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2019 DIGILAW 165 (CAL)

Manoranjan Naskar v. Bharati Halder

2019-02-01

SAHIDULLAH MUNSHI

body2019
JUDGMENT : Sahidullah Munshi, J. This second appeal is at the instance of the plaintiff challenging the judgment and decree dated 22nd December, 1995, passed by the learned Assistant District Judge, Diamond Harbour, in Title Appeal No.19 of 1994 thereby reversing the judgment and decree of the learned Munsif of the 1st Court at Diamond Harbour dated 27th August, 1993 in Title Suit No.127 of 1991. The appeal is within a very short compass, that is to say, whether the learned first Appellate Court below was right in reversing the judgment of the trial Court and whether the trial Court decreed the suit on the basis of the evidence available on record. 2. The plaintiff has filed a suit for declaration of title and injunction. The suit property is 34 decimals of land pertaining to two plots, namely, plot no.329 and 330. The short plaint case is that father of the plaintiff and the defendant was the admitted owner of the 34 decimals of land pertaining to the suit plots and from the said 34 decimals of land, the plaintiff's father executed a deed of settlement and/or gift by which 'ka' scheduled property, as mentioned in the deed, was given to the plaintiff and the defendant was given 'kha' scheduled property. It is also the admitted case that both the plaintiff and the defendant have claimed their title by virtue of the said deed which has been admitted into evidence and marked as Exhibit 'A'. 3. The plaintiff has made out a further case that the deed of gift dated 29.06.1988, executed by his father and by such deed he gifted the watering portion of the tank measuring 321/2 decimals comprised in plot nos.329 and 330 and the remaining portion of the said two plots measuring 11/2 decimals which are comprised in South-West portion of the bank of the two tanks to the defendant by the selfsame deed. The plaintiff's specific case is that he stayed at some other place for a long time and the defendant, at the material time, by taking advantage of his absence, in collusion with the deed writer, had overwritten the figures mentioned in the deed so as to make 11/2 decimals into 41/2 decimals. The plaintiff's specific case is that he stayed at some other place for a long time and the defendant, at the material time, by taking advantage of his absence, in collusion with the deed writer, had overwritten the figures mentioned in the deed so as to make 11/2 decimals into 41/2 decimals. the plaintiff has specifically pleaded that his father intended to make a gift of 11/2 decimals of land in favour of his sister, the original defendant herein and rest of the land in those two suit plots were intended to be gifted in favour of the brother, that is, the plaintiff but the defendant, who had the custody of the original deed, after registration, manipulated in such a way so as to make the said 11/2 decimals to 41/2 decimals. Therefore, the plaintiff made a prayer for a decree for declaration that he has right, title and interest in respect of 321/2 decimals of land in the suit plots and the defendant has no manner of right to interfere with the plaintiff's possession over the suit property. 4. The said suit was contested by the defendant by filing written statement and denied all material allegations against her. The defendant, inter alia, contended that her father, Sudarshan Naskar, originally held the suit plot including the bank of the suit tank measuring 34 decimals and he had an intention to gift 41/2 decimals from the watering portion of the bank of the suit tank to the defendant and the remaining land of the suit tank to the plaintiff. According to the defendant, plaintiff was entrusted for arranging the registration of the deed of gift but at the time of writing the deed, her father noticed that plaintiff intentionally mentioned in some places 11/2 decimals of land instead of 41/2 decimals. according to her, her father denied to execute the deed until it was rectified and as a result, the deed writer, at the instance of the father of the defendant, wrote 41/2 decimals of land in place of 11/2 decimals as described in 'kha' schedule of the said deed. According to her, she has been in possession of the said 41/2 decimals in the suit plot after acceptance of the deed of gift. According to her, she has been in possession of the said 41/2 decimals in the suit plot after acceptance of the deed of gift. It is her case that she is in possession of the South-West portion of the suit tank measuring 11/2 decimals and 3 decimals from the watering portion of the suit tank and that the plaintiff had not acquired any title and possession over the said 41/2 decimals of land. 5. On the pleadings of the parties issues were framed. The important issues are issue nos.4 and 5 which say "Has the plaintiff any right, title and interest over the suit land?" and "Is the plaintiff entitled to get the decree as prayed for?" On the evidence adduced by the parties and on consideration of the pleadings the trial Court dealt with the issue nos.3, 4, 5 and 6 together and held that admittedly, by virtue of the deed of gift (Ext. A), the plaintiff and the defendant each got some shares in the suit plot. According to the trial Court, the dispute between the parties is not with regard to execution of the deed, nor is it disputed that the father was the owner of the suit property, nor is it the case that by such deed, father has not given the properties to the plaintiff and the defendant. The only dispute appears to be the quantum of the allotment made by the father in favour of the plaintiff and the defendant. It has been held by the learned trial Court that from the deed (Ext. A) it transpired that the figure 41/2 decimals has been overwritten and the figure 11/2 decimals has been converted into 41/2 decimals through interpolation. The learned Munsif also held that schedule 'kha' which has been mentioned in the deed thereby donating the land to his daughter is a demarcated portion as mentioned in the deed and, therefore, the interpolation, if there be any, cannot overwrite this fact that she has been given a demarcated part of the suit land. The learned trial Court held that from the trend of the oral evidence as also the interpretation of the deed it can be held that the father had no intention to donate 41/2 decimals of land to the daughter. The learned trial Court held that from the trend of the oral evidence as also the interpretation of the deed it can be held that the father had no intention to donate 41/2 decimals of land to the daughter. The defendant, being aggrieved by the said order filed an appeal and the first Appellate Court, after a contested hearing, reversed the judgment and decree passed by the trial Court holding, inter alia, that the plaintiff never pleaded the case of interpolation and/or fraud committed while executing the deed nor such fraud has been proved and further held that the trial court acted like an Astrologer in coming to a conclusion that the donor, Sudarshan Naskar, had no intention to include the appellant as co-sharer in the watering portion of the suit tank as the tank is not divisible and had an intention to give the defendant only the bank of the tank. The first Appellate Court held that it was the duty of the trial Court to determine the actual intention by applying the judicial mind and pointed out that it is clear from Exhibit 'A' that the overwriting and/or interpolation or alteration of Exhibit 'A' was made prior to the execution and registration particularly when there is no denial or dispute that execution of the said 'Nirupan Patra' (Ext. A) by the donor, Sudarshan Naskar, was made. Accordingly, the first Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court. 6. Mr. Bhattacharya, learned Advocate appearing for the plaintiff/appellant, submitted that, although, the learned trial Court correctly assessed the pleading of the parties and the evidence led by them in support of their respective cases and decreed the suit, but the Appellate Court below, without giving proper reasons, set aside the judgment and decree passed by the learned trial Court. He submitted that the learned Appellate Court below, in particular, has committed a gross error in ignoring the positive averment made in the plaint that the defendant should retain with her the copy of I.G.R. (receipt issued by the Registration Officer after a document is registered) and obtained the original deed from the Registry Office and thereafter caused the manipulation in the original itself by causing interpolation in the figures wherever 11/2 decimals were written. He submitted that it is visible even in naked eye that 1 has been converted into 4 by interpolation and thus, 11/2 has been converted into 41/2 decimals. This act has been done by the defendant in the original deed and that is the specific pleading of the plaintiff/appellant in the plaint which is apparent from paragraph 3 thereof. Mr. Bhattacharya submitted that the learned Appellate Court below has not considered such pleading and as a result, the relevant evidence could not be weighed on the basis of the pleading made by the plaintiff and as a result, has come to an erroneous conclusion that the learned trial court did not apply its mind to the case and has not considered the intention of the donor who executed the deed in question. According to Mr. Bhattacharya, such finding of the learned Appellate Court below is the only finding on the basis of which the judgment and decree passed by the learned trial Court has been set aside and this being so, the finding on the basis of which the judgment and decree was passed by the learned Appellate Court below appears to be perverse inasmuch as the learned Appellate Court below has failed to take into consideration of the pleadings made by the plaintiff and the evidence led by him in respect thereof. Therefore, the only fate, the judgment of the learned Appellate Court below, faced the setting aside and nothing else. 7. Mr. Bhattacharya, relying on a 3-Bench decision in the case of Radha Sundar Dutta Vs.- Mohd. Jahadur Rahim and Ors. reported in, AIR 1959 SC 24 , submitted that when provision of the deed is to be considered and interpreted, earlier clause that must override the later clauses and not the vice versa. He has referred to paragraph 13 of the said judgment which is set out here-in-below: "13. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi v. Umesh Chandra, the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi v. Umesh Chandra, the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. The Chaukidari Chakaran lands situated within that village were resumed under the Act and transferred to the Zamindar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B. In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Sint. Kanchan Barani Debi. She then sued as such purchaser to recover possession of the Chaukidari Chakaran lands. The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did not operate to vest in the purchaser the title in the Chaukidari Chakaran lands, as they formed a distinct Patni. Dealing with this contention, B.B. Ghose J. who delivered the judgment of the Court, observed : concerned to alter the terms of the original patni if they chose to do so; and what we have to see is whether that was done. In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee." The learned Judge then refers to the two clauses cor- responding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purchaser was entitled to the Patni as it was created in 1820, (1) A.I.R. 1925 Cal. 807, and that the plaintiff was entitled to the possession of the Chaukidari Chakaran lands as being part of the Patni. Now, it is to be observed that in deciding that the Chaukidari Chakaran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of ret payable thereon under the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakaran lands in default of the payment of jama, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well-established that it is the earlier clause that must override the later clauses and not vice versa. In Forbes v. Git (1), Lord Wrenbury stated the rule in the following terms : " If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later." We accordingly hold that Exhibit B created a new Patni and that the sale of the lands comprised therein is not bad as of a portion of a, Patni." 8. The next and last judgment Mr. Bhattacharya relied on is the case of Santosh Hazari Vs.- Purushottam Tiwari (deceased) by LRs. reported in, (2001) 3 SCC 179 . Relying on the said judgment Mr. Bhattacharya argues that the learned Appellate Court below has not discharged its duty according to the settled principles of law while deciding a First Appeal. 9. Mr. Buddhadeb Ghosal, learned Advocate appearing in support of the defendant/respondent, submitted that the learned Appellate Court below has correctly held that the learned trial Court failed to consider the case in its true perspective. He further submitted that the learned trial Court, while arriving at the decision to pass a decree in favour of the plaintiff, did not compare the original deed of gift (Nirupan Patra) with that of the 'volume' lying in the Registry Office. He further submitted that it is the evidence on record that before registration of the deed such correction has been made. He further submitted that it is the evidence on record that before registration of the deed such correction has been made. He pointed out from the deposition of the DW 2 that the mistake of 11/2 being made instead of 41/2 in the deed of gift and when request was made by the executor, the deed writer corrected the said figures. According to Mr. Ghosal, there is nothing wrong to do so because the person who has executed the deed has every authority to make corrections over the deed before presentation of the same in the Office of the Registrar. According to Mr. Ghosal, the allegation of fraud or interpolation has not been proved by cogent evidence by the plaintiff. He submitted that it is the plaintiff who is to prove his case that fraud has been committed. He further submitted that the learned trial Court ought to have considered the intention of the party after going through the entire deed and portions of the deed should not be read rather the document should have been considered in its entirety. According to Mr. Bhattacharya, it was the intention of the donor to donate 41/2 decimals of land in favour of his daughter and the rest to the plaintiff. 10. The said 'Nirupan Patra' was registered before the Sub-Registrar, Mathurapur on 05.10.1988. The plaintiff has relied on a certified copy of the said deed which has been admitted into evidence and marked as Exhibit 'I'. Whereas, the defendant has also filed the original deed executed on 05.10.1988 and has been admitted into evidence as Exhibit 'A'. While perusing the original deed (Ext. 'A') it appears that the interpolations are clearly visible on some pages. It is important to take note and I have noted that while describing the land under such deed the author mentions that he gave the property to the plaintiff which is mentioned under schedule 'ka' and the author has specified that leaving 1 1/2 decimals the remaining 32 1/2 decimals in plot nos. 329 and 330 shall vest to the plaintiff. Undisputedly, the suit plot no. 329 got 17 decimals and 330 has got 17 decimals and if the deed is considered for vesting of the rights of the parties in suit, it appears that the total land is 34 decimals and the parties are claiming their rights over their alleged allotment. 329 and 330 shall vest to the plaintiff. Undisputedly, the suit plot no. 329 got 17 decimals and 330 has got 17 decimals and if the deed is considered for vesting of the rights of the parties in suit, it appears that the total land is 34 decimals and the parties are claiming their rights over their alleged allotment. In clause 8 of the said deed the above specification has been made. It may be of some importance to point out that the original deed also contains several pages on which the recitals of the deed have been typed out. All the pages up to page 9 containing clause 10 are stamp paper purchased on 29.06.1988 starting from serial no.1740 to 1748 and purchased in the name of Sudarshan Naskar. Whatever interpolations have been made, those are on this stamp papers only but nothing is appearing on the other plain pages where only on the reverse side there appears stamp of the Sub-Registrar. In the plain sheet at the end in respect of 'kha' scheduled property it is mentioned that the defendant's allotment would be 41/2 decimals out of 34 decimals in plot nos. 329 and 330. But in other parts which have been written on stamp paper, the figure 11/2 decimals has been interpolated which is clearly visible to make that figure into 41/2 decimals. No evidence is forthcoming as to why interpolations have been made on the stamp paper and not on the plain paper but one can understand the reason behind it. Be that as it may, clause 8 which is typed on stamp paper, clearly specifies that the defendant has been allotted 11/2 decimals and remaining land 321/2 decimals shall belong to the plaintiff. The allotment of 11/2 decimal has also been made in a demarcated manner where this 11/2 decimal suit land exists, that is, in the Southern part of the Southern bank. There is no ambiguity with regard to such description as mentioned in paragraph 8. While comparing the said paragraph 8 in Exhibit 'I' filed by the plaintiff, it also appears that there has been no interpolation and it is clearly mentioned that leaving 11/2 decimals remaining 321/2 decimals shall belong to the plaintiff. The striking dissimilarity in the two deeds, original and certified copy, as has been ascertained, is that there has been no interpolation apparent on the certified copy. The striking dissimilarity in the two deeds, original and certified copy, as has been ascertained, is that there has been no interpolation apparent on the certified copy. Therefore, question arises whether the interpolation can be said to be interpolation or the same has been corrected by the author himself on the deed and if such correction has been made before presentation of the deed, why the author has not put his initial at the corrected place? 11. Although, in a Second Appeal re-appreciation of evidence is not necessary but from the finding of the learned trial Court and as pointed out by Mr. Bhattacharya from the evidence of DW 1, Bharati Halder, it appears that although, it was her specific case that on the instruction of her father on the day of registration of the deed the correction was made through the deed writer, it appears that in her cross-examination she deposed that she did not go to Registry Office on the day of the registration of the deed. This evidence falsifies her pleading in the written statement particularly, those made in paragraph 12 of the written statement which have been relied on by Mr. Ghosal and in the instant case, it is also apparent that the defendant was the custodian of the original deed and she collected the original deed from Muharar after paying dues. It is the specific case of the defendant that 41/2 decimals was written instead of 11/2 decimals at the instance of the father of the parties through deed writer. But no steps were taken before the Court below to prove in whose handwriting such corrections and/or interpolations were made. Be that as it may, since the defendant has made a specific pleading to that effect in paragraph 12 that this was on the instruction of the author the deed writer corrected the figures, onus lies upon the defendant to prove that deed writer did these corrections on the instruction of the author and in this case, no effort was shown to call the deed writer as a witness. In such a situation, Court can hold an adverse presumption against the defendant under the provisions of Section 114(g) of the Indian Evidence Act that the defendant has withheld the best evidence available in the case to prove her case but she depended on the plaintiff to prove the negative without discharging her initial onus to show that there was definite instruction to the deed writer by the author to make the corrections so that 11/2 decimals can be changed to 41/2 decimals. 12. In this background of the case, even if it is assumed that the said correction was made by the author himself or through his instruction, but Laws of Interpretation as held by the Hon'ble Apex Court and as has been pointed out by Mr. Bhattacharya, it is the settled law that earlier clause will prevail. If that be so, then also the defence case is liable to be negatived and in my opinion, the learned trial Court has not committed any error in passing a decree in favour of the plaintiff. On the other hand, the learned Appellate Court below has committed gross error in holding that the learned trial Court acted like an Astrologer and did not read the mind of the author in passing the decree and further that in absence of any specific pleading with regard to fraud and/or interpolation committed by the defendant, the learned trial Court was wrong. But while arriving at such a finding, the learned trial Court did not consider paragraph 3 of the plaint where specific pleading has been made by the plaintiff. In this respect, the decision cited by Mr. Bhattacharya in Radha Sundar Dutta (supra) is squarely applicable where the Hon'ble Apex Court held that in a conflict between the earlier clause and the later clauses and when it is not possible to give effect to all of them, then the rule of construction should be that "the earlier clause must overwrite the later clauses and not vice versa." This proposition fully supports the case of Mr. Bhattacharya and in the facts and circumstances and on consideration of the relevant Exhibit 'A' being the 'Nirupan Patra', it appears that the donor's intention was to specify the share of the daughter/defendant and to give rest of the properties in the plots in question to his son, the plaintiff. Therefore, the contention of the defendant fails. Bhattacharya and in the facts and circumstances and on consideration of the relevant Exhibit 'A' being the 'Nirupan Patra', it appears that the donor's intention was to specify the share of the daughter/defendant and to give rest of the properties in the plots in question to his son, the plaintiff. Therefore, the contention of the defendant fails. The learned Appellate Court below has committed an error in passing the judgment and decree under appeal thereby reversing the judgment and decree passed by the learned trial Court. The finding of the learned Appellate Court below "it is the duty of trial Court to determine the actual intention by applying the judicial mind" is not applicable in the facts and circumstance of the present case. Court, in a suit for declaration, is not to hunt for the mind of the author of the document but should consider the genuineness of the document first thereafter, to find out from the relevant clauses the intention under the deed. If the provisions of the deed make it clear enough to hold that the donor settled the property from a portion of the bank of the pond pertaining to the suit plots, there can be no reason to hold in finding out the intention of the donor that the donor had intended also to give the watering portion of the pond. Therefore, the judgment and decree passed by the learned Appellate Court below is not based on reasons and also not based on the evidence led by the parties. The appeal Court appears to have acted in a perfunctory manner not considering pleadings and the evidence on record and, therefore, the finding arrived at by the learned Appellate Court below appears to be perverse and the judgment and decree, therefore, cannot be upheld and the same is, accordingly, set aside. 13. Consequently, the appeal stands allowed and the judgment and decree passed by the learned trial Court is affirmed. 14. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.