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2017 DIGILAW 649 (GAU)

Khushed Ali v. Arbesh Ali

2017-05-24

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. N Dhar, learned counsel for the appellant and Mr. PK Deka, learned counsel for the respondents. The present appellant is one of the defendants in Title Suit No. 47/1997 filed by the plaintiff respondents. The plaintiff respondent No. 2 on his death was substituted by his legal heirs. 2. The case of the plaintiff respondents in brief is that the second R.S. Patta No. 1 of Dolidahar Grant consists of 2039 Bighas 13 Kathas of land. One Khirod Ranjan Sinha purchased the same by way of auction sale whereafter amongst various persons, Akmol Ali, Abdul Karim, Akram Ali and Mosaid Ali purchased 339 B 18 K 12 CLs of land from the said Khirod Ranjan Sinha and the names were duly mutated in revenue records. The said Abdul Karim being the owner of 84 B 19 K 11 CLs 5 G of land, sold 14 B 3 K 4 CLs land to one Abdul Gaffar vide registered deed No. 165 dated 05.01.1980 and 12 B 6 K to Hazira Bibi vide registered sale deed No. 5229 dated 15.07.1985. Akmol Ali sold 1 B 16 K 6 CLs to the daughters and wife of Abdul Gaffar and Abdul Karim. By way of registered sale deed No. 3450 dated 27.11.1989, the said Abdul Gaffar, Hazira Bibi and Sufia Khatun sold 16 B 7 K 7 CLs 10 Gs of land to Bimal Khasia and handed over possession thereupon. The said Bimal Khasia in pursuance of an agreement for sale handed over possession out of his purchased land to the plaintiff respondents in the year 1990. The plaintiff respondent No. 2 constructed tin roofed shed over Ga schedule land to protect the agricultural produce. It is pertinent to mention here that the total land which Bimal Khasia promised to sell to the plaintiff respondent No. 2 has been described in schedule Ka to Gha in the plaint. Later on Bimal Khasia sold out the said land to the plaintiff respondents vide registered sale deed No. 116 dated 20.01.1997 and transfer his title. The defendant appellant manufactured certain forged documents concerning the suit land in order to take forcible possession of the suit land and make criminal trespass on 30.10.1997 along with some other defendants. Later on Bimal Khasia sold out the said land to the plaintiff respondents vide registered sale deed No. 116 dated 20.01.1997 and transfer his title. The defendant appellant manufactured certain forged documents concerning the suit land in order to take forcible possession of the suit land and make criminal trespass on 30.10.1997 along with some other defendants. The plaintiff respondents resisted such action and during the scuffle, one of the sons of the plaintiff respondent No. 2 died and the said plaintiff respondent No. 2 along with other family members were injured. The plaintiff respondents lodged FIR at Algapur Police Station. The plaintiff respondents pleaded that the land described in schedule Ka, Kha and Ga of the plaint were transferred to one Ali Ahmed and another by way of registered sale deeds. So, the plaintiff respondent filed the suit for declaration of his right, title and interest over schedule Gha land and for recovery of possession thereof and other reliefs. 3. Amongst various defendants, the present defendant No. 2/appellant contested the suit by filing written statement. Leaving aside the routine pleas with respect to the maintainability of the suit, limitation etc., it is the case of the defendant appellant that one Tajmul Ali, Intaz Ali, Mantaz Ali and Kala Raja also purchased 339 B 18 K 2 CLs of land from Khirod Ranjan Sinha. It is submitted that Khirod Ranjan Sinha purchased the land in an auction sale and as the aforesaid purchasers were originally Mirajdars and possessors of the part of the suit patta land, so after the auction sale they retained their original land by way of purchase from the auction purchasers. The defendant appellant purchased 3 B of land from one Mobeswar Ali on 29.05.1992 and on 21.02.1992 he purchased another 6 B 3 CLs 6 G 2 Kr of land from one Harmohan Sinha and on 10.05.1993 further he purchased 2 B of land from Suraj Jan Bibi. The defendant appellant denied that the vendor of the plaintiffs sold the land in specific boundary as pleaded by the plaintiff respondent. It is specifically pleaded that Bimal Khasia never purchased any land with any specific boundary in the suit Dag and Bimal Khasia left the place in the year 1993 for ever and has not returned back. The defendant appellant denied that the vendor of the plaintiffs sold the land in specific boundary as pleaded by the plaintiff respondent. It is specifically pleaded that Bimal Khasia never purchased any land with any specific boundary in the suit Dag and Bimal Khasia left the place in the year 1993 for ever and has not returned back. The sale deed dated 20.01.1997 on the basis of which the plaintiff respondents claimed the suit land is a manufactured one and on the strength of the said manufactured deed dispossessed the defendant appellant on 29.10.1997 and also assaulted the defendant respondent causing serious injuries. He also lodged and FIR against the plaintiff respondent. Denying the right, title and interest of the plaintiff respondent, the defendant appellant prayed for dismissal of the suit. 4. On the basis of the pleadings, the trial court framed the following issues:- ***** 5. During trial both the parties to the suit adduced their respective evidence both oral and documentary in support of their respective cases. The learned trial court vide judgment and decree dated 30.06.2003 and 10.07.2003 respectively decreed the suit of the plaintiff respondents. 6. Being aggrieved, the defendant appellant preferred title appeal No. 28/2003 in the court of learned Civil Judge (Sr. Divn.), Hailakandi which was dismissed vide judgment and decree dated 22.04.2004 passed by the said first appellate court. Against the said judgment and decree dated 22.04.2004, the present second appeal has been preferred by the defendant appellant which was admitted on 17.09.2004 by formulating the following substantial questions of law:- **** 7. Mr. Dhar, learned counsel for the defendant appellant, submits that the findings which are concurrent in nature and the manner in which the first appellate court has passed impugned judgment and decree upholding the findings of the trial court are hit under the provisions of Order XLI Rule 31 of the Code of Civil Procedure. No evidence on record had been discussed by the first appellate court and merely on the findings arrived at by the trial court passed the judgment in clear violation of the law holding the field with respect to the manner in which a first appellate court is supposed to dispose of an appeal. The whole judgment of the first appellate court is vitiated for non-consideration of vital piece of evidence, more specifically, the evidence of PW 1, PW 6 and PW 7. Mr. The whole judgment of the first appellate court is vitiated for non-consideration of vital piece of evidence, more specifically, the evidence of PW 1, PW 6 and PW 7. Mr. Dhar submits that the Exhibit 5 on the basis of which the plaintiff respondent claims the devolution of title through Bimal Khasia is itself a document which is unregistered. So no question of devolution of title and/or marketable title has been devolved on Bimal Khasia to sell the suit land to the plaintiff respondents. the Exhibit 6 Saranlipi is an unregistered one and the same has been manufactured in order to show the possession on the part of the plaintiff respondents prior to the purchase made by the defendant appellant by way of Exhibits E, F, G and H, the registered sale deeds. Attacking the title of the plaintiff respondents on the suit land Mr. Dhar submits that the sale deed Exhibit 7 though it has been registered and shown to be executed by Bimal Khasia but he had no saleable title so far the suit land is concerned inasmuch as the Exhibit 5 is not a valid sale deed. 8. It is further submitted by Mr. Dhar that the claim of the plaintiff respondents that Exhibit 5 the sale deed alleged to be executed by Abdul Gaffar, Sofia Khatun and Hazira Khatun in favour of Bimal Khasia is not at all believable on the face of the evidence on record of the PW 6 who is none other than the Abdul Gaffar himself. Mr. Dhar pointed to the cross examination part of the PW 6 wherein he deposed that as per Exhibit 5 mentioned in his evidence on affidavit he never sold any land to Bimal Khasia. Referring further to the cross examination of PW 7, Mr. Dhar submits that the said witness deposed in his cross examination that Bimal Khasia left the suit land in the last part of December, 1990 and under such circumstances, the fact of execution of Exhibition 7 by Bimal Khasia transferring the suit land in favour of the plaintiff respondent is totally unbelievable. Dhar submits that the said witness deposed in his cross examination that Bimal Khasia left the suit land in the last part of December, 1990 and under such circumstances, the fact of execution of Exhibition 7 by Bimal Khasia transferring the suit land in favour of the plaintiff respondent is totally unbelievable. Under such circumstances, the judgment passed by both the courts below, more specifically, the learned first appellate court is liable to be set aside inasmuch as had the said piece of evidence been considered, then the findings ought to have been a different one and non-consideration of the said evidence has vitiated the impugned judgment and decree. 9. With regard to the power for interference by this court under Section 100 of the CPC against concurrent findings, Mr. Dhar has placed reliance on the judgment passed in the case of ........................ reported in (2000) 1 SCC 434 wherein the Hon’ble Apex Court held that where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. In support of the affect of denial of execution of Exhibit 5 by the PW 6 and with regard to the proof of contents of document, Mr. Dhar relies ......................... reported in (2002) 3 GLT 490. In the said decision by this court, in a case wherein the executant himself has challenged the execution of sale deeds on the ground that same were executed under mistaken belief, a duty is cast on the plaintiff to prove that the scribe wrote the sale deed as per version of the executant. Mr. Dhar submits that the PW 5 is the scribe of Exhibit 5 but though the said PW 5, the deed writer has deposed that the said Exhibit 5 was written as per the direction of the parties to the sale but the scribe failed to depose that after writing the deed the same was read over to the executant. In such a situation, Mr. Dhar submits that mere calling of the scribe as the witness affirming the execution of the Exhibit 5 is not sufficient and the same cannot be considered at all. Under such circumstances, Mr. In such a situation, Mr. Dhar submits that mere calling of the scribe as the witness affirming the execution of the Exhibit 5 is not sufficient and the same cannot be considered at all. Under such circumstances, Mr. Dhar submits that the substantial questions of law so formulated are to be decided in favour of the appellant and the second appeal be allowed. 10. Mr. PK Deka, learned counsel for the respondents, opposing the submissions of Mr. Dhar, submits that the Exhibit 5 is a registered sale deed and the same is not an unregistered one as submitted by the learned counsel for the appellant. The said transfer of land by the 3 executants to Bimal Khasia is a valid transfer and the right, title and interest duly devolved on the said purchaser Bimal Khasia so far the suit land is concerned. Countering the submission that the said Exhibit 5 was never executed by the PW 6, Mr. Deka submits that there were 3 (three) executants in number who executed the Exhibit 5 sale deed. The rest of the executants had never come before the court in order to dispute the execution of the Exhibit 5. The PW 6 in the evidence on affidavit has specifically deposed that he along with his wife and daughter executed the Exhibit 5 transferring the land to Bimal Khasia. He even indentified his signatures along with signatures of the other executants. Mere denial in the cross examination that he never sold land to Bimal Khasia vide Exhibit 5 cannot be considered on the face of the evidence/deposition of PW 5, Md. Abdul Roshid Choudhury, the deed writer who leaving aside the deposition made on the evidence on affidavit. Supporting the execution by PW 6 in the cross examination he has specifically deposed that Exhibit 5 was written as per the direction of the parties to the said Exhibit 5. Under such circumstances, mere deposition of PW 6 cannot be considered when there were other executants of the Exhibit 5 and as required under Section 67 of the Indian Evidence Act the said PW 6 has admitted his signature in Exhibit 5 through his evidence on affidavit which was not denied in the cross examination. Under such circumstances, mere deposition of PW 6 cannot be considered when there were other executants of the Exhibit 5 and as required under Section 67 of the Indian Evidence Act the said PW 6 has admitted his signature in Exhibit 5 through his evidence on affidavit which was not denied in the cross examination. The question of reading over the contents of the Exhibit 5 does not arise at all inasmuch as it is not the case of the defendant appellant nor the PW 6 that his signature was obtained fraudulently on the said Exhibit 5. Under such circumstances, the submission of the appellant cannot be considered at all. 11. On the submission of Mr. Dhar that there is perversity in the impugned judgment, Mr. Deka submits that both the courts below have concurrently came to the finding that on the eastern boundary of the land described in Exhibit F it has been shown that there exist land of Abdul Hasim, Mira and Anser Ali who is none other than the deceased plaintiff respondent No. 2. Similarly, on the northern boundary of the land described in Exhibit G, the name of the plaintiff respondent No. 2 has been shown along with Abdul Hasim. Both the said sale deeds, Exhibits F and G were executed in favour of the defendant appellant in the year 1992 and 1993. On the other hand, it is the case of the plaintiff respondents that in the year 1990 he was delivered possession of the suit land by its owner Bimal Khasia. Under such circumstances, no further evidence ought to be discussed when the same is proved by valid documentary piece of evidence, namely, the Exhibits F and G. Under such circumstances, there is no perversity in the findings and as such the substantial questions of law are to be decided against the appellants.