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2017 DIGILAW 786 (GAU)

Lutfa Begum v. Hafizur Rahman

2017-06-13

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Kalyan Rai Surana, J. 1. Heard Ms. S. Senapati, the Learned counsel for the appellant. This appeal under section 100 of the Civil Procedure Code, is directed against the first appellate judgment and decree dated 26.09.2017 passed by the learned Civil Judge, Dhubri, in Title Appeal No. 28 of 2015, thereby dismissing the appeal and upholding the judgment and decree dated 17.03.2015 passed by the learned Munsiff No.1, Dhubri, in Title Suit No. 122/2013. The appellate judgment was passed in common with Title Appeal No. 27 of 2015. 2. The Respondent No.1 herein, Md. Hafizur Rahman had instituted TS No.122/2013 for declaration of right, title, interest, cancellation of sale deed, correction of records, eviction and permanent injunction, inter-alia, projecting in the plaint that the proforma defendant No.1 was the owner of the suit land described in Schedule-A, which he sold to defendant No.2 vide registered sale deed No. 316/1997 and the defendant No.2 had been possessing the same. The defendant No.2 then gifted the land to the proforma defendant No.2 vide registered gift deed No. 2533/09, who in turn sold the same to the plaintiff vide registered sale deed No. 2541/2009 dated 23.07.2009. It was also projected that on taking possession of the suit land on the same day, the plaintiff constructed a 'sapra' house on it and constructed a bamboo fencing around the land. The land records was corrected by inserting his name in the land records by virtue of order dated 07.08.2009 in Misc. Case No. DM(PS) 252/2009 passed by the defendant No.3. However, the defendant No.1 trespassed into the suit land and constructed a 'sapra' house with CI Sheet roof. On his complaint, Dhubri P.S. Non-FIR case No. 154/Pt.1/2011 under section 107/144 Cr.P.C. was registered. On 09.09.2011, the defendant No.1 dispossessed the plaintiff from the suit land and demolished the 'sapra house' and bamboo fencing. The plaintiff came to know about the Sale Deed No. 652/2011 dated 27.05.2011 executed by Defendant No.2 in favour of defendant No.1. The plaintiff lodged an FIR and the police after investigation charge-sheeted the defendants No.1 and 2 and others under section 420/447/427/506/34 of the Indian Penal Code. Hence, the suit. 3. Both the appellant/defendants No.1 and defendant No.2 contested the suit by filing their separate written statements. The plaintiff lodged an FIR and the police after investigation charge-sheeted the defendants No.1 and 2 and others under section 420/447/427/506/34 of the Indian Penal Code. Hence, the suit. 3. Both the appellant/defendants No.1 and defendant No.2 contested the suit by filing their separate written statements. It was, inter-alia, claimed that the defendant No.2 derived title only in respect of 10 lechas land by registered sale deed No. 316/1997 executed by the proforma defendant No.1, which she sold it to the appellant/defendant No.1 vide registered sale deed No. 652/2011. It was stated that the proceedings under section 107/144 of Criminal Procedure Code was already dropped. 4. Upon the pleadings of the parties, the following issues were framed - 1. Whether the suit is maintainable? 2. Whether this would be undervalued? 3. Whether the plaintiff has got the right, title and interest over the suit land? 4. Whether the three deed number 652/2009 is null and void? 5. Whether the plaintiff is entitled to get any relief as prayed for? 6. To what relief the parties are entitled to? 5. During trial, the plaintiff examined 3 witnesses and exhibited 6 documents, viz., (1) Sale Deed No. 316/97, (2) gift deed No. 2533/09, (3) Sale deed No. 2541/09, (4) sale deed No. 652/11, (5) order-sheet of DM(PS) case No. 252/09 and (6) jamabandi. The defendant No.1 examined herself and DW-1 and exhibited 4 documents, viz., (A) Certified copy of jamabandi, (B) Certified copy of DM(PS) case No. 33/12, (C) Certified copy of FIR, and (D) Sale Deed No. 652/11. 6. The learned trial court, having heard the learned counsel for the parties and on perusal of evidence on record, decreed the suit, by declaring the right, title and interest over the suit land, further declaring that the Ext. D (Sale deed No. 652/11) to be invalid for 71/2 lechas land sold to the proforma defendant No.1 and the plaintiff was held to be entitled to correction of land records. 7. Against the said judgment and decree dated 17.03.2015 passed by the learned Munsiff No.1, Dhubri in Title Suit No. 122/2013, the present appellant had filed Title Appeal No.28/2005. The Plaintiff had filed Title Appeal No. 27/2015 against the non-granting of the relief of recovery of possession, contending that without such a relief the plaintiff would not be able to reap the benefit of the decree. The Plaintiff had filed Title Appeal No. 27/2015 against the non-granting of the relief of recovery of possession, contending that without such a relief the plaintiff would not be able to reap the benefit of the decree. The said Title Appeal No. 27/2015 is not the subject matter in this present appeal. The learned first appellate court formulated the following two points of determination, viz., (1) Whether the learned trial court had rightly decided the issue No. 3 and 4 wherein it had held that the plaintiff has proved his right, title and interest over the suit land and that the sale deed no. 652/2011 is valid for the remaining portion of the land after exclusion of the suit land? (2) Whether the learned trial court had rightly decided the issue no.5 and 6 wherein it held that the plaintiff is entitled to the declaration of right, title and interest over the suit land but did not grant relief of recovery of possession of the suit land? 8. On appreciating the evidence on record and on the basis of its finding on the two points of determination formulated by it, upheld and affirmed the decision of the learned trial court on all issues including issue No.3 and 4 and held that the plaintiff having been dispossessed from the suit land, was entitled to recovery of possession as the defendant No.1 had failed to prove any right, title or interest which would entitled her to remain in possession of the suit land to the exclusion of the plaintiff and, as such, while dismissing the appeal, the decree passed by the learned trial court was modified to include the relief of recovery of possession, further holding that the defendants No.1 and 2 were not entitled to any relief. 9. By filing the instant appeal, the learned counsel for the appellant has pressed the following substantial questions of law:- (A) Whether the findings of the learned courts below are perverse and sustainable in law for non-consideration and mis-appreciation of the pleadings and the evidence on record, both oral as well as documentary? 9. By filing the instant appeal, the learned counsel for the appellant has pressed the following substantial questions of law:- (A) Whether the findings of the learned courts below are perverse and sustainable in law for non-consideration and mis-appreciation of the pleadings and the evidence on record, both oral as well as documentary? (B) Whether the learned courts below committed illegality by failing to adjudicate whether the plaintiff could succeed in tracing out his title to the suit land without legally proving the Gift Deed (Exhibit.2) which was allegedly executed by Hasna Begum in favour of her brother Kamil Sk, the vendor of the plaintiff, more so in view of the fact of specific denial of its execution by the alleged donor and executants Hasna Begum herself in her written statement filed before the trial court? (C) Whether the findings of the learned courts below are perverse for complete non-consideration of the written statement filed by the defendant No.2, Hasna Begum? (D) Whether by failing to appreciate that the onus of proving the saleable title of his vendor to the suit land lies squarely on the plaintiff, irrespective of the pleaded case of the defendants, the findings of the learned courts below are perverse and un-sustainable in law from the perspective of wrong appreciation of evidence and shifting of the burden of proof? (E) Whether the learned lower appellate court was justified in modifying the judgment and decree passed by the trial court by allowing the Title Appeal No.27/2015 and granting the prayer for eviction of the defendant No.1 from the suit land over which she had been in continuous possession by right of purchase, although the issue of eviction was neither framed nor adjudicated by the trial court? 10. That the learned counsel for the appellant has meticulously taken this court to the judgment and decree passed by both the learned courts below and has argued in support of the appeal. 10. That the learned counsel for the appellant has meticulously taken this court to the judgment and decree passed by both the learned courts below and has argued in support of the appeal. It appears that the main plank of the argument advanced by the learned counsel for the appellant is that the respondent No.1 herein (i.e. the plaintiff) had miserably failed to prove the gift deed and the learned courts below ought not to have relied on the same for three reasons, (i) the original of the said gift deed No. 2533/2009 (Ext.2) was never called for or proved in accordance with law, (ii) the donor (i.e. Defendant No.2), herself denied the execution of the gift deed No. 2533/2009 in her written statement, (iii) no attesting witness were examined, (iv) the proforma defendant No.2 had executed the alleged sale deed in respect of the suit land on the same date when the gift deed was executed and, as such, the proforma defendant No.2, in whose favour the gift was made was never in possession of the suit land and therefore, without acceptance as well as parting of possession of the gifted land by the defendant No.2, the proforma defendant No.2 could not have derived any right, title, interest or possession and therefore, he could not have passed on a better title to the plaintiff than he actually had. It is submitted that in view of above, this was a fit case for admission of the instant second appeal as the judgments passed by both the learned courts below were not sustainable on facts and in law. 11. On re-appreciation of the materials available on the record, viz., Memo of Appeal, plaint, written statements by defendants No.1 and 2, judgment and decree of both the learned courts below, it is seen that though the defendant No.2 denied the execution of the gift deed in favour of Sri Kamil Sk. (proforma defendant No.2) in her written statement, further claiming that the document was forged, but she did not tender any evidence and, as such, her plea remained not proved. Moreover, there is a specific finding by the learned first appellate court that at the time of introduction of the gift deed (Ext.2) in evidence, the defendants No.1 and 2 did not raise any objection. Moreover, there is a specific finding by the learned first appellate court that at the time of introduction of the gift deed (Ext.2) in evidence, the defendants No.1 and 2 did not raise any objection. Hence, the reliance of the learned first appellate court on the case of Sheo Prasad Chouhan v. Joyradha Das, 2015 (5) GLT 347, whereby certified copies of sale deed, etc. are held to be admissible if the other party did not raise any objections when the same was marked as Exhibits and thereafter did not cross examine the witness upon this document. As per the first appellate judgment, the PW-4 who was one official from the Sub-Registry at Dhubri had stated that the Ext.2 was registered in his office and he had produced a copy of the same registered gift deed, which was found to be an exact replica of the certified copy proved by the plaintiff as Ext.2. Hence, I do not find any infirmity in acceptance of the said Ext.2 as a valid exhibit. 12. As regards the existence of a valid gift deed, it is observed that the parties between whom the gift deed was made are brother and sister. Defendant No.2 is the sister of the proforma defendant. Defendant No.2 though contested the suit by filing written statement. However, the defendant No.2 neither filed any counter-claim to nullify the said gift deed nor gave any evidence to prove her contentions made in her written statement. The initial burden of proving the gift and sale deed by which land was transferred and sold to him was on the plaintiff and thereafter, the burden of proof shifted on the defendant No.1 and 2 to prove her stand that the said Ext.2 was forged. On the contrary, the proforma defendant No.2, namely, Kamil Sk. Had given his evidence as PW-2 and supported the case of the plaintiff and he had proved his saleable right, title and interest over the suit land in favour of the plaintiff. Therefore, having not proved their respective stand, no infirmity is found with the impugned judgment and decree passed by both the learned courts below on the acceptance of gift deed as a valid document of transfer of right, title, interest and possession in favour of the proforma defendant No.2 vide gift deed No. 2533/2009. Therefore, having not proved their respective stand, no infirmity is found with the impugned judgment and decree passed by both the learned courts below on the acceptance of gift deed as a valid document of transfer of right, title, interest and possession in favour of the proforma defendant No.2 vide gift deed No. 2533/2009. Moreover, the defendant No.2 by not giving her evidence, has not been able to prove that she had validly sold the suit land to the appellant/defendant No.1 vide registered sale deed no. 652/2009. Consequently, the issues urged in form of the substantial questions of law No. A, B and D as formulated by the appellant's side are all held to be a pure question of fact and the same does not give rise to any substantial question of law. 13. As regards the substantial question of law as formulated by the learned counsel for the appellant, no authoritative judgment of any court could be cited to persuade this court to accept the argument that without any evidence on record, a mere statement made in the pleadings of the defendant No.2 could be looked into to hold the concurrent finding of fact on gift of suit land by the defendant No.2 to the proforma defendant no.2, as recorded by both the courts below to be perverse. Hence, this point raised by the appellant does not give raise to any substantial question of law. 14. On the substantial question of law No.8, it appears that the case projected by the plaintiff was that he was dispossessed from the suit land purchased by him. Hence, when the suit was decreed by declaring the right, title and interest of the plaintiff in respect of the suit land, the plaintiff was duly entitled to the relief of restoration of possession of the suit land in his favour by evicting the defendants therefrom. In my opinion, this is also an issue involving facts and, as such, it is held that no substantial question arise out of this issue. 15. In view of the above discussion, I am of the considered opinion that no substantial question of law arises for determination in the present case in hand and, as such, despite the persuasive argument advanced by the learned Counsel for the appellant, I decline to admit this appeal and the same is dismissed. There shall be no order as to cost.