Gauhati High Court
Kanti Ram Bania vs Parbati Dev Sarma Barua on 1 September, 2015
Author: A. K. Goswami
Bench: A. K. Goswami
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA 31/2005
Sri Kanti Ram Bania,
S/o Late Kehmal Bania,
Village - Patidarrang, P.O. Patidarrang,
Mouza-Sarabari,
District-Darrang.
- Appellant
- Versus -
1. Parbati Dev Sarma Barua,
2. Nani Baruah,
Both sons of Late Sanda Deba Sarma
Village-Patidarrang, P.O. Patidarrang,
Mouza-Sarabari,
District-Darrang.
- Respondents
Advocates:
For the appellant : Ms. T. Goswami,
Advocate
For the Respondents : Mr. A. C. Sarma,
Advocate
Dates of hearing : 31.08.2015 and 01.09.2015
Date of judgment and order : 01.09.2015
BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI
JUDGMENT AND ORDER
(ORAL)
Heard Ms. T. Goswami, learned counsel for the appellant. Also heard Mr. A. C. Sarma, learned counsel appearing for the respondents.
2. This Second Appeal is preferred by the plaintiff against the judgment and decree dated 24.08.2004, passed by the learned Ad hoc Additional District Judge, Darrang, Mangaldoi, reversing the judgment and decree dated 28.09.2000 passed by the learned Civil Judge, Junior Division No. 1, Mangaldoi, in Title Suit No. 48/1995. 2
3. This appeal was admitted to be heard by an order dated 30.03.2005 on the following substantial question of law:
"Whether the learned Court below erred in law in dismissing the suit of the appellant/plaintiff relying on Exhibit 'Ka' to hold that at the time of execution of the sale deed, Exhibit 1, the respondent/defendant was a minor?"
4. The plaintiff filed a suit for declaration of right, title, interest and possession of the suit land and for permanent injunction restraining the defendant, etc. from entering into the suit land and/or from dispossessing the plaintiff. The plaintiff pleaded that the suit land belonged to the defendant No. 1 and the pro forma defendants jointly and the defendant No. 1, on 25.04.1973, sold out to the plaintiff land measuring 1 Katha 11 Lecha out of 2 Bigha 1 Katha 9 Lecha, covered by Dag No. 919, 1 Katha 5 Lecha out of 1 Bigha 3 Katha 18 Lecha covered by Dag No. 899, 10 Lecha out of 1 Bigha 1 Katha 10 Lecha covered by Dag No. 804 and 1 Katha 14 Lecha out of 2 Bigha 3 Kahta 1 Lecha covered by Dag No. 394, totaling 2 Bigha 1 Katha 8 Lecha of land under Periodic Patta No. 116 of village Patidarrang, Mouza Sarabari. It is pleaded that on 10.02.1997, the plaintiff was dispossessed from the suit land.
5. In the written statement filed by the defendants, apart from many other pleas, it is stated that the defendant No. 1 did not execute any sale deed where there was no boundary of the land allegedly sold and that the sale deed is forged, fabricated and collusive. A specific plea is taken that the defendant No. 1 was a minor at the time when the sale deed was allegedly executed. It is pleaded that in 1973, he was a student of Class- IX and, in the year 1974, he was a student of Class-X of Deomornoi Higher Secondary School and, on 22.08.82, the Principal of the said school issued to him, on the basis of records, a certificate, which demonstrates that he was a minor boy in the year 1973.
6. Originally, 7 issues were framed and Issue No. 5 dealt with the question as to whether the alleged registered sale deed, executed in favour of the plaintiff by defendant No. 1 is a fraudulent one. Three additional issues were framed out of which Issue No. 1(a) 3 was as to whether the defendant No. 1 was a minor at the time of execution of the sale deed dated 25.04.1973. The learned Trial Court decided all the issues in favour of the plaintiff and, accordingly, decreed the suit.
7. In the appeal, the learned Lower Appellate Court reversed the finding in Issue No. 1(a) rendered by the learned Trial Court and held that defendant No. 1 was a minor at the time when the sale deed was executed. The learned Lower Appellate Court also decided Issue No. 1(b), relating to the question as to whether the sale deed contains boundary and the suit land is described by giving proper boundary, against the plaintiff and, accordingly, allowed the appeal.
8. Learned counsel for the parties proceeded with the hearing of the case suggesting that the Court, if it considers necessary at a later stage of the hearing, may frame another substantial question of law as to whether the learned Court below was justified in holding the suit land to be not identifiable.
9. Ms. Goswami, learned counsel for the appellant has submitted that the plaintiff had proved the sale deed dated 25.04.1973 as Ext.-1 and the learned Courts below had also taken the view that the same is not a fraudulent document. It is submitted by her that the learned Lower Appellate Court, in perverse appreciation of Ext.-'ka', a transfer certificate issued on 22.08.82 by the Principal of the school, whether the defendant No. 1 studied and, on the basis of Ext.-'unga', purportedly a School Admission Register, came to the conclusion that defendant No. 1 was a minor at the time when the sale deed was executed and, therefore, the sale deed is not valid in law. It is submitted by Ms. Goswami that the Principal of the school, who had issued the certificate, was not examined and the transfer certificate, based on which the defendant No. 1 was given admission in Deomornoi Government Higher Secondary School, was also not exhibited. The transfer certificate itself has two names of the school in the sense that while in the letter head the name of the school is written as "Deomornoi Govt. Aided H.E. School", the seal appended to the signature of the alleged Principal shows the name of the school to be "Deomornoi Govt. H.S. School". It is also 4 argued that the certificate issued is in variance with the statement made in the written statement with regard to the class in which defendant No. 1 was studying in the year 1973/1974. The Admission Register, exhibited as Ext.-'unga', was a loose sheet of paper, which is barely legible and in the said Admission Register, the age of the student was not reflected and, therefore, relying on such evidence, the learned Lower Appellate Court ought not to have upset the finding of the learned Trial Court.
10. Mr. A. C. Sarma, learned counsel appearing for the respondent has submitted that DW5, who was the Principal of the school at the relevant point of time when the evidence was recorded, appeared on receipt of summons issued by the Court. DW5 had exhibited the School Admission Register as Ext.-'unga'. DW5 had proved the signature of the Principal who had signed in Ext.-'ka'. No doubt the Admission Register was not in a very good shape, but, as would be evident from the deposition of DW5, the same, contrary to the submission of Ms. Goswami, lends credence to the case of the defendant that the same is not a manufactured/fabricated document, he submits. It is also submitted by Mr. Sarma that there is no reason for this Court to disbelieve DW5. It is submitted by him that it is quite possible that earlier there was letter head in the name of Deomornoi Govt. Aided H.E. School, which, later on, was christened as Deomornoi Govt. Higher Secondary School, and it is not unusual to continue using old stationery and the same cannot be a ground to disbelieve the transfer certificate, Ext.-'ka'. While admitting that in Ext.-'unga', the age of defendant No. 1 at the time of admission, or for that matter, of any student is not seen, it is submitted that according to DW5, a portion of the School Admission Register had got damaged. According to Mr. Sarma, the same would not be of any consequence in view of the fact that it is established from the materials on record that the Defendant No.1 had taken admission in Deomornoi Govt. Aided H.E. School in the year 1969 as a Class-IV student and, therefore, it is reasonable to hold that, even otherwise, in the year 1974, when he was a Class-X student, he would be around 14/15 years old. Learned counsel submits that there is no perversity in the finding of the learned Lower Appellate Court and, 5 therefore, this Court may not interfere with the judgment and order of the learned Lower Appellate Court.
11. I have considered the submissions of the learned counsel for the parties and have also perused the materials on record.
12. The defendant No. 1, in the written statement, had disclosed that he studied in Deomornoi Higher Secondary School and he has also indicated about the certificate dated 22.08.82.
13. The plaintiff, in his evidence, despite the plea taken by the defendant that he was a minor at the relevant point of time, did not even try to assert that it was not so and that the defendant No. 1 was a major at the time of execution of the sale deed. However, as the defendant No. 1 had taken the plea of minority, the burden is cast on defendant No. 1.
14. In the transfer certificate, Ext.-'ka', it was recorded that, according to the School Admission Register, the age of the defendant No. 1, as on 31.12.74, was 14 years 3 months 0 days. Defendant No. 1 deposed on 05.03.98, as DW1, stating that he was aged about 40 years. There was no suggestion that he was not 40 years on that date or that he had disclosed his age to be 40 years for the purpose of the suit. He had exhibited the transfer certificate, Ext.-'ka' under objection. There was no cross-examination with regard to Ext.- 'ka' and, in his cross-examination he had disclosed that he studied up to Class-X only.
15. DW5 had brought the Admission Register for the period 1962-1969 and stated that on the strength of the transfer certificate dated 30.09.69 issued by the Tangla Govt. Aided High School, DW1 was admitted to Deomornoi School in Class-IV. He categorically stated that he knew the signature of Prafulla Chandra Sarma and he proved the signature of Prafulla Chandra Sarma, the Principal, who issued the certificate. He has further deposed that the serial number of defendant No. 1 in the Admission Register was 143 and in a transfer certificate age is always recorded. In his cross-examination, he deposed that he was working in Deomornoi School from the year 1963. He admitted in his cross- 6 examination that in Ext.-'unga', which was proved in original, there is no mention of age but, later on, he stated that it got damaged.
16. Relevant pages of the Admission Register were proved in original as Ext.-'unga' and photocopies of the same were kept in record. Ext.-'unga' appears to be a very old document and it is torn in many areas. The Admission Register has not been maintained and preserved the way it should have been preserved. In one sheet of Ext.-'unga', there are columns up to 12 and in the following page from Column 15 onwards to 27. Column Nos. 13 and 14 are not seen in Ext.-'unga', although in the place for Column 14, there appears to be some writings. Name of defendant No. 1 is, however, noted against Sl. No. 143 and the year is also visible to be '69'. From Column 17 of the said document, it is clear that defendant No. 1 was admitted in Class-IV in Deomornoi School on the basis of a transfer certificate from Tangla School. Though there is no signature, there is an endorsement that a transfer certificate was issued to defendant No. 1 on 22.08.82. Such endorsements, on different dates, are found against a number of students without any signature.
17. Non-examination of the Principal who had issued the transfer certificate, in the circumstances of the case, is not material as the Principal, who was in office at the relevant point of time, had deposed on the basis of school records. It appears that the school was established in the year 1948 as "Deomornoi Govt. Aided H.E. School". The plaintiff had also deposed that he knew that defendant No. 1 studied in Deomornoi School and it is not suggested by the plaintiff that there are two schools, one by the name of "Deomornoi Govt. Aided H.E. School" and the other by the name of "Deomornoi Govt. H.S. School". It is only reasonable to hold that the original school had subsequently become a Government school from a Government Aided school. There does not appear to be any inconsistency in pleadings in the written statement vis-à-vis the transfer certificate.
18. Merely because the transfer certificate of Tangla High School was not produced, I am not inclined to accept the submission of Ms. Goswami that defendant No. 1 failed to prove that he was a minor at the relevant point of time. The transfer certificate, Ext.-'ka' has 7 been duly proved by the Principal of the School, DW5. There is no reason to disbelieve DW5. I am unable to accept the contention that Ext.-'unga', exhibited by the defendant No. 5, Principal of the school, to be a fabricated and fraudulent document. It is to be noted that the transfer certificate was issued in the year 1982 and 16 years had gone by when defendant No. 5 had adduced evidence after the suit was instituted in the year 1995. As noticed, the Admission Register is in a battered condition and the column, with regard to the age in respect of students, is damaged. For that no fault can be found with defendant No.
1. When Ext.-'ka' is held to be not a fraudulent document, I am of the considered opinion that the learned Lower Appellate Court below did not commit any illegality in relying upon Ext.-'ka' to hold that defendant No. 1 was a minor at the relevant point of time.
19. In view of the above, I am of the considered opinion that no interference with the judgment of the learned Lower Appellate Court is called for and, accordingly, the appeal is dismissed. No cost.
20. Registry will send back the records.
JUDGE RK 8