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2019 DIGILAW 1182 (GAU)

Cheni Ram Bora v. Arun Chandra Bora

2019-11-01

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. This second appeal by the defendant is preferred against the judgment and decree passed by the learned Civil Judge, Nagaon in Title Appeal No. 10/2009, whereby the learned Civil Jude by reversing the judgment and decree passed by the learned Munsiff in T.S. No. 50/2005, decreed the suit of the plaintiff. 2. The respondent, as plaintiff filed the TS No. 50/2005 for declaration of his share in the ancestral property, partition and separate possession. The case of the plaintiff was that Patta No. 135 originally stood in the name of Podo, Akan and Hareswar and the Patta No. 452 & 456 stood in the name of Santiram, Podo, Akan and Hareswar and all the pattadars have equal share in the land of the aforementioned pattas. The suit land described in Schedule-A of the plaint being land measuring 4B IK 12L of Parta No. 135 (New) 119(01d), land measuring 2B 15L of Patta No. 456 and land measuring 4K17L of Patta No. 452 (New) 261 (Old) fell in the share of Akan, the predecessor in interest of the plaintiff and defendant. The land described in Schedule-B consists of the half of Schedule-A land. The pleaded case of the plaintiff was that the defendant Cheniram Bora and father of the plaintiff late Jaliram Bora were the two sons of Late Akan Bora and the property in the suit pattas, which fell in the share of Akan Bora, devolved upon his two legal heirs i.e. Jaliram Bora and Cheniram Bora. Jaliram Bora died leaving behind the plaintiff, his mother Pamili Bora and four sisters (pro-forma defendants No. 2, 3, 4, 5 & 6). The plaintiff further averred that the proforma defendants No. 2, 3, 4, 5 & 6 relinquished their share in favour of the plaintiff Arun Chandra Bora and thereby enlarged his share in the ancestral property, and as such, the plaintiff is entitled to half share of the property left by Akan Bora. However, the defendant, who is uncle of the plaintiff have been occupying the share of land of the plaintiff and proforma defendants and inspite of repeated request, the defendant refused to give the plaintiff his share in the ancestral property. Therefore, the plaintiff filed the suit seeking declaration in respect of half share in the land left by Akan Bora as described specifically in Schedule-B of the plaint. 3. Therefore, the plaintiff filed the suit seeking declaration in respect of half share in the land left by Akan Bora as described specifically in Schedule-B of the plaint. 3. The pleaded case of the defendant was that Thanuram Bora was the original owner of the land covered by all the suit pattas and Thanuram Bora had three sons, namely, Podo, Akan and Hareswar. During resettlement of 1968-69, the legal heirs of Thanuram Bora were recorded as original pattadars in respect of the suit pattas and all the sons of Thanuram Bora had equal share in the land covered by the suit pattas. It was also the pleaded case of the defendant, that the father of the plaintiff sold 2K of land from his share by registered sale deed No. 1174/58 to the defendant, but in the said sale deed, inadvertently the dag number was mentioned as 412. However, the said land sold by the father of the plaintiff fell in dag No. 314 and 346 as per settlement of 1968-69. Podoram Bora, another son of Thanuram Bora also sold 2B - 14L of land from Dag No. 142(Old)/200(New), 1B 4K-15L from Dag No. 64(01d)/78(New) and 2B-1L from Dag No. 258(Old)/346(New) of Periodic Patta No. 135(New)/239 (Old) by registered sale deed to the defendant. Phatik Bora and Chenaram Bora, both being sons of Hareswar Bora also sold IB from Dag No. 410(Old) and Patta No. 119(01d)/135(New) to the defendant. Besides the above transaction, Phatik Bora and Chenaram Bora relinquished their remaining share of land in Dag No. 314 & 346 in favour of the defendant. Therefore, the defendant was entitled to more land than his usual share in the ancestral property because of purchase from the co-sharers and also relinquishment by some of the co-sharers. The defendant also stated to have purchased IB of land from Nabin Bora, son of Podo Bora. Further case of the defendant was that all the co-sharers having not been made party in the suit, the suit suffers from non-joinder of necessary party and therefore, no decree for partition could be passed. 4. On the basis of the above pleadings of the parties, learned trial court framed the following issues: "1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in the present form? 3. whether the plaintiff has right, title and interest over the suit land? 4. 4. On the basis of the above pleadings of the parties, learned trial court framed the following issues: "1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in the present form? 3. whether the plaintiff has right, title and interest over the suit land? 4. Whether the defendants are occupying the "B" schedule land illegally? 5. whether the plaintiff is entitled to a decree as prayed for? 6. To what relief(s) the parties are entitled to?" 5. Both the parties adduced evidence and after hearing the parties, learned Munsiff dis-missed the suit, holding that the suit land was unidentifiable as the same was not properly described by boundary. Aggrieved, the plaintiff preferred an appeal and the learned Civil Judge passed the preliminary decree, declaring, that the plaintiff had equal share in the suit land described in Schedule-A. 6. Aggrieved by and dissatisfied with, the judgment of the first appellate court, the defendants preferred the instant regular second appeal, which was admitted to be heard on the following substantial questions of law. "1. Whether the partition suit filed by the plaintiff with a schedule of land which admittedly includes land belonging to persons other than plaintiff and defendant is maintainable in the absence of those persons in the suit and any relief claimed against them? 2. Whether the learned Court of appeal committed an error in holding the ext. 'Cha' as not genuine only on the ground that the certified copy of it was proved by the defendant/appellant, more so when the same was compared with the corresponding copy thereof maintained in the office of the Registrar?" 7. I have heard Mr. S.K. Ghosh, learned counsel for the appellant and Mr. M. Dutta, learned counsel for the respondent. Substantial Question No. 2 8. In order to prove the claim of the defendant, that Jalirarn Bora, father of the plaintiff sold 2 katha of land to the defendant, the defendant proved the certified copy of the sale deed as Ext. Cha, as the original deed was alleged to have been lost. The learned first appellate court did not accept the Ext.Cha and thereby disbelieved the defendant's claim of purchasing 2 katha of land from Jalirarn. Cha, as the original deed was alleged to have been lost. The learned first appellate court did not accept the Ext.Cha and thereby disbelieved the defendant's claim of purchasing 2 katha of land from Jalirarn. The Ext-Cha was rejected by the learned first appellate court on the ground, that the original sale deed was not proved in terms of Section 67 of the Evidence Act and that the defendant failed to make any endeavor to rectify the dag number in sale deed, Ext. Cha. Accordingly, the learned first appellate court held, that the sale deed No. 1174/58 was not duly proved, and having come to such finding, decreed the suit, declaring half share of the plaintiff in the property, left by late Akan Bora. 9. It is the trite law, that a document can be proved either by primary evidence or secondary evidence. Primary evidence means the document itself produced for inspection of the court. Ordinarily, a document is required to be proved by primary evidence, except in the circumstances, where the secondary evidence relating to a document can be given. Section 65 of the Evidence Act lays down circumstances under which secondary evidence can be adduced relating to a document. As per Clause-(C) of Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition, or contents of a document, when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. Section 65 & 66 of the Evidence Act lays down the procedure as to how and when a secondary evidence relating to a document can be adduced. In the instant case, the specific plea of the defendant was that during shifting of the house, the sale deed No. 1174/58 was lost and therefore, he made an application before the trial court seeking leave to adduce the secondary evidence of the sale deed No. 1174/58 and the court by order dated 10.10.2007, as evident from the record, permitted the defendant to give the secondary evidence relating to the sale deed No. 1174/58. Accordingly, the defendant proved the certified copy of the sale deed No. 1174/58 and marked as Ext. Cha. Accordingly, the defendant proved the certified copy of the sale deed No. 1174/58 and marked as Ext. Cha. The defendant has also proved the relevant Volume Book of the office of the Registrar through DW-2, an official of the Sub-registrar's office, to prove the registration of sale deed No. 1174/58. The evidence of DW-2, who proved the Ext. Cha, by bringing relevant Volume Book, showing the registration of sale deed No. 1174/58, remained totally uncontroverted. What therefore, transpires from the above evidence is that Ext. Cha, certified copy of the sale deed was duly proved as secondary evidence. 10. It is no doubt true, that admissibility of a document and its evidentiary value are two different things. Therefore, mere admission of a document, may not necessarily mean, that it's contents are also proved. It is not the law, that once a document is admitted in evidence, court is bound to accept its contents or in other words once the document is admitted and marked as exhibit, its contents are also automatically proved, irrespective of the facts and circumstances of a particular case. At the same time, it is also not the law, that in all cases, execution of a document or its contents has to be proved independently, irrespective of the facts and circumstances of the case. There may be a case where mere marking of the document or admission of the document in evidence may be sufficient and independent proof of the contents or execution may not be necessary. Because when a document is properly admitted, it's contents are also admitted in evidence, though contents may not be conclusive evidence [Sheo Prasad Chouhan Vs. Jayradha Das 2015 (5) GLT 347]. For example - when execution of the document or it's contents are not disputed, independent proof of execution or contents may not be necessary. Similarly, in a different situation, when the execution of the document is disputed, admission of the document or mere marking the document as exhibit would not suffice, it's execution and contents also has to be proved independently. 11. Apparently, the execution of the sale deed No. 1174/58 was not challenged by the plaintiff, nor any relief was sought against the sale deed No. 1174/58. 11. Apparently, the execution of the sale deed No. 1174/58 was not challenged by the plaintiff, nor any relief was sought against the sale deed No. 1174/58. Except making a suggestion during cross examination of DW-1 that such sale deed was not executed by Jaliram Bora, no material could be brought on record to rebut the evidence of the DW-1 & DW-2, who proved the sale deed No. 1174/58 by adducing secondary evidence i.e. the certified copy and the volume book from the office of the Registrar. Therefore, when a registered sale deed was duly proved by way of secondary evidence, necessarily there was a presumption of due execution and registration of the sale deed Ext. Cha, albeit, such presumption would be rebuttable like any other presumption. This court, in 2015 (5) GLT 347 (Sheo Prasad Vs. Jashudha Das & Ors.) dealing with the presumption, which a registered document carries with observed as under: "24. Part-XI of the Registration Act, 1908 provides for the duties and powers of the Officers. Section 51 refers to the Register books to be kept in the several Registering offices; Section 52 prescribes the duties of the Registering Officers when documents are presented. Section 53 mandates that the entries are to be numbered consecutively. Section 54 provides that every office in which any of the books are to be kept, current indexes of the contents of such books and every entry in such indexes shall be made, so far as practicable, immediately after the Registering Officer has copied or filed a memorandum of the document to which it relates. Section 55 provides that four indexes, namely, Index No. I, Index No. II, Index No. III and Index No. IV, are to be made by Registering Officers. Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4. Section 57 provides for the Registering Officer to allow inspection of certain books and indexes, and to give certified copies of entries. Section 57(5) provides that all copies given under this section shall be signed and sealed by the Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents. Section 57 provides for the Registering Officer to allow inspection of certain books and indexes, and to give certified copies of entries. Section 57(5) provides that all copies given under this section shall be signed and sealed by the Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents. Section 59 requires that the Registering Officer shall affix the date and his signature to all endorsements made under Section 52 and 58, relating to the same document and made in his presence on the same day. Section 60 provides for endorsing a certificate containing the word "registered", together with the number and page of the book in which the document has been copied, when any document is presented for registration under the provisions of the Act. Sub-Section (2) of Section 60 stipulates that such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act, and that the facts mentioned in the endorsement, referred to in section 59 have occurred as therein mentioned. 25. In view of the scheme of the Registration Act, when a document is registered under the provisions of the Registration Act, its due execution and registration has to be presumed. This presumption is, however, a rebuttable presumption and a party is entitled to rebut the presumption associated with a registered document by producing cogent evidence to the contrary." 12. Admittedly, both the vendor and vendee being late Jaliram Bora and Cheniram Bora were brothers and co-sharer and the land sold by Ext. Cha was also their ancestral land. Therefore, even there was some anomaly in the dag number, the same could not invalidate the sale deed, inasmuch as, as per order 7 Rule 3 CPC, the land can be described either by survey or dag number or by boundaries. This apart, in case of transfer of undivided share in the joint property by the co-sharers, there cannot be transfer of any specific portion of the property. The transferee only steps into shoes of the transferor-co-sharers and becomes entitled to joint title and possession till partition is made. This apart, in case of transfer of undivided share in the joint property by the co-sharers, there cannot be transfer of any specific portion of the property. The transferee only steps into shoes of the transferor-co-sharers and becomes entitled to joint title and possession till partition is made. Therefore, otherwise also specific description or independent identity of the extent of share transferred by a co-sharer is of least consequence, inasmuch as, unless partition is affected, no co-sharer can claim exclusive title or possession over any portion of the joint property. When the sale deed was duly proved by producing the certified copy of the sale deed (Ext. Cha) as well as by bringing the Volume Book from the office of the Sub-registrar, which raises a presumption as to genuineness of the registered sale deed No. 1174/58 and no material could be brought on record to rebut such presumption, the finding of the first appellate court that Ext. Cha was a shame document or it was not genuine, is not sustainable. Accordingly, the substantial question No. 2 is answered in affirmative and decided in favour of the defendant/appellant. Substantial question No. 1. 13. Admitted position is that late Thanuram Bora was the original owner and predecessor in interest of the parties and Thanuram Bora had four sons, namely, Podo, Akan, Hareswar and Santiram. Though in the written statement, the defendant stated that Thanuram Bora had three sons, namely, Podo, Akan and Hareswar, during evidence, the defendant No. 1 admitted that Thanuram Bora had another son, who died unmarried. As regards the legal heirs of Podo, Akan and Hareswar also there is no dispute between the parties. 14. Evidently, Podo, Akan and Hareswar were recorded as original pattadars during settlement of 1968-69. Since the land covered by all the three suit pattas originally belonged to Thanuram Bora and one of the legal heir of Thanuram Bora died unmarried, admittedly, the entire property of the three suit pattas devolved upon Podo, Akan and Hareswar being the surviving legal heirs of Thanuram. There is also no dispute between the parties that Podo, Akan and Hareswar had equal share in the lands of the three suit pattas. There is also no dispute between the parties that Podo, Akan and Hareswar had equal share in the lands of the three suit pattas. There is also no dispute that defendant Cheniram Bora and late Jaliram Bora (father of the plaintiff) were the two sons and legal heirs of Akan and the properties falling in the share of Akan devolved upon his two sons, namely Cheniram and Jaliram and on death of Jaliram Bora, his share devolved upon the plaintiff and proforma defendants No. 2 to 6. Though, the plaintiff has sought for declaration of his half share in the property falling in the share of Akan, which has been described in Schedule-A of the plaint, the pleadings of both the parties are conspicuously silent as to whether there was any partition among the three sons of Thanuram Bora, i.e. Podo, Akan and Hareswar. Unless a partition is affected among the legal heirs of Thanuram Bora, i.e. Podo, Akan and Hareswar, who became the joint pattadars after death of Thanuram as per settlement of 1968-69, the descendents of one of the son of Thanuram cannot claim partition in respect of the share of their predecessor. 15. Another difficulty in this suit, as apparent from the schedule of the plaint is that, the properties, which were made the subject of partition as described in Schedule-A of the plaint comprises parts of various dags of the three pattas. Since the suit land described in Schedule-A, which is stated to be the share of Akan and the subject of partition has not been described specifically with boundary, the partition among the legal heirs of Akan Bora could not be affected for the simple reason, that the share of Akan described in Schedule-A is not specific in absence of description of the land of Schedule-'A' by specific boundaries. As already indicated above, the pleadings and evidence of both the parties are silent, as regard partition among the three sons of Thanuram, namely, Podo, Akan and Hareswar, who became joint pattadars after Thanuram. Therefore, even if it is assumed for the sake of argument, that some partition had taken place among Podo, Akan and Hareswar, the land of schedule-A, which is said to be the land falling in the share of Akan Bora is unidentifiable for not being described specifically by boundaries. Therefore, even if it is assumed for the sake of argument, that some partition had taken place among Podo, Akan and Hareswar, the land of schedule-A, which is said to be the land falling in the share of Akan Bora is unidentifiable for not being described specifically by boundaries. Had the land of Schedule-A comprised of entire land of the relevant dags, matter would have been different. Therefore, unless subject of partition is specifically described in the plaint, it would not be possible to affect partition of such land, even if the extent of share is declared by court. The learned trial court dismissed the suit precisely for this reason that the subject of the partition was not specific, which unfortunately learned first appellate court failed to appreciate. Learned first appellate court superficially declared the 1/2 share of the plaintiff in the property described in Schedule-A without appreciating the facts that there was no pleadings or evidence regarding partition among the three pattadars, being the sons of late Thanuram Bora, who were admittedly joint pattadars as legal heirs of late Thanuram and that there was no proper description of the land falling in the share of Akan, predecessor of the parties. 16. The pattas, Ext. 1, 2, 3 as well as Ext. Ga and Gha show that there are other pattadars,. who were not made parties. From Ext. 2 & 3, it appears that Santiram was one of the son of Thanuram Bora. Though, the defendant stated in his evidence that the one of the son of Thanuram Bora died unmarried, the plaint shows that Santiram, son of Thanuram has also been arrayed as defendant, which makes it abundantly clear that Thanuram Bora had four sons, namely, Podo, Akan, Hareswar & Santiram. Unless partition is affected among the sons of Thanuram Bora, specifying the share of Akan, being predecessor of plaintiff and defendant, the partition among the successor of Akan is not possible. What is apparent from the pleading is that all the legal heirs of Thanuram Bora have been made party in the suit, but the entire property left by Thanuram Bora has not been included in the suit property or made the subject of partition. What is apparent from the pleading is that all the legal heirs of Thanuram Bora have been made party in the suit, but the entire property left by Thanuram Bora has not been included in the suit property or made the subject of partition. When admittedly, Thanuram Bora was the original owner of the land covered by all the three suit pattas and the property of Thanuram Bora devolved upon his legal heirs being Podo, Akan, Hareswar and Santiram and the plaintiff and defendant claim their share over the property left by Thanuram Bora, through Akan Bora, and the plaint neither disclosed the share of Akan specifically, nor there is any evidence and pleadings to show that any partition among the sons of Thanuram had taken place, there could not be any partition between the legal heirs of Akan alone. Therefore, the impugned judgment and decree of the learned first appellate court cannot be sustained and required to be set aside. Accordingly, the substantial question No. 1 is answered in negative and against the plaintiff. 17. In view of the decision and answer to the substantial questions of law, the second appeal is allowed, the judgment and decree passed by the first appellate court is set aside and the judgment and decree of the trial court stands restored. 18. No cost. Send down the LCR.