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2019 DIGILAW 936 (CAL)

Haripada Jana v. Rebati Bera

2019-11-15

BIBEK CHAUDHURI

body2019
JUDGMENT : BIBEK CHAUDHURI, J. 1. The instant second appeal is directed against the judgment and decree dated 12th February, 2009 and 12th March 2009 respectively passed by the Additional District Judge, 4th Court at Paschim Medinipur in Title Appeal No. 18 of 2008 affirming the judgment and decree passed by the learned Civil Judge (Junior Division) Dantan, Paschim Medinipur on 28th July, 2007 in Title Suit No. 251 of 1992. 2. The defendant is the appellant before this Court. The respondents as plaintiffs filed Title Suit No. 251 of 1992 praying for a decree of declaration and permanent injunction against the defendant stating, inter alia, that one Trailakyo Jashu, since deceased was the recorded owner in respect of the suit schedule property. After the death of the said Trailakyo Jashu, his widow namely, Tiliottama Jashu and only daughter Smt. Rebati Bera (plaintiff No. 1) inherited the suit schedule property. Subsequently, the said Tillottama had also expired and the plaintiff No. 1 became the absolute owner in respect of the suit schedule property by way of inheritance. She has been possessing the said property along with other co-sharers. While possessing the suit schedule property, plaintiff No. 1 transferred a specific portion of the said property in favour of her son, plaintiff No. 2 by executing a registered deed of gift dated 17th November, 1991. The defendant, all on a sudden, sometimes in the month of Kartik 1899 BS, claimed ownership over the suit schedule property and tried to dispossess the plaintiffs. The defendant has or had no right, title and possession over the suit schedule property. It was ascertained from the written statement filed by the defendant that Smt. Tillottama Jashu allegedly transferred some portion of the suit schedule property to the defendant by a registered deed of conveyance dated 26th November, 1982. However, it was pleaded by the plaintiffs by way of amendment of plaint that the said Tillottama died on 16th May, 1982. Therefore, the defendant's claim of having ownership over the suit property on the strength of a deed of conveyance dated 27th November, 1982 is false, frivolous and not binding upon the parties. If at all any such deed is in existence, it was not executed and registered by Tillottama and the defendant got it executed in his name by false impersonation showing some other lady as Tillottama. 3. If at all any such deed is in existence, it was not executed and registered by Tillottama and the defendant got it executed in his name by false impersonation showing some other lady as Tillottama. 3. Defendant No. 1 contested the said suit by filling written statement. The defendant denied the case of the plaintiff. It is specifically pleaded by the defendant that during his life time, said Trailakyo Jashu, since deceased transferred 11¼ decimal of land in plot No. 267, 6¾ decimal of land in plot No. 819, 02 decimal of land in plot No. 239, 3¾ decimal of land in plot No. 268 and 02 decimal of land in plot No. 253 by a registered deed of gift dated 17th November, 1978 to his wife Tillottama Jashu. The said Tillottama sold out the above stated property to the defendant by executing a registered deed of sale on 26th November, 1982. It is also stated by the defendant that during his life time Trailakyo Jashu transferred some portions of plot Nos. 1235, 249, 229 and 265 to the defendant by a registered deed of sale dated 25th September, 1978. The defendant also claimed that he is in possession of the certain portions of land in plot Nos. 244, 246, 251 and 238 since 25th September, 1978 openly, adversely and against the interest of the original owners without any interruption and thereby acquired title by adverse possession. Thus, the defendant had prayed for dismissal of the suit. 4. During the pendency of the suit the plaintiffs filed an application under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of plaint by incorporating names of all the co-sharers in respect of the suit schedule property as proforma defendants. The said application was allowed on contest. The co-sharers in respect of the suit schedule property were impleaded as proforma defendants in the suit. 5. Proforma defendants No. 9, 10 and 12, though filed written statement did not contest the suit. Therefore, the suit was disposed of ex-parte against the proforma defendants. 6. On the basis of the pleadings of the parties the learned trial judge framed the following issues: (i) Is the suit maintainable in the present form and prayer? (ii) Have the plaintiffs any cause of action to file this suit? (iii) Is the suit barred by limitation? Therefore, the suit was disposed of ex-parte against the proforma defendants. 6. On the basis of the pleadings of the parties the learned trial judge framed the following issues: (i) Is the suit maintainable in the present form and prayer? (ii) Have the plaintiffs any cause of action to file this suit? (iii) Is the suit barred by limitation? (iv) Is the suit barred under section 34 of the S.R Act? (v) Is the suit bad for defeat of parties? (vi) Have the plaintiffs any right, title, interest and possession over the suit land? (vii) Are the plaintiffs entitled to get decree as prayed for? (viii) Whether Tilotama Basu died on 16.05.1982? (ix) Whether sale-deed executed by Tilotama Basu in favour of defendant is genuine, not? (x) To what other reliefs plaintiffs are entitled by law and equity? 7. Parties led evidence in support of their respective cases. On the basis of the evidence on record, both oral and documentary, the learned trial judge decreed the suit on contest against the defendant No. 1 and ex-parte against the rest of the defendants. 8. The defendant No. 1 preferred an appeal being Title Appeal No. 18 of 2008 against the said judgment and decree passed by the learned trial judge in Title Suit No. 251 of 1992. The said appeal came up for hearing before the learned Additional District Judge, 4th Court at Paschim Medinipur on 10th February, 2009. 9. By a judgment dated 12th February, 2009 and decree dated 12th March, 2009, the appeal was dismissed on contest affirming the judgment and decree passed by the learned trial judge in Title Suit No. 251 of 1992. 10. Against the concurrent finding by both the courts below, the defendant No. 1 of the original suit has preferred the instant appeal. 11. The instant second appeal was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure by the Division Bench of this Court vide order dated 15th September, 2009 by formulating the following substantial questions of law: “1. Whether the learned Judge in the Lower appellate court, substantially, erred in law in not holding that the plaintiff no. Whether the learned Judge in the Lower appellate court, substantially, erred in law in not holding that the plaintiff no. 1, namely, Smt. Rebati Bera, being the daughter of Tillottama not having been examined, the entire rights of the respective parties being depended upon the exact date of death of Tillottama and, therefore, an adverse inference should have been taken under section 114(G) of the Evidence Act against the plaintiffs? 2. Whether the learned judge in the lower appellate court, substantially, erred in law in not holding that the death certificate being exhibit-A produced by the defendant is a genuine document and, therefore, the defence case of title by exhibit-B would prevail upon the plaintiffs' deed?” 12. I propose to take up both the substantial questions of law together for discussion and consideration for the sake of brevity and convenience. 13. At the risk of repetition, it is mentioned that the fate of the appeal depends upon consideration of the dispute as to whether the mother of plaintiff No. 1, namely Tillottama Jashu died on 16th May, 1982 or she was alive on 26th February, 1982 when a deed of conveyance was executed and registered in favour of the defendant/appellant allegedly by the said Tillottama Jashu. 14. During trial of the suit, plaintiff No. 2 Shankar Bera deposed on his own behalf as well as on behalf of the plaintiff No. 1. The Division Bench while admitting the appeal took note of the said fact and formulated a question as to whether both the courts below erred in law by refusing to draw an adverse presumption under Section 114(g) of the Evidence Act against the plaintiffs. 15. Section 114 of the Evidence Act runs thus:- “114 Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations - The Court may presume:- (a)......(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it....” 16. In his examination-in-chief under Order 18 Rule 4 of the Code of Civil Procedure, PW-1 (plaintiff No. 2) stated on solemn affirmation that Tillottama Jashu died on 16th May, 1982. Illustrations - The Court may presume:- (a)......(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it....” 16. In his examination-in-chief under Order 18 Rule 4 of the Code of Civil Procedure, PW-1 (plaintiff No. 2) stated on solemn affirmation that Tillottama Jashu died on 16th May, 1982. The evidence of PW-1 under Order 18 Rule 4 of the CPC was filed on 2nd February, 2005. In his evidence-in-chief, PW-1 stated that he was 29 years old on the date of submission of evidence-in-chief. Therefore, PW-1 was aged about six years and few months on 16th May, 1982, when Tillottama Jashu was claimed to be expired. In course of cross examination, a death certificate of Tillottama was tendered where her date of birth was stated as on 21st January, 1983. The said death certificate tendered from the side of the defendant was marked as exhibit-A (with objection). However, in his evidence, PW-1 denied that Tillottama Jashu died on 21st January, 1983. 17. Dr. Asish Ranjan Quar, Medical Officer attached the Nabadwip State General Hospital was examined as PW-5 on behalf of the plaintiffs. In his evidence he stated on oath that the death certificate issued by Patashpur B.P.H.C. in the month of April, 1985 was produced before him for his report as to the authenticity of the same and he submitted a report that the said death certificate which was marked as exhibit-5 was issued from Patashpur Hospital and it was genuine. 18. The certificate of death purportedly in the name of Tillottama Jashu which was issued on 8th February, 1986 shows that the said Tillottama allegedly died on 21st January, 1983. The said death certificate (exhibit-A) was produced from the custody of the defendant. 19. Mr. Debasish Roy, learned Advocate for the appellant submits that when two death certificates were marked exhibits, one at the instance of the plaintiff/respondent and the other by the defendant/appellant, it is incumbent upon the respondent to call for and produce the original register of death from Palashpur B.P.H.C. to prove the date of death of Tillottama Jashu. In the absence of the Death Register, Genuineness of Exhibit-5 cannot be ascertained. 20. Mr. Roy also submits that the respondent instituted Title Suit No. 251 of 1992 for declaration and permanent injunction. In the absence of the Death Register, Genuineness of Exhibit-5 cannot be ascertained. 20. Mr. Roy also submits that the respondent instituted Title Suit No. 251 of 1992 for declaration and permanent injunction. The respondent prayed for a decree declaring the deed of sale allegedly executed by Tillottama Jassu on 26th November, 1982 illegal, void and inoperative on the allegation that Tillottama was not alive on the date of execution and registration of the said deed of sale. It is contended by Mr. Roy that when plaintiff seeks for decree, burden is upon the plaintiff to prove that Tillottama died prior to execution of the deed of sale dated 26th November, 1982. However, the plaintiff has hopelessly failed to discharge the burden. 21. It is further urged by Mr. Roy that the plaintiff No. 1 Smt. Rebati Bera who happens to be the daughter of Tillottama Jassu was the best witness to state the date of death of her mother. The plaintiff No. 2 who deposed during trial of the suit as PW-1 was aged about seven years in the year 1982/1983. So the Court may presume that PW-1 had no personal knowledge about the date of death of Tillottama. 22. Last but not the least, it is submitted by Mr. Roy that both the courts below failed to assign any reason as to why Exhibit-5 was preferred over Exhibit-A. Therefore, evidentiary value of Exhibit-5 and Exhibit-A are required to be adjudicated for proper disposal of the dispute between the parties. Under such circumstances, Mr. Roy purposes that the original suit may be sent back on remand giving liberty to the parties to adduce further evidence to prove genuineness of Exhibit-5 or Exhibit-A. 23. Mr. Poddar, learned Advocate for the respondent, on the other hand submits, at the outset, that no substantial question of law is involved in the instant case because date of death of a particular person is a question of fact and when both the courts below concurrently held that Tillottama Jassu died on 16th May, 1982 on the basis of death certificate filed by the plaintiff/respondent (Exhibit-5), the Second Appellate Court has no scope to re-appreciate the evidence and come to contrary finding of fact. It is further submitted by Mr. Poddar that PW-1 is the grand-son of Tillottama Jassu. It is further submitted by Mr. Poddar that PW-1 is the grand-son of Tillottama Jassu. Even assuming that PW-1 was aged about 7/8 years at the time of death of Tillottama, it cannot be held that PW-1 had no personal knowledge about the date of death of his grand-mother. Minority cannot be a ground for disallowing the evidence of PW-1 who in spite of being faced cross examination did not depose at the peril of the plaintiffs. 24. Mr. Poddar specially draws my attention to the evidence of PW-4 and PW-5. PW-4 is Dr. Raj Kumar Singh was attached to Patashpur B.P.H.C. on the date of his deposition. PW-4 was summoned to produce the death register of 1982-1983 maintained by Patashpur B.P.H.C. in court. However, he could not produce the said register because it was misplaced and not found in the office of the said B.P.H.C. During his cross examination, Exhibit-A was tendered to PW-4 and he stated that Exhibit-A was issued on 8th February, 1986 and it bears the seal of register of birth and death, Patashpur, but it does not bear any seal of B.P.H.C. It is also pointed out by Mr. Poddar that PW-5, Dr. Asish Ranjan Kuar on recall proved genuineness of Exhibit-5. Exhibit-5 shows that Tillottama Jashu died on 16th May, 1982. Both the courts below accepted Exhibit-5 as a genuine document. Therefore, there is no scope in the instant appeal to reverse the concurrent finding of fact arrived at by the courts below. 25. Having heard submission made by the learned Advocates for the appellant and the respondents and on perusal of lower courts' record carefully, I like to record at the outset that both the learned Advocates were in agreement on the question that upon determination of genuineness of two death certificates stating different dates of death of Tillottama, the fate of the instant appeal rests. The plaintiffs/appellants have claimed that Tillottama died on 16th May, 1982 and the certificate of death produced by the plaintiffs shows her date of death as on 16th May, 1982. The said certificate of death was issued in the month of April, 1985 by the Register of Birth and Death, Patashpur Primary Health Centre. The said death certificate was marked Exhibit-5. It bears the signature and seal of the Registrar of Birth and Death, Patashpur as well as the official seal of Patashpur Primary Health Centre. The said certificate of death was issued in the month of April, 1985 by the Register of Birth and Death, Patashpur Primary Health Centre. The said death certificate was marked Exhibit-5. It bears the signature and seal of the Registrar of Birth and Death, Patashpur as well as the official seal of Patashpur Primary Health Centre. On the other hand, Exhibit-A is another death certificate issued by the Registrar of Birth and Death, Patashpur with his official seal on 8th February, 1986 wherein the date of death of Tillottama was recorded as on 21st January, 1982. I am in conformity with the learned Advocate for the appellant that in the case of such discrepancy as regards date of death of Tillottama in two death certificates, one filed by the plaintiff/respondent and the other filed by the defendant/appellant, original register of birth and death for the year 1982-1983 could have been the best documentary evidence. 26. However, the said register could not be produced during trial as it was misplaced and not found in Patashpur B.P.H.C. Practically, it is ascertained from the evidence of PW-4 that all registers of birth and death prior to 1990 were missing from the office of Patashpur B.P.H.C. 27. Under such circumstances, the question that requires to be answered is whether both the courts below were correct in their approach accepting Exhibit-5 as genuine certificate of death of Tillottama over Exhibit-A. 28. Exhibit-5 was obtained by the plaintiff No. 2 from Patashpur B.P.H.C in the year 1985. The date of death of Tillottama was recorded as on 16th May, 1982 in Exhibit-5. The plaintiffs/respondents being the daughter and grand-son of Tillottama obtained her certificate of death from the concerned authority. As the near relatives of the deceased they obtained Exhibit-5 and it is natural that death certificate of the mother would be under the custody of the daughter especially when the deceased had no son. 29. On the contrary, the defendant is not related with deceased Tillottama. In the year 1986, there was no dispute between the parties. The defendant being an outsider, had no occasion in normal circumstances to collect a death certificate of his vendor. The rule of probability goes against the appellant. Further in cross examination the defendant as DW1 stated on oath “Tillottama Jassu is not my relative. I cannot say whether I filed any application for death certificate of Tillottama Jassu. The defendant being an outsider, had no occasion in normal circumstances to collect a death certificate of his vendor. The rule of probability goes against the appellant. Further in cross examination the defendant as DW1 stated on oath “Tillottama Jassu is not my relative. I cannot say whether I filed any application for death certificate of Tillottama Jassu. I informed the date of birth to the Health Department and thereafter I received the death certificate of the said Tillottama Jassu.” 30. From the above evidence of the defendant it is clear that in Exhibit-A, date of birth was recorded by the concerned authority as per the information supplied by the defendant, namely Haripada Jashu. The defendant has failed to explain the circumstances which prompted him, being not a relative of Tillottama to collect the certificate of death of Tillottoma after a lapse of about three years of her. It is needless to say that nature of proof in a civil suit is based on the principle of preponderance of probability. The plaintiffs are the daughter and son-in- law of the deceased. They pleaded that the mother of plaintiff No. 1 died on 16th May, 1982. In support of their contention, the plaintiffs filed a certificate of death which was marked as Exhibit-5. It is very natural and probable that the plaintiffs had custody of the death certificate because as a near relative of the deceased they obtained death certificate from the concerned office. 31. On the other hand the defendant Haripada Jana was not a relative or remotely connected with Tillottama. He himself admitted that Exhibit-A was issued as per his information by Patashpur B.P.H.C. Seal of Patashpur B.P.H.C does not appear on Exhibit-A. Therefore, Exhibit-5 must be held to be genuine applying law of presumption. I am also not unmindful to note that PW-1 was the grand-son of Tillottama. A boy of 7/8 years in general circumstances and ordinary course of nature is capable of remembering certain family incidents, specially, the death of elderly people. Therefore, I do not find any reason to apply the rule of rebuttable presumption against the plaintiffs in the instant appeal. 32. From the available evidence on record, both the courts below arrived at correct finding of fact and no substantial question of law is involved in the instant appeal. 33. Therefore, I do not find any reason to apply the rule of rebuttable presumption against the plaintiffs in the instant appeal. 32. From the available evidence on record, both the courts below arrived at correct finding of fact and no substantial question of law is involved in the instant appeal. 33. For the reasons stated above the instant appeal is dismissed on contest, however without cost. 34. The judgment and decree passed by the Additional District Judge, 4th Court at Paschim Medinipur in Title Appeal No. 18 of 2008 affirming the judgment and decree passed by the learned Civil Judge (Junior Division) Dantan, Paschim Medinipur on 28th July, 2007 in Title Suit No. 251 of 1992 35. The department is directed to send the lower court records along with a copy of this judgment forthwith to the court below.