Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1199 (GAU)

Safiqurrahman Laskar v. MD. Safiuddin Laskar

2018-08-14

SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. S. Todi, learned counsel for the appellants. I have also heard Mr. S.P. Choudhury, learned counsel representing the respondents. 2. This second appeal has been preferred against the judgment and decree of reversal dated 25/04/2007 passed by the Court of learned Civil Judge No. 1, Silchar in Title Appeal No. 65/2005, allowing the appeal by setting aside the judgment and decree dated 15/09/2005 passed by the Civil Judge (Junior Division) No.1, Silchar in Title Suit No. 39/2003, decreeing the suit filed by the appellants as plaintiffs for specific performance of the agreement for sale (Binanama) dated 03/04/2003. This second appeal was admitted to formal hearing by framing the following substantial questions of law :- "1. Whether the learned lower appellate Court was justified in reversing the findings of the learned trial court on issue no. 3 without discussing and appreciating the evidence of PWs 1, 2 and 3? 2. Whether the learned lower appellate Court without the aid of the opinion and evidence of handwriting expert was right in holding that the date 3.4.03 (in Bengali scripts) was written by a person other than the scribe and also holding that the words "china diar upora" (above the marks) in the schedule of Ext.1 was written over the thumb impressions of Bilatunnessa? 3. Whether the Judgment of learned lower appellate Court is sustainable in view of the fact that he merely set aside the Judgment of the Trial Court but did not finally decide the fate of the suit?" 3. The case of the plaintiffs/appellants, in brief, is that the predecessor in interest of the defendants/respondents, viz. Bilatunnessa had executed a Binanama on 03/04/2003, agreeing to sell the suit land in favour of the plaintiffs, for an agreed price of Rs. 12,000/-. Earnest money for an amount of Rs. 2000/- was paid by the plaintiffs to Bilatunnessa on the date of execution of the Binanama with a condition that the sale deed would be executed within three months on receipt of the balance amount of Rs. 10,000/-. 12,000/-. Earnest money for an amount of Rs. 2000/- was paid by the plaintiffs to Bilatunnessa on the date of execution of the Binanama with a condition that the sale deed would be executed within three months on receipt of the balance amount of Rs. 10,000/-. Bilatunnnessa died soon after execution of the Binanama on 03/04/2003 and after her death, when her legal heirs had refused to execute the sale deed as per the terms and conditions agreed to by the parties, the plaintiffs had to institute Title Suit No. 39/2003, inter-alia, praying for a decree of specific performance of contract by directing the defendants to execute the registered deed of sale in favour of the plaintiffs on accepting the balance consideration of Rs. 10,000/- and for other consequential reliefs. 4. The defendant Nos. 1, 2, 4 to 7 and 8(i) to 8(iv) had contested the suit by filing written statement but the suit proceeded ex-parte against the defendant No. 3. The basic plea taken by the defendants in their written statement is that Bilatunnessa was not in a sound state of mind on the date on which the Binanama has been shown to have been executed i.e. 03/04/2003 and, therefore, the said document is not enforceable in the eye of law. 5. Taking note of the pleadings of the parties, the learned Trial Court had framed the following issues :- "1. Is there any cause of action for this suit? 2. Whether the suit is barred by limitation? 3. Whether Musstt. Bilatunnessa executed a Bainama for sale of the suit land in favour of the plaintiffs on 3.4.2003? 4. Whether the plaintiffs are entitled to a decree as prayed for? 5. Whether the plaintiffs are entitled to any other relief/reliefs in this suit? 6. During trial both sides adduced evidence. The PW-1 who is the plaintiff no.1 had deposed that the thumb impression was put in his presence on the Binanama, which was written on 02/04/2003, on the stamp paper which was purchased on the same date. The PW-1 had also stated that upon execution of the Binanama, both parties had jointly submitted application before the Deputy Commissioner, Cachar, seeking sale permission for executing the sale deed but the same was later on not pursued by the defendants. 7. The PW-1 had also stated that upon execution of the Binanama, both parties had jointly submitted application before the Deputy Commissioner, Cachar, seeking sale permission for executing the sale deed but the same was later on not pursued by the defendants. 7. Pw-2 Gulam Rubbani Laskar is a close relative of the defendants and is one of the two attesting witnesses in the Binanama along with PW-3 Rafique Uddin Laskar. PW-2 had deposed that the thumb impression of Bilatunnessa was taken in the Ext.1 Binanama by him. The said statement of PW-2 had been corroborated by PW-3, who is the other attesting witness in the Ext.1 and also one of the sons of Musstt. Bilatunnessa. 8. Taking note of the evidence on record and also the fact that the defendants have not denied the signature of Bilatunnessa in Ext. 1 but had merely taken a plea that the same was obtained by practicing fraud and coercion since the ex-ecutant was not in her senses to understand the implications of putting her signature on the document on 03/04/2003, the learned trial Court had decided the issue no. 3 in favour of the plaintiffs. Consequently the suit of the plaintiffs stood decreed. 9. Aggrieved thereby, the defendant nos. 1, 2, 4 to 7 and 8(i) to 8(iv) had jointly preferred Title Appeal No. 65/2005 before the Court of Civil Judge No.1, Silchar, Cachar, which was allowed by the impugned Judgment and decree dated 25/04/2007. 10. Mr. Sahewalla, learned senior counsel for the appellants has vehemently argued that the findings and conclusions recorded by the learned trial Court with regard to issue no. 3 is based on cogent evidence brought on record and, therefore, the learned lower appellate Court was not correct in reversing the said findings without recording proper justification. The learned senior counsel submits that there was no evidence available on record for the learned lower appellate Court to arrive at a finding that Bilatunnessa was not in sound state of mind as on 03/04/2003 so as to execute the Binanama. According to Mr. Sahewalla, the Judgment and decree passed by the first appellate Court is not based on any evidence available on record and hence, is clearly unsustainable in the eye of law. 11. Mr. According to Mr. Sahewalla, the Judgment and decree passed by the first appellate Court is not based on any evidence available on record and hence, is clearly unsustainable in the eye of law. 11. Mr. S.P. Choudhury, learned counsel appearing for the respondents, on the other hand, contends that there is a serious discrepancy in the testimony of the PW-1 as regards the date of purchase of the stamp paper and the date on which, the Binanama had been shown to have been executed. That apart, submits Mr. Choudhury, the evidence of PW-1, who is an independent witness, clearly goes to show that Bilatunnessa was not keeping well and was of an unsound mind at-least two months before the date of her death. Mr. Choudhury submits that the learned lower appellate Court had taken note of such evidence available on record so as to come to a conclusion that the Binanama (Ext.1) was not a genuine document and the said view has further been reinforced by the fact that the Ext-1 Binanama had been executed just a day prior to the death of Bilatunnessa and under suspicious circumstances. Such being the position, submits Mr. Choudhury, the substantial questions of law framed by the Court in this appeal do not arise for a decision in favour of the appellants. 12. I have considered the submissions advanced by the learned counsel for the parties and have also gone through the materials available on record. 13. At the very outset, it must be clarified that the defendants/respondents have not disputed the thumb impression of Bilatunnessa appearing in Ext.1. From a perusal of Ext.1, it is seen that the stamp paper was purchased on 02/04/2003 and the Binanama was executed on 03/04/2003. From a scrutiny of the evidence available on record, more particularly, the testimony of PW-1, I do not find any discrepancy in the version given by the said witness as regards the date of purchase of the stamp paper and execution of the Binanama. What the witness had stated is that the Binanama was drafted on the same day on which the stamp paper was purchased i.e. 02/04/2003 and he has also confirmed that the same was executed on 03/04/2003 i.e. the next date. There is no dispute about the fact that Bilatunnessa was alive on the date of execution of the Binanama. What the witness had stated is that the Binanama was drafted on the same day on which the stamp paper was purchased i.e. 02/04/2003 and he has also confirmed that the same was executed on 03/04/2003 i.e. the next date. There is no dispute about the fact that Bilatunnessa was alive on the date of execution of the Binanama. Therefore, the discrepancy noticed by the learned lower appellate court as to the date of purchase of the stamp paper and the date of execution of Ext.1 appears to be wholly unfounded. 14. Coming to the next plea, it is to be noted that the defendants have taken a plea that Bilatunnessa was of unsound mind on the date on which the Binanama (Ext. 1) was executed. Therefore, the onus to prove the said fact was clearly upon the defendants. However, upon scanning the evidence available on record, I find that, save and except a solitary statement made by DW-1, i.e. a neighbour of the defendants, to the effect that Bilatunnessa was not keeping well and was some times found to be of unconscious state about two months prior to her death, there was no other evidence available on record to establish the unsound mental condition of Bilatunnessa. There is also no medical testimony available on record to substantiate their plea that Bilatunnessa was not in sound mental state on 03/04/2003. IN other words, there is no evidence on record to corroborate the version of the DW-1. 15. It is no doubt correct that Bilatunessa was aged about 80 years on the date of execution of the Binanama and, therefore, she might have been suffering from various old age ailments. But in the absence of any medical testimony to establish the fact that she was incapable of taking a decision after understanding the full implication thereof due to unsoundness of mind as on 03/04/2003, it cannot be readily presumed that Bilatunnessa was incapable of executing the Binanama on 03/04/2003. Such being the position, I am of the view that the defendants have failed to prove the fact that their predecessor in interest Bilatunnessa was of unsound mind on the date of execution of the Binanama. 16. The aforesaid omission also requires to be viewed in the backdrop of the testimony of PWs 2 and 3, who are the attesting witnesses to the Ext. 1 Binanama. 16. The aforesaid omission also requires to be viewed in the backdrop of the testimony of PWs 2 and 3, who are the attesting witnesses to the Ext. 1 Binanama. There is no explanation as to why PW3, being the son of Bilatunnessa, would make a false statement on oath before the Court, had it been the case that the Binanama had not been voluntarily executed by Bilatunnessa in sound state of mind. 17. In this case there is no allegation of any fraud or collusion involving the PW-3, who is the defendant no. 3 in the suit. 18. Law is well settled that the first appellate Court is the final court of fact and, therefore, would be entitled to appreciate evidence so as to record finding of fact. However, such findings must be based on proper appreciation of evidence available on record. In the instant case, I find that the learned lower appellate Court had recorded finding of facts to the effect that Bilatunnessa was of unsound mind as on 03/04/2003 but as noted above, there is no evidence available on record to arrive at such a conclusion. Mere suspicion that the ex-ecutant was not in sound state of mind cannot, in the opinion of this Court, take the place of proof affording a basis for reversal of the decree passed by the trial Court, since such a recourse would be in clear contravention to the mandate of Order XLI Rule XXXI of the CPC. 19. For the reasons stated hereinabove, I am of the view that the substantial question of law urged by the appellant deserves to be answered in their favour. Consequently, this appeal stands allowed. The impugned Judgment and decree passed by the lower appellate Court stands interfered with. There would be no order as to cost. Send back the LCR.