Gauhati High Court
RSA/144/2018 on 6 November, 2025
GAHC010204902017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
RSA No. 144/2018
1. Md. Nurul Islam,
S/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
2. Md. Tazal Islam,
S/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
3. Md. Samsul Islam,
S/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
4. Md. Harun Islam,
S/o Late Abdul Rahim,
On the death of Md. Harun Islam his legal heirs -
(a) Firoza Khatun (Wife),
(b) Tasnim Kauser (Daughter),
(c) Aftabul Islam (Son).
5. Md. Abul Islam,
S/o Late Abdul Rahim,
R/o Graham Bazar,
P.O. - Dibrugarh, P.S. - Dibrugarh,
Page 1 of 45
Dist. - Dibrugarh, PIN - 786001.
6. Md. Khaled Safiul Islam,
S/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
7. Ms. Saleha Khatun,
D/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
8. Ms. Ramiza Khatun,
D/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
9. Ms. Mabiya Khatun,
D/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
10. Ms. Anima Khatun,
D/o Late Abdul Rahim,
R/o Graham Bazar,
P.O. - Dibrugarh, P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
11. Ms. Gulenur Begum,
D/o Late Abdul Rahim,
R/o Graham Bazar, P.O. - Dibrugarh,
P.S. - Dibrugarh, Dist. - Dibrugarh,
PIN - 786001.
...... Appellants/Plaintiffs.
-Versus-
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On the demise of Abdur Rahman
1. Sri Aszadur Rahman,
S/o - Late Abdur Rahman,
R/o Naliapool,
P.O. - Dibrugarh, P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
2. Smti. Nurshid Begum,
D/o Late Abdur Rahman,
R/o Naliapool,
P.O. - Dibrugarh, P.S. - Dibrugarh,
Dist. - Dibrugarh,
PIN - 786001.
...... Respondents/Defendants.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellants :- Ms. S. Sarma.
Advocate for the respondents :- Mr. R.P. Sarma, Sr. Adv.,
Mr. N.N. Upadhyay.
Dates of Hearing :- 05.08.2025 and 16.10.2025.
Date on which judgment is reserved :- 16.10.2025
Date of pronouncement of judgment :- 06.11.2025
Whether the pronouncement of is of the :- N/A
operative part of the judgment?
Whether the full judgment has been :- Yes.
pronounced?
Page 3 of 45
JUDGEMENT & ORDER (CAV)
Heard Ms. S. Sarma, learned counsel for the appellants and Mr.
R.P. Sarma, learned Senior Counsel, assisted by Mr. N.N. Upadhyay,
learned counsel for the respondents.
2. In this appeal, under Section 100 of the CPC, the appellants
have put to challenge the judgment and decree dated 03.05.2017,
passed by the learned Civil Judge, Dibrugarh („first appellate Court‟,
for short), in Title Appeal No. 41/2006.
3. It is to be noted here that vide impugned judgment and decree
dated 03.05.2017, the learned first appellate court had affirmed the
judgment and decree dated 30.06.2006, passed by the learned
Munsiff No. 1, Dibrugarh („trial Court‟, for short), in Title Suit No.
49/2000, where by the suit of the plaintiffs was dismissed.
4. For the sake of convenience and to avoid confusion, the parties
herein are referred to in the same status as they appeared in the
suit.
Background Facts:-
5. The background facts, leading to filing of the RSA No.
144/2018, are adumbrated herein below:-
"Late Abdul Rahim, the father of the plaintiffs was a
resident of Silchar, Cachar and he came to Dibrugarh in the
year 1940 and started various businesses including the contract
work at Dibrugarh, under E & D Department.
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Thereafter, on 01.11.1969, he purchased a plot of land,
measuring one Bigha, at Gabharu Pather Ward, under
Dibrugarh Town Mouza and filled up the same with earth and
constructed two barrack typed kutcha houses to provide
accommodation to his labourers and maintain his office.
Subsequently, he purchased another plot of land, measuring
one Bigha, from the vendor, namely, Mazahar Hussain, in the
year 1972, and the same was contiguous to the earlier plot of
land and being contiguous, both the plots formed a single
block. Thereafter, the name of the father of the plaintiffs, was
mutated in the revenue records and the Holding Number was
also re-numbered in his favour by Dibrugarh Municipal Board.
Thereafter, in the year 1976, when the rooms were not
required for the labourers, he leased out 2 rooms of the
barrack, to one Monohar Ali and another room to Musstt. Phul
Begum. When Monohar Ali vacated his part of the tenanted
premises, the said room was also taken over by Musstt. Phul
Begum at an enhanced rate.
Thereafter, due to non-payment of the bills by the
Department, in the year 1977 said Abdul Rahim approached
the defendant Abdur Rahman (since deceased) for a loan of
Rs. 20,000/ to complete the contract work on 23.02.1977, with
the condition that the Sale Deed, by which Abdul Rahim had
purchased the suit land, would be kept with him as security. It
was also agreed upon that whatever bills that would be
received by Abdul Rahim, would be given to the defendant
Abdur Rahman and the said Abdur Rahman would be entitled
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to a share of 2 annas per rupee of the profit of the contract job
financed by him.
It is the contention of the plaintiffs that their father had
received a sum of Rs. 14,000/- from the defendant and after
returning a sum of Rs. 2,000/-, he could not return the
remaining amount of Rs. 12,000/- because of non-receipt of
bills from the Government and when the plaintiff No. 1, Md.
Nurul Islam, started to look after the contract work of his
father and started the contract work in his name, due to
financial problem he also approached the defendant Abdur
Rahman for a sum of Rs. 3,000/- as a loan and thereupon, on
25.07.1977, the plaintiff No. 1 entered into a separate
agreement with the defendant Abdur Rahman to return the
sum of Rs. 3,000/- along with the outstanding of Rs. 12,000/-
and in the new agreement, it was agreed that the defendant
would be entitled to a share of Rs. 20/- per Rs. 100/- on the
profit of the contract.
Thereafter, in the year 1982, Abdul Rahim had to go to
Silchar for some unavoidable family problem and stayed there
till 1987. During that period the plaintiff No. 1, returned a sum
of Rs. 8,500/- to the defendant Abdur Rahman, but could not
return the entire amount, because he had to provide medical
treatment to his grand-father and also to solemnize the
marriage of his younger brother, namely, Tazal Islam.
Thereafter, in the month of March, 1989 the plaintiff No.
1 had finalized the accounts with the defendant Abdur
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Rahman, in presence of his father Abdul Rahim, to the effect
that a sum of Rs. 15,000/- would be paid to the defendant as a
full and final settlement of the dues and it was agreed that the
defendant would collect the monthly rent from the tenant
Musstt. Phul Begum, till the entire dues of Rs. 15,000/- is
adjusted.
Accordingly, said Abdur Rahman started collecting the
monthly rent from the tenant Phul Begum and when Abdul
Rahim realized that Abdur Rahman already took a sum of Rs.
16,810/- from Musstt. Phul Begum, instead of Rs. 15,000/-,
then the matter was taken up with Abdur Rahman and the
same end up with exchange of some heated words and since
then, his relationship with Abdur Rahman was not good.
It is the further contention of the plaintiffs that from the
month of November, 1996, Musstt. Phul Begum started paying
monthly rent to Abdul Rahim and after his death on
07.04.1998, the plaintiffs have been receiving the rents from
her, and in the month of April, 2000, they came to know that
the defendant Abdur Rahman filed a title suit, being Title Suit
No. 27/2000 against Musstt. Phul Begum for recovery of
tenanted house and recovery of arrear rent of Rs. 9,000/- and
accordingly, they had inquired about the same and came to
know that the defendant Abdur Rahman claimed the ownership
of the suit properties by virtue of Sale Deed, executed on
29.03.1978. They also came to know that defendant Abdur
Rahman got his name mutated in the revenue records and
Municipal Holding Number of the house premises, standing
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over their land, was also allotted in favour of Abdur Rahman.
Thereafter, the plaintiffs, being the heirs and successors of
Late Abdul Rahim, filed a suit, being Title Suit No. 49/2000,
praying for :-
(a) declaration the Sale Deed dated
29.03.1978 in favour of the defendant and
allegedly executed by Late Abdul Rahim is
a fraudulent, invalid, void and
inoperative deed and that the defendant
did not acquire any right, title,
interest by the said fraudulent deed
dated 29.03.1978 on the suit land;
(b) for cancellation of the Sale Deed dated
29.03.1978 registered by the Sub-
Registrar, Dibrugarh;
(c) for cancellation of the mutation granted
on the record of rights on 27.03.1984;
(d) for cancellation of mutation in the
assessment Register of Dibrugarh
Municipality against holding No. 45 of
Gabharupathar Ward No. 18;
(e) cost of the suits; and
(f) any other relief or reliefs as in law or
equity the plaintiffs are found entitle.
Thereafter, on receipt of summon, the defendant entered
appearance and had filed written statement and contested the
case. The plea taken by the defendant in the written statement
is that the suit is not maintainable in law and in facts and it is
false and baseless and it is barred by principles of limitation,
waiver, estoppels, etc. and that there is no cause of action.
Page 8 of 45
Another stand taken by the defendant is that he had
purchased the suit land from Abdul Rahim by executing a
registered sale deed and thereafter, in due course of time, the
suit land along with the houses standing over the suit land
were mutated in his name by the Dibrugarh Municipality Board.
It is also stated that Musstt. Phul Begum came to occupy
the rented premises under him from April, 1989 and since then
she became a defaulter and he filed the Title Suit No. 27/2000
for her eviction and recovery of arrear rent.
Upon the aforesaid pleadings of the parties, the learned
trial Court had framed the following issues:-
(1) Whether the suit is maintainable in law
and in facts?
(2) Whether the suit is barred by the
principles of limitation, waiver,
estoppels and acquisition?
(3) Is there any cause of action?
(4) Whether the plaintiff has right to sue?
(5) Whether the defendant is the bonafide
purchaser of the suit land and he is the
absolute owner of the suit land?
(6) Whether the plaintiffs are entitled to
any reliefs as claimed?
7) Whether the plaintiffs have right, title
and interest over the suit land?
Thereafter, taking the evidence adduced by the parties
and also hearing learned counsel for both the parties, the
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learned trial Court, vide judgment and decree dated
30.06.2006, had dismissed the suit of the plaintiffs.
Being aggrieved, the plaintiffs had preferred an appeal,
being Title Appeal No. 41/2006, before the learned first
appellate Court and after hearing both the parties, the learned
first appellate Court, vide judgment and decree, dated
03.05.2017, had upheld the decree, so passed by the learned
trial Court."
6. Being aggrieved, the plaintiffs approached this Court by filing
the present second appeal, which was admitted vide order dated
11.06.2018, on the following substantial question of law:-
‚Whether the finding of the learned Court
below to the effect that the sale deed, dated
29.03.1978, was more than 22 years old and
therefore, a presumption under section 90 of
the Evidence Act, 1872 could be drawn in its
favour is vitiated by perversity?‛
Submissions:-
7. Ms. Sarma, learned counsel for the appellants submits that the
presumption under Section 90 of the Evidence Act is available when
the document is 30 years old and produced from proper custody and
this presumption is not about the contents of the document
concerned and notwithstanding the available presumption, the party
concerned is not relieved from proving the content of the same by
adducing evidence. She also submits that since the Sale Deed herein
is of only 22 years old the presumption is not available and besides
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the content of the Sale Deed, which was admittedly not produced
during the course of trial, had not been proved in accordance with
the provision of Section 67 of the Evidence Act.
7.1. Referring to a decision of a Division Bench of this Court, in
the case of Bhutkani Nath and Others vs. Mt. Kamaleswari
Nath and Another, reported in AIR 1972 Assam and Nagaland
15, Mr. Sarma submits that when execution of a document is
challenged, its registration is not sufficient proof of its due execution
and in such a case, proof of execution complying with Section 67 of
the Evidence Act is required. But, due execution of the sale deed
Exhibit-25/Exhibit - Ka, was not proved by the defendants.
7.2. Ms. Sarma has referred to another decision of this Court, in
the case of Lourembam Heramot Singh vs. Laisram Angahal
Singh and Others, reported in AIR 1979 Gauhati 68 and submits
that mere registration is not proof of execution; execution and
contents must be proved in ordinary way and mere proof of
admission of execution before Registrar is not enough.
7.3. Referring to another decision of Hon‟ble Supreme Court in the
case of Balwant Singh and Another vs. Daulat Singh (Dead)
by LRS. and Others, reported in (1997) 7 SCC 137, Ms. Sarma
submits that though the property was mutated in the name of the
respondents herein, yet, the mutation of property in the revenue
record will not extinguish the title, nor it has any presumptive value
on title.
7.4. Under such count, Ms. Sarma submits that if registration of
the property in the name of the respondent/defendant was done on
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the basis of the sale deed, the sale deed has to be proved in
accordance with Section 67 of the Evidence Act, mere registration is
not enough and that the mutation of the name of the respondents in
the revenue record and in the record of the Municipal Board, will not
confer any right.
7.5. Referring to paragraph No. 10.9 of the judgment of the
learned first appellant Court, Ms. Sarma submits that the plaintiffs
did not bring any of the official witnesses from the office of the Sub-
Registrar or from the Circle Office or from Dibrugarh Municipal Board
to show that the registration or mutation or corrections were done
following the procedure established by law. But, the defendant could
not produce any such evidence to prove the sale deed and in
absence of any such proof, merely exhibiting the document, which is
less than 30 years old, cannot be held to be proved.
7.6. Referring to paragraph No. 11.1 of the judgment of the
learned first appellant Court, Ms. Sarma submits that the P.W.3, Sri
Suchomoni (sic Sushamoi) Mazumdar, in his evidence, had identified
the signature of Abdul Rahim in the sale deed as Exhibit - Ka(1) and
mere identification of the signature on the sale deed, by a witness, is
not sufficient to comply with the requirement of Section 67 of the
Evidence Act on a document which is less than 30 years old.
7.7. Ms. Sarma, further submits that in view of the two decisions
of this Court and of the Hon‟ble Supreme Court, the finding, so
recorded by the learned first appellate Court, is perverse and on such
count, the same is liable to be interfered with and therefore, it is
contended to allow this appeal.
Page 12 of 45
8. Per-contra, Mr. Sarma, learned Senior Counsel, appearing for
the respondents, submits that the scope of this Court to exercise the
power under Section 100 of the CPC, is circumscribed and it cannot
go beyond the provision and the same is stated in several cases,
including the case of Gurdev Kaur and Others vs. Kaki and
Others, reported in (2007) 1 SCC 546, wherein Hon‟ble Supreme
Court has held that the High Court is not justified in interfering with
the concurrent findings of fact and in doing so, the High Court
cannot go beyond the scope of Section 100 of the CPC. And in the
said case, the Apex Court had the privilege of relying upon various
judgments of Privy Council and its earlier decisions.
8.1 Mr. Sarma has referred to another decision of Hon‟ble Supreme
Court in the case of Madhavan Nair vs. Bhaskar Pillai,
reported in (2005) 10 SCC 553, wherein it is stated that the High
Court was not justified in interfering with the concurrent finding of
facts and it is well settled that even if the first appellate court
commits an error in recording a finding of fact, that itself will not be
a ground for the High Court to upset the same.
8.2 Referring to another decision of Hon‟ble Supreme Court, in the
case of H.P. Pyarejan vs. Dasappa, reported in (2006) 2 SCC
496, delivered on 06.2.2006, Mr. Sarma submits that the Apex Court
had found serious infirmity in the judgment of the High Court and
observed that it suffers from the vice of exercise of jurisdiction which
did not vest in the High Court and under Section 100 of the CPC, the
jurisdiction of the High Court to interfere with the judgments of the
courts below is confined to hearing on substantial questions of law
Page 13 of 45
and interference with the finding of fact by the High Court is not
warranted if it invokes re-appreciation of evidence and thereafter, it
has held that the impugned judgment of the High Court was
vulnerable and accordingly, set aside the same.
8.3. Mr. Sarma also submits that the primary question in the
instant case is that whether the Exhibit - „Ka‟, being Sale Deed No.
1094, dated 29.03.1978, by which the predecessor in interest of the
respondents had purchased the land from the predecessor in interest
of the appellants in 1978 is 30 years old. But, the date of filing of
both the suits is in the year 2000 and therefore, the said sale deed is
only 22 years old and as such, the question of law, as urged and
framed by this Court is substantially not maintainable and there is no
sufficient reason to interfere with the finding of facts of both the
learned courts below and thereafter, it is contended to dismiss the
same.
Discussion and Findings of this Court:-
9. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the memo of appeal as well as
the substantial question of law so framed by this Court and also
perused the judgments and decrees, so passed by both the learned
courts below.
10. Before a discussion is directed into the substantial question of
law, so formulated herein this case, this Court deemed it appropriate
to address the contention of Mr. Sarma, the learned counsel for the
respondents as Mr. Sarma, who has questioned about the
Page 14 of 45
maintainability of this appeal, in view of concurrent finding of facts
by both the learned Courts below.
11. It is well settled in catena of decisions of Hon‟ble Supreme
Court that in second appeal, under Section 100 of the CPC, the High
court cannot interfere with the concurrent finding of fact by the
learned trial Court as well as the learned first appellate Court. Mr.
Sarma has rightly pointed this out during the course of hearing and
the decisions (i) Gurdev Kaur (supra) (ii) Madhavan
Nair(supra) (iii) H.P. Pyarejan (supra) referred by him
also strengthened his submission.
11.1 But, this appears to be not the absolute proposition of law. It is
also well settled in the case of Krishnan vs. Backiam, reported in
(2007) 12 SCC 190 and also in the case of Gurvachan Kaur vs.
Salikram, reported in (2010) 15 SCC 530, that the first appellate
court, under Section 96 of the CPC is typically the last court of fact,
and if the finding is perverse, then the High Court can re-evaluate
factual findings.
11.2 Again in the case of Hira Lal v. Gajjan, reported in
(1990) 3 SCC 285, Hon‟ble Supreme Court has held as under:-
‚8. ... If in dealing with a question of fact the
lower appellate court has placed the onus on
wrong party and its finding of fact is the
result substantially of this wrong approach
that may be regarded as a defect in procedure.
When the first appellate court discarded the
evidence as inadmissible and the High Court is
satisfied that the evidence was admissible
that may introduce an error or defect in
procedure. So also in a case where the court
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below ignored the weight of evidence and
allowed the judgment to be influenced by
inconsequential matters, the High Court would
be justified in re-appreciating the evidence
and coming to its own independent decision....‛
11.3. In Kulwant Kaur vs. Gurdial Singh Mann, reported in
(2001) 4 SCC 262, Hon‟ble Supreme Court has dealt with the
limited leeway available to the High Court in second appeal as under
in para 34.
"34. Admittedly, Section 100 has introduced a
definite restriction on to the exercise of
jurisdiction in a second appeal so far as
the High Court is concerned. Needless to
record that the Code of Civil
Procedure (Amendment) Act, 1976 introduced
such an embargo for such definite
objectives and since we are not required
to further probe on that score, we are not
detailing out, but the fact remains that
while it is true that in a second appeal a
finding of fact, even if erroneous, will
generally not be disturbed but where it is
found that the findings stand vitiated on
wrong test and on the basis of assumptions
and conjectures and resultantly there is
an element of perversity involved therein,
the High Court in our view will be within
its jurisdiction to deal with the issue.
This is, however, only in the event such a
fact is brought to light by the High Court
explicitly and the judgment should also be
categorical as to the issue of perversity
vis-à-vis the concept of justice. Needless
to say however, that perversity itself is
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a substantial question worth adjudication
-- what is required is a categorical
finding on the part of the High Court as
to perversity. In this context reference
be had to Section 103 of the Code which
reads as below:
103. Power of High Court to determine
issues of fact.- In any second
appeal, the High Court may, if the
evidence on the record is
sufficient, determine any issue
necessary for the disposal of the
appeal,--
(a) which has not been determined
by the lower appellate court or
by both the court of first
instance and the lower
appellate court, or
(b) which has been wrongly
determined by such court or
courts by reason of a decision
on such question of law as is
referred to in Section 100."
The requirements stand specified in Section
103 and nothing short of it will bring it within
the ambit of Section 100 since the issue of
perversity will also come within the ambit of
substantial question of law as noticed above.
The legality of finding of fact cannot but be
termed to be a question of law. We reiterate
however, that there must be a definite finding
to that effect in the judgment of the High Court
so as to make it evident that Section 100 of the
Code stands complied with."
Page 17 of 45
14. In S.R. Tiwari v. Union of India (2013) 6
SCC 602, after referring to the decisions of
this Court, starting with Rajinder Kumar Kindra
v. Delhi Administration, (1984) 4 SCC 635, it
was held at para 30: (S.R.Tewari case, SCC p.
615).
"30. The findings of fact recorded by a
court can be held to be perverse if the
findings have been arrived at by ignoring
or excluding relevant material or by
taking into consideration irrelevant/
inadmissible material. The finding may
also be said to be perverse if it is
"against the weight of evidence", or if
the finding so outrageously defies logic
as to suffer from the vice of
irrationality. If a decision is arrived at
on the basis of no evidence or thoroughly
unreliable evidence and no reasonable
person would act upon it, the order would
be perverse. But if there is some evidence
on record which is acceptable and which
could be relied upon, the conclusions
would not be treated as perverse and the
findings would not be interfered with.
(Vide Rajinder Kumar Kindra v. Delhi
Admn. [(1984) 4 SCC 635], Kuldeep Singh v.
Commr. of Police [(1999) 2 SCC 10], Gamini
Bala Koteswara Rao v. State of
A.P. [(2009) 10 SCC 636] and Babu v. State
of Kerala[(2010) 9 SCC 189]"
12. In the instant second appeal, the ground for challenging the
judgment of the learned first appellate court, is „perversity‟ in respect
of the finding, so recorded by the learned first appellate Court, that
Page 18 of 45
the sale deed, dated 29.03.1978, was more than 30 years old and
therefore, a presumption under Section 90 of the Evidence Act, 1872
is available. And this second appeal was also admitted on the ground
of „perversity‟, in recording a finding by the learned first appellate
Court that the Sale Deed dated 29.03.1978, is of more than 30 years
old, formulating a substantial question of law on the same.
12.1. Thus, in view of above, and also in view of the proposition of
law laid down in the case of (i) Krishnan (supra) (ii)
Gurvachan Kaur (supra), (iii) Hira Lal (supra), and
(iv) Kulwant Kaur (supra), this Court is unable to record
concurrence with the submission of Mr. Sarma, learned senior
counsel for the respondents, that as there is concurrent finding of
facts by both the learned Courts below, this Court cannot interfere
with the same and take a different view, and can substitute the view
of learned courts below. This Court under Section 100 of the CPC can
certainly interfere with the concurrent finding of fact on the ground
of „perversity‟ and factual finding.
13. Now, let it be seen how the Courts below arrived at the finding
by ignoring or excluding relevant material or by taking into
consideration irrelevant/ inadmissible material or the same is
"against the weight of evidence", or if the finding so outrageously
defies logic as to suffer from the vice of irrationality, or is arrived at
on the basis of no evidence or thoroughly unreliable evidence and no
reasonable person would act upon it. In order to appreciate the
same, this Court deemed it appropriate to briefly refer the relevant
portion of the judgment of both the courts below as under:-
Page 19 of 45
Finding recorded by the learned Trial Court:-
14. The learned trial Court, having discussed the evidence of P.W.-
1-Nurul Islam, P.W.-2 - Phul Begum, PW 3 - Sushamoi Mazumdar
and P.W.-4 - Safia Khatoon, and also of D.W.1- Abdur Rahman, had
held that -
‚the introspection of evidence on record of PW 1
to PW 4 and DW 1, it appears that the plaintiffs
claimed the suit land to purchase the suit land
by their father Abdul Rahim and Phul Begum was
heir tenant. Ext. 2 the copy of the sale deed to
purchase the land and Ext. 7, Ext. 54 and 55 are
land revenue paid receipt, Ext. 40 to 53 are the
rent receipt issued to Phul Begum, Ext. 5 the
money receipt, Ext. 3 jamabandi. Ext 1 and 2,
the certified copies of sale deed and Ext 3 the
certified copy of jamabandi. The plaintiffs have
stated nowhere in the plaint or in the evidence
that primary evidences i.e. the original of the
sale deed are of within reach. No explanation is
given for non production of the said deed.
Jamabandi Ext. 3 is also not duly produced. In
spite of absence of primary evidence Abdul Rahim
cannot be said that he is the owner of the suit
land as the defendant has rebutting the
ownership of the land till he purchased in the
year 1978 by a registered sale deed.‛
14.1. The learned trial Court also held that -
‚DW 1 Abdul Rahim, the defendant has stated in
his evidence that he purchased the suit land
vide registered sale deed No.94 of 1978, Ext.
Ka(1) is the said sale deed. DW 1 has also
stated that the suit land was mutated in his
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name Ext. Ka(2) is the Jamabandi (certified
copy). Ext. Ka (3) to Ka (1) the rent receipts,
Ex. Ka 12 to Ka (62) the municipality tax paid
receipts, Ext Ka (63), the municipality holding.
The sale deed namely Ext. Ka (1) is original
one.‛
14.2. The learned trial Court also held that -
-‚the plaintiffs PW 1 stated that the sale deed
is a forged one. Though the plaintiffs' side has
stated that the sale deed is a forgery one but,
they have done nothing except stating that the
sale deed was forged. Sec. 102 of Evidence Act
provides -
"The burden of proof in a suit or in a
proceeding lies on that person who wholly
fails if no evidence at all were given on
either side.
Again Sec. 103 of Evidence Act provides-
"The burden of proof as to any particular
fact lies on that person who wishes the
Court to believe in its existence, unless it
is providing by any one that the proof of
that fact shall be on any particular
person."
14.3. The learned trial Court had also held that -
‚here in this case the plaintiffs have stated
that Abdul Rahim did not execute the sale deed
Ext. Ka (1), and it is a forgery one. But the
plaintiffs have done nothing to prove that it
was a forgery one. Rather, PW 3 Suchmoi Majumdar
has admitted in his evidence that the signature
on the sale deed Ext. Ka (1) is of Abdul Rahim,
the father of the plaintiffs. PW 2 Phul Begum
Page 21 of 45
has also stated that she paid rent of the house
over the suit land from 1989 to 1996. But, the
plaintiffs failed to prove that the Phul Begum
was asked to pay rent to Abdur Rahman by Abdul
Rahim for realization of debt. No documentary
evidence is given by the plaintiffs in this
regard. The plaintiffs' side has stated in their
evidence (PW 1) that they do not know the
holding number of the house over the suit land,
as they pay tax. Rather, the defendant side has
exhibited the municipality tax paid receipts.
Ext. Ka (12) to Ext. Ka (62) shows the
possession of the defendant over the suit land
also clear.‛
14.4. Thereafter, the learned trial Court had held that -
"Sec. 110 of Evidence Act provides "when the
question is whether any lessor is owner of
anything of which he shown to be in possession
the burden of proving that he is the owner is on
the person who affirms that he is the owner."
In their case instant, the plaintiffs' sides
fail to prove that the suit land is in their
possession. Possession has an evidentiary value
and creates a presumption. The man in possession
starts with a presumption of title in his
favour. While the municipality holding is the
name of the defendant document, receiving the
rent from the tenant, paid land revenue and also
paid municipality tax, so possession by the
defendant over the suit land is not rebuttable.‛
14.5. The learned trial Court also held that-
‚considering above all aspects, I come into
correlation that the plaintiffs have no right,
over the suit land. Accordingly, the issue
Page 22 of 45
(issue No. 7) is decided against the
plaintiffs.‛
14.6. Thereafter, the learned trial Court had decided all the issues in
against the plaintiffs and had passed the following order:-
O r d e r:-
1. The suit of the plaintiffs is dismissed.
2. The suit is disposed of on contest with no cost.
3. Let decree be prepared accordingly.
Finding recorded by the learned first appellate Court:-
15. It also appears that the learned first appellate Court, in respect
of the main issue i.e. whether the Sale Deed No.1094 of 1978 was
forged or not, had recorded its finding as under:-
‚10.7. In the case in hand, admittedly the
registration of the sale deed was executed in
the year 1978 and thereafter the
mutation/corrections in the revenue/municipal
records were done. As the plaintiffs challenged
the sale deed and mutation etc. it is their duty
to produce the convincing materials so that the
sale deed and other corrections were done
without following the procedure established by
law.
10.8. The P.W's in their evidence reiterated
that their predecessor Abdul Rahim did not
execute the Sale deed in favour of the original
defendant Abdul (sic Abdur) Rahman. Similarly,
the D.W.s also in their oral evidence contended
that the land was sold by Abdul Rahim. It is the
established principle of law that documentary
evidence precedes oral evidence. And, therefore,
Page 23 of 45
the Court is bound to decide the issue on the
basis of documents as produced by the parties.
10.9. The plaintiffs did not bring any of the
official witnesses from the office of the Sub-
registrar or from the Circle Office or from
Dibrugarh Municipal Board to show that the
registration or mutation or corrections were
done without following the procedure established
by law. The defendant (SIC-plaintiffs) could not
produce any such evidence to rebut the
presumption on the sale deed. In the absence of
any such proof, in my considered view, the
document which is more than 30 years old, cannot
be held as a forged one.
11. The learned Senior Advocate referred to a
decision of the Hon'ble Gauhati High Court in
the case of Bhutkani Nath and others -vs.- Mt.
Kamaleswari Nath, reported in A.I.R. 1972, Assam
& Nagaland, 15 wherein the Hon'ble Gauhati High
Court held in para 6 -
"It is, however, well settled that when the
execution of a document is being challenged,
the certificate of registration alone will
not be sufficient proof of the due execution
of the document. The registration does not
dispense with the necessity of proof of
execution when the same is denied. It is
true that a sale deed is not required by law
to be attested, even then, proof of
execution of a sale deed, when it is denied,
will have to be furnished as in the case of
any other document/s under Section 67 of the
Evidence Act."
Page 24 of 45
11.1. On perusal of the evidence it appears that
the P.W.3- Sri Suchomoi Mazumdar, in his
evidence identified the signature of Abdul Rahim
in the sale deed as Exhibit Ka (1).
Identification of the signature on the sale deed
by an independent witness is sufficient to
comply with the requirement of Section 67 of the
Indian Evidence Act on a document which is more
than 30 years old. It is put on record that the
original sale deed is lying exhibited as Ext. 9
in the connected Title Suit No. 27 of 2000.
11.2. Apart from the above, it is transparent
on the record that Musstt. Phul Begum who has
been in occupation of the two rooms standing
over the suit land paid rent to Abdul (sic
Abdur) Rahman from 1989 to 1996 (with a
variation of month) and that aspect has been
broadly discussed in the connected Title Appeal
No. 39/06. The plaintiffs contended that their
father Abdul Rahim entrusted Abdul (sic Abdur)
Rahman to collect rents from the tenant Phul
Begum. The same is supported by Phul Begum in
her evidence also, but there is no written
document in this regard in between the parties.
To the contrary, the defendant side contended
that Phul Begum was a tenant under Abdur Rahman
and since she failed to pay the rents from the
month of September, 1996, she is a defaulter.
For that reason the Title Suit No. 27/2000 and
subsequent Title Appeal No. 39/06, are already
registered and disposed off simultaneously
wherein it has been concluded that the said Phul
Begum was a tenant under the defendant Abdul
Rahim and not under the predecessor of the
plaintiffs Abdur Rahman. To maintain brevity,
the details are not discussed herein.
Page 25 of 45
11.3. In view of foregoing discussions,
considering the 'preponderance of probability'
into account, I am of the considered view to
hold that the plaintiffs/ appellants have failed
to discharge their burden to prove that the sale
deed No. 1094/78 was a forged one. Similarly, I
am of the considered view to hold that the
plaintiffs have no right, title or interest over
the suit land, rather, the defendant Abdur
Rahman is the bona-fide purchaser thereof.
16. Thus, it appears that both the learned courts below had arrived
at their respective findings based upon the following facts and
circumstances.
(i) In view of Section 103 of the Evidence Act,
the burden of proof of a particular fact lies
upon the person who wishes the Court to
believe in its existence and the plaintiffs
had done nothing to prove that Exhibit - 'Ka',
which is the Sale Deed No. 1094 of 1978, is a
forged document.
(ii) The defendant had proved the Sale Deed-
Exhibit-25/Exhibit - 'Ka'.
(iii) P.W.3-Sri Suchomoi Mazumdar had identified the
signature of Abdul Rahim in the sale deed as
Exhibit Ka (1) and that identification of the
signature on the sale deed by an independent
witness is sufficient to comply with the
requirement of Section 67 of the Indian
Evidence Act.
(iv) That Exhibit-25/Exhibit-Ka (1) is more than 30
years old.
Page 26 of 45
(v) The original sale deed is lying exhibited as
Ext. 9 in the connected Title Suit No. 27 of
2000.
(vi) The plaintiffs could not state the Holding
Number of the house over the suit land,
whereas the defendant side has exhibited the
municipality tax paid receipts as Exhibit - Ka
(12) to Exhibit - Ka (62), which shows the
possession of the defendant over the suit
land.
17. Thus, the finding of the learned first appellate Court that
document i.e. Sale Deed, dated 29.03.1978, is more than 30 years
old and the same cannot be held as a forged one and that the
original Sale Deed is lying as Exhibit-9, in connection with Title Suit
No. 27 of 2000, had influenced the outcome of the first appeal, by
which, it had upheld the dismissal of the suit of the plaintiffs by the
learned trial court.
17.1. However, the record of learned Courts below reveals that the
alleged Sale Deed was executed in the year 1978. And the Title Suit
No. 49/2000 was instituted in the year 2000. And at the time of
institution of the suit, the document was only of 22 years old. That
being so, the finding of the learned first appellate Court that Exhibit-
25/Exhibit-Ka is more than 30 years old and as such, it cannot be
held to be forged, is not based upon any admissible evidence, as is
apparent from the impugned judgment of the learned first appellate
Court. While admittedly the original copy of the said Sale Deed was
not produced before the learned trial court in the Title Suit No.
49/2000, as is apparent from the finding the learned first appellate
Page 27 of 45
Court that the same is lying as Exhibit-9 in the connected Title Suit
No. 27 of 2000. Moreover, the Sale Deed No. 1094 dated
29.03.1978, was never exhibited as Exhibit - 9 in Title Suit No.
27/2000. Thus, in view of the ratio laid down by Hon‟ble Supreme
Court in the case of (i) Hira Lal (supra) and in (ii) Kulwant
Kaur (supra) the finding of the learned first appellate Court
appears to be a perverse finding.
17.2. It is worth mentioning in this context that the presumption
under Section 90 of the Evidence Act is available when the document
is proved to be 30 years old and is produced from proper custody
which the Court in any particular case considers proper and the
Court may presume that the signature and every other part of such
document, which purport to be in the handwriting of any particular
person, is in that person's handwriting, and, in the case of a
document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed and
attested. This presumption is only in respect of genuineness of a
document (i.e., existence or handwriting), not truth of contents.
Therefore, besides truth, the contents of the documents also have to
be proved by cogent evidence.
17.3. This Court in Paramesh Sarmah & Ors. Vs. Islamali &
Ors., reported in 2000 (3) GLT 4536 in para-9 has held as under:
"9. The condition on which the execution of a
document may presume for:-
Page 28 of 45
(1) That it must have been existed for 30
years or more;
(2) It must be produced in court from proper
custody. The document must be in
appearance free from suspicion and doubt;
(3) It must be in a handwriting of a person
and should not be anonymous.
Generally there is no presumption about recitals
in ancient document, but in special
circumstances a recital of consideration, legal
necessity, etc., may be presumed under S.
90...................."
17.4. Further, in case of Huidrom Achou Singh Vs. Thokchom
Ningol Ningthemcha Ongbi Idempishak Devi and others,
reported in 1986 (1) GauLR 98, dealing with Section 90 of the
Evidence Act held as under:-
"Section 90 of the India Evidence Act
deals with presumption as to documents thirty
years old. Under it where any document,
purporting or proved to be thirty years old, is
produced from any custody which the Court in
the particular case considers proper, the Court
may presume that, the signature and every other
part of such document which purports to be in
the handwriting of any particular person, is in
that person's handwriting and, in case of
document executed or attested, that it was duly
executed and attested by the person by whom it
purports to be executed and documents are said
to be proper custody if they are in the place
in which; and under the case of the person with
whom, they would naturally be ; but no custody
is improper if it is proved to have had a
legitimate origin, or if the circumstances of
the particular case are such as to render such
an origin probable.
Page 29 of 45
The content of a document has different
aspects. So far as handwriting is concerned,
under Section 90 the presumption is that it was
written by the scribe. So far as the truth of
the contents is concerned, it is to be proved
by evidence.
This section was designed to meet
situations of varying character, where passage
of time might have obliterated the proof of the
genuineness of any disputed document and wide
powers are conferred on the Court. The Section
only says that the Court may raise the
presumption mentioned in it, not that it must
do so, and the expression "may presume" ought
generally to be construed in the more rigorous
of the senses allowed by Section 4 of the Act.
The presumption is rebuttable. The Court must
examine the surrounding circumstances tending
to establish the connection of the party
producing the document with the person with
whom the document should naturally have been."
17.5. Moreover, this presumption is not available when document is
a certified copy. Reference in this context can be made to a decision
of Hon‟ble Supreme Court in Lakhi Baruah vs. Padma Kanta
Kalita, reported in (1996) 8 SCC 357, wherein with regard to
admissibility in evidence of thirty years old documents produced from
proper custody, it was observed as under:-
‚16. So far as applicability of presumption
arising from Section 90 of the Evidence Act,
1872 in respect of copy of the old document is
concerned, the earliest decision of the Indian
Court was made in 1880 in Khetter Chunder
Mookerjee v. Khetter Paul Sreeterutno [ILR
(1879-1880) 5 Cal 886 : 6 CLR 199]. Later on,
Page 30 of 45
in the decisions of various High Courts the
presumption under Section 90 was also made
applicable to the certified copy. The Privy
Council, upon review of the authorities,
however, did not accept the decision rendered
in Khetter [ILR (1879-1880) 5 Cal 886: 6 CLR
199] and other decisions of the High Court,
where the presumption was attached also to
copies, as correct. It was indicated that in
view of the clear language of Section 90 the
production of the particular document would be
necessary for applying the statutory
presumption under Section 90. If the document
produced was a copy admitted under Section 65
as secondary evidence and it was produced from
proper custody and was over thirty years old,
then the signature authenticating the copy
might be presumed to be genuine; but
production of the copy was not sufficient to
justify the presumption of due execution of
the original under Section 90. In this
connection, reference may be made to the
decisions in Seethayya v. Subramanya
Somayajulu [(1928-29) 56 IA 146: AIR 1929 PC
115] and Basant Singh v. Brij Raj Saran
Singh [AIR 1935 PC 132 : 1935 All LJ 847 : 39
CWN 1057 : 62 IA 180] . In view of these Privy
Council decisions, disproving the
applicability of presumption under Section 90
to the copy or the certified copy of an old
document, in the subsequent decisions of the
High Courts, it has been consistently held by
different High Courts that production of a
copy or a certified copy does not raise the
presumption under Section 90.
17. The position since the aforesaid Privy
Council decisions being followed by later
Page 31 of 45
decisions of different High Courts, is that
presumption under Section 90 does not apply to
a copy or a certified copy even though thirty
years old; but if a foundation is laid for the
admission of secondary evidence under Section
63 of the Evidence Act, 1872 by proof of loss
or destruction of the original and the copy
which is thirty years old is produced from
proper custody, then only the signature
authenticating the copy may under Section 90
be presumed to be genuine.
18. In the facts of this case, the presumption
under Section 90 was not available on the
certified copy produced by the defendants and,
in our view, the High Court is justified in
refusing to give such presumption in favour of
the defendants. We may also indicate that it
is the discretion of the court to refuse to
give such presumption in favour of a party, if
otherwise, there is occasion to doubt due
execution of the document in question. The
plaintiffs' definite case was that the deed of
sale in favour of Holiram was a forged and
fabricated document. In the aforesaid facts,
there was a requirement to produce the
original copy so that the question of due
execution by Plaintiff 1 could have been
contested by the parties.‛
18. As held herein above, in the instant case the Sale Deed
No.1094 is of dated 29.03.1978. And the Title Suit No. 49/2000 was
filed in the year 2000, and as such the Sale Deed was of only 22
years old. And that being so, the presumption under Section 90 of
the Evidence Act, is not available here in this case.
Page 32 of 45
19. Notwithstanding, the Sale Deed being 22 years old or of 30
years old, so far as the truth of the contents of the Sale Deed is
concerned, the same has to be proved by evidence as discussed
herein above and as held in the case of Huidrom Achou Singh &
Another(supra). Now, what left to be seen is whether the parties
had succeeded in proving the same.
20. It is to be noted here that in the case of Anil Rishi vs.
Gurbaksh Singh, reported in (2006) 5 SCC 558, Hon‟ble
Supreme Court, while dealing with the burden of proof, has held as
under:-
‚8. The initial burden of proof would be on the
plaintiff in view of Section 101 of the
Evidence Act, which reads as under:
101. Burden of proof.- Whoever desires any
court to give judgment as to any legal
right or liability dependent on the
existence of facts which he asserts,
must prove that those facts exist.
When a person is bound to prove the
existence of any fact, it is said that
the burden of proof lies on that
person.‛
9. In terms of the said provision, the burden
of proving the fact rests on the party who
substantially asserts the affirmative issues
and not the party who denies it. The said
rule may not be universal in its application
and there may be an exception thereto. The
learned trial court and the High Court
proceeded on the basis that the defendant
Page 33 of 45
was in a dominating position and there had
been a fiduciary relationship between the
parties. The appellant in his written
statement denied and disputed the said
averments made in the plaint.‛
20.1. In the instant case, it is the plaintiffs, who had taken a stand
that the Sale Deed No. 1094 Exhibit - 25/Exhibit- „Ka‟ is a forged
document and as such, the burden of proof, under Section 101 of
the Evidence Act, lies upon them. It is not in dispute that the
plaintiffs had examined as many as four witnesses and they are-
P.W.-1, namely, Nurul Islam, P.W.-2-namely, Phul Begum, PW 3 -
namely, Shushamoi Mazumdar and P.W.-4 - namely, Safia Khatoon
and also exhibited as many as 26 documents, including the alleged
Sale Deed, as Exhibit-25, and indisputably the same is a certified
copy. All the four witnesses, in no uncertain term, had testified that
the predecessor in interest of the plaintiffs, namely, Abdul Rahim had
never sold the suit land to the defendant, namely, Abdur Rahman
and that the Sale Deed No. 1094 of 1978 is a fraudulent document
and also the defendant had fraudulently muted the land in his name
and also by misrepresentation had mutated the municipality holding
number. And their evidence could not be rebutted in cross-
examination.
20.2. Thus, the evidence of the witnesses of the plaintiffs and the
documents, exhibited by them, especially i.e. the Sale Deeds No.
1383/1969 and 1708/1972, Jamabandi, Copy of Assessment Register
and Land Revenue paying receipt, which were marked as Exhibit-1,
2, 3 and 4 to 6, goes a long way to establish the right, title and
Page 34 of 45
interest of the plaintiffs over the suit land. Further, from the
counterfoil of Rent Receipts, being Exhibit- 9 to 24, also established
letting out of the rooms over the suit land by Abdul Rahim, the
father of the plaintiffs, to P.W.2- Musstt. Phul Begum, and collecting
rent from her. Thus, the initial burden of proof, which would be on
the plaintiffs, in view of Section 101 of the Evidence Act, as held in
the case of Anil Rishi(supra), stands discharged by the
plaintiffs.
20.3. It is also the evidence of the plaintiffs that while mutating the
land and municipal holding number in the name of the defendant, no
notice was issued, as required under Section 52 of the Assam Land
and Revenue Regulation, 1886 and Section 83(2) of the Assam
Municipal Act, 1956 was not followed. Section 52 of the Assam Land
and Revenue Regulation, 1886 provides for the Procedure on
application for registration, which read as under:-
(1) On receiving an application under Section 50
or section 51, the Deputy Commissioner shall
if he considers there are sufficient grounds
for proceeding with the application, publish
a notice requiring persons who object to the
registration of the name of applicant, or
who dispute the nature or extent interest in
respect of which registration is applied
have in a written statement of their
objections, appear on a day to be specified
in the notice not being less than one month
from the date thereof.
(2) If the application alleges that the applicant
has acquired possession of the estate, or
share in an estate in respect of which he
Page 35 of 45
applies to be registered by transfer from
any person, a copy of the notice shall be
served on the alleged transfer or, if he is
dead, upon his heirs.
20.4. Further, Section 83(2) of Assam Municipal Act, 1956 provides
as under:-
(2) The Board shall give at least one month's
notice to any person interested in any
alteration which the Board proposes to make
under clauses (a),(b), (c) or (d) of sub-
section (1) and of the date on which the
alteration will be made.
20.5. Notably, these provisions are mandatory in nature. And since
the mandatory requirements of laws had admittedly not been
followed herein this case, during mutation and there is no
explanation forthcoming for the same and this non-adherence to the
mandatory provisions also strengthened the contention of the
plaintiffs and their witnesses that the alleged Sale Deed is a
fraudulent document and the defendant had fraudulently and by
misrepresentation had muted the land in his name and also mutated
the municipality holding number.
20.6. The initial burden of proof, thus, having been discharged by
the plaintiffs, now, in view of Section 102 of the Evidence Act, the
onus shifts on to the defendant to adduce rebutting evidence to
meet the case so made out by the plaintiffs. In holding so, this Court
derived authority from the decision of Hon‟ble Supreme Court in the
Page 36 of 45
case of Anil Rishi (supra), wherein Hon‟ble Supreme Court held
as under:-
‚19. There is another aspect of the matter
which should be borne in mind. A distinction
exists between burden of proof and onus of
proof. The right to begin follows onus
probandi. It assumes importance in the early
stage of a case. The question of onus of
proof has greater force, where the question
is, which party is to begin. Burden of proof
is used in three ways : (i) to indicate the
duty of bringing forward evidence in support
of a proposition at the beginning or later;
(ii) to make that of establishing a
proposition as against all counter-evidence;
and (iii) an indiscriminate use in which it
may mean either or both of the others. The
elementary rule in Section 101 is
inflexible. In terms of Section 102 the
initial onus is always on the plaintiff and
if he discharges that onus and makes out a
case which entitles him to a relief, the
onus shifts to the defendant to prove those
circumstances, if any, which would
disentitle the plaintiff to the same.
20.7. Further, in the case of R.V.E. Venkatachala
Gounder vs. Arulmigu Viswesaraswami & V.P. Temple,
reported in (2003) 8 SCC 752, Hon‟ble Supreme Court has stated
in the following terms :-
'29. In a suit for recovery of possession
based on title it is for the plaintiff to
prove his title and satisfy the court that
he, in law, is entitled to dispossess the
defendant from his possession over the suit
property and for the possession to be
restored to him. However, as held in A.
Raghavamma v. A. Chenchamma [AIR 1964 SC
Page 37 of 45
136] there is an essential distinction
between burden of proof and onus of proof:
burden of proof lies upon a person who has
to prove the fact and which never shifts.
Onus of proof shifts. Such a shifting of
onus is a continuous process in the
evaluation of evidence. In our opinion, in a
suit for possession based on title once the
plaintiff has been able to create a high
degree of probability so as to shift the
onus on the defendant it is for the
defendant to discharge his onus and in the
absence thereof the burden of proof lying on
the plaintiff shall be held to have been
discharged so as to amount to proof of the
plaintiff's title.‛
20.8. In view of above legal proposition, now, what left to be seen
is whether the defendant had succeeded in establishing due
execution of the Exhibit - 25/Exhibit-Ks, so as to rebut the evidence
of the plaintiffs.
20.9. As discussed in the foregoing para, it is the categorical
contention of Ms. Sarma, learned counsel for the appellants, that
mere exhibiting a document is not sufficient and contents of the
same have to be proved in accordance with Section 67 of the
Evidence Act. The decision of a Division Bench of this Court, referred
by Ms. Sarma in the case of Bhutkani Nath (Supra), also
strengthened her submission.
20.10. It is to be noted here that in the case of Bhutkani Nath
(Supra), a Division Bench of this Court has held that when
execution of a document is being challenged, the certificate of
registration alone will not be sufficient proof of the due execution of
Page 38 of 45
the document. Registration does not dispense with the necessity of
proof of execution when the same is denied. It is true that a sale
deed is not required by law to be attested. Even then, proof of
execution of a sale deed, when it is denied, will have to be furnished
as in the case of any other document under Section 67 of the
Evidence Act.
20.11. Again in the case of Lourembam Heramot Singh (Supra),
referred by Ms. Sarma, this Court had held that the execution or
authorship of a document is a question of fact and may be proved
like any other fact and registration does not make a private
document a public document and the Court is not bound to treat the
registration endorsement as a conclusive proof of fact of execution
and though a certified copy is as good as the original and
correctness of certified copies is presumed, mere registration is not a
proof of its execution. Execution and contents of a certified copy
shall have to be proved according to law in the ordinary way and
there must be some evidence to show that the execution and
genuineness of a document were proved. Mere registration of a
document is not, by itself, sufficient proof of its execution. Again,
mere proof of admission of execution before the Registrar does not
satisfy the requirements of Section 67 of the Evidence Act, which
requires that the signature of the executants must be proved to be in
his handwriting. More than a mere admission of a signature is
needed to amount to admission of execution of a document.
Thereafter, it had held that applying these principles to the evidence
on record, it is found that it was not proved that the sale deed was
signed by Tompok Singh and as such, the lower appellate Court has
Page 39 of 45
not committed any error in holding that the execution of the
document was not proved accordingly to law. Besides, this finding is
one of fact and is not amenable to interference in Second Appeal.
20.12. In the case of Narbada Devi Gupta vs. Birendra Kumar
Jaiswal & Another, reported in (2003) 8 SCC 745, Hon‟ble
Supreme Court has held that mere production and marking of a
document as exhibit is not enough, as execution of a document has
to be proved by admissible evidence, however, where documents
produced are admitted by the signatories thereto and thereafter they
are marked as exhibits, no further burden to lead additional evidence
to prove the writing and its execution survives. Relevant para is
quoted herein below for ready reference:-
‚16. Reliance is heavily placed on behalf of the
appellant on the case of Ramji Dayawala & Sons
(P) Ltd. [(1981) 1 SCC 80]. The legal position
is not in dispute that mere production and
marking of a document as exhibit by the court
cannot be held to be a due proof of its
contents. Its execution has to be proved by
admissible evidence, that is, by the ‚evidence
of those persons who can vouchsafe for the truth
of the facts in issue‛. The situation is,
however, different where the documents are
produced, they are admitted by the opposite
party, signatures on them are also admitted and
they are marked thereafter as exhibits by the
court. We find no force in the argument advanced
on behalf of the appellant that as the mark of
exhibits has been put on the back portions of
the rent receipts near the place where the
admitted signatures of the plaintiff appear, the
Page 40 of 45
rent receipts as a whole cannot be treated to
have been exhibited as admitted documents.‛
20.13. Thus, while the submission of Ms. Sarma, learned counsel
for the appellants, are considered in the light of the given factual and
legal matrix, this Court finds substance in the same. Also, this Court
is inclined to record concurrence to her submission that mutation of
the property in the revenue record, neither extinguishes title to the
property nor it has any presumptive value on title as held by Hon‟ble
Supreme Court in the case of Balwant Singh (Supra), so referred
by Ms. Sarma.
20.14. In the instant case, having perused the evidence of D.W.1,
Abdur Rahman, it appear that in his evidence he stated that he
purchased the suit land from Abdul Rahim, vide Sale Deed No. 1094,
dated 29.03.1978, and took possession and got mutated the suit
land in his name and he has been paying the land revenue and he
also rented the house over the suit land to Musstt. Phul Begum and
he received the rent from her. He also stated that he did not issue
notice to the plaintiffs in the mutation case. Thus, it appears that he
had only deposed having exhibited the Sale Deed as Exhibit - Ka(1),
copy of Jamabandi as Exhibit - Ka(2), Rent Receipts as Exhibit -
Ka(3), Municipality Tax Paid Receipts as Exhibit - Ka(12) to Ka(62)
and Municipality Holding as Exhibit - Ka(63).
20.15. But, it is well settled in the case of Bhutkani Nath (Supra)
and Lourembam Heramot Singh (Supra) and also in the case of
Narbada Devi Gupta (supra) that mere exhibiting a document is
not sufficient and also registration of the document does not satisfy
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the requirement of Section 67 of the Evidence Act, which requires
the signature of the executants must be proved in his handwriting.
20.16. In the instant case, the D.W.1 has failed to produced the
original Sale Deed. He has also failed to prove the signature of the
executants, i.e. the father of the plaintiffs, and the contents thereof.
His deposition before the learned trial Court, in para No.9 of his
evidence in affidavit, is quoted herein below, for ready reference and
also for proper appreciation of the dispute projected in this regular
second appeal :-
‚I have filed all the relevant documents
including the sale deed, copy of Jamabandi,
Revenue Receipts etc. which has been exhibited
from Exhibit-1 to Exhibit-63(1), which has
been exhibited in the suit from Ka-1 to Ka-
63(1) and also in T.S. No. 27/2000.‛
20.17. However, from the impugned judgment of the learned first
appellate Court and of the learned trial Court it appears that the
original Sale Deed is also exhibited in Title Suit No. 27/2000, as
Exhibit-1 with the signature of the predecessor of the plaintiffs,
namely, Abdul Rahim as Exhibit-1(1) to 1 (6). But, the record of the
learned trial Court never shows that the Sale Deed was ever
produced and exhibited during the trial in Title Suit No. 49/2000,
though it was marked as Exhibit-Ka.
21. Now, what left to be seen is - whether this Court can read the
evidence of the defendant and consider the documents, so adduced
and exhibited in the T.S.No.27/2000, as the evidence and exhibit
herein this case, while the record of that T.S. No. 27/2000, was not
Page 42 of 45
formally called for in the present appeal, inspite of the evidence of
the defendant in para No.9 of his evidence in affidavit, that the Sale
Deed, copy of Jamabandi, Revenue Receipts etc. which has been
exhibited from Exhibit-1 to Exhibit-63(1), and which has been
exhibited in the suit from Ka-1 to Ka-63(1) and also in T.S. No.
27/2000.
22. This issue came before Hon‟ble Supreme Court in the case of
Mitthulal vs. State of M.P., reported in (1975) 3 SCC 529,
wherein Hon‟ble Supreme Court, in para No.4, has held as under:-
4. ‚..............................
..............................
‚This was clearly impermissible to the High Court. It is difficult to comprehend as to how the High Court could decide the appeal before it by taking into accounts evidence recorded in another case, even though it might be what is loosely called a cross case. It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other.
......................‛ 22.1. In that view of the matter, it cannot be said that the Sale Deed No. 1094 of the year 1978, based upon which the defendant has claimed having purchased the suit land from the predecessor in Page 43 of 45 interest of the present plaintiffs, namely, Abdul Rahim has been proved in accordance with law. As emphasized in the case of Narbada Devi Gupta (supra), the said Sale Deed ought to have been proved by admissible evidence, that is, by the evidence of those persons, who can vouchsafe for the truth of the facts in issue.
22.2. The defendant had failed to examine the writer of the deed and also the two witnesses, namely, Advocate Safiqur Rahman and another Advocate, namely, Gobind Ch. Durah, who were the witnesses, of execution of the said Sale Deed.
22.3. He had also failed to examine any officials of the Office of the Sub-Registrar, Dibrugarh and any officials from the Municipal Board of Dibrugarh. And admittedly, also at the time of mutation of the suit property in the name of the defendant, no notice has been issued to the plaintiffs, though there is a requirement of Section 52 of the Assam Land and Revenue Regulation, 1886. Thus, this Court is of the considered opinion that the Sale Deed No. 1094, of the year 1978, Exhibit -25 in the Title Suit No. 49/2000, had not been proved in accordance with the law.
22.4. Further, the finding of the learned first appellate Court that- P.W.3 - Sri Suchomoni (sic Sushamoi) Mazumdar had identified the signature of Abdul Rahim in the sale deed as Exhibit Ka (1) and that identification of the signature on the sale deed by an independent witness is sufficient to comply with the requirement of Section 67 of the Indian Evidence Act, also appears to be perverse in as much as P.W.3, Sushamoi Mazumdar had admitted in his evidence that Exhibit
- 11(1) to 16(1) is of Abdul Rahim, and Exhibit-17(1) to Exhibit 39(1) Page 44 of 45 are not the signature of Abdul Rahim the father of the plaintiffs, meaning thereby the signature of Abdul Rahim over the Exhibit-25 /Exhibit-Ka, could not be proved by him. As discussed herein above, Exhibit-25/Exhibit-„Ka‟ was never shown to P.W.3 herein at the time of his examination.
23. Under the given facts and circumstances, this Court of the considered opinion that finding of the learned Courts below to the effect that the Sale Deed, dated 29.03.1978, was more than 30 years old and therefore, a presumption under Section 90 of the Evidence Act, 1872 could be drawn in its favour, is vitiated by perversity.
24. Thus, the substantial question of law, so formulated by this Court, flows out of the impugned judgment and decree of the learned first appellate Court and in view of the given factual and legal matrix, as discussed herein above, the same has to be answered in affirmative and accordingly, the same stands answered.
25. In the result, this second appeal stands allowed. The impugned judgment and decree of the learned first appellate court, and of the learned trial Court stands set aside and quashed. Resultantly, the suit of the plaintiffs‟ stands decreed granting the relief(s) being sought for in the plaint.
Narendra Digitally signed by Narendra Deka 26. Send down the record of the learned Courts below with a copy Deka Date: 2025.11.11 10:40:21 +05'30' of this judgment and order.
JUDGE Comparing Assistant Page 45 of 45