ch. Ghosh

2017-08-29

S.TALAPATRA, T.VAIPHEI

body2017
JUDGMENT & ORDER : T. Vaiphei, J. 1. Aggrieved by the judgment and decree dated 19-12-2015 passed by the learned Civil Judge, Senior Division, Court No. 2, West Tripura, Agartala in T.S. No. 70 of 2011 decreeing the suit amounting to Rs.1,03,18,000/- in favour of the respondent, this appeal has been preferred by the appellant. 2. At the outset, it may be noticed that the appellant and the respondent are brothers and that all attempts made by the parties to settle their disputes, unfortunately, came a cropper. The material facts of the case may be briefly noticed at the outset. The respondent-plaintiff instituted the suit before the learned /civil Judge for eviction of the appellant from the suit land and for recovery of possession thereof with rent arrears valued at Rs.1,03,18,000/- from him. The suit land is situated at Khowai, Teliamura Tehsil and Mouza under Sabek Khatian No.1883, Sabek Plot No.1146/p, Haal Plot Nos. 2594, 2598 and 2599 measuring 1 Ganda, 3 Karas and 3 Dhurs upon which one multistoried building is standing with one sweetmeat shop under the name and style of “Adi Brahmanbaria Mistanna Bhandar located on the ground floor. The suit land originally belonged to the father of the appellant and the respondent, the late Sadhan Ch. Ghosh, who predeceased them. According to the respondent, the late Sadhan Ch. Ghosh gifted the suit land by mean of a registered Gift Deed on 06-8-2003 in his favour and that on the request of the appellant, the respondent entered into a lease agreement with the appellant before the Notary Public on 29-12-2009 for leasing out the ground of the said building for running the said sweet shop. The case of the respondent is that the appellant right from day refused to abide by the terms and conditions of the lease agreement; he neither paid the security deposit amounting to Rs.60,000/- nor did he regularly pay the house rent so much so that a sum of Rs.2,40,000/- has accrued to him till April, 2011 as rent arrears. In addition to that, the appellant is yet to pay the compensation arrears by way of rent dues, penalty, etc. amounting to Rs.50,000/- with the result that the appellant is liable to pay a sum of Rs.1,03,18,000/- to the respondent for rent arrears, etc. In addition to that, the appellant is yet to pay the compensation arrears by way of rent dues, penalty, etc. amounting to Rs.50,000/- with the result that the appellant is liable to pay a sum of Rs.1,03,18,000/- to the respondent for rent arrears, etc. As per the terms of agreement, the respondent served a notice upon the appellant for payment of the rent arrears including the penalty as well as for handing over vacant possession of the suit premises to him by 15-2-2011 in good condition, but to no avail. This prompted the respondent to institute the suit. 3. The appellant contested the suit and filed his written statement. His case is that their father, the late Sadhan Ch. Ghosh was the real owner of the suit land and had constructed a three-storied building including the sweet shop on the ground floor run by him. According to him, their father became serious ill in the year 2002 after paralysis and handed over the business to him, who then continued the business by taking loans from different financial institutions. He then filed a partition suit for partitioning their ancestral property which was still in the name of their deceased father. It is asserted by the appellant that the gift deed was created mala fide by the respondent when their father had no mental capacity to execute such Gift deed due to serious disabilities and that he has been possessing the sweet shop for a long time i.e. since the time their father became ill; he has a licence for running the shop. He denied that he ever requested the respondent to let out the shop premises to carry on the business or that any deed of agreement of lease for the shop was ever executed. According to him, the respondent created and made up the document for defrauding him or that he ever paid any rent to the respondent as he did not recognize any lease agreement executed by the respondent in his favour. He took loan from UBI, Teliamura Branch for the said business and bore the expenditures for the treatment of his ailing father. He took loan from UBI, Teliamura Branch for the said business and bore the expenditures for the treatment of his ailing father. According to him, there were no rent arrears payable by him to the respondent and the suit land the building standing thereon are the joint property of the respondent, himself and other legal heirs of the deceased and the respondent has, therefore no right to institute the suit. He, therefore, prayed for dismissal of the suit. 4. On the pleadings of the parties, the learned Civil Judge framed the following issues: 1. Is the suit maintainable in its present form and nature? 2. Has the plaintiff Sri Nababrata Ghosh become the owner of the suit property by virtue of a registered deed of gift dated 06-08-2003? 3. Whether the plaintiff and defendant entered into a lease agreement on 29-12-2009 for the ground floor of the building of the suit premises? 4. Is the plaintiff entitled to get a decree for eviction of the defendant from the ground floor of the suit premises as prayed for? 5. To what other relief/relief’s the parties to this are entitled to get? 5. Six witnesses were examined on behalf of the respondent including himself as PW-1 to PW-6 and 10 documents were exhibited as Exbt. 1 to Exbt. 10, whereas the appellant examined 3 witnesses including himself as DW-1 to DW-3 and exhibited 8 documents marked as Exbt. A to Exbt. H. After the conclusion of the trial, the learned Civil Judge passed the impugned judgment and decree, and this appeal is filed there against. In so far as Issue No. 2 is concerned, the learned Civil Judge, based on oral and documentary evidence, held that the respondent became the true owner of the suit land by virtue of the registered Gift Deed (Exbt. 10) executed by none other than his father and was in constructive possession of the shop premises occupied by the appellant. In so far as Issue No. 2 is concerned, the learned Civil Judge, based on oral and documentary evidence, held that the respondent became the true owner of the suit land by virtue of the registered Gift Deed (Exbt. 10) executed by none other than his father and was in constructive possession of the shop premises occupied by the appellant. In reaching the above conclusions, the trial court took note of the fact that the Gift Deed was a registered instrument signed by his father, the donor, and was also attested by two witnesses, namely, Bhanu Kumar Saha and Chandan Debnath being scribed by the Deed Writer, namely, Sunirmal Baishya thereby satisfying the necessary conditions for a valid gift deed under Section 122, Transfer of Property Act; that no medical evidence was produced by the appellant to prove that the donor was not in a fit condition to execute the Gift Deed and in any case, the validity of the gift was decided in favour of the respondent in the said judgment dated 28-5-2014 of TS(P) No. 136/2011; that the validity of the Gift Deed was one of the issues in TS No. 26 of 2012 instituted by the appellant, but the Gift Deed was not declared as void or void able; that the appellant never filed any forgery case against the respondent even though he alleged that the respondent managed to prepare the Gift Deed. He also held that the Trade Licence (Exbt. C) and the Registration Certificate (Exbt. D) in respect of the Sweet Shop could not override the registered Gift Deed executed in favour of the respondent; that the Trade licence or Registration Certificate did not confer any right to a land/premises, which itself is suicidal suggesting ownership of the building to a third party. 6. As for Issue No. 3, the learned Civil Judge recorded the findings that the lease deed marked Exbt. 7 was proved by the respondent by producing two attesting witnesses, namely, PW-2 and PW-4 as well as the scribe of the agreement, PW-3, who confirmed the execution of the Lease Deed by both the respondent and appellant, who duly signed the same in their presence and disbelieved the evidence of DW-2 and DW-3 as there was no reference about them in the written statement. He further held that once the execution of the lease agreement was proved by the respondent, it is for the appellant to prove his allegation that the lease agreement was a fake document, but no prayer was made by him seeking comparison of his signature appearing in the Lease Agreement with his signature and that the appellant also failed in two suits consecutively, i.e. the judgment dated 28-3-2014 in TS No. 26/2012 and the order dated 28-5-2014 in TS(P) No. 136 of 2011. The learned Civil Judge, therefore, concluded that the respondent has fulfilled all the requisite formalities to prove the lease agreement and that the lease agreement was entered into between the respondent and the appellant on 29-12-2009 for leasing out the ground floor of the building to the appellant. 7. On Issue No. 4, the trial court recorded the findings that the appellant could not produce any rent receipt showing the payment of the rent to the respondent and there a clause in the lease agreement stipulating that the monthly rent was Rs.20,000/- which should be paid on or before the 5th day of every month and that there would be penalty of Rs.200/- per day for delayed payment of the rent and that clause 17 of the agreement stipulated that the said agreement would stand automatically terminated in case the tenant failed to comply with the terms and conditions of the agreement. He also recorded the findings that for a long period, i.e. from 1-1-2010 to 31-3-2011 and till the filing of the suit except for a few months, the appellant was a defaulter and that the case of the respondent to that effect was corroborated by the evidence of PW-2, PW-4, PW-5 and PW-7, who categorically stated that the appellant was a defaulter in payment of rent and violated the terms of the agreement of lease whereupon the respondent served a notice requiring him to vacate the suit premises, but he refused to do so. The said notice was not even replied. It was on the aforesaid findings that the learned Civil Judge decreed the suit. 8. We have heard Mr. D.R. Choudhury, the learned counsel for the appellant, and Mr. A. Sengupta, the learned counsel for the respondent, for sometime. However, on perusing the judgment under challenge and the evidence on record, we have no hesitation to hold that the appeal has no merit. 8. We have heard Mr. D.R. Choudhury, the learned counsel for the appellant, and Mr. A. Sengupta, the learned counsel for the respondent, for sometime. However, on perusing the judgment under challenge and the evidence on record, we have no hesitation to hold that the appeal has no merit. The basis of the case of the respondent is the said registered Gift Deed, which has been duly proved by him with the evidence of the attesting witnesses (PW-2 and PW-4) and the evidence of PW-3, who is the scribe of the Gift Deed. If the appellant wished to prove that the Gift Deed was executed by their father when he was not mentally fit to do the same, then the burden to prove the same shifted to him. No medical evidence or evidence of substantial nature to prove that their father was not mentally fit to execute the Gift Deed. In any case, as rightly held by the trial court, the validity of the gift was decided in favor of the respondent in the said judgment dated 28-5-2014 of TS(P) No. 136/2011. Neither was the same Gift Deed declared void or void able in the subsequent suit, i.e. TS No. 26 of 2012, which was also filed by him. Similarly, the appellant never filed any forgery case against the respondent even though he alleged that the respondent managed to manufacture the Gift Deed. The Trade Licence (Exbt. C) and the Registration Certificate (Exbt. D) issued to the appellant in respect of the Sweet Shop could not have the effect of annulling the registered Gift Deed executed in favour of the respondent by their father inasmuch as the Trade licence or Registration Certificate did not confer any right to an immovable property, the stance taken by the appellant which in itself is suicidal thereby conveying the impression that the suit premises belong to a third party and not to him. Moreover, the appellant cannot make plea that the Gift Deed in question was executed by their father without knowing the contents thereof due to unsoundness of mind and take another plea at the same breath that the Gift Deed was not signed by their father. Moreover, the appellant cannot make plea that the Gift Deed in question was executed by their father without knowing the contents thereof due to unsoundness of mind and take another plea at the same breath that the Gift Deed was not signed by their father. If he wants the court to believe that the signature purportedly of their father appearing in the Gift Deed was forged, then also it was for him to get it sent to a handwriting expert for his opinion so as to ascertain whether the signature therein was forged or not. This was apparently not done by him. In a civil case, it is for the party desiring to prove that particular signature is forged to move the court for getting it sent for comparison by a handwriting expert and not for the court. In Deodutt Missir vs. Benod Behari and others, AIR 1935 Pat 482, the Patna High Court tersely held: “4. It has been contended that the finding, regarding the service of process was arrived at by some reasoning as to genuineness of handwriting and it was suggested that the appellate Court's procedure was wrong in not invoking the services of an expert in handwriting before forming an opinion in a matter of this nature. The contention cannot be accepted. Whether an expert is examined or not generally depends on whether the parties apply to have one examined, and in this case there was no such application.” (Underlined for emphasis) In our opinion, the findings of the trial court in passing the impugned judgment do not suffer from any infirmity calling for our interference. On the contrary, the appellant has miserably failed to prove his case. 9. The result of the foregoing discussion is that there is no merit in this appeal, which is, accordingly, dismissed. Let a decree be prepared accordingly. The parties are, however, directed to bear their respective costs. Transmit the LC record.