Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1280 (GAU)

Rahmat Ullah v. Md. Sayed Ali

2018-08-30

MIR ALFAZ ALI

body2018
JUDGMENT : Mir Alfaz Ali, J. 1. This second appeal is by the defendant, against the concurrent finding of the First Appellate Court in Title Appeal, whereby the suit filed by the plaintiff was dismissed. 2. Brief facts leading to the present second appeal were that the respondent as plaintiff filed Title Suit No. 73/1999 for declaration of right, title and recovery of khas possession. The case of the plaintiff was that the suit land originally belong to one Jafar Ali and plaintiff purchased the suit land from said Jafar Ali on 02.04.1994 by registered sale deed No. 210/94 and got mutation thereover. The defendant having their land adjacent to the land of the plaintiff, tried to encroach upon the suit land, where upon the plaintiff instituted a criminal proceeding under Section 145 Cr.P.C. and the criminal court declared possession of the plaintiff. When the plaintiff had been possessing the suit land peacefully, the defendants dispossessed the plaintiff from the suit land forcibly on 10.01.1999 and hence the plaintiffs filed the suit. 3. The pleaded case of the defendant was that the suit land was purchased by Jafar Ali in an auction sale in auction sale case No. 74/67-68. Said Jafar Ali sold the land to one Roshan Ali by sale deed No. 1576/1969 and Roshan Ali in turn sold the suit land to Mustt Dudhjan Nessa, the mother of the defendants No. 3, 4 & 5. It was further pleaded in the joint written statement by all the defendants that the defendants No. 1, 2 & 6 did not have any right, title and interest over the suit land and only the defendants No. 3, 4 & 5 claimed right, title and interest over the suit land as legal heirs of Dudhjan Begum. 4. On the basis of the above pleadings, learned Munsiff framed the following issues: (i) Whether there is any cause of action? (ii) Whether the plaintiff has right, title and interest over the suit land? (iii) Whether the plaintiff purchased the suit land from the original pattadar i.e. from the auction purchaser Md. Jafar Ali by executing registered sale deed? (iv) Whether the plaintiff possessed the suit land continuously from the date of purchase? (v) Whether the plaintiff was dispossessed from the suit land on 10.1.98 by the defendant? (vi) Whether the plaintiff is entitled for a decree of khas possession? Jafar Ali by executing registered sale deed? (iv) Whether the plaintiff possessed the suit land continuously from the date of purchase? (v) Whether the plaintiff was dispossessed from the suit land on 10.1.98 by the defendant? (vi) Whether the plaintiff is entitled for a decree of khas possession? (vii) Whether the possession of the suit land was declared in favour of plaintiff under a proceeding of 145 Cr.P.C. by the Ld. Executive Magistrate? (viii) To what relief or relief's if any the plaintiff is entitled for? (ix) Whether the suit is bad for non-joinder of necessary party? (x) Whether the land purchased by the Musstt. Dudhjan Nessa from Roshan Ali Mandal vide Regd. Sale deed No. 1130/71 dated 28.12.71 is same and identical with the suit land purchased by the plaintiff from Jafar Ali on 02.04.94 vide regd. Sale deed No. 210/94? (xi) Whether the defendants go right, title and interest upon the suit land on the strength of sale deed No. 1130/71? 5. Both the parties adduced evidence and the learned Munsiff after hearing the parties dismissed the suit with cost. Aggrieved, the plaintiff preferred an appeal and the learned Civil Judge, by the impugned judgment and decree dismissed the appeal as well as the suit of the plaintiff. 6. Aggrieved by the judgment and decree of the first appellate court, the plaintiff preferred the instant second appeal, which was admitted to be heard on the following substantial questions of law. "(i) Whether the learned court below failed to differentiate the suit land with that of the scheduled land of the registered sale deed No. 1130/71 dated 28.12.71 which contains land measuring 1B, 3K, 15Ls out of 5 bighas of land while the DWs failed to identify the boundaries of the land and wrongly held that the suit land measuring 1B, 3K, 19Ls is the same and identical with Ext. K? (ii) Whether the learned court below failed to appreciate the evidence available on records while the respondent/defendant has admitted in their written statement that Jafar Ali purchased the suit land in an auction sale and none of the DWs created any doubt upon the identity of Jafar Ali who deposed before the learned trial court in favour of the plaintiff/appellant, even DWs stated that they do not know whether Jafar Ali is dead or alive?" 7. Learned counsel Mr. M.H. Ahmed, for the appellants and learned counsel Mr. Learned counsel Mr. M.H. Ahmed, for the appellants and learned counsel Mr. M. Dutta, for the respondent were heard. 8. Learned counsel for the appellants submitted that the defendants took a plea that the sale deed of the plaintiff was forged, but did not adduce any evidence to prove the plea of forgery, though burden was on them, and as such, learned courts below ought not to have dismissed the suit of the plaintiff. In order to buttress the submission, Mr. Ahmed placed reliance on the decisions of this court in Pawan Kumar Patodia Vs. Vijoy Kumar Bhutoria & Anr. reported in 2012 (3) GLT 867 wherein this court observed that "It is settled position of law that when allegation of forgery is made the burden heavily lies on the person making such allegation to prove such forgery". Learned counsel for the appellant further contended that the total land in the suit dag was 1 bigha, 1 katha, 19 lessa, whereas by the sale deed No. 1130/71 Dudhjan purchased land measuring 1 bigha 3 katha 15 lessa, but both the trial as well as the appellate court failed to appreciate the said discrepancy in the sale deed in favour of Dhudjan. The sale deed in favour of Dudhjan ought to have been rejected as the suit dag did not contain 1 bigha 3 katha 15 lessa of land, submits Mr. Ahmed. 9. Learned counsel for the respondent contended that the substantial questions formulated in the instant case were not at all substantial question and basically the factual finding of the courts below have been challenged, which cannot be interfered in a second appeal. 10. Admittedly, the original owner of the suit land was Jafar Ali, who purchased the suit land in the year 1967 in an auction sale. Said Jafar Ali sold the suit land measuring 1 bigha 1 katha 19 lessa in favour of Roshan Mondal in the year 1971 by Ext. Kha. This sale deed was never challenged by the plaintiff. When admittedly the suit dag contains only 1 bigha 1 katha 19 lessa of land and the said land was sold by the original owner Jafar Ali in favour of Roshan Ali in the year 1971, Jafar Ali could not sale the same land again in 1994, reason being that after execution of Ext. When admittedly the suit dag contains only 1 bigha 1 katha 19 lessa of land and the said land was sold by the original owner Jafar Ali in favour of Roshan Ali in the year 1971, Jafar Ali could not sale the same land again in 1994, reason being that after execution of Ext. Kha, Jafar Ali ceased to have any title or saleable right over the suit land. The plaintiff claimed title over the suit land by right of purchase through Ext. 2 sale deed from Jafar Ali and one Jafar Ali was also examined as vendor of the plaintiff. It was revealed during cross examination of Jafar Ali, that he had no knowledge about the land. It was also revealed during cross examination, that he was a minor in the year 1967, when auction sale took place and on the basis of the above evidence, learned courts below held that the PW-2 examined by plaintiff as Jafar Ali, was not the original owner of the suit land. Even if it is assumed for the sake of argument that the witness examined by the plaintiff was the same person, who sold the suit land to the defendant, in that case also, the Ext. 2 sale deed could not convey any title in view of existence of Ext. Kha, by which Jafar Ali already sold the suit land to Roshan Ali, the vendor of the defendant's predecessor, inasmuch as, Ext. Kha was not challenged. 11. Evidently, the defendants raised a plea, that sale deed of the plaintiff, Ext. 2, was a forged document. It is no doubt true that the plea of forgery is to be proved by the party who asserts the same. The defendant having raised the plea of forgery, burden to prove such plea obviously would lie on the shoulder of the defendant. But facts remained is that failure of the defendant to substantiate their plea ifso facto, would not entitle the plaintiff to a decree in the suit instituted for declaration of right, title and interest and recovery of possession on the basis of title, reason being that initial burden would be on the plaintiff to prove his title or to prove the genuineness of the document of title. Because in a suit based on title, plaintiff must succeeds on the strength of his own title and cannot bank upon the weakness of the defendant [see AIR 1954 (SC) 526 ]. When plaintiff filed a suit for declaration of right, title and interest on the basis of a document claiming it to be a genuine and defendant challenged the said document as forged one or fake, unless the plaintiff, who brings the suit on the basis of the document proves the document to be genuine, the defendant need not prove anything. The Apex Court in Ragammal Vs. Kuppuswami & Anr reported in (2011) 12 SCC 220 dealing with the question of burden of prove in respect of plea of forgery held as under: "It may be relevant at this stage to cite the ratio of the decision of this Court delivered in the matter of Subhra Mukherjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203 , whether the document in question was genuine or sham or bogus, the party who alleged it to be bogus had to prove nothing until the party relying upon the document established its genuineness. This was the view expressed by this Court in the matter of Subhra Mukherjee Vs. Bharat Coking Coal Ltd. 2000 (3) SCC 312 ." 12. In the case in hand, the plaintiff filed the suit for declaration of right, title and recovery of possession by evicting the defendants. Specific plea of the plaintiff was that he purchased the suit land by Ext. 2, sale deed, and declaration of title was sought on the basis of Ext. 2. Therefore, in view of the principle embodied in Section 101 of the Evidence Act, the burden to prove the genuineness of the sale deed was on the plaintiff and such burden remained unchanged. Unless the plaintiff discharge his initial burden of prove the genuineness of the document, defendant raising plea of forgery need not prove anything, inasmuch as, the burden will shift to the defendant, only after discharge of initial burden by plaintiff, for, plaintiff can succeeds only on his own strength. In the instant case, admittedly Jafar Ali was original owner of the suit land and he sold the suit land in the year 1971 in favour of Roshan Ali by Ext. Kha and the plaintiff did not challenge the validity of the said sale deed (Ext. Kha). In the instant case, admittedly Jafar Ali was original owner of the suit land and he sold the suit land in the year 1971 in favour of Roshan Ali by Ext. Kha and the plaintiff did not challenge the validity of the said sale deed (Ext. Kha). In view of the Ext. Kha, sale deed executed by Jafar Ali in the year 1971, Ext. 2 could not convey any title over the suit land in favour of the plaintiff. Therefore, apparently the plaintiff failed to discharge his initial burden of proving his title through Ext. 2, the sale deed. Learned counsel for the appellant however contended that the land involved in Ext. Kha being more than the land contained in the concerned dag, Ext. Kha could not be relied upon or the same ought to have been rejected by the learned trial court. I do not find force in this submission, inasmuch as, when the deed was duly executed, it would convey title to the vendor, to the extent of vendor's title and inclusion of more land would not render the entire sale deed illegal, though, it might not convey title to the land beyond what the vendor had at the time of execution of the sale deed. Be that as it may, when evidently the original owner Jafar Ali by executing a sale deed in the year 1971 alienated the suit land, Jafar Ali no longer remained owner of the suit land to execute sale deed in 1994 and as such, learned courts below rightly held that the plaintiff failed to establish his title over the suit land. 13. The substantial questions of law formulated in the instant case, as indicated above, more or less appears to be with regard to appreciation of evidence and finding of facts regarding title over the suit land, which according to me, as rightly contended by the learned counsel for the respondent, was not at all substantial question of law. The Apex Court in Santosh Hazari V. Purushottam Tiwari reported in (2001) 3 SCC 179 dealing with the substantial questions of law held as under: "12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law," means - of having substance, essential, real, of sound worth, important or considerable. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law," means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 13391)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., (1962) Supp. 3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264 :- ..when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:- The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case". 14. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case". 14. The questions raised in this second appeal are apparently related to finding of the courts below as regards identity of the suit land and identity of the vendor of the plaintiff, which are palpably question of facts and findings of facts arrived at by both the courts unanimously, on appreciation of evidence are not amenable to second appeal. Both the substantial question are answered accordingly. 15. In any view of the matter, when admittedly Jafar Ali was the owner of the suit land and Jafar Ali sold the suit land in 1971 by a registered deed Ext. Kha in favour of Roshan Ali, Ext. 2, the subsequent sale deed in respect of same land, purportedly executed in 1994 was incapable of conveying incompetent to convey any title and as such, both the courts below rightly came to the concurrent finding that plaintiff failed to establish his title over the suit land. Such concurrent findings of facts are obviously immune from challenge in second appeal. Therefore, I find no merit in this second appeal. The second appeal accordingly stands dismissed. 16. Send down the LCR.