Patna High Court
Smt. Kumari Devi And Ors. vs Noor Mohammad Mian And Anr. on 2 August, 2001
Equivalent citations: AIR 2002 PATNA 132, (2001) 4 PAT LJR 624 (2002) 1 ICC 391, (2002) 1 ICC 391
Author: Someshwar Nath Pathak
Bench: Someshwar Nath Pathak
JUDGMENT Someshwar Nath Pathak, J.
1. This Second Appeal is directed against the judgment of the 1st Appellate Court passed on 17-7-86 In Title Appeal No. 30/83. The appellants before this 13/86 Court were the plaintiffs in the title suit No. 21/80. They had succeeded in the title suit, but in the appeal preferred by the defendant-respondents they were unsuited and, therefore, they have filed this appeal.
2. The case of the plaintiff-appellants in the lower Court was that his father Chhathu Mahto died on 13-12-78. However, defendant No. 1 obtained a sale deed in favour of defendant No. 2 in the name of plaintiffs father by setting up an impostor on 11-1-79 for the suit land for an area of 1 bigha 2 katha 2 dhurs. The alleged sale deed was forged and fabricated because the plaintiff's father was already dead. So, the plaintiff-appellant filed a suit for declaration of his title and want of title of defendants. It was further pleaded by the plaintiff-appellant that he had filed a title suit No. 152/76 against defendant No. 1 in which he (plaintiff) had succeeded. Therefore, annoyed with this decision defendant No. 1, an unscrupulous person, obtained a forged sale deed allegedly executed by his (plaintiffs) father by setting up an impostor.
3. The case of the defendant-respondents was that plaintiffs father died not on 13-12-78 rather he died on 17-12-79 and the sale deed was validly executed by Chhathu Mahto himself and the vendee was put in possession.
4. The two lower Courts framed issues regarding the date of death of Chhathu Mahto and the issue regarding the plaintiff's title or want of title of the defendant-respondent. The trial Court held that Chhathu died on 13-12-78, but the appellate Court held that although the evidence led on behalf of both the parties regarding the date of death of Chhathu was not reliable, the sale deed executed in favour of the defendants was genuine and not forged.
5. I find that the trial Court elaborately dealt with the evidence, both oral and documentary, regarding the death of Chhathu as adduced by the plaintiff-appellant. The trial Court disbelieved the evidence adduced by the defendant-respondents in this connection. The trial Court further held that since Chhathu was already dead on 13-12-78 the sale deed executed on 11-1-79 allegedly in the name of Chhathu as executant was a forged one. However, the appellate Court disbelieved the evidence of both the parties regarding the death of Chhathu. However, so far the disbelief of the evidence of defendants regarding the death of Chhathu, both the Courts are in agreement and so the concurrent finding of two lower Courts on this point is conclusive. However, so far the evidence on behalf of the plaintiff-appellant regarding the death of Chhathu, I find that the trial Court's discussion upon the documentary evidence was more elaborate and cogent, whereas the appellate Court's discussion upon this evidence was a bit shaky and clumsy. The death certificate issued by the Gram Shewak (D.W. 6) was exhibited (Ext-1) on behalf of the plaintiff-appellant. The appellate Court disbelieved this exhibit on the ground that this exhibit did not bear the, seal of the Gram Panchayat. However, D. W. 6 who was the Gram Shewak at the relevant time, himself admitted that there was a proper entry regarding the death of Chhathu as 13-12-78 in the Gram Panchayat register which was exhibited (Ext. E). When there was an entry in the Gram Panchayat register a certificate issued by the Gram Shewak in this connection would be deemed to be genuine even if the certificate did not bear any seal (Ext. 1). So, the disbelief which the appellate Court put upon this document for want of seal was beside the points specifically in view of the evidence of D.W. 6. Moreover, D.W. 6 had admitted that he was informed by Choukidar about the death of Chhathu and then he made independent enquiry also. He came to know Ramasis Das since 1978 i.e. from the date of enquiry. So, in such circumstance it could not be said that the enquiry regarding the date of death of Chhathu was a partisan one and that the information in this connection was wrong. It further transpired from the evidence of D. W. 6 that earlier entry of date of death of Chhathu was cancelled by the Gram Shewak at the order of Gram Panchayat Committee and another entry was made which referred to the death of Chhathu as 17-12-79. D. W. 6 admitted that there was a statistical officer in the Gram Panchayat and the Gram Panchayat Committee had no authority to cancel any entry. In such circumstance the evidence of D.W. 6 regarding the cancellation of earlier entry was to be viewed with suspicion. Both the lower courts have held that the date of death as given by subsequent entry made by Gram Shewak (D.W. 6) was not to be relied upon. Moreover, the documents in this connection Ext, C, D/1 and E/1 were all prepared during the pendency of the suit and, therefore, these documents filed on behalf of the defendant-respondents were rightly disbelieved. In that view of the matter, the appellate Court had no alternative but to place reliance on Ext-1 which was the entry regarding the death of Chhathu Mahto. Besides the above, there was oral evidence on behalf of the plaintiff-appellant. Of course, P.W. 2 was the plaintiff himself and he had deposed that his father died on 13-12-78. The lower Court disbelieved his evidence because he was plaintiff himself and because he had admitted that he had noted down the date of death of his father in diary, but the diary was not produced. P.W. 1 whose house was situated at a distance of 100 yards from the house of plaintiff also spoke of the date of death of Chhathu as 13-12-78 and he had attended Sharadh of Chhathu. His evidence was disbelieved on the ground that he had given the date of Sharadh as 24th and then 26-12-78. This witness was further disbelieved on the ground that he had in his possession the invitation card, but he failed to produce the invitation card. I am of the opinion that the appellate Court did not apply proper judicial mind in disbelieving P.Ws. 1 and 2 both. Other discrepancy regarding the date of sharadh is very much probable because P.W. 1 deposed in the year 1983 and the sharadh took place in the year 1978. So far the non-production of diary and invitation card, it is to be noted that P.Ws. 1 and 2 both came to the Court to depose without any preparation and knowledge whether they would be required to produce in Court the concerned invitation card or the diary. These admissions regarding the existence of diary and invitation card came in their cross-examination. Unless they were asked to produce these documents or they were noticed by other side to produce these documents, there was no question of adverse inference being drawn for non-production of these documents. P.W. 2 was the son of Chhathu and, therefore, he was the best person to give the date of his father's death and his evidence in this connection should not have been lightly brushed aside. Moreover, he was supported by Ext. 1 and in the year 1978, there was no controversy regarding the date of death of Chhathu and, therefore, the entry made in this connection in the 1978 December itself was not to be doubted on a facile presumption. So, the evidence regarding the date of death of Chhathu as relied upon by the trial Court was, in my opinion, sufficient and the appellate Court's reasoning regarding its disbelief was misplaced and misdirected.
6. So far the genuineness of the sale deed is concerned, the son of the alleged purported executant had denied that his father executed any sale deed in favour of the defendants. In such circumstance, the onus to prove the genuineness of the sale deed lay heavily upon the beneficiary of the sale deed -- the defendant. The appellate Court wrongly placed the onus in this connection upon the plaintiff-appellant. Nobody can be asked to lead evidence regarding a negatived fact -- denial of the existence of any fact. The appellate Court believed the genuineness of the sale deed on the ground that scribe was examined to support the execution and he was an independent witness. But the question is whether the scribe knew Chhathu Mahto, father of the plaintiff, from before and whether he had vouch-safed to the fact that the executant of the concerned sale deed was Chhathu Mahto, the father of the plaintiff. Any person before whom any person appears and pose himself to be Chhathu Mahto and executes a sale deed cannot be deemed to be the real person simply because the scribe says the executant described himself as the person in whose name the sale deed is purported to have been executed. So, the facile belief which the appellate Court put in the evidence of scribe was just a legal faux pas committed by the appellate Court. The plaintiff-appellant had filed a particular mortgage allegedly executed by his father, but this mortgage was challenged by the defendant-respondents and, therefore, the L.T.I. or signature of the Chhathu Mahto was not sent to the expert for comparison with the disputed L.T.I. or signature of Chhathu Mahto on the disputed sale deed. No step was taken by the defendant-respondents to produce any other admitted document of Chhathu Mahto, so that the same could be compared the disputed sale deed in order to prove the genuineness of the concerned sale deed. Moreover, when the date of death of Chhathu was proved to have occurred in the year 1978 itself, as it has been mentioned above from the evidence of plaintiff-appellant, there was no question of any execution of sale deed by Chhathu Mahto in the year 1979. The circumstances were, therefore, overwhelming to hold that the sale deed allegedly executed in favour of the defendants was forged and fabricated one.
7. I am to hold that the plaintiff was entitled to secure relief which he had sought and the trial Court had rightly decreed the suit in favour of the plain tiff-appellant.
8. In the result, this appeal is allowed and the judgment and decree of the appellate Court are set aside. The judgment and decree of the trial Court are, hereby, affirmed.