Gauhati High Court
Subodh Ch. Sarkar & Ors vs Dulal Ch. Gore & Anr on 31 March, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM & ARUNACHAL PRADESH)
RSA NO. 254/2005
1.Sri Subodh Chandra Sarkar.
2.Sri Sukhen Kumar Sarkar.
3.Smti. Sabita Sarkar.
4.Smti. Minati Sarkar.
5.Smti. Chitra Sarkar.
6.Smti. Subhasini Sarkar.
Defendats/Appellants.
- VER SUS -
1.Sri Dulal Chandra Gore.
Son of late Manilal Gore.
2. Sri Sanjib Kumar Sah.
Son of Sri Dulal Chandra Gore.
Both are residents of R.K. Mission Road.
Dhubri Town, Ward No.15.
P.O., P.S. & Dist- Dhubri, Assam.
Plaintiffs/R espondents.
BEFORE
HON'BLE MR. JUSTICE SUMAN SHYAM
Advocate for the Appellants :- Mr. G.P. Bhowmik, Sr. Advocate.
Advocate for the Respondents :-
Date of Hearing & Judgment :- 31.03.2015.
Page 1 of 13
JUDGMENT & ORDER (ORAL)
This second appeal has been directed against the judgment and decree dated 17.05.2005 passed by the learned Civil Judge (Senior Division) Dhubri in Title Appeal No.61/2000, thereby affirming and upholding the judgment and decree dated 04.09.2000 passed by the Civil Judge, (Junior Division) No.II, Dhubri in Title Suit No.323/94 decreeing the suit filed by the plaintiffs/respondents. The plaintiffs' case as set out in the plaint may be noticed as follows:-
(2) The predecessor-in-interest of the plaintiff, viz. Ram Prasad Gore (since deceased) was a recorded tenant along with his two brothers, Bisulal Gore and Manilal Gore under khatian No.95 of Revenue village- Bidhyapara, Part-I in respect of total area of land comprising 4 Katha 12 lechas. The plaintiff No.1 is the son of late Manilal Gore. Ram Prasad Gore as well as Bisulal Gore died unmarried. As such, it is the case of the plaintiff No.1 that after the death of Manilal Gore, the name of plaintiff has been recorded in kathain No.95 as the sole surviving legal heir of his father. Bisulal Gore also died leaving behind the plaintiff No.1 as the sole surviving legal heir in respect of his share of land under the khatian No.95. Ram Prasad Gore, who was one of the co-
khathianders of the said khatian No.95, died on 10.07.94. He had his own residence situated in R.K. Mission Road within the plot of land covered under the khatian. (3) It is the case of the plaintiffs that Ram Prasad Gore during his life time had executed a will in favour of the plaintiff No.2, i.e. his grandson, who is also the son of plaintiff No.1, bequeathing his share of land measuring 13 ¼ lechas under the Page 2 of 13 aforesaid khatian which was in the exclusive possession of Ram Prasad Gore until his death.
(4) The defendant Nos.1 and 2 filed a mutation case No.DM (PS) 9/94 before the Asstt. Settlement Officer (A.S.O), Dhubri claiming mutation of their name in respect of the said plot of land measuring 13 ¼ lechas described in the schedule to the plaint, on the basis of right of purchase of the said plot of land by their father, Santosh Kumar Sarkar from Ram Prasad Gore. Upon receipt of notice in the said mutation case, Ram Prasad Gore had filed an objection denying the fact that he had sold out any land to Santosh Kumar Sarkar, i.e. the father of defendant Nos.1 to 5 and husband of defendant No.6. The A.S.O had made a preliminary enquiry as to the factual background of the case and thereafter, granted mutation in favour of the defendants. The said order of mutation was however, subsequently, reversed by the Settlement Officer, Dhubri on an appeal preferred by the plaintiffs. The plaintiffs have denied that Ram Prasad Gore had ever executed any deed of sale pertaining to the suit land in favour of the defendants and on the contrary have claimed to be the exclusive owner in possession of the suit land based on the will executed by Ram Prasad Gore, which was subsequently probated in T.S (P) 20/95 by the order passed by learned District Judge, Dhubri. The plaintiffs have also pleaded that the deceased, Ram Prasad Gore was all along in possession of the suit land and after the death of Ram Prasad Gore, the present plaintiffs became the owner in possession of the land in a manner indicated hereinbefore. It has been further stated that even in connection with the mutation case as referred to above, Latmondal submitted a report whereby, it has been mentioned that the defendant Nos.1 and 2 were not in possession of the said Page 3 of 13 plot of land, allegedly said to have been purchased by the predecessor-in-interest of the defendants.
(5) It is the case of the plaintiffs that the sale deed bearing No.5679 dated 16.10.85 was fraudulently executed through impersonation and hence, liable to be cancelled. The plaintiffs have also stated that on 20.09.94, the defendants on the strength of the aforesaid forged sale deed had threatened to evict/dispossess the plaintiffs from the suit land with the help of some anti social elements as a result of which the plaintiffs have been compelled to institute the suit praying for declaration that the sale deed No.5679 dated 16.10.85 is false, fraudulent and liable to be cancelled; declaring that the plaintiffs have got right, title and interest as well as possession over the suit land; decree of permanent injunction as well as for other consequential reliefs.
(6) The suit was contested by the defendants by filing their written statement whereby, the defendants while questioning the maintainability of the suit for want of cause of action have generally denied the averments made in the plaint. The version of the defendants as set out in the written statement is that the suit land was sold to their predecessor-in-interest, Santosh Kumar Sarkar by Ramprasad Gore who had delivered possession. Ram Prasad Gore having no place to stay had requested Santosh Kumar Sarkar to permit him to reside in the land sold by the aforementioned registered deed of sale, until his death as he had no other shelter to live in. Acting on his prayer and being sympathetic to the cause of Ram Prasad Gore, Santosh Kumar Sarkar permitted Ram Prasad Gore to reside in the house standing over the suit Page 4 of 13 property until his death. After the death of Ram Prasad Gore, the plaintiffs had come to the suit property on 10.07.94 for carrying out certain rituals and thereafter, the plaintiff No.1, Dulal Chadra Gore continued to occupy the suit property together with other members of the family. Despite repeated request made by the defendant Nos. 1 and 2 to vacate the suit premises he had refused to do so. In such manner, the plaintiff Nos. 1 and 2 came into illegal possession of the suit land since 10.07.94 and have remained in possession as a trespasser without having any right, title and interest over the land. The defendants have also emphatically stated that the sale deed No.5679 dated 16.10.85 was duly executed by Ram Prasad Gore and registered as per the provision of law and not by resorting to any impersonation. They also denied to have threatened the plaintiffs on 20.09.94 or on any other date to evict the plaintiffs from the suit land and stated that Santosh Kr. Sarkar during his life time had remained in possession of the suit land till 10.07.94 except the area where the Kali Mandir is situated over the land. The defendants have therefore, prayed for dismissal of the suit, the same being without any merit.
(7) On the basis of the pleadings of the parties, the trial Court framed as many as 8 (eight) issues, which are as follows:-
"(1) Whether suit is maintainable in its present form and manner? (2) Is there any cause of action for the suit?
(3) Whether the plaintiff has right to sue?
Page 5 of 13 (4) Whether Ram Prasad Gore executed any Willl in favour of Sanjib Kumar Saha?
(5) Whether sale deed No.5679 dated 16.10.85 executed by Ram Prasad Gore is false and fraudulent and is liable to be entitled?
(6) Whether the plaintiff has right, title and interest over suit S/L? (7) Whether the plaintiff is entitled to get decree as prayed for? (8) To what reliefs, if any, the parties are entitled?"
(8) Both the parties adduced oral as well as documentary evidence. On appreciation of the materials on record, the learned trial Court decreed the suit filed by the plaintiff by the judgment and decree dated 04.09.2000 on the grounds and reasons mentioned therein.
(9) Being aggrieved by the judgment and decree dated 04.09.2000, the defendants as appellants had preferred Title Appeal No.61/2000 in the Court of Civil Judge (Senior Division), Dhubri. Learned First Appellate Court had also dismissed the appeal filed by the defendants by the judgment and decree dated 17.05.05 passed in Title Appeal No.61/2000 thereby affirming the judgment and decree passed by the learned trial Court.
(10) Being aggrieved by the judgment and decree passed by the learned lower appellate Court, the defendants as appellants have preferred the second appeal which Page 6 of 13 was admitted by the order dated 02.01.06 on the following substantial questions of law:-
"1. Whether the lower appellate Court is justified in deciding the Issue No.6 i.e. the right, title and interest over the suit land in favour of the plaintiff/respondent, on the basis of the probated 'Will' without deciding testator's title over the suit land on the date of his death i.e. 10.07.94.
2. Whether the lower appellate Court in exercise of the power under Order 41 Rule 27 CPC ought to have sent the Ext.'A' Sale Deed to the Hand-Writing expert to examine the thumb impression of late Ram Prasad Gore to find out the truth of valid execution of Ext.A?
3. Whether the rejection of the prayer of the appellant by the learned trial Court for sending the thumb impression of late Ram Prasad Gore to the handwriting expert could have been understood by the learned Court below to have foreclosed the aforesaid issue merely because the said interlocutory order was not challenged by the appellant?"
(11) I have heard Mr. G.P. Bhowmik, learned senior counsel appearing for the appellants/defendants. None appears for the respondents despite service of notice. At this stage, it would be pertinent to mention herein that it appears from the record that during the pendency of the second appeal, the suit land has been transferred by the respondents/plaintiffs in favour of the respondent No.3, Sadhan Kanta Bhowmik. The said fact having been brought to the notice of this Court by the order dated 1.11.2013 Page 7 of 13 passed in Misc Case No.1668/2013 arising out of the present appeal, Sadhan Kanta Bhowmik was impleaded as respondent No.3 and notice was also issued upon the said respondent No.3. However, despite receipt of notice, none of the respondents have appeared before this Court in connection with the second appeal. (12) Mr. G.P. Bhowmik, learned senior counsel appearing for the appellants submits that going by the nature of relief prayed for in the plaint, it was incumbent upon the plaintiffs to proof and establish their case for declaration of title and cancellation of sale deed by leading cogent evidence on record. Since the plaintiffs' have claimed that the sale deed dated 16.10.85 bearing No.5679 was a fraudulent one, hence, the burden was upon the plaintiffs to establish the said fact by leading evidence. However, a perusal of the judgment passed by both the Courts below would make it apparent that the suit filed by the plaintiffs has been decreed on the basis of alleged weaknesses of the defendants case rather than on the strength of the evidence led by the plaintiffs side.
(13) Drawing attention of the findings recorded by the Court below as well as the material evidence available on record, Mr. Bhowmik submits that only ground which appears to have weighed with the Courts below is the fact that the will dated 17.01.94 had been probated by the District Judge, Dhubri. Mr. Bhowmik submits that the issue to be decided in a probated case is as to the question of a valid and due execution of the will and not as to the question of title of the executor over the immovable property. In the facts and circumstances of the case, it was incumbent upon the Courts below to frame issue on the factual question as to whether Ram Page 8 of 13 Prasad Gore had retained any title over the suit land after having executed the sale deed No.5679, which exercise was evidently not done by the Courts below. He therefore, submits that the judgment and decree passed by the lower Appellate Court is not sustainable in the eye of law and hence, is liable to be set aside by this Court. (14) I have perused the judgment and decreed passed by both the Courts below as well as the materials on record. The plaintiffs' case is based on the assertion that the sale deed dated 16.10.85 bearing No.5679 executed by Ram Prasad Gore, transferring the suit land to Santosh Kumar Sarkar i.e. predecessor-in-interest of the defendants, is a fraudulent one and has been executed by means of impersonation. (15) Having asserted as above, the burden to prove the said fact by leading evidence clearly was upon the plaintiffs. The will having been executed much later than the alleged execution of the deed of sale on 16.10.85, the aforesaid will would be of no moment in so far as the plaintiffs are concerned, unless it is held that the sale deed dated 16.10.85 was invalid in the eye of law.
(16) To adjudicate the said question, the learned Court below had framed issue number 5. However, on perusal of the materials on record it is evident that the plaintiffs side has not been able to lead any clinching evidence to show that the sale deed bearing No.5679 (Ex-A) is a fraudulent one. On the contrary, the defendants' side have examined the scribe of the sale deed i.e. DW-5, Narendra Sarkar as well as DW-4, Rajkanta Nath who is one of the attesting witnesses of the sale deed. DW-5 confirmed that he is the writer of the sale deed. DW-4 has also confirmed that the sale deed was executed in his presence by Ram Prasad Gore and he has also identified his Page 9 of 13 signature as well as the thumb impression of the executor. DW-2 in his testimony has confirmed in unison, the fact that the suit land was sold to Santosh Kr. Sarkar by Ram Prasad Gore. In the cross-examination, the testimony of these witnesses could not be shaken by the plaintiffs' side.
(17) A perusal of EX-D i.e. certified copy of the order dated 25.08.94 passed by the A.S.O, Dhubri goes to show that an enquiry was conducted by the A.S.O so as to ascertain the factual background in order to consider the prayer of the defendants to grant mutation in respect of the suit land after the death of Satosh Kr. Sarkar. EX-D reflects the finding of fact whereby Ram Prasad Gore had admitted that the suit land was sold by him to Satosh Kr. Sarkar on the basis of registered deed of sale and on condition that he would be permitted to reside over the suit land until his death since he does not have any other person to take care of him. The said fact had also been corroborated by the DW-4 who was also examined as a witness at the time of field enquiry conducted by the A.S.O. The aforesaid materials, which are on record, have remained unimpeached. Both the Courts below did not deal with all this evidence which are going against the plaintiffs. If the totality of evidence available on record is taken into consideration, then it is apparent that the plaintiffs' side have failed to discharge their overall burden cast under Section 101 of the Evidence Act, 1872 so as to entitle them to the decree prayed for in the suit.
(18) It is settled law that the plaintiff must succeeded in getting a decree in the suit for declaration of title on the basis of evidence led by him and not based on the weaknesses in the case of the defendants. In the case of Ram Das -Vs- Salim Page 10 of 13 Ahmed and Ors reported in 1998 9 SCC 719, the Hon'ble Apex Court has observed that the plaintiff was not entitled to get declaration of title if such title could not be established by the plaintiffs by leading convincing evidence. Even if it is assumed that the property in question was bequeathed by executing the will, the title to the suit property cannot be declared in favour of the plaintiff unless the title of the executor of the will is fully established.
(19) In another decision of this Court reported in AIR 2001, Guwahati 181 in the case of R.K. Madhuryyajit Singh and Anr -Vs- Thakhellambam Abung Singh & Ors, this Court has observed in para 16 that when a plaintiff asks for a declaratory decree he must prove his title and cannot take advantage of the weakness of the defendant's case. Paragraph 16 reads as under:-
" On whom the burden of proof lies can be ascertained by taking note of the fact as to which of the parties would/will succeed if no evidence is adduced/given on the either side. The burden rests on the party who would fail if no evidence at all is adduced. The burden of establishing the case rests upon the party who essentially asserts positively the Issue raised. This burden remains unchanged and never shifts under any/all circumstances, as clearly indicated in Section 101 of the Act, 1872. The aforesaid rule pertains to the burden of proof as a matter of law and pleading. The other aspect of the burden of proof is the burden of adducing evidence. The burden of proof in this respect may shift throughout the trial. The distinction between the burden of proof as a matter of law and pleadings to Page 11 of 13 that of adducing evidence, is a matter of prime importance. As alluded above, the plaintiffs came for declaration of their title and, therefore, it was for the plaintiffs to establish their title affirmatively. Where a plaintiff asks for a declaratory decree, he/she must prove his/her title and it cannot take advantage of the weakness of the defendants(Moren Mar Basselios Catholicos and Anr. v. Most Rev. Mar Peulose Athanasius and Ors., AIR1954 SC 526)."
In the present case the plaintiffs have failed to prove and establish their case. Nevertheless, the plaintiffs suit appears to have been decreed by the Courts below based on the alleged weaknesses in the defendants case, which is not permissible in the eye of law. Not to speak of weakness of their case, evidence on record suggests that the defendants side have been able to led sufficient evidence to establish their version set out in the written statement.
(20) In view of the discussion made herein above, it is held that the learned Court below erred in law in decreeing the suit filed by the plaintiffs who have failed to prove and establish their title over the land by leading cogent evidence. As such, the impugned judgment and decree passed by the lower Appellate Court is not sustainable in law and hence is hereby set aside.
(21) Mr. Bhowmik has submitted that in order to recover possession in respect of the suit land the defendants as plaintiffs had filed Title Suit No.302/95 which was also analogously tried along with the Title Suit 323/94. However, no order was passed in the said Title Suit at the conclusion of hearing. Since the case records of Title Suit Page 12 of 13 No.302/95 is not available, hence, this Court is not in a position to make any observation with respect to the outcome of Title Suit No.302/95. (22) Mr. Bhowmik, further, submitted that since the plaintiffs/respondents have transferred the suit land during the pendency of the present appeal, thereby inducting the 3rd Party i.e. respondent No.3, hence, adequate protection is required to be given to his client. Having regard to the provision of Section 52 of the Transfer of Property Act. Needless to say that the decree of the Court below having been set aside by this Court and having regard to the fact that the suit land had been apparently transferred in favour of 3rd Party during the pendency of this appeal, the provision of law in Section 52 of the Transfer of Property Act will take its effect and operation in full force and therefore, it would be unnecessary to pass any separate order in the present proceeding in that regard.
(23) In view of the above, this second appeal stands allowed. There would be no order as to costs. Registry to send back the LCR.
JUDGE Anamika Page 13 of 13