Gauhati High Court
Munilal Das vs Putoli Bala Das on 10 September, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 124 OF 2005
Sri Munilal Das
S/o Late Hiralal Das,
Udaipur, Dibrugarh Town,
P.O: Dibrugarh,
P.S: Dibrugarh,
District- Dibrugarh,
Assam.
...... Appellant
-Versus-
Smti Putali Bala Das,
W/o Sri Deba Narayan Das,
Chowkidinghee, Dibrugarh Town,
P.O: Dibrugarh,
P.S: Dibrugarh,
District- Dibrugarh,
Assam.
...... Respondent
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellant : Mr. NC Das
Sr. Advocate
Mr. AM Buzarbaruah
Mr. PC Deka
Ms. B Begum
Advocates
For the Respondent : Mr. GP Bhowmik
Sr. Advocate
Mr. R Hazarika
Advocate
Page 1 of 9
RSA 124/2005
Date of Hearing : 10.09.2014
Date of delivery of
Judgment and Order : 10.09.2014
JUDGMENT AND ORDER (ORAL)
This second appeal has been preferred by defendant of T.S. No. 87/1997 of the Court of learned Civil Judge (Jr. Divn.) No. 1 of Dibrugarh challenging the appellate judgment and decree dated 21.05.2004 passed by the learned Civil Judge (Sr. Divn.) at Dibrugarh in T.A. No. 12/2003. The respondent, namely, Smti. Putali Bala Das, as plaintiff, instituted T.S. No. 87/1997 in the Court of learned Civil Judge (Jr. Divn.) No. 1 at Dibrugarh stating that defendant, namely, Sri Munilal Das being the owner in possession of a plot of land measuring 2 kathas covered by Periodic Patta No. 38 and Dag No. 86 of Chiring gaon under Dibrugarh town Mouza executed a sale deed in her favour on 19.03.1985 and got the same registered. But subsequently, when the plaintiff made prayer for mutation on the basis of aforesaid purchase vide registered sale deed dated 19.03.1985, discovered that the defendant had executed sale deed in regard to Dag No. 68 whereas it should have been dag No. 86 although the boundaries remained same.
2. Situated thus, plaintiff got sent two notices to the defendant asking him to rectify the dag number mentioned in schedule to the sale deed. As the defendant did not rectify, suit was filed praying for rectification under Section 26 of the Specific Relief Act. Plaintiff also prayed for declaration of his right, title and interest over the suit land and recovery of possession. The sole defendant appeared and submitted written statement. In paragraph 10 of the written statement the defendant stated that no such sale deed as alleged was ever executed by him. Paragraph 10 of the written statement is quoted below:-
"10. That the allegation made in para No. 7 of the plaint is also not admitted by the answering defendant as no such Sale Page 2 of 9 RSA 124/2005 Deed as alleged was ever executed by the answering defendant and since the plaintiff is put to the strict proof thereof."
3. At paragraph 14 of the written statement, the defendant took a specific stand that since 1973 he was engaged in dispute with his brothers and sisters for long period in respect of family properties and that since 1982 he was isolated by his family as he had developed insanity. His wife and children took control of the family property and drove him out of the family and since then he had been residing all along in a separate house. The learned trial court after consideration of the pleadings of the parties framed as many as 8 (eight) issues as follows:-
i) Whether the suit is maintainable?
ii) Whether there is any cause of action for the suit?
iii) Whether the plaintiff has right to sue?
iv) Whether the defendant sold the suit land to the
plaintiff on 19.03.1985?
v) Whether the plaintiff has got a right of possession over
the suit land?
vi) Whether the plaintiff is entitled for a Deed of
Rectification of Sale Deed to be executed by the
defendant by correcting the Dag No. as 86 of Chiring Gaon Ward, Dibrugarh Town Mouza in place of Dag No. 68?
vii) Whether the plaintiff is entitled to a decree as claimed in the plaint?
viii) To what relief, the parties are entitled to?
3. Plaintiff examined 3 (three) witnesses including herself. Her husband was examined as PW 2 and defendant side examined 2 (two) witnesses. But defendant stayed away from the witness box. His wife examined herself as DW 1 and Mandal of Office of the Deputy Commissioner as DW 2.
4. The plaintiff in her evidence stated that the defendant was in friendly term with her husband. The defendant executed the sale deed. Her husband examining himself as PW 2 also similarly deposed that Page 3 of 9 RSA 124/2005 defendant executed the sale deed. The sale deed was exhibited as Ext. 2. The learned Trial court on the basis of the evidence led by the parties dismissed the suit by his Judgment and Decree dated 24.06.2003. Aggrieved, plaintiff preferred Title Appeal No. 12/2003 in the Court of learned Civil Judge (Sr. Divn.), Dibrugarh. The learned first appellate court framed as many as 7 (seven) points for determination out of which points No. 4, 5 and 6 appeared to be relevant for the purpose of the present second appeal. All the points for determination framed by the learned first appellate court are quoted herein-below:-
1. Whether the learned Civil Judge (Jr. Divn.) failed to appreciate the evidence on record in correct perspective?
2. Whether the plaintiff's suit is maintainable and filed after arising of cause of action?
3. Whether the defendant executed the Sale Deed in favour of the plaintiff on 19.03.1985?
4. Whether the plaintiff is entitled for rectification of Sale Deed executed by the defendant correcting the Dag No. to be 86 instead of 68 as described in the Schedule of the Sale Deed?
5. Whether the plaintiff has acquired right, title and interest on the suit land as prayed in the plaint?
6. Whether the plaintiff is entitled for a decree for Khas possession?
7. Whether any of the parties is entitled for any relief which ought to have been given by the Lower Court?
5. The learned first appellate court reversed the finding of the learned trial court and held that defendant having opted to stay away from the witness box, presumption under Section 114 of the Evidence Act must be taken against him. Relying on the judgment of Vidyadhar Rao v. Manik Rao reported in (1999) 2 SCC 152, learned first appellate court presumed that defendant executed the sale deed and sold the land in favour of the plaintiff. Coming to the question of relief under Section 26 of the Specific Page 4 of 9 RSA 124/2005 Relief Act, it is the finding of the learned first appellate court that the suit land was correctly described by mentioning correct boundaries in the sale deed. Paragraph No. 1 was also correctly mentioned. But while the sole dag was covered by Dag No. 86, the same was shown as Dag No. 68. This according to the learned first appellate court was a mere error. The vendor intended to sell the land described in schedule to the plaint to the plaintiff and vendee also purchased the suit land from the vendor. The mistake committed in the sale deed, therefore, was a fit one for being rectified by applying provision under Section 26 of the Specific Relief Act. Having so found, the learned first appellate court allowed the appeal reversing the findings of the learned trial court and decreed the suit of the plaintiff by judgment and decree dated 21.05.2004. It is this judgment which has been brought under challenge in the present appeal.
6. This Court while admitting the second appeal on 09.05.2007 framed as many as 3 (three) substantial questions of law and the same are stated below:-
I] Whether the learned First Appellate court is justified in decreeing Title Suit No. 87/97 in spite of the "Sale Deed" (Ext. 2) being not proved as per law?
II] Whether the respondent/plaintiff is entitled to any legal character or to any right in respect of the suit land when the appellant/defendant has categorically denied as to the execution of the Sale Deed (Ext. 2)?
III] Whether the learned First Appellate Court is justified in decreeing Title Suit No. 87/97 on the basis of an unproven sale deed (Ext. 2)?
The substantial question of law at serial No. 1 and 3, as referred to above, are really the one substantial question of law and they may be re- drafted as follows:-
"Whether in the absence of formal proof of execution of Ext. 2 Sale Deed, the impugned first appellate judgment is vitiated?"
Page 5 of 9 RSA 124/2005
7. I have heard Mr. NC Das, learned senior counsel assisted by Ms. M Das and Mr. GP Bhowmik, learned senior counsel assisted by Mr. SS Roy.
8. Mr. NC Das, learned senior counsel strenuously urged that plaintiff has to stand on his own legs. She having staked claim to the suit land on the basis of Ext. 2 and defendant having denied execution thereof plaintiff was duty bound to prove the document in accordance with law under provision of Section 67 of the Evidence Act and this not having been done the plaintiff has failed to prove his case and consequently the suit ought to have been dismissed. The learned first appellate court did not take into account this aspect of the matter and thus committed error by taking presumption under Section 114 of the Evidence Act. Mr. NC Das, learned senior counsel placed reliance on a case of this Court in L Hiramal Singh v. L Angahal Singh reported in AIR 1979 Gau 68. Drawing attention to paragraph 9 of this judgment, the learned counsel submits that there must be evidence to show that execution and genuineness of the document were proved by the plaintiff. The same not having been done, the Ext. 2 itself was not proved and so getting benefit of Section 26 of the Specific Relief Act does not arise.
9. Per contra, Mr. GP Bhowmik, learned senior counsel would argue that plaintiff made prayer for rectification of sale deed and not for declaration and that sale deed was executed by the defendant. The defendant not having specifically denied his signature on the sale deed submitted that there was no occasion on the part of the plaintiff to prove execution thereof. According to Mr. Bhowmik, defendant had a definite case. He pleaded that he was sick during the relevant period and so there was no execution of sale deed by him. Having so claimed that he was insane at the relevant time and not having come to the witness box and/or not having led any evidence in support of his insanity, the very basis of his defence fell through. That being the case and there being no denial of signature on the sale deed Ext. 2, there was no necessity for proving execution of Ext. 2 at all.
Page 6 of 9 RSA 124/2005
10. I have perused the pleadings and evidences of the parties. I have also heard learned counsel at length on their respective submissions. It is the specific case of the plaintiff that defendant executed a sale deed by giving definite boundaries, dag number and patta number. The defendant, on the other hand, states in paragraph 7 of his plaint that he did not execute the sale deed. In paragraph 14 of the plaint, he goes a further and claims that during the relevant period he was insane. Nowhere in the written statement defendant has taken specific stand that he did not give his signature on the sale deed which is a registered deed. The learned courts below did not frame any issue as to proof of execution of the document.
The only point that fell for consideration before the learned courts below is that whether suit land covered by dag No. 86 was transferred by Ext. 2 sale deed, inasmuch as, Ext. 2 sale deed contained land under dag No. 68. The learned first appellate court first considered the action of defendant in staying away from the witness box. Even if it is considered that by paragraph 7 defendant has denied execution of the sale deed and denied his signature even then his failure to come to the witness box to assert his denial gives rise to scope for presumption under Section 114 of the Evidence Act. The learned first appellate court, therefore, has not committed any error in relying on the law laid down by the Hon'ble Supreme Court in the case of Vidyadhar Rao v. Manik Rao (supra) and holding that defendant having chosen to stay away from the witness box, presumption has to be drawn against him. What is more important to note here that by filing written statement, defendant claimed that he had been ousted from the suit property by none other than his wife. He pleaded that his family members including his wife drove him away from the suit property in the year 1992 and since then he has been living alone. At the time of evidence, he stayed away. His wife came to the witness box as DW 1 and supporting the pleading of the estranged husband claimed that having ousted her husband from her suit property, she had been in possession thereof and that her husband was insane. Strangely, enough after the first appellate court allowed the appeal and decreed the suit of the plaintiff, the same defendant surfaced again and this time in High Court to prefer second appeal before this Court. Such action of the defendant for filing written Page 7 of 9 RSA 124/2005 statement, not coming to the witness box, fielding his wife to depose making allegation against him before the trial court and after the first appellate court decreed the suit, he again comes to this Court to prefer second appeal. The chronology of events in the aforesaid sequence suggests that the petitioner and his wife are acting in tandem. This is also suggestive of the fact that the defendant might not have been suffering from unsoundness of mind at the relevant time as claimed by him in paragraph 14 of the written statement. The presumption taken by the first appellate court, therefore, does not appear to have been misplaced. The signature on the sale deed not having been denied by the defendant and he having stayed away from the witness box, the original substantial question of law at serial Nos. 1 and 3 which have been recast by this Court at the time of hearing, are decided in favour of the respondent and against the appellant.
11. The second substantial question of law is in regard to entitlement of the plaintiff as to any right or legal character in terms of Section 34 of the Specific Relief Act. As stated above, the learned first appellate court found that the plaintiff is entitled to rectification of the sale deed under Section 26 of the Specific Relief Act. It is apparent that the plaintiff has been held to be entitled to relief emanating from Ext. 2. Ext. 2 is a registered sale deed whereby 2 kathas of land belonging to the defendant was transferred in favour of the plaintiff. The boundaries were correctly described. Only mistake that exists in the sale deed is in regard to dag number which has been shown as '68' in Ext. 2 whereas defendant has tightened the land under dag No. 86 under the same patta. Although, defendant executed the sale deed, in his written statement he claimed that he did not execute any sale deed. His denial is based on a specific ground. According to him, during relevant time he was insane. It is not the fact that he was a person of sound mind at that time and that he denies to give signature on the sale deed or execute the sale deed. His specific stand in the case is that during the relevant period he was insane and that was the reason for denial of execution of sale deed. Once defendant has taken a specific stand and fails to establish it by leading any evidence whatsoever then his whole stand falls through. There is no denial as to execution of Page 8 of 9 RSA 124/2005 Ext. 2. Having so found, the second substantial question of law is decided in favour of the plaintiff and against the defendant. Consequently, this appeal has no merit. It is, accordingly, dismissed.
12. Draw decree accordingly and send down the lower courts records immediately. It is needless to say that stay order, if any, shall vacated.
JUDGE BiswaS Page 9 of 9 RSA 124/2005