Calcutta High Court (Appellete Side)
Radha Ranjan Das (Since Deceased) vs Ashok Kumar Das & Ors on 19 June, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.133 of 1994
Smt. Usha Rani Das and others being L.R.S. of
Radha Ranjan Das (since deceased)
Versus
Ashok Kumar Das & Ors.
S. A. No.134 of 1994
Nirmal Kumar Das & Anr.
Versus
Ashok Kumar Das & Ors.
For the appellant in S.A. 133 of 1994 : Mr. Bhakti Prasad Das
and respondent No.2 of S.A.134 of 94
For the appellant in S.A.134 of 1994 : Mr. P. B. Sahoo and respondent No. 2 and 3 of S A.133 of 94 Mr. Sudhakar Biswas For the respondent No.1 in both : Mr. Asis Kumar Bagchi S. A. 133 of 94 and S.A.134 of 94 Mr. G. L. Ghosh Judgement on: June 19, 2012 Tarun Kumar Gupta, J.:-
Both the appeals arise out of a common judgment and decree both dated 1st of October, 1991 passed by learned Assistant District Judge, 3rd Court District Midnapur in Title Appeal No.429 of 1986. The plaintiff Radha Ranjan Das (since deceased) is the appellant in S. A. 133 of 1994. Proforma defendant Nos. 2 and 3 Nirmal Kumar Das and Kshudiram Das are the appellants in S. A. No.134 of 1994.
The plaintiff Radha Ranjan Das filed a suit being Title Suit No.171 of 1982 in the Court of learned Munsif, 2nd Court at Tamluk district Midnapur with the following averments:-
Plaintiff's father Phanindra Krishna Das and his six brothers used to possess joint properties according to their own shares by virtue of an amicable settlement and those properties were recorded in their respective names in R. S. records. Before revisional settlement, plaintiff's father died leaving plaintiff Radha Ranjan Das and his brother Radha Raman Das as his heirs who inherited his properties in equal shares including suit Dags. They initially possessed their properties in Ejmali but before R. S. settlement they separated in mess and property and accordingly their properties including suit Dags have been recorded separately in their names in separate khatians. By said amicable settlement plaintiff got his share in suit Dags as described in schedule 'ka' of the plaint and in other non-suit properties. Plaintiff's brother Radhan Raman Das sold his share of suit Dags to proforma defendant Nos. 2 and 3 through a registered kobala dated 03.05.1970. Proforma defendant Nos. 2 and 3 later on filed Title Suit No.5 of 1970 in the Court of learned Sub-Judge, Midnapur for partition of their purchased properties through said kobala dated 03.05.1970. For long plaintiff was residing in Orissa and had landed properties in several districts of Orissa. As plaintiff was residing in Orissa he was dependent on defendant No.1 Ashok Kumar Das, his cousin brother, regarding cultivation and looking after of plaintiff's properties including suit properties situated in Midnapur district. As both plaintiff and defendant No.1 were made defendants in the partition suit being Title suit No.5 of 1970 filed by proforma defendant Nos. 2 and 3, plaintiff as per advice of defendant No.1 agreed to execute a power of attorney so that he need not come to Midnapur off and on to make tadbir in said partition suit. The plaintiff accordingly executed the impugned suit deed at the instance of defendant No.1 believing that the same was a power of attorney. Trusted persons of defendant No.1 were deed writer and witnesses of said deed which was written in Oriya language. Plaintiff can neither read nor write Oriya language though he understands Oriya language. As plaintiff was dependent on defendant No.1 for looking after his properties at Midnapur District and also trusted defendant No.1, so, he executed said deed believing it to be a power of attorney. Defendant No.1 made some constructions in his land after encroaching plaintiff's lands in Dag No.1740 and Dag No.1741 / 4758.
Though defendant No.1 initially agreed to demolish said encroached portions but ultimately he did not demolish the same. Lastly, on 15th of March, 1982 defendant No.1 alleged to the plaintiff that plaintiff executed a deed of gift dated 02.12.1970 i.e., impugned deed in favour of defendant No.1 in respect of entire Dags 1740, 1741/4758, 1739 and 1738 of Narkeldanga Mouza together with 'ka-2' schedule properties. Plaintiff obtained certified copy of said alleged deed of gift on 06.08.1982 and came to know that defendant No.1 obtained said deed of gift dated 02.12.1970 by practising fraud, misrepresentation and undue influence upon the plaintiff in the name of obtaining a power of attorney. One decimal of land out of 3 acres 37 decimals of land in Khata 897 mouza Guri District Baleswar was included for registration of said document within the District of Baleswar though plaintiff did not own said land. As such said deed of gift was also executed by practising fraud on the registrar of Baleswar by falsely incorporating some lands within jurisdiction of Baleswar. Accordingly, plaintiff filed said suit praying for declaration that alleged deed of gift dated 02.12.1970 mentioned in 'ka - 1' schedule of the plaint regarding 'ka' schedule properties and other properties was null and void, illegal and not binding on the plaintiff and that the defendant No.1 had no right title or possession in those properties on the strength of said alleged deed of gift and that the plaintiff has right, title and interest thereupon, together with a decree for permanent injunction.
Respondent defendant No.1 Ashok Kumar Das contested said suit by filing a written statement alleging as follows:-
The suit was not maintainable as it was framed and was barred by Section 34 of the Specific Reliefs Act. Plaintiff's father Phanindra Krishna Das had properties at Baleswar district at Bighra and Gurpai in Orissa as also in the Midnapur district. On the death of plaintiff's father plaintiff and his brother Radha Raman became owner of said properties in equal share. Radha Raman used to reside at Mouza Khaidighi as a practising doctor. Before plaintiff's father's death plaintiff used to reside at Baleswar district of Orissa and looked after landed properties. Before R. S. record plaintiff and his brother Radha Raman partitioned their property by amicable arrangement and accordingly plaintiff's brother Radha Raman got all their ancestral properties situated at Khaidighi and other mouzas exclusively and plaintiff got all properties of Moyna P. S., Tamluk and Baleswar exclusively. At the time of R. S. operation plaintiff was living at Baleswar and erroneously suit Dags were recorded in the names of both brothers. Plaintiff sold some of his properties from Moyna P. S. to different persons as sole owner. Defendant No.1's father and plaintiff's father were full brothers. Plaintiff had good relation with defendant No.1 and his sister Prova Rani having their nickname as Samanta and Rani respectively. Plaintiff wanted to purchase some lands at Sailendra Nagar and Katak district and wanted to sell some non-suit Dags measuring about 2 acres 52 decimals which he possessed exclusively, to defendant No. 1's sister Protiva Rani. There was oral agreement of sale and some money was also sent to plaintiff by money order and plaintiff delivered possession of those properties to Prova alias Rani. Plaintiff had good relation with this defendant No.1 and being satisfied with his work regarding looking after of plaintiff's properties at Midnapur district wanted to gift entire suit lands to defendant No.1 and delivered possession of the same since 1367 B. S. Defendant being in possession of the suit properties constructed pucca house and other constructions thereupon. The plaintiff was well-versed in Oriya language and he himself engaged the scribe and witnesses for writing the deed of gift dated 2.12.1970 in favour of the defendant. The plaintiff also included said one decimal of land of Guri mouza in said deed of gift willfully. This defendant No.1 can neither read nor write Oriya language. The plaintiff in collusion with defendant Nos.2 and 3's father filed this false suit. Defendant Nos. 2 and 3 managed to obtain a fictitious and void document and filed the partition suit with false averments. The plaintiff's suit is liable to be dismissed with costs.
The defendant Nos. 2 and 3 also contested said suit by filing written statement with following averments:-
Those defendants purchased plaintiff's brother Radha Raman Das's share in the suit Dags through a registered kobala dated 03.05.1970 and got possession of the same. The plaintiff never owned and possessed said property and had no transferable right therein. The deed of gift dated 02.12.1970 is void, illegal, collusive and a fraudulent document. It was registered at Baleswar district by practising fraud upon the registrar and was never acted upon. These defendants filed one partition suit being Title suit No.51 of 1970 in the Court of learned Sub-Judge 3rd Court, Midnapur for partition wherein both plaintiff and defendant No.1 were parties. These defendants are not necessary parties in the suit and plaintiff has no cause of action against them. However, they have no objection if plaintiff gets a decree in the suit.
Learned Trial Court framed as many as 13 issues.
Learned Trial Court dismissed the suit by observing that the alleged deed of gift dated 2.12.1970 was not vitiated by fraud or misrepresentation and that said document was not executed by practising fraud upon the Sub-Registrar and that plaintiff was aware about the nature and character of the impugned deed being a deed of gift from the very date of its execution and that the suit was hopelessly barred by limitation. Learned Trial Court also observed that the suit was also barred by the principles of res judicata as both the plaintiff and defendant No.1 were parties in the suit being Title Suit No.51 of 1970 filed by the proforma defendant No.2 and 3 wherein an ex parte preliminary decree was passed.
Proforma defendant No.2 and 3 preferred one Title Appeal being No.429/1986 and plaintiff preferred an appeal being Title Appeal No.430 of 1986 which were disposed of by learned Assistant District Judge, 3rd Court at Midnapur by the impugned common judgment dated 01.10.1991. By the impugned judgment learned Lower Appellate Court dismissed both the appeals by confirming the judgment and decree of learned Trial Court.
At the time of admission of these second appeals no specific substantial question of law was framed. However, at the time of argument following substantial questions of law have been framed:-
(1) Whether learned Courts below substantially erred in law by observing that the impugned deed of gift dated 02.12.1970 was not vitiated by fraud and misrepresentation by applying wrong test of law. (2) Whether learned Courts below substantially erred in law by observing that no fraud was practised on the registry office at Baleswar by applying wrong test of law.
(3) Whether learned Courts below substantially erred in law by dismissing the suit to be time barred by applying wrong legal tests.
(4) Whether learned Courts below substantially erred in law by not declaring the impugned deed of gift dated 02.12.1970 being hit by principles of lis pendense in view of pendency of partition being Title Suit No.52 of 1970 involving suit plots and other plots.
Mr. Sahoo, learned counsel for the defendant Nos. 2 and 3 (appellant of S. A. 134 of 1994), submits that learned Courts below failed to note that the defendant Ashok Kumar Das was in fiduciary relation with the plaintiff Radha Ranjan Das and accordingly they erroneously placed onus on the part of plaintiff to show that the impugned document dated 2.12.1970 was vitiated by fraud and misrepresentation. He further submits that in view of applying wrong legal tests as stated above learned Courts below came to a wrong conclusion that the impugned deed of gift dated 2.12.1970 was not vitiated by fraud and misrepresentation.
In support of his contention he refers case laws reported in 2003 (7) Supreme page 105 (Krishna Mohan alias Nani Charan Kul & Anr. Vs. Pratima Maity and Ors.) and AIR 2011 Supreme Court page 2344.
Mr. Asis Kumar Bagchi, learned counsel for the respondent defendant No.1, on the other hand, submits that above referred case laws have no application in this case as the executant of the first case was an old ailing illiterate person, and in the second case, was the guardian selling minor's property without permission of the Court.
Mr. Bagchi further submits that where both the parties adduced oral as well as documentary evidence the question of burden of proof becomes insignificant. According to him, learned Courts below on the basis of evidence on record, both oral and documentary, came to the concurrent findings of fact that the impugned deed of gift dated 02.12.1970 was not vitiated by fraud and misrepresentation and that there is no scope of interference to said findings by this Court during hearing of the second appeal.
There is no denial that whether a document is vitiated by fraud or misrepresentation is a question of fact. When both the Courts below came to the concurrent findings of fact on that issue there is hardly any scope of interference to said concurrent findings of fact under Section 100 of the Code of Civil Procedure unless it can be shown that said findings were based on no evidence or were based on extraneous matters or were arrived disregarding settled legal principles.
In this case admittedly defendant No.1 Ashok was a permanent resident of Midnapur District and looked after properties of plaintiff lying in Midnapur district while plaintiff was residing in Orissa for long. It also came out from the evidence of the plaintiff (P.W.1) that he was once a member of the Balasore Panchayat Samity for three years and that he was also a Secretary of Balasore Pati Krishak Sangha for quite some period and that he executed several documents before execution of impugned deed of gift dated 2.12.1970. It came out from the admission of the plaintiff during his evidence that he purchased the stamp of said document dated 2.12.1970 after putting his signature thereupon as purchaser. He also admitted that it was a general practice in Orissa that the name of the vendor and the nature of the deed were used to be written in the place of stamp vendor and that in this case also it was followed. It also came out from the original deed of gift dated 2.12.1970 written in Oriya language (Ext.D) as well as from the certified copy of the same written in Oriya language (Ext.2) and the copy of the same in Bengali script (Ext.2a) that in the original deed it was written as 'Dan Patra' in Oriya. The scribe (P.W.5) who was an independent person also deposed that after writing of the document he read over and explained the same to the plaintiff who thereupon executed the same.
Exhibits B, B(1) and B (2) are the letters written by the plaintiff to the defendant No.1 Ashok and his sister Rani on different dates of 1975. The plaintiff also admitted during his cross-examination that those letters were written by him and that statements made therein were correct. It came out from those letters of 1975 which were written long before filing of the suit in 1982 that plaintiff executed a deed of gift in favour of defendant No.1 covering suit property. There is no evidence and it is also nobody's case that plaintiff executed said deed of gift in favour of defendant No.1 as mentioned in those letters of 1975 relating to properties other than suit property. Rather it was very much clear from those letters of 1975 that plaintiff executed a deed of gift in favour of the defendant No.1 relating to the suit property. Learned Courts below took note of those evidence on record, both oral and documentary, and came to concurrent findings of fact that plaintiff executed said deed of gift dated 2.12.1970 in favour of defendant No.1 knowing contents of the same and that the allegation of fraud and misrepresentation were not tenable. As said concurrent findings of fact were based on evidence, both oral and documentary, adduced by both the parties the question of burden of proof became insignificant and I find no ground to interfere with the same while dealing with this case under Section 100 of the Code of Civil Procedure.
Mr. Sahoo, learned counsel for the defendant Nos. 2 and 3, next submits that the impugned deed of gift dated 2.12.1970 was registered under Baleswar Sub- Registry office by fraudulently including one decimal of land of Guri mouza in Khata No.897 (in Orissa Khatian is referred as Khata) just to attract jurisdiction of Baleswar Sub-Registry office for registration of said document though in reality plaintiff was not owner of said Khata 897 measuring lands of three acres 37 decimals in mouza Guri district Baleswar. According to Mr. Sahoo as alleged deed of gift was relating to lands of Midnapur district, the registration should have been done in Midnapur and not at Baleswar and that said one decimal of land of khata 897 of mouza Guri was fraudulently included so that the document could be registered with Baleswar Sub-Registry office and that it amounted to practising fraud upon office of the Sub-Registrar and violation of Section 28 of the Registration Act. In support of his contention he refers AIR 1936 Privy Council page 91 (Venkatarama vs. Appa Rao).
Mr. Bagchi, learned senior counsel for the respondent/defendant No.1, on the other hand, submits that it came out during evidence that plaintiff claiming himself to be owner of said plot of land under Khata 897 of mouza Guri district Baleswar earlier executed one sale deed to one Amulya (Ext.E) and during evidence also admitted said document (Ext.E) to be a valid document and that it cannot be said under these circumstances that plaintiff was not owner of said land or that Section 28 of the Indian Registration Act was violated by incorporating one decimal of land under said Khata in said deed of gift.
There is no denial that plaintiff admitted execution of said sale deed in favour of one Amulya (Ext.E) relating to some land in said Khata 897 of mouza Guri District Baleswar claiming him to be the owner of the same. If that be the position then learned Courts below rightly held that plaintiff was estopped from denying his ownership in said land. Apart from that it came out that plaintiff himself purchased the stamp for execution of impugned deed of gift and that after knowing contents of the document he executed said document. There is no evidence whatsoever to show that defendant No.1 took any part to falsely include said one decimal of land relating to Khata 897 of mouza Guri district Baleswar in said deed of gift. As such, if any fraud was committed on the sub-registry office for illegal inclusion of some land of Baleswar District without any intention of gifting the same to the donee then said fraud was committed by the donor i.e. plaintiff and not by the donee i.e. defendant No.1. A person cannot be permitted to take advantage of his own fraud. Apart from that even if it is admitted for argument's sake that defendant No.1 was also a party to said fraud even then said document namely deed of gift dated 2.12.1970 was not a void document and that it has to be declared invalid by a competent Court of law. In order to obtain a declaration that the deed of gift was void on the ground of fraud or misrepresentation (though not proved in this case) or on the ground of practising fraud upon the Registry office (though it was not proved that donee had any part in it) the suit was required to be brought within three years from the date of knowledge of the said alleged fraud upon the plaintiff executant or upon the registry office. It came out from the evidence on record, both oral and documentary, that the plaintiff executed impugned deed of gift dated 2.12.1970 knowing its contents and that even in his letters written in 1975 to the defendant No.1 and his sister Rani (Ext.B series) he admitted about execution of said deed of gift relating to suit property in favour of defendant No.1. Admittedly, this suit for declaring the impugned deed of gift dated 02.12.1970 as void and not binding on the plaintiff on the ground of fraud and misrepresentation etc. was filed only in 1982. In terms of Section 59 of the Limitation Act a party has to file a suit within three years from the date of knowledge of the alleged fraud for avoiding a document. It was evident from the materials on record that the plaintiff was well aware about the nature of the document from the very inception and that even in his letters written in 1975 admitted about execution of said deed of gift in favour of defendant No.1. Accordingly, the suit was hopelessly barred by limitation and learned Courts below rightly held the same.
Mr. Sahoo, learned counsel for the defendant Nos.2 and 3, next submits that neither learned Trial Court nor learned Lower Appellate Court took note that these defendants purchased half share of the 'ka' schedule plots of land from plaintiff's brother Radha Raman Das being the recorded owner of the same on 03.05.1970 by registered kobala and that they started to possess the same and also filed a partition suit being Title Suit No.51 of 1970 in the Court of learned Sub-Judge, 3rd Court, Midnapur wherein plaintiff and defendant No.1 were also parties. He further submits that the impugned deed of gift dated 02.12.1970 was executed after execution of said sale deed dated 03.05.1970 as well as after filing of said partition suit being Title Suit No.51 of 1970. He next submits that though defendant No.1 appeared in said partition suit and filed a written statement but ultimately did not contest and that an ex parte preliminary decree was passed on 05.07.1973. According to him, though plaintiff had no right, title, interest and possession over those lands covered by said sale deed [Ext.C(1)] but those were included in the impugned deed of gift dated 02.12.1970 that too after execution of said sale deed by its original owner and during pendency of the partition suit involving the lands covered by Ext.C/1. and that learned Courts below should have declared that the impugned deed of gift was invalid so far as it related to lands covered by Ext.C(1). In this connection Mr. Sahoo refers to a case law reported in 2011 (1) CHN (SC) page 180 (T. G. Ashok Kumar vs. Govindammal and Anr.) to show the application of the doctrine of lis pendens as embodied under Section 52 of the Transfer of Property Act. He has also referred a case law reported in (2007) 8 SCC page 329 (Saroja vs. Chinnusamy and another) to impress upon this Court that an ex parte decree is equally binding upon the parties of the suit. Mr. Sahoo next refers to AIR 1963 Supreme Court page 1516 (Panna Lal vs. State of Bombay) to show the scope as well as power of the Appellate Court under Order 41 Rule 33 and 22 of the Code of Civil Procedure. According to him, learned Lower Appellate Court had the authority to take note of passing of ex parte decree in the partition suit and its effect on the impugned deed of gift of 1970 so far as it related to the properties covered by these defendants' purchase deed [Ext.C(1)] and should have declared that impugned deed of gift of 1970 was ineffective so far as it related to the properties covered by defendant No.2 and 3's purchased deed (Ext.C/1) which was recognized as their purchased property in the preliminary decree of the partition suit.
The doctrine of lis pendens as embodied in Section 52 of the transfer of Property Act was lucidly explained in para 10 of T. G. Ashok Kumar's case (supra) which runs as follows:-
"The principle underlying section 52 is clear. If during the pendency of any suit in a Court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that my be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be save only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allowed in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the propperty. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially."
In Saroja's case (supra) it was held that an ex parte decree is binding as a decree passed after contest on the persons against whom such an ex parte decree was passed.
In Panna Lal's case (supra) Hon'ble Apex Court laid down the scope of Order 41 Rule 33 and Order 41 Rule 22 as follows:-
"The wide wording of O.41 R.33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require." If there was no impediment in law the High Court in appeal, could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff respondent a decree against any or all other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the illustration puts the position beyond argument. .....
If a party who could have filed a cross-objection under O.41 R.22 has not done so it cannot be said that the Appeal Court can under no circumstances give him relief under the provisions of O.41 R.33....................
Order 41 Rule 22 permits, as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under O.41 R.22 can be directed against the other respondents. The use of the word "cross-objection" in O.41 R.22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. That the legislature also wanted to give effect to the view that in exceptional cases an objection can be preferred by a respondent against a co- respondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection."............................
The propositions of law as laid down by the above referred cases are not disputed. But in the Title Suit there was no scope on the part of the learned Trial Court to embark upon to decide the respective shares among defendant Nos. 1 - 3 and there was no prayer to that effect. Apart from that in the partition suit, as it is gathered during argument, only a preliminary decree was passed. As such, partition suit did not reach its finality up till now. Under these circumstances, there was no scope of making any declaration relating to the impugned deed of gift of 1970 with reference to Ext.C(1) as prayed by learned counsel for the defendant Nos. 2 and 3.
Mr. Bhakti Prasad Das, learned counsel for plaintiff appellant of S.A. No.133 of 1994 did not make any submission and adopted the submissions of learned counsel of the appellant of S. A. No.134 of 1994.
In view of the discussions as made above I find no merit in either of the appeals.
As a result, both the appeals stand dismissed on contest.
However, I pass no order as to costs.
Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)