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2020 DIGILAW 1 (GAU)

Narendra Kumar Biswas v. Harendra Mazumdar

2020-01-02

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. T. Islam, learned counsel for the appellant. Also heard Mr. M.H. Choudhury, learned counsel for the respondents. 2. The respondents No. 1 to 4 as plaintiffs instituted TS No. 34/2009, amongst others, for a decree for cancelling the registered sale deeds No. 801 dated 17.07.1997 and No. 1468/95 dated 03.08.1995 on the ground that the sale deeds are forged and illegal. In paragraph-5 of the plaint, it is pleaded that the predecessor in interest of the respondent plaintiffs namely, Makhan Mazumder, while he was alive had sold 2 bighas, 1 katha of land out of 8 bighas 1 katha and 13 lechas of dag No. 27, patta No. 61 of village Dungarpar Kissam in Morigaon district. According, to the plaintiffs after the said land was sold by their predecessor in interest, they are possessing the title over 7 bighas 1 katha 18 lechas of the said dag. Schedule-A to the plaint is as follows:- "Schedule-A (Suit Land) (Conformation of possession is claimed) A plot of land measuring 1B-4K-161/2 Ls out of 8B-1K-13 Ls covered by Dag No. 27, 1B-3K-0Ls of land out of 3B-1K-0 Ls covered by Dag No. 19 and 3B-4K-1½ Ls out of 7B-3K-3 Ls covered by Dag No. 20, total 7B-1K-18 Ls of land out of 19B-0K-16 Ls of land of a periodic patta No. 61 (New) of village-Dungarpar Kissam under Mouza-Bokani in the district of Morigaon, Assam and is bounded by- North-Raj Mohan, Hasiram, Sachindra Biswas South-Suresh Biswas East-Paritosh, Sontosh and Sushil. Wes-Road" 3. In paragraph-10 it is pleaded that on 01.01.2009 at about 9 am the appellant had made an attempt to dispossess the respondents from the schedule-A land. In the circumstance, when an enquiry was made they came to know that there existed the registered sale deed No. 1468 dated 03.08.1995 showing that the appellant had purchased 1 bigha of land from the respondent No. 4 Joylal Mazumder and another registered sale deed No. 801 dated 17.07.1997 showing that the appellant had purchased 4 kathas of land from the respondent No. 1 Harendra Mazumder. In paragraph-12 of the plaint a specific plea is taken that neither the respondent No. 4 Joylal Mazumder had executed the sale deed No. 1468 dated 03.08.1995 nor the respondent No. 1 Harendra Mazumder had executed the sale deed No. 801 dated 17.07.1997. In paragraph-12 of the plaint a specific plea is taken that neither the respondent No. 4 Joylal Mazumder had executed the sale deed No. 1468 dated 03.08.1995 nor the respondent No. 1 Harendra Mazumder had executed the sale deed No. 801 dated 17.07.1997. In the circumstance, a decree was sought for a declaration that the sale deed No. 801 dated 17.07.1997 and sale deed No. 1468 dated 03.08.1995 to be forged and illegal. 4. The appellant in his written statement apart from denying the plea of the respondents as regards the execution of the two sale deeds had also taken the plea in paragraph-29 that the predecessor in interest of the respondents namely Makhan Mazumder by a registered sale deed No. 9019 dated 23.11.1971 and registered sale deed No. 5854 dated 04.09.1973, respectively had sold 1 bigha 1 katha. A plea was also taken that the respondent No. 1 Harendra Mazumder and Smti. Nayantara being the mother of respondent Nos. 2 and 3 had executed another sale deed No. 729 dated 12.08.1985. During the trial of the suit, amongst others, the following issues were framed:- "(1) Whether the suit is maintainable in its present form? (2) Whether the suit is hit by Sec. 134 of Assam Land & Revenue Regulation? (3) Whether Jaylal Mazumder (vide order dated 10.11.11) had executed sale deed in favour of defendant No. 1, vide sale deed No. 1460 dated 03.8.95? (4) Whether Harendra Mazumder (vide order dated 19.11.11) had executed sale deed in favour of defendant No. 1 vide sale deed No. 801/97? (5) whether the plaintiff has right, title and interest over the suit land? (6) Whether the plaintiff is entitled to permanent injunction? (7) To what relief/reliefs the plaintiff is entitled to?" 5. While deciding the issues No. 3 and 4 on the question as to whether the respondent No. 4 and the respondent No. 1 had executed the respective sale deeds, the learned Court took note of the evidence of DW-1 appellant that the registered sale deed No. 729 dated 12.08.1985 was executed by Smt. Nayantara, being the mother of respondents No. 2 and 3, while they were minors and the certified copy of the registered sale deed No. 729 dated 12.08.1985 was exhibited as Exhibit-Unga. 6. 6. The certified copy of the registered sale deed No. 801 dated 17.07.1997 was exhibited as Exhibit-Cha and DW-1 appellant in his deposition stated that the original of the said sale deed was lost. By relying upon the revenue receipts exhibited as Exhibits-Jha(1) to (15), the learned trial court arrived at a conclusion that the revenue receipts produced by the appellant was older than the revenue receipts produced by the respondents. Certain mutation orders dated 04.12.1985 and 05.09.1997 of the Circle Officer were also taken into consideration which were held to be not illegal. Accordingly, the issues No. 3 and 4 as regards execution of the two sale deeds being registered sale deed No. 1468 dated 03.08.95 and registered sale deed No. 801 dated 17.07.1997 were held in favour of the appellant. 7. On appeal, the learned Civil Judge No. 1 in Title Appeal No. 9/2012 had reversed the finding of the learned trial Court as regards issues No. 3 and 4. The learned Appellate Court in its order dated 11.07.2012 arrived at its conclusion that the appellant failed to show that the Exhibit-Ja being the certified copy of sale deed No. 1468 dated 03.08.1995 was executed by the respondent No. 4 Joylal Mazumder. The reason for such conclusion of the learned Appellate Court was that one of the attesting witnesses DW-5 Ismail Hussain in his evidence had stated that none from the village of the plaintiff and defendant had put their signature as witnesses in Exhibit-Ja and DW-5 was not a resident of the village of the plaintiff and defendant. 8. The appellate Court thereafter went into the question that the original copy of the sale deed No. 729/85 was not produced before the Court and therefore, the appellant had failed to discharge his burden as regards the execution of the said sale deed. Accordingly, the learned appellate Court decided the issue No. 3 and 4 in favour of the respondents to the extent that the two sale deeds were not genuine and legally valid. Being aggrieved, the present appeal has been filed. 9. Mr. T. Islam, learned counsel for the appellant has raised the contention that in respect of the registered sale deed No. 801 dated 17.07.1997 the appellant had exhibited the certified copy of the sale deed in a circumstance where the original sale deed was lost. Being aggrieved, the present appeal has been filed. 9. Mr. T. Islam, learned counsel for the appellant has raised the contention that in respect of the registered sale deed No. 801 dated 17.07.1997 the appellant had exhibited the certified copy of the sale deed in a circumstance where the original sale deed was lost. As regards the sale deed No. 1468 dated 03.08.1995, the original copy of the sale deed was exhibited as Exhibit-Ja. Accordingly, it is the contention that the appellant had discharged his burden to prove the genuinity of the two sale deeds and hence the claim of the respondents for a declaration that the two sale deeds are forged and illegal is to be rejected. 10. We have examined the evidence on record as well as perused the pleadings of the respective parties. We have taken note of that in the Title Suit No. 34/2009, the respondents claim was for a declaration that the registered sale deed No. 1468 dated 03.08.1995 and registered sale deed No. 801 dated 17.07.1997 are forged and illegal. No dispute has been raised by the respondents as regards the other registered sale deed No. 729 dated 12.08.1985. But from the judgment of the learned trial Court as well as of the appellate Court, it is noticeable that the other sale deed No. 729 dated 12.08.1985 was taken into consideration and relied on by both the Courts to arrive at its decisions as regards the validity of the sale deed No. 801 dated 17.07.1997 and 1468 dated 03.08.1995, either in favour of the appellant by the trial Court and or in favour of the respondents by the learned appellate Court. 11. In our view, any conclusion arrived at on the basis of the registered sale deed 729 dated 12.08.1985 would not be relevant for the purpose of determining the validity or legality of the two registered sale deeds in question i.e. registered sale deed No. 801 dated 17.07.1997 and registered sale deed No. 1468 dated 03.08.1995. 11. In our view, any conclusion arrived at on the basis of the registered sale deed 729 dated 12.08.1985 would not be relevant for the purpose of determining the validity or legality of the two registered sale deeds in question i.e. registered sale deed No. 801 dated 17.07.1997 and registered sale deed No. 1468 dated 03.08.1995. As regards the claim of the respondents for a declaration that the registered sale deed No. 801 dated 17.07.1997 is not a valid document and hence illegal, we find that the appellant for the purpose of discharging of his burden under Section 106 of the Evidence Act had exhibited the certified copy of the sale deed as well as the evidence of DW-2 Dhananjoy Haldar who was an LDA in the Office of the Sub-Registrar Morigaon. DW-2 had brought the thumb impression registers which were exhibited as Exhibits-da 2, da 3 and dha 2. Apart from the above, no other evidence had been brought by the appellant as regards the genuinity of the registered sale deed No. 801 dated 17.07.1997. 12. In order to discharge the burden that it is the respondent No. 1 who had executed the registered sale deed No. 801 dated 17.07.1997, it was also incumbent on the appellant to bring on record an admitted signature of the respondent No. 1 Harendra Mazumder and have it compared with the exhibits da 2, da 3 and dha 2 thumb impressions contained in the thumb impression registers. No further evidence had been brought in the form of deposition of any of the attesting witnesses of the said sale deed to establish that it was the respondent No. 1 who had put his signature/thumb impression in the registered sale deed No. 801 dated 17.07.1997. 13. As regards the contention of Mr. T. Islam that under the law of evidence a certified copy is also a good evidence to establish the validity and legality of a document, we are unable to accept it for the purpose for which it has been contended. 13. As regards the contention of Mr. T. Islam that under the law of evidence a certified copy is also a good evidence to establish the validity and legality of a document, we are unable to accept it for the purpose for which it has been contended. Under the law of evidence, a certified copy may be a good evidence to establish the existence of a document or the contents thereof, but when a question has been raised as to the genuinity of the document to the extent that the signatures contained therein are not the signatures of the person who is said to have executed the document, in our view, a mere exhibition or production of a certified copy would be insufficient to establish the genuinity of the execution of the document. If the original registered sale deed was lost, it was always open to the appellant to bring any other collateral evidence through the attesting witnesses, or otherwise to prove that it was executed by the respondent No. 1 so as to establish its genuinity. 14. Accordingly, we conclude that the appellant had failed to discharge the burden under Section 106 of the Evidence Act to prove that the registered sale deed No. 801 dated 17.07.1997 is a genuine sale deed executed by the respondent No. 1 Harendra Mazumder. 15. As regards the registered sale deed No. 1468 dated 03.08.1995 the original of the sale deed had been exhibited as Exhibit-Ja. Apart from exhibiting the original sale deed, the appellant had also brought in the deposition of DW-5 who is stated to be one of the attesting witnesses. We have gone through the evidence of DW-5 Ismail Hussain but have noticed that apart from stating that deed was written by Umar Ali and the thumb impression contained in it are of respondent No. 4 Joylal Mazumder, further evidence that it was Joylal Mazumder who had put his thumb impression in front of the attesting witnesses is found to be absent. 16. In view of the above, more particularly, from the point of view that the aforesaid aspects were not taken into consideration in the appropriate manner, both by the learned trial Court and by the learned appellate Court, we deem it appropriate to remand the matter back to the trial Court for a fresh adjudication as regards the genuinity of the registered sale deed No. 1468 dated 03.08.1995. For the purpose, if the learned Court deems it appropriate further evidence may also be taken to establish that the thumb impression contained in the relevant exhibits is of the respondent No. 4 Joylal Mazumder. 17. Accordingly, we arrive at a conclusion that in respect of registered sale deed No. 801 dated 17.07.1997, the appellant had failed to establish that it was a genuine sale deed executed by the respondent No. 1 Harendra Mazumder and in respect of the registered sale deed No. 1468 dated 03.08.1995 we remand the matter back to the trial Court for a fresh adjudication as regards its genuinity and validity. 18. Send back the LCR. The parties are directed to appear before the trial Court on 30.01.2020 and a request is also made that the adjudication be completed within a period of three months. 19. Appeal partly allowed to the extent indicated.