Gauhati High Court
Birendra Singha And 5 Ors vs Premton Singha on 29 January, 2019
Equivalent citations: AIR 2019 (NOC) 169 (GAU.)
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/11
GAHC010126472014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA 48/2014
1:BIRENDRA SINGHA and 5 ORS.
S/O LATE UTTAR SINGHA
2: JOGENDRA SINGHA
S/O LATE UTTAR SINGHA OF VILL. PURBAHITTARBOND PT. I
P.O. AMALA
P.S. LALA
DIST. HAILAKANDI
ASSAM.
3: IDRIS ALI
DEED WRITER
S/O LATE NICHAR ALI
OF VILL. BHAVANIPUR
P.O. AMALA
P.S. LALA
DIST. HAILAKANDI
ASSAM.
4: HEMANTA SINGHA
S/O HEMBABU SINGHA
OF VILL. PURBAHITTARBOND PT-I
P.O. AMALA
P.S. LALA
DIST. HAILAKANDI
ASSAM.
5: SMT. LAITHAMBAL SINGHA
D/O LATE UTTAR SINGHA
W/O CHANDRADHAN SINGHA.
Page No.# 2/11
6: SMT. PRATIMA SINGHA
D/O LATE UTTAR SINGHA
W/OLAKHIRMARYAM SINGHA SL. NO. 2 AND 3 ARE OF VILL.
RAJYESWARPUR
PT MIRRIRGOVI
P.S. LALA
DIST. HAILAKANDI
ASSAM
VERSUS
1:PREMTON SINGHA
S/O LATE UTTAR SINGHA OF VILL. PURBAHITTARBOND PT. I, P.O. AMALA,
P.S.LALA, DIST. HAILAKANDI, ASSAM.
Advocate for the Petitioner : MS.G SARMAH
Advocate for the Respondent : MR. S ALAM
BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM JUDGMENT AND ORDER (Oral) Date : 29-01-2019 Heard Mr. S. K. Ghosh, learned counsel for the appellant. I have also heard Mr. P. K. Deka, learned counsel representing the sole respondent.
2. This appeal has been preferred against the judgment and decree dated 07.06.2014 passed by the learned Civil Judge, Hailakandi in Title Suit No.02/2012 decreeing the suit filed by the plaintiff/respondent.
3. The facts of the case, in a nutshell, is that the plaintiff is one of the sons of Late Uttar Singha, who had acquired certain shares in his ancestral land on the basis of a deed of family partition. Subsequently, by means of a registered deed of sale dated 15.09.1999 bearing No.1168, Uttar Singha during his lifetime, had transferred land measuring 2 Bighas 8 Kathas and 8 Chataks in favour of his Page No.# 3/11 two sons viz., Birendra Singha and Jogendra Singha i.e. the defendant Nos.1 and 2 herein. Asserting that the deed of sale executed by his father in favour of the defendant Nos.1 and 2 is a fraudulent transaction and therefore, liable to be set aside, the respondent as plaintiff, had instituted Title Suit No.02/2012 inter-alia praying for a decree declaring that the sale deed bearing No.1168 was collusive, fraudulent, forged and as such void and inoperative in the eye of law; a decree declaring 1/5 th "ejmali" share of the plaintiff along with defendant Nos.1 and 2 and proforma defendant Nos.5 and 6 over the Schedule-I land along with the shed standing thereupon. It would be pertinent to mention herein that the proforma defendant Nos.5 and 6 are the plaintiff's sisters. The scribe and the attesting witness of the registered deed of sale had been impleaded in the Suit as defendant Nos.3 and 4, respectively although no relief had been prayed against them by the plaintiff.
4. The defendant Nos.1, 2 and 5 and 6 have contested the suit by filing a joint written statement inter-alia assailing the maintainability of the suit. In their written statement, the contesting defendants have asserted that the sale deed No.1168 executed by their father Uttar Singh was a genuine document and therefore, there was no cause of action for filing the suit.
5. Based on the pleadings of the parties, the learned trial Court had framed the following issues :-
"I) Whether the suit is barred by the Limitation Act? II) Whether the plaintiff is bound to pay advolerum court fees in respect of the valuation of the suit? III) Whether the suit is bad under the Suit Valuation Act ? IV) Whether the plaintiff is entitled to get decree as prayed for? V) To what relief or reliefs, the plaintiff is entitled to get?"
6. During trial, the plaintiff had examined only one witness as PW 1, i.e. the plaintiff himself. The defendants did not adduce any evidence.
7. Based on the evidence available on record, the learned trial court had decided all the issues in Page No.# 4/11 favour of the plaintiff and decreed the suit. The Issue Nos.IV and V are the material issues in this case and therefore, the findings and conclusion recorded by the learned trial Court in paragraph 22 of the judgment while discussing the said issues are extracted herein below for ready reference :-
"22. So, in view of my detailed discussion as above, I am of the opinion that the alleged deed in question is liable to be treated as null and void on the grounds mentioned below.
a) Non production of original of Ext-2, the alleged deed in question by the defendant side in the court for inspection by the court:
b) Non examination of the Scribe and the attesting witnesses to prove the genuineness and authenticity of the deed in question:
c) For executing and registering the deed in question instead of its jurisdictional area, which is Sub-Registrar, Hailakandi, they had executed and registered it at Sub-
Registrar, Katlicherra:
d) For not giving any explanation as to the execution and registration of the alleged deed in question at Sub-Registrar, Katlicherra instead of Sub-Registrar, Hailakandi."
8. Mr. S. K. Ghosh, learned counsel appearing on behalf of the appellants, submits that in the instant case not to speak of leading proper evidence to show that the sale deed was fraudulent, there is no pleading in the plaint to the effect that the deed of sale bearing No.1168 was a fraudulent and collusive document. By inviting the attention of this Court to the evidence available on record, Mr. Ghosh submits that the PW 1 himself has categorically admitted during the cross-examination that there is no proof to show that the registered deed of sale (Ext-2) was a forged document. Notwithstanding the same, the learned trial court has declared the sale deed as void without recording any cogent reason for doing so. Mr. Ghosh further submits that the plaintiff in this case has failed to discharge his burden of proof cast under Sections 101 and 102 of the Evidence Act and hence, the decree passed by the learned trial Court is liable to be set aside by this Court. In support of his aforesaid argument Mr. Ghosh has relied upon another decision of the Hon'ble Supreme Court in the Page No.# 5/11 case of Anil Rishi vs. Gurbaksh Singh reported in AIR 2006 SC 1971 and a decision of this Court in the case of Birendra Sankar Sanyal & others vs. Dinesh Chandra Sarma reported in 2015 (5) GLT 147 to contend that the failure on the part of the plaintiff to lead evidence to establish his case ought to have led to the dismissal of the suit instead of decreeing the same.
9. Mr. Ghosh has also assailed the finding of the learned trial Court to the effect that the sale deed in question was registered in a Sub-Registry which did not have jurisdiction over the immoveable property. The learned counsel submits that the Assam State amendment to Section 54 of the Transfer of Property Act has clarified that a registered deed of sale executed in any place within the State of Assam with regard to immoveable property situated in Assam would be valid in the eye of law. In support of his aforesaid argument Mr. Ghosh has placed reliance on an unreported decision of this Court in the case of Md. Mozammel Haque and others vs. Md. Halim Uddin Ahmed and others (RSA No.153/2006) to contend that the aforementioned issue has been dealt with by the learned Single Judge in the above decision whereby it has been held that the non-obstante clause in Section 28 of the Registration Act, 1908 would have no bearing on the question of validity of a sale under Section 54 of the Transfer of Property Act, 1882. On such ground Mr. Ghosh has prayed for dismissal of the suit filed by the plaintiff.
10. Mr. P. K. Deka, learned counsel for the respondent, on the other hand, has strenuously argued that the original deed of sale was in the custody of the contesting defendants and therefore, it was incumbent upon them to produce the same before the court so as to give an opportunity to the plaintiff to establish that it was a forged document. However, in the present case, the defendants have deliberately held back the registered deed of sale and the learned court below has also not discharged its duty under Order XIII Rule 1 CPC by directing the appellants/defendants to produce the original sale deed. Under the circumstances, submits Mr. Deka, the case of the plaintiff would come within the purview of Section 114(g) of the Evidence Act wherein the Court would be called upon to draw adverse presumption against the defendants and in favour of the plaintiff on the ground that non-production of the original sale deed was deliberate and was aimed at suppressing evidence from the purview of the Page No.# 6/11 court. In support of his aforesaid argument Mr. Deka has placed reliance on a decision of the Hon'ble Supreme Court in the case of Gopal Krishanji Ketkar vs. Mohamed Haji Latif and others reported in AIR 1968 SC 1413 to contend that the concept of burden of proof under Section 101 of the Evidence Act cannot be extended to such impractical proportion so as to compel the plaintiff to produce such evidence which was in the custody of the contesting party.
11. Referring to the pleadings in the written statement jointly filed by the contesting defendants, Mr. Deka submits that since the defendants have made an assertion that the sale deed in question was a genuine one, it was their burden to prove and establish the same by leading evidence which burden the defendants have failed to discharge in this case. Under such circumstances, according to Mr. Deka, the learned trial court was wholly justified in decreeing the suit.
12. Coming to the issue of validity of the sale deed, Mr. Deka has also raised objection under Section 28 of the Registration Act, 1908 to contend that since there is no dispute about the fact that part of the Schedule-I property was situated outside the jurisdiction of the Sub-Registrar, Katlicherra, the sale deed registered under the Katlicherra Sub-Registry was apparently void in the eye of law. In view of the above, Mr. Deka contends that viewed from any angle, the sale deed No.1168 was unsustainable in law and hence, has been rightly declared to be void by the learned trial Court. Since the sale deed has been declared to be null and void, hence, submits Mr. Deka, the relief of declaration of 1/5 th "ejmali" share in the Schedule-I property was merely consequential in nature and hence, did not call for any interference by this Court.
13. It is also the submission of Mr. Deka that being the First Appellate Court this Court had the power to re-appreciate evidence and record finding of facts. Therefore, even if there is any lacuna in the judgment passed by the learned trial court, there is nothing stopping this Court from affirming the decree on the basis of fresh finding of fact that can be recorded based on the evidence available on record.
14. I have considered the submissions advanced by the learned counsel for the parties and have also Page No.# 7/11 carefully gone through the materials available on record.
15. As noted above, the suit is essentially between the brothers and sisters in the same family. It is also to be noted herein that the plaintiff has not claimed any relief against the proforma defendant Nos.5 and 6 who are his sisters.
16. Order VI Rule 4 of the CPC categorically lays down that in all cases where a party is pleading fraud, misrepresentation, breach of trust etc., particulars' as may be necessary, shall be stated in the pleading. From a careful examination of the averments made in the plaint, I do not find any pleadings furnishing the particulars laying the foundation of fraud, collusion or any breach of trust in this case.
17. As noted above, the sole witness examined by the plaintiff in this case is the plaintiff himself. In his cross-examination the plaintiff had made the following statements :-
"I cannot say whether my father put his signature in Ext-2. My father was a literate person and he used to know putting his signature.
My sisters did not claim any share of my father's property by filing written statement in the instant case.
I have no proof to show that Ext-2 is a forged document. If the Ext-2 (original) was legitimate, I have no objection.
The suit land was a low lying land with marshy water, hyasinth and other garbages. A small portion of this land by the side of the PWD road has been dug out by the defendant No.1, Birendra Singha and there are two rented tenants in this house and the houses are "Kechcha"
one and the major part of this land are marshy land till today.
This land if filled up with earth by spending huge money, the land will become useful. I was not present when original of Ext-2 was prepared. My father was a pious man and I have best regards for him. I am ready and willing to honour of dead father.
As per deed, the original of Ext-2 was given by my father to defendant Nos.1 & 2.
Page No.# 8/11 It is not a fact that I have lodged this false case."
18. From a plain reading of the aforesaid testimony of the PW 1 it is apparent that the plaintiff has failed to adduce any evidence in support of his plea that the registered deed of sale bearing No.1168 was a forged document. On the contrary, the testimony of the PW 1 goes to completely demolish and/or falsify the case of the plaintiff. As such, I am of the un-hesitant opinion that there is no evidence available on record permitting the court to declare the sale deed No.1168 (Ext-2) as null and void.
19. Coming to the argument advanced by Mr. Deka to the effect that the defendants ought to have produced the original deed so as to establish its genuineness and having failed to do so, the suit was liable to be decreed, I am afraid such a submission of Mr. Deka is contrary to the settled law and therefore, cannot be accepted by this Court. In a civil suit, the burden to prove the case under Section 101 of the Evidence Act is always on the plaintiff side and the said burden can never be shifted upon the defendant.
20. While dealing with the question as to whether a plaintiff who faces difficulty in leading evidence to prove a particular instrument as void could be discharged of his burden under Section 101 of the Evidence Act, the Hon'ble Apex Court had made the following observations in the case of Anil Rishi (supra) which are quoted herein below :-
"18. Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned Trial Judge, therefore, posed unto himself a wrong question and arrived at a wrong answer. The High Court also, in our considered view, committed a serious error of law in misreading and misinterpreting Section 101 of the Indian Evidence Act. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant, would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same."
Page No.# 9/11
21. Following the decision of Anil Rishi (supra) and a number of other judicial pronouncements covering the subject, this Court in the case of Birendra Sankar Sanyal & others (supra) and held as follows :-
"24. The general principles of law that can be gainfully culled out from the judicial pronouncements noted above is that the burden of proof cast under Sections 101 and 102 of the Indian Evidence Act, 1872 is the persuasive burden or the onus probandi. The persuasive burden to prove and establish the case always lies upon the plaintiff and the said burden never shifts upon the defendant. What may, however, shift is the onus to lead evidence in the sense that once the plaintiff side succeeds in prima facie establishing his pleaded case by leading evidence, the onus will then shift upon the defendant side to lead evidence so as to disprove the case. The parties may also have to discharge the burden of establishing the admissibility of the evidence by leading evidence in respect thereof. The initial burden to establish the basic allegations made in the plaint constituting the foundational facts, regardless of whether such assertion is couched in the affirmative or in the negative, would undoubtedly lie upon the plaintiff and the failure to discharge the said burden must lead to the dismissal of the suit."
22. Having observed as above this Court had held in the case of Birendra Sankar Sanyal & others (supra) that since the plaintiff had asserted that the sale deed dated 05.05.1993 was void, illegal and inoperative in law, it was the duty of the plaintiff to lead evidence to prima facie establish his case which burden the plaintiff had failed to discharge. In the present case also, even assuming that the defendants had failed to produce the original sale deed, there were ample avenues available to the plaintiff to lead evidence to prima facie establish that the sale deed was a forged one. However, instead of leading such evidence, the PW-1 had admitted that there was no proof to establish the said fact. In the teeth of such evidence, the only conclusion that was permissible in this case was that the plaintiff has failed to discharge his evidential burden under Sections 101 and 102 of the Evidence Act.
23. While dealing with an issue regarding validity of a registered deed of sale executed under a Sub Registrar beyond whose jurisdiction, the immoveable property was situated, this Court had the Page No.# 10/11 occasion to interpret the Assam State Amendment of Section 54 of the Transfer of Property Act, 1882 in the case of Md. Mozammel Haque & others (supra) wherein the following observation have been made :-
"21. The said amendment stipulates that the registered instrument as required under Section 54 para 2, shall be by an instrument registered in the State of Assam notwithstanding anything contained in the Registration Act, 1908 to the contrary. If the said amendment is taken into consideration with the non-obstante wording, the said Section 28 of the Registration Act, 1908 has nothing to do inasmuch as in order to be a valid sale u/s 54 of the Transfer of Property Act, 1882, the said sale deed can be registered in any place within the State of Assam. Accordingly the second substantial question of law is also decided against the plaintiffs appellants."
24. In view of the above, the law is settled that the mere fact that the sale deed has been registered under a different Sub-Registrar but within the State of Assam would not have any vitiating affect on the registered deed of sale. It is also to be noted herein that the Sub-Registrar of "Katlicherra" as well as the Sub-Registrar of "Lala" are both under the administrative control of the Senior Sub-Registrar, Hailakandi district since both the Sub-Registrars are within the district of Hailakandi. Viewed from that angle also the mere fact that the registered deed of sale was executed under Katlicherra Sub-Registrar cannot be a ground to declare the saledeed as void and inoperative in view of the Assam State Amendment of Section 54 of the Transfer of Property Act.
25. Coming to the decision cited by Mr. Deka in the case of Gopal Krishanji Ketkar (supra) it may be noted herein it that was a case where the appellant had claimed to have been enjoying the income from the "Dargah" and took a plea that the accounts were kept separately, but he could not produce the account to substantiate his contention. Taking note of such fact situation the Hon'ble Supreme Court had observed that since the appellant had made a claim that the accounts were in his custody, it was incumbent upon him to produce the accounts. The position in the present case, however, is completely different on facts. In this case, the plaintiff has assailed the registered deed of sale on the ground of fraud but has failed either to plead the particulars of fraud or to lead any evidence in support Page No.# 11/11 of such plea. Therefore, the ratio of the decision in the case of Gopal Krishanji Ketkar (supra), in the opinion of this Court, would be of no assistance to the respondent in the facts and circumstances of the present case.
26. For the reasons stated herein above, I am of the considered view that the learned trial Court has committed manifest error in decreeing the suit filed by the plaintiff. Consequently, the impugned judgment and decree stands set aside. The suit filed by the plaintiff is hereby dismissed.
There would be no order as to cost.
Registry to send back the LCR.
JUDGE Comparing Assistant