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2022 DIGILAW 23 (TRI)

Anjali Debnath v. Ratan Debnath

2022-01-17

ARINDAM LODH

body2022
JUDGMENT 1. Heard Mr. B. Banerjee, learned counsel for the appellant as well as Mr. DK Das Choudhury, learned counsel appearing for the respondent no. 1. 2. The present second appeal originates from the judgment and decree dated 28.02.2019 passed by the learned District Judge, Gomati District, Udaipur in connection with Title Appeal 21 of 2015 whereby and whereunder the judgment and decree dated 17.10.2015 and 16.11.2015 respectively passed by the learned Civil Judge, Senior Division, Gomati, Udaipur in Title Suit 16 of 2011 had been dismissed. 3. Shortly stated, the appellant in the instant appeal was the original plaintiff who instituted a suit for declaration of her right, title and interest over the suit land and for perpetual injunction against the respondent no. 1. It is her case that she purchased the suit land from respondent no. 2 vide Sale Deed no. I-495 dated 17.03.2009. After such purchase of the suit land, she had been possessing the land peacefully. However, in the month of May, 2011, the defendant-respondent no. 1 had made an attempt to dispossess her from the suit land and on being threatened of such dispossession, she instituted the present suit, particularly, against the respondent no. 1 to protect her title and possession. 4. Being summoned, the respondent no. 1 appeared and filed written statement. It is pertinent to mention herein that the brother of the plaintiff i.e. respondent no. 2 (vendor of the Sale Deed dated 17.03.2009) did not appear despite receipt of summon, and hence, did not contest the suit. The respondent no. 1 denied that the plaintiff had acquired right, title, interest and possession over the suit land. After exchange of pleadings, issues were framed. Thereafter, on the basis of the issues, evidences were recorded by both the plaintiff and the respondent no.1. 5. Interestingly, the respondent no. 1 while adducing evidence have produced respondent no. 2 i.e. vendor of the Sale Deed dated 17.03.2009 as his witness. During his deposition, respondent no. 2 from whom the plaintiff had purchased the suit land, adduced that he did not sale the suit land to the plaintiff. 5. Interestingly, the respondent no. 1 while adducing evidence have produced respondent no. 2 i.e. vendor of the Sale Deed dated 17.03.2009 as his witness. During his deposition, respondent no. 2 from whom the plaintiff had purchased the suit land, adduced that he did not sale the suit land to the plaintiff. After completion of recording evidences and having heard learned counsel appearing for the parties to the lis, the learned trial court had decreed the suit in favour of the plaintiff declaring her right, title and possession, confirming her possession and injuncting the respondents herein from interfering with her peaceful possession over the suit land. 6. Being aggrieved, the respondent no. 1 herein, had preferred first appeal before the court of learned District Judge, Gomati District, Udaipur. The learned District Judge setting aside the judgment and decree passed by the learned trial court in favour of the plaintiff, remanded the case to the court of learned Civil Judge, Senior Division, Gomati, Udaipur after framing an issue to determine the nature of possession of the plaintiff over the suit land. The issue framed by the learned District Judge while remanding the appeal to the learned trial court is as under:- 'Whether the plaintiff was/is in possession of the suit land and if so, by what act of possession.' 7. Being aggrieved by and dis-satisfied with the said judgment and decree, the original plaintiff has preferred the instant second appeal before this court. 8. I have perused the judgment passed by the learned trial court as well as the learned appellate court. 9. I have considered the substantial questions of law formulated by this court. The substantial questions of law, as formulated by this court, read as under: '(i) Whether the first appellate court is correct in reversing the finding returned by the trial court on appreciation of the evidence as recorded without providing the analogy? (ii) Whether the order of remand is tenable inasmuch as the possession of the suit land cannot be held material on the controversy projected in the suit?' 10. On the aforesaid substantial questions of law, I have reappreciated the evidences on record. I have given my thoughtful consideration to the findings of the learned appellate court while remanding the suit to the learned trial court after framing the above stated issue. 11. On the aforesaid substantial questions of law, I have reappreciated the evidences on record. I have given my thoughtful consideration to the findings of the learned appellate court while remanding the suit to the learned trial court after framing the above stated issue. 11. It has come to light that the learned appellate court has returned a finding in his judgment wherein he has confirmed the proof of the Sale Deed no. I-495 dated 17.03.2009 by dint of which the respondent no. 2 transferred the suit land to the plaintiff. The learned first appellate court has observed as under: '16. As regards the pleadings of the plaintiff about the defendant No. 1 & 2 being the joint owners of the 'A' schedule land, the Ext. A i.e. the Khatian No. 1843/1 shows clearly that both Ratan Debnath and Prabir Debnath were the joint owners of the land measuring 2.82 acre in equal share. It also appears from the pleadings and evidence of the plaintiff that she purchased land measuring 1.19 Acre from pro-defendant No.2 vide registered deed of purchase no.1-495 dated 17.03.2009. However, the case of the plaintiff is that some how she lost the original deed No.1-495 dated 17.03.2009 while coming to Court from her residence at Chanban. In this connection she has adduced the Ext.C i.e. the copy of GD Entry which she made to the police after the original deed got missing. Accordingly, the plaintiff has proved the certified copy of the deed No.1-495 dated 17.03.2009 as Ext.6 by producing the volume book through the staff of the Sub-Registry Office, Udaipur i.e. PW.2 namely, Binay Debbarma. 17. PW.2, Mohrar in the office of the Sub-Registry office at Udaipur, deposed that the sale deed was entered into between Anjali Debnath and Prabir Debnath and it was given in favour of Anjali Debnath as the buyer. He proved the certified copy of the sale deed as Exbt.6. 18. As regards the missing of the original sale deed no.1-495 dated 17.03.2009 from the custody of plaintiff and production of its certified copy, also I find the Trial Court has rightly held that as per Section 65(c) of the Evidence Act if the original document has been lost and it is proved before the Court, the Court can admit secondary evidence as proof of the contents of the document. Hence, I am of the view that there is no legal infirmity in so far as the plaintiff has adduced the certified copy of the original deed by following the rule evidence. In cross-examination of the PWs by the defense also nothing has come out to demolish the evidentiary value of the certified copy of the sale deed as adduced by the plaintiff. But I fail to understand how somebody can lose his or her original title deed so easily while coming to the court from residence. Had it been a case of fire or any other natural calamity, theft, dacoity etc., things would have been different. But that is not the case with the plaintiff. According to her she lost the original title deed while coming to the from her residence which is not far away from the court. Therefore, some way or the other there seems to be a question mark.' 12. Having recorded the above findings, the learned appellate court suddenly has doubted the story of missing of the Sale Deed, as tried to be projected by the plaintiff in her suit. In my opinion, the learned appellate court has shifted from the main controversy which has arisen from the facts averred in the plaint. From the judgment of the learned trial court, it is clear that the plaintiff had proved her possession. It is her plain case that sometime in the month of May, 2011, the respondent no. 1 had tried to dispossess her from the suit land. Moreso, there is well known maxim that possession follows title. In the Sale Deed, it is clearly written that the respondent no. 2 after execution of the Sale Deed had handed over the peaceful possession of the suit land to the plaintiff. There is no evidence as let in by the respondent-defendant no. 1 that she was dispossessed from the suit land at any point of time. The respondent no. 2 only has stated in his evidence that he did not sale the suit property to the plaintiff. Both the courts held that the plaintiff has been able to prove her title over the suit property and in regard to the execution and registration of the sale deed. So, there is no question of raising any doubt over the execution and registration of the said Sale Deed. 13. Both the courts held that the plaintiff has been able to prove her title over the suit property and in regard to the execution and registration of the sale deed. So, there is no question of raising any doubt over the execution and registration of the said Sale Deed. 13. Furthermore, documentary evidence will prevail over the oral evidence of a witness. The findings of the learned appellate court that the plaintiff may not be in possession of the suit land and remanded the suit for determining her possession over the suit land, in my considered view, is wholly perverse and unwarranted causing grave miscarriage of justice since learned appellate court itself returned a finding that the plaintiff had been able to prove her title deed. 14. In my opinion, the learned first appellate court has not considered the maxim that possession follows title and documentary evidence will prevail over the oral evidence. 15. In the light of the above discussion, the present second appeal stands allowed. The judgment and decree dated 28.02.2019 passed by the learned first appellate court is set-aside and quashed. Consequently, the judgment dated 17.10.2015 and decree dated 16.11.2015 passed by the learned Civil Judge, Senior Division, Gomati District, Udaipur are restored and hereby confirmed. Pending application(s), if any, also stands disposed. Send down the LCRs forthwith.