Manipur High Court
P Age |4 vs Shri Khundrakpam Shanti Singh Aged ... on 28 September, 2020
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
P age |1
IN THE HIGH COURT OF MANIPUR
Yumkh Digitally signed
by Yumkham
AT IMPHAL
am Rother
Date: 2020.09.28 RSA No. 3 of 2010
Rother 14:59:16 +05'30'
Shri Laishom Ningthemjao Singh, S/o (Late) L.
Chaoba Singh of Keishamthong Laishom Leirak,
P.O. Imphal, P.S. & District - Imphal West District,
Manipur who died on 11/05/2006 represented by
his Legal representatives namely :
(i) Smt. Laishom (O) Mitkoi Devi aged about 73
years, W/o (Late) Laishom Ningthemjao
Singh of Keishamthong Laishom Leirak,
P.O. Imphal, P.S. & District - Imphal West
District, Manipur.
(ii) Shri Laishom Rajen Singh aged about 53
years, S/o (Late) Laishom Ningthemjao
Singh of Keishamthong Laishom Leirak,
P.O. Imphal, P.S. & District - Imphal West
District, Manipur represented by his Legal
representatives namely :
(a) Laishom Danibala Devi, aged about
56 years, W/O (Late) Laishom Rajen
Singh resident of Keishamthong
RSA No. 3 of 2010
P age |2
Laishom Leirak, P.O. & P.S. Imphal,
Imphal West District, Manipur. Pin No.
795001.
(b) Laishom Malemnganba, aged about
34 years, S/O (Late) Laishom Rajen
Singh resident of Keishamthong
Laishom Leirak, P.O. & P.S. Imphal,
Imphal Wesst District, Manipur. Pin
No. 795001.
(c) LaishomZenith, aged about 33 years,
S/O (Late) LaishomRajen Singh
resident of Keishamthong Laishom
Leirak, P.O. & P.S. Imphal, Imphal
Wesst District, Manipur. Pin No.
795001.
(d) Laishom Arina Chanu, aged about 28
years, S/O (Late) Laishom Rajen
Singh resident of Keishamthong
Laishom Leirak, P.O. & P.S. Imphal,
Imphal West District, Manipur. Pin No.
795001.
RSA No. 3 of 2010
P age |3
(iii) Smt. Laishom (N) Laishram (O) Jayanti @
Ganga Devi, aged about 49 years, D/o
(Late) Laishom Ningthemjao Singh and W/o
L. Jugindro Singh of Kwakeithel Thokchom
Leikai, P.O. Imphal, P.S. & District - Imphal
West District, Manipur.
(iv) Smt. Laioshom (N) Thokchom (O) Sumobala
Devi aged about 47 years, D/o (Late) L.
Ningthemjao Singh and W/o Th. Rajen
Singh of Kwakeithel Thokchom Leikai, P.O.
Imphal, P.S. & District - Imphal West District,
Manipur.
(v) Smt. Laioshom (N) Irungbam (O) Kheroda
@ Icha aged about 39 years, D/o (Late) L.
Ningthemjao Singh and W/o I. Udoi Singh of
Nagamapal Kangjabi Leirak, P.O. Imphal,
P.S. & District - Imphal West District,
Manipur.
(vi) Smt. Laioshom (N) Ngangranabi @ Pee Pee
aged about 36 years, D/o (Late) L.
Ningthemjao Singh and W/o Wangkhem
RSA No. 3 of 2010
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Ibochou Singh of Kairang Maning Leikai,
Manipur.
(vii) Smt. Laishom Sheelima Devi aged about 32
years D/o (Late) L. Ningthemjao Singh of
Keishamthong Laishom Leirak, P.O. Imphal,
P.S. & District - Imphal West District,
Manipur.
...... Appellants
-Versus -
1. Shri Khundrakpam Shanti Singh aged about
52 years, S/o (Late) Kh. Satrajit Singh,
resident of Uripok Laikhurembi Leikai, P.O.
& P.S. - Imphal, District - Imphal West,
Manipur.
..... Principal Respondent
2. Shri Khundrakpam Satrajit Singh S/o (late)
Kh. Nanou Singh of Uripok Laikhurembi
Leikai, P.O. & P.S. - Imphal, District -
Imphal West, Manipur who died on
24/01/2006 represented by his legal
representatives namely:
RSA No. 3 of 2010
P age |5
(i) Smt. Khundrakpam (O) Ibechaobi Devi aged
about 83 years, W/o (Late) Kh. Satrajit
Singh.
(ii) Smt. Khundrakpam (Ningol) Bhumeshwori
Devi aged about 58 years, D/o (Late) Kh.
Satrajit Singh.
(iii) Shri Khundrakpam Dolen Singh aged about
53 years, S/o (Late) Kh. Satrajit Singh.
(iv) Smt. Khundrakpam Chitra Devi aged about
50 years, D/o (Late) Kh. Satrajit Singh.
...... All are residents of Uripok
Laikhurembi Leikai, P.O. & P.S. - Imphal,
District - Imphal West, Manipur.
..... Proforma Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Appellants :: Mr. A. Mohendro, Advocate
Mr. Ajoy Pebam, Advocate
For the Respondents :: Mr. P.Tomcha Meitei, Advocate
Mrs. L. Kiranmala, Advocate.
Date of Hearing :: 14.09.2020
Date of Judgment &
Order :: 28.09.2020
RSA No. 3 of 2010
P age |6
JUDGMENT AND ORDER
(CAV)
This appeal is directed against the concurrent
findings of the Court below dismissing the suit filed by the
deceased plaintiff Laishom Ningthemjao, who is the father of the
appellants 1 to 7 against Khundrakpam Shanti and the deceased
Khundrakpam Satrajit Singh (defendants 1 and 2) for declaration
of the title of the deceased plaintiff and for permanent injunction
restraining the defendants, their men and agents from entering
into the suit land and from interfering with the peaceful possession
and enjoyment of the suit land.
2. For the sake of convenience, the parties are referred
to as original plaintiff and the defendants.
3. Brief facts are that some time in the year 1953, the
original plaintiff proposed the second defendant, who is the father
of the first defendant, to allow him to run a motor-mechanical
workshop in the suit B schedule land and the proposal of the
original plaintiff was accepted by the second defendant, thereby
the original plaintiff started running a mechanical workshop in the
suit land on payment of rent. In the year 1986, the second
defendant proposed to sell the suit B schedule and the original
plaintiff accepted the proposal made by the second defendant.
RSA No. 3 of 2010
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Accordingly, the original plaintiff purchased the suit B schedule
from the second defendant for a consideration of Rs.35,000/- by
executing a registered sale deed dated 29.12.1986, which was
registered on 30.12.1986. On the basis of the registered sale
deed, the name of the original plaintiff had been entered in the
relevant land records and a separate jamabandi patta was also
prepared in respect of the suit B schedule. The original plaintiff
physically possessed and occupied the suit B schedule since 1953
and continued after his purchase and run the motor mechanic
workshop.
4. According to the original plaintiff, in the year 1990,
the office of the Deputy Commissioner, Imphal at Lamphelpat was
gutted into fire and as such all relevant land records were
destroyed. Taking advantage of the same, the first defendant
knowingly that the suit land had already been sold by his father to
the original plaintiff in the year 1986, approached the revenue
authorities and recorded his name in the relevant jamabandi of the
suit land. On 10.12.2003, the first defendant issued notice to the
original plaintiff demanding to vacate the suit land, thereby
denying the right and title of the original plaintiff over the suit land.
Since the defendants denied the right and title of the suit land, the
original plaintiff constrained to file the suit being O.S. No.5 of 2003
RSA No. 3 of 2010
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for declaration of title and consequential reliefs against the
defendants.
5. The defendants 1 and 2 filed written statement
stating that in the late fifties, on being approached, the original
plaintiff was allowed by the second defendant to run the motor
mechanical workshop in the suit land on payment of 50% wage
earned in the workshop and the remaining 50% of wage as
plaintiff share and the name of the workshop was once known as
Satrajit Workshop. No written agreement was drawn up for the
same. The second defendant visited the workshop almost daily
and supervises the working in the workshop. However, since
about 10 years back, the second defendant could not visit as
before due to his other works. Thereafter, the second defendant
demanded the original plaintiff to pay a lump sum rent of Rs.300/-
per month and the original plaintiff agreed and paid the rent, which
was entered into the Exercise Book wherein the second defendant
had also put his signature. This practice continued till the suit land
was gifted to the first defendant as his share in the year 1991.
6. It is stated that the defendants came to know the
existence of the sale deed dated 29.12.1986 in the month of
March 2003. The second defendant never received any notice in
the year 1986 from Revenue Court in regard to mutation of the
RSA No. 3 of 2010
P age |9
name of the original plaintiff in respect of the suit land. It is also
stated that on enquiry, it was detected that the date on which the
Sub Registrar noted in the registered sale deed is shown as
30.12.1986 whereas on the first page, the date has been recorded
as 29.12.1986 and again the Sub Registrar recorded that
execution is admitted by the second defendant, who was identified
by Koijam Nilo Singh. According to the defendants, there cannot
be two dates by the Sub Registrar on the admissibility and
registration of a document.
7. It is also stated in the written statement that the
second defendant never sold the suit land to the original plaintiff
and the sale deed in favour of the original plaintiff is null and void
and cannot be acted upon in the eye of law being barred by the
law of restrictions as provided under Section 27 of the Manipur
Town and Country Planning Act, 1975. The sale deed was
manufactured by the original plaintiff with malafide motive to own
the suit land. Hence, the sale deed in favour of the original plaintiff
is required to be declared as illegal and void and accordingly, the
defendants have also made a counter-claim by paying court fees.
8. Upon consideration of the pleadings, the trial Court
framed the following issues:
RSA No. 3 of 2010
P a g e | 10
1. Whether the defendant No.2 sold out the suit land to the
plaintiff by executing a registered Sale Deed?
2. Whether the sale deed dated 29/12/1986 alleged to
have been executed by defendant No.2 was duly
presented for registration on 30/12/1986 or not?
3. Whether the sale deed, dated 29/12/1986 is a
manufactured one?
4. Whether the plaintiff is the tenant of the defendants in
respect of the suit land?
5. Whether the plaintiff is liable for eviction from the suit
land for non-payment of rent?
6. Whether the gift deed dated 31/07/1998 executed by
Shri Kh. Satrajit Singh of the suit land in favour of Shri
Kh. Shanti is a fraudulent transfer or not? If so, what is
its legal effect?
7. Whether the suit is barred by Sec.27 of the Manipur
Town and Country Planning Act 1975 and the rules
framed thereunder? If so, what is the legal effect?
8. Whether the name of the plaintiff was duly mutuated in
the record of right as alleged?
9. Is the suit barred by limitation or not?
10. Is the suit hit by principle of waiver acquiescence or
estoppels?
RSA No. 3 of 2010
P a g e | 11
11. Is the plaintiff suit maintainable or not?
12. Is there any cause of action for filing the present suit?
13. Is the plaintiff or the defendants are entitled to their
respective relief as claimed?
9. Before the trial Court, on the side of the original
plaintiff, 7 witnesses were examined, which includes the original
plaintiff. On the side of the defendants, 7 witnesses were
examined, which also includes the first defendant. Both sides have
also marked documents to prove their claim.
10. Pending suit, both the original plaintiff and the
second defendant died and their legal heirs were brought on
record as parties to the proceedings and contested the matter
based on their pleadings.
11. Upon consideration of the oral and documentary
evidence, the trial Court held that the registration of the Sale Deed
Ex.A/1 is void and therefore, the original plaintiff was liable to be
evicted from the suit land. Hence, the original plaintiff's claim of
ownership over the suit land on the basis of the alleged sale deed
is not tenable and similarly, mutation of the name of the original
plaintiff based on the said sale deed is also void. Ultimately, the
trial Court dismissed the suit filed by the original plaintiff holding
RSA No. 3 of 2010
P a g e | 12
that the sale deed Ex.A/1 executed by the second defendant in
favour of the original plaintiff is null and void and not binding on
the defendants. The trial Court also decreed that the original
plaintiff and his men and agents are to be evicted from the suit
land and all motor mechanical parts kept in the suit land be
removed and to deliver vacant possession of the suit land in
favour of the first defendant. That apart, the trial Court has also
directed the original plaintiff to pay the arrears of rent to the tune
of Rs.14,000/- and further directed the original plaintiff to pay the
rent at the rate of Rs. 1000/- per month to the defendants from the
month of April 2003 till the satisfaction of the decree.
12. Aggrieved by the dismissal of the suit, the original
plaintiff has filed an appeal before the Learned District Court,
Manipur East and subsequently, the same was transferred to the
file of the Learned additional District Judge (Fast Track Court),
Manipur East and numbered as First Appeal No.3 of 2009. The
appeal preferred by the plaintiffs was dismissed by the First
Appellate Court confirming the judgment and decree of the trial
Court. Challenging the concurrent findings of the Courts below,
the plaintiffs have filed the present Second Appeal by raising the
following substantial questions of law:
RSA No. 3 of 2010
P a g e | 13
(1) Whether the finding of the trial as well as the First
Appellate Court to the effect that the Plaintiff fails to
prove the execution of the Sale Deed in Exhibit A/1 on
the sole basis that the attesting witness was not
examined is legally viable or not?
(2) Whether the production of attesting witness is
mandatory for proving the execution of the Sale Deed
in Exhibit A/1 when the execution of the Sale Deed is
not required to be attested as contemplated under
Section 54 of the Transfer of Property Act, 1882?
(3) Whether the attesting witness who is impleaded as
Defendant by way of bringing the Legal
Representatives of the Original Proforma Defendant
can be produced/examined as a witness on behalf of
the Plaintiff when the Original Proforma Defendant had
denied the execution of the Sale Deed?
(4) Whether the First Appellate Court in view of the finding
that the Sale Deed in Exhibits-A/1 is a registered sale
and not a manufactured draws a presumptive value of
execution of the Sale Deed and as such sought to
have judiciously exercised the power and remand the
suit before the trial Court by shifting the onus of
RSA No. 3 of 2010
P a g e | 14
disproving the execution of the Sale Deed in Exhibit
A/1 to the Defendants?
(5) Whether the First Appellate Court was right holding
that the Sale Deed Exhibit A/1 was not duly executed
merely because of non-examination of the attesting
witness as well as the scribe of the Deed when it is
settled position of law in the absence of any
protest/objection made by the Defendants while
exhibiting the Sale Deed in Exhibit-A/1 by the Plaintiff,
the Plaintiff ought to be dispensed with the
requirement of its proof as held in A.I.R. 1953 Assam
92 and the content of the deed shall stand admitted as
held by the Hon‟ble Apex Court which is reported in
A.I.R. 1972 SC 608.
(6) Whether the Judgment dated 10th November, 2009
passed by the Ld. Additional District Judge (Fast Track
Court), Manipur East in First Civil Appeal No.3 of 2009
is against the principle laid down in Judgment reported
in 1999 (1) GLT 196 (Abdul Gani & Another v. Jarun
Ali Mandal) and A.I.R. 1996 SC 761 wherein it was laid
down that in order to prove a sale deed, it is not
RSA No. 3 of 2010
P a g e | 15
necessary to examine the vendor or attesting witness
or even the scribe?
13. When the appeal has been taken up for admission,
this Court admitted the second appeal and framed the following
substantial questions of law on 10.12.2010 :-
(i) Whether the Learned Trial Court as well as the First
Appellate Court have committed an error in holding that
the execution of the sale deed marked Exhibit, A/1 was
not proved solely on the ground that all the attesting
witnesses were not examined?
(ii) Whether the courts below passed the impugned
judgment and decree by misappreciating the evidence in
record.
(iii) Any other substantial question of law to be formulated
during the course of hearing."
14. Assailing the concurrent findings of the Courts below
Mr. Ajoy Pebam, the learned counsel for the appellants submitted
that the Courts below misconstrued and misconceived the fact that
Ex.A/1 Sale Deed is a document which does not require
attestation contemplating the production of attesting witness under
Section 68 of the Indian Evidence Act, 1872, as the same is to be
proved by invoking Section 67 read with Sections 72 and 73 of the
RSA No. 3 of 2010
P a g e | 16
Indian Evidence Act, 1872. He would submit that the execution of
Ex.A/1 Sale Deed has been proved by the plaintiffs by way of
examining P.Ws. 5 and 7 and their evidences have been totally
discarded by the Courts below.
15. Mr. Ajoy Pebam, learned counsel for the appellants
further submitted that the Courts below failed to appreciate the
very facts that the contesting defendant did not raise any objection
while exhibiting Ex.A/1 Sale Deed by the plaintiffs which impliedly
amounts to giving consent and as such the plaintiffs ought to be
dispensed with the requirement of its proof and the content of
Ex.A/1 shall stand admitted.
16. Mr. Ajoy Pebam while making his detail oral
arguments. He has filed a detailed written argument on
25.11.2019 and in which he has given the following citations for
supporting of his case :
(1) (1996)7 SCC 122
Hans Raji -Vs- Yosodanand
Relevant Para : "10. So far as the applicability to the proviso
to section 68 is concerned, it must be noted that there was no
occasion for the respondent to examine any attesting witness to
the document in question as it was a sale deed which never
required any attestation and even if some „marginal‟ witnesses
had attested the document, the document did not attract Section
68 of the Evidence Act which in term applies to the proof of
execution of the document required by law to be attested. It reads
as under:
....................................................
RSA No. 3 of 2010
P a g e | 17 .................................................... Therefore, Section 68 would not cover such a transaction. Hence there would remain no occasion to invoke the proviso to Section 68 with a view to finding out whether the execution of such a document was specifically denied by the adverse party or not. Consequently all the main contentions canvassed before the High Court which are repelled by the High Court cannot be said to be wrongly repelled".
(2) 1996 Legal Eagle 1074 Ami Chand Pandey -Vs- Keshava Prasad Singh and another.
Relevant Para. "22. The objection to the sufficiency of evidence led by the defendant on account of non-production of the second marginal witness of the sale-deed named Veera Ram is also not sustainable because under law a sale-deed does not require attestation nor production of the attesting witnesses in the witness box (See Smt. Hans Rail v. Yasodanand, A.I.R. 1996 S.C.
761)".
(3) 1998(4) GLT 476 Bhupnarayan Singh -Vs- Piloomura Relevant Para:"...................A sale Deed does not require attestation and therefore, it cannot be questioned on the ground of non-examination of any attesting witness, But in spite of it, when a deed is challenged as false ...............".
(4) 1999(1) GLT 196 Abdul Gani& another. -Vs- Jarun Ali Mandal Relevant Para : "7. ....................In order to prove a Sale Deed, it is not necessary to examine the vendor and or attesting witness or even the scribe............................"
(5) 2010 Legal Eagle 1529
Rakesh & ano. -Vs- State of N.C.T. of Delhi
Relevant Para : "6 The plea of .............. As per Section 67
of the Indian Evidence Act, a document can be proved by either by the author of the document or anybody else who can identify his hand writing".
(6) 2012 Legal Eagle 753
RSA No. 3 of 2010
P a g e | 18
JinaGohain -Vs- Puspadhar Baruah & ors.
Relevant Para: "26. Section 67 does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of following modes:-
(i) By calling the person who signed or wrote a document;
(ii) By calling a person in whose presence the documents are signed or written;
(iii) By calling handwriting expert;
(iv) By calling a person acquainted with the handwriting with some admitted signatures or writing;
(v) By comparing in Court, the disputed signature or handwriting with some admitted signatures or writing;
(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it;
(vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person:
A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executants;
(viii) By other circumstantial evidence. [See Rami bai vs. Life Insurance Corporation of India, AIR 1981 MP 89 and Manindra Kr. Dey Another vs. MahendraSuklavaidya and Ors., 1999 (1) GLJ 220 : (1999) 2 GLR 219].
27. In the present case, the Defendant no. 2, in whose presence the sale deed was executed by the defendant No. 3 and who was identified by the Defendant no. 1, was examined. As stated above, this Court also does not find the testimony of the Defendant No. 2 shaken, doubtful or unreliable. No attempt was made by the appellant to question the veracity of the presence of the defendant No. 2 at the time of execution of sale deed by the defendant No. 3 on being identified by the Defendant No. 1 and presence of the other witnesses. Thus, the finding of the Court below that the sale deed had been duly proved on the basis of the RSA No. 3 of 2010 P a g e | 19 evidence of the defendant No. 2 along with other circumstantial evidence does not require any interference by this court.
28. It is not mandate of law as contended by the appellant that a dispute document can be proved only by examining the scribe or the attesting witnesses. As discussed above, if there be other evidences, failure to examine the scribe or the attesting witness would not be fatal in proving any document".
(7) (2009) 5 SCC 713
Vimal Chand Ghevarchand Jain and others
-Vs-
RamakntEknathJadoo
Relevant Para: "19. The deed of the Sale Deed dated 29-06- 1978 was a registered one. It, therefore carries a presumption that the transaction was a genuine one. The respondent was the son of the vendor. He was an attesting witness. In his written statement, he categorically denied execution of the said deed of sale. He also denied that he had attested the document. He even did not examine himself before the learned trial judge. His witnesses merely proved his possession. The fact that the respondent‟s father was put in possession with effect from 1-7- 1978 was (sic not) in dispute. What was in dispute was the character of his possession. Did he continue to possess the godown as owner thereof or on the basis of leave and license was the question, which was not considered in its proper perspective by any of the three courts below.
........................................... ...........................................
22. The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. Evidently, with a view to avoid confrontation in regard to his signature as an attesting witness as also that of his father as vendor in the said sale deed, he did not examine himself. An adverse inference, thus, should have been drawn against him by the learned trial court. (See Kamakshi Builders V. Ambedkar Educational Society.)"
(8) RSA No. 202 of 2004
Sri Sheo Prasad Chouhan -Vs- Smt. Joyradha Das and others RSA No. 3 of 2010 P a g e | 20 Relevant Para: "25. In view of the scheme of the Registration Act, when a document is registered under the provisions of the Registration Act, its due execution and registration has to be presumed. This presumption is, however,........".
(9) (2006)5 SCC 353 Prem Singh and others -Vs- Birbal and others. Relevant Para: " 27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
(10) (1972) 1SCC 9 P.C. Purushothama Reddiar -Vs- S. Perumal Relevant Para : "19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility see Bhagat Ram v. Khatu Ram and Another.
20. It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents. Thus contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
.......................................................
22. The first part of Section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty." (11) Civil Appeal No. (S) 8827 of 2011 RSA No. 3 of 2010 P a g e | 21 Hemkunwar Bai -Vs- Sumer Singh &Ors.
Relevant Para : "....... The witnesses need not necessarily know what is contained in the documents"....
(12) (2012) 9 SCC 310 Bhartiya Seva sSamaj Trust through President and another
-Versus-
Yogeshbhai Ambalal Patel and another Relevant Para : "28. A person alleging his own infamy cannot heard at any forum, what to talk of a writ court, as explained by the legal maxim allegans suam turpitudinem non est audiendus. If a party has committed a wrong, he cannot be permitted to take the benefits of his own wrong. (Vide G.S. Lamba v Union of India, Narender Chadha v Union of india, Molly Joseph v George Sebastian, Jose v Alice and T. Srivasan v T. Varalakshmi). This concept is also explained by the legal maxims commodum ex injuria sua non habere debet and nullus commodum capere potest de injuria sua propria ................."
17. Per contra, reiterating the findings of the Courts below, Mr. P. Tomcha Meitei, the learned counsel for the respondents/defendants argued that after analysing the oral and documentary evidence produced by the, parties, the Courts below rightly dismissed the suit of the plaintiffs. He would submit that the second defendant never sold the suit land to the original plaintiff and that notice for mutation of the name of the original plaintiff ought to have been served to the second defendant. .
18. Mr. P. Tomcha Meitei, the learned counsel for the appellant while making his oral arguments in details, has filed the RSA No. 3 of 2010 P a g e | 22 points of arguments on behalf of respondents dated 14.09.2020 which is as follows :-
"Substantial Question of Law
(i) Whether the Learned Trial Court as well as the First Appellate Court have committed an error in holding that the execution of the sale deed marked Exhibit, A/1 was not proved solely on the ground that all the attesting witnesses were not examined?
(ii) Whether the courts below passed the
impugned judgment and decree by
misappreciating the evidence in record.
(iii) Any other substantial question of law to be
formulated during the course of hearing."
Points of argument: (substantial question of law No. 1 and 2 formulated by the Hon‟ble court can be taken together)
(i) The appellant pleaded the purchase of the suit land from the proforma defendant No. 2 by the Sale Deed in Exhibit A/1 in para No. 7 of the plaint. The principal defendant No. 1 and the proforma defendant No. 2 filed joint written statement and counter claim and deny the execution of the said sale deed in Exhibit A/1 as well as the genuinity of the same in para No. 2, 19, 21 and 23 of the written statement cum counter-claim.
RSA No. 3 of 2010
P a g e | 23 Thus issue No. 1.2 and 3 was framed.
2. The original court gave his decision on these three issues as discussed in para No. 23 to 44 of the order based on the evidence on record.
Issue No. 1 and 2 are answered in the negative, issue No. 3 is also answered in the affirmation.
3. The appellant court‟s discussion of Issue No. 1, 2 and 3 are given in paragraph No. 7 to 19 of the judgment in appeal. These discussions are also based on the evidence on record. Issue No. 1 have been answered in the negative holding that the execution of Exhibit A/1 cannot be proved.
Both the original as well as the appellate court never held that the Execution of Exhibit A/1 was not proved only on the ground of not examining all the attesting witnesses. What the courts had held was the failure of the plaintiff to discharge his onus to prove the execution of Exhibit A/1 by looking into and after a thorough discussion of the evidence on record. The findings of the original well as the appellant court regarding issue No. 1 are based on evidence on record and this finding is a finding of facts.
4. The Hon‟ble Supreme Court in 2019(8) SCC 639 has laid down the grounds on which concurrent finding can be pointed to be bad in law as follows:
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(i) Because it is bad in law because it was recorded de hors the pleadings;
(ii) Because it was based on no evidence;
(iii) Because it was based on misreading of material documentary evidence;
(iv) Because it was recorded against any
provision of law;
(v) Because the decision is one which no
judge acting judicially could reasonably have reached;
In the present case, the onus to show that the judgment in Appeal suffer from any of the above grounds is on the appellant. However it is submitted that there is no ground for interference in the present Second Appeal. The appellate has failed to discharge this onus.
5. Moreover the findings of the original court regarding Issue No.7 has neither been uphold nor set- aside by the appellate court by simply holding in para. No. 20 of the judgment that "In respect of issue No. 7.I think it is not necessary to decide the issue. Because this issue is to be proved by the defendant only when the plaintiff proves the execution and contents of the Exht. A/1. In the instant case the execution of the Ext. A/1 is not proved and hence the onus of disproving the validity of the Ext. A/1 does not arise".
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P a g e | 25 Thus the finding on issue No.7 by the original court as given in Paragraph No. 58 of the order will render the present second appeal redundant. Paragraph No. 58 is reproduced as follows : "This issue is raised by the defendants for which I have already give my findings in Issue No. 1, 2 and 3 that the plaintiff could not prove that he obtained no objection certificate under the Manipur Town And Country Planning Act and as such the registration of the Sale Deed Ext. A/1 is illegal and void and as such the plaintiff claim of ownership over the suit land on the bais of Ext. A/1 is not tenable".
Hence the present Second Appeal be dismissed as without merit."
19. Mr. P. Tomcha Meitei, learned counsel for the respondents/defendants submitted that assuming but not admitting that if there be in existence of the alleged transfer (Ex. A/1 Sale Deed), the transfer is null and void and cannot be acted upon in the eye of law. Therefore, the trial Court was right in dismissing the suit of the plaintiffs, which was also rightly affirmed by the First Appellate Court and prayed for dismissal of the Second Appeal.
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20. This Court considered the submissions made by the learned counsel for the parties and also perused the materials available on record.
21. The case of the plaintiffs is that the second defendant is the owner of the suit A schedule. On 29.12.1986, the original plaintiff had purchased a piece of land described in suit schedule B, which is part of A schedule. According to the plaintiffs, after purchase by the original plaintiff, his name was recorded in the records of right as owner of the B schedule land. The case of the plaintiffs is that the original plaintiff was running a motor workshop in the B schedule since 1953 on payment of rent till the said land was purchased by him. However, the first defendant issued a notice on 10.12.2003 to the original plaintiff for vacating the said land on the ground that the original plaintiff had failed to pay the rent. Hence, the original plaintiff has filed the suit.
22. The case of the defendants is that the original plaintiff was allowed to run motor workshop in the B schedule land, however, no agreement was entered into. The second defendant used to supervise the workshop daily, but he could not go to the workshop for the past 10 years due to some other works. The original plaintiff paid the rent at the rate of Rs.300/- per month till the year 1991. In the year 1991, the said land was transferred in RSA No. 3 of 2010 P a g e | 27 the name of the First defendant by way of gift. According to the defendants, the second defendant never executed the sale deed in favour of the original plaintiff and the alleged sale is hit by the provisions of the Manipur Town and Country Planning Act, 1975. Stating so, the defendants prayed for counter-claim for eviction of the plaintiffs from the suit B schedule on the ground of non- payment of rent.
23. The dispute arises in connection with Ex.A/1 Sale Deed. The original plaintiff claimed that he had purchased the suit B schedule from the second defendant under a registered Sale deed dated 29.12.1986 for a consideration of Rs.35,000/-. On the other hand, the say of the defendants is that the second defendant never transferred the suit B schedule and/or executed Ex.A/1 Sale Deed in favour of the original plaintiff at the consideration stated in the said deed. In order to prove their cases, both parties have adduced oral evidence and marked their side documents.
24. In the instant case, both the Courts below shifted the burden on the plaintiffs in respect of Ex.A/1 Sale Deed executed in favour of the original plaintiff by the second defendant.
25. In order to prove the execution of Ex.A/1 Sale Deed, the plaintiffs have examined 7 witnesses. In his evidence, the RSA No. 3 of 2010 P a g e | 28 original plaintiff Laishom Ningthemjao Singh deposed that he had purchased the suit land from the second defendant Satrajit for a sum of Rs.35,000/- by executing a sale deed dated 29.12.1986, which was duly registered on 30.12.1986. P.W.1 identified the sale deed as Ex.A/1 and also identified the signature of the second defendant.
26. P.W.7 Koijam Nillo Singh is the person who identified both the original plaintiff and the second defendant in the transaction. In fact, in his chief-examination by way of proof affidavit, P.W. 7 stated as under:
"It is true that in the month of December 1986 the said deceased Satrajit Singh while he was alive, had sold out the suit land or suit portion of land measuring 018 acre situated at Khwai Bazar/Imphal Municipality, which is bounded on the north by Sarkari Nallah/Drain and adjacent to the north of the said Drain is the shop plot of Nameirakpam Rabei Singh, on the south by the plot belonged to me, on the east by the compound of City Police Station and on the west by the MG. Avenue (but I don‟t know the patta No. of the suit land) to the said deceased RSA No. 3 of 2010 P a g e | 29 Ningthemjao Singh while he was alive at consideration amount of Rs.35,000/- (Rupees thirty five thousand) only being acknowledged the receipt of all the full consideration amount by the said deceased Satrajit Singh. ....... "
27. In this regard, on a perusal of Ex.A/1 Sale Deed, it is seen P.W.7 identified both the second defendant as well as the original plaintiff before the Sub Registrar. During cross- examination also, P.W.7 stated that he knew Satrajit Singh and Ningthemjao Singh when they were alive and he identified them before the Registrar.
28. P.W.6 is the then Sub Registrar of Imphal Headquarter, who had deposed that in the year 1986, he sent one Ningthoujam Bheigya Singh, an employee of the Sub Registrar‟s Office as his nominee for visit registration of the Sale Deed Ex.A/1 In his evidence, P.W.6 further stated that Ex.A. /1 was written by late Thangjam Momon Singh and the said scribe professed his professional place at the office of the Sub Registrar, Imphal Headquarters for a long time even by the relevant time of writing Ex.A/1 Sale Deed and as such he knew the handwritings and signatures of Thangjam Momon Singh and P.W.6 also identified the same.
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29. P.W.5 is the so called nominee nominated by P.W.6 for visit registration, who had deposed that he went for a visit registration officially at the site of the suit land near City Police Station and also at the residence of the second defendant initiating the process of registration of the Sale Deed on 29.12.1986 between the second defendant as vendor and the original plaintiff as vendee, but completed the said registration on 30.12.1986. P.W.5 further stated that the second defendant was identified by Nilo Singh in his presence at the time of registration of the sale deed between the second defendant and the original plaintiff. In his evidence, P.W.5 further stated that even without the identification of Kh. Shatrajit Singh by K.Nilo Singh at the time of registration of the said sale deed, he knew the said Kh. Shatrajit Singh by face who put his signature on the alleged sale deed in his presence by way of transferring the said suit land by way of registered sale to the said Ningthemjao Sigh even the said Shatrajit Singh replied that he (Shatrajit Singh) had received full consideration amount of Rs.35,000/-. P.W.5 also identified the handwritings of Mamon Singh, who write the sale deed Ex.A/ 1.
30. At this juncture, it is to be mentioned that signatures of the Registering Officer and of the identifying witness affixed to the registration endorsement was, in my opinion, sufficient RSA No. 3 of 2010 P a g e | 31 attestation within the meaning of the Act. The endorsement by the Registering Authority that the executant has acknowledged before him execution did also amount to attestation. In Ex.A/1 Sale Deed, the second defendant signatures were taken by the Registering Officer. The signature of the identifying witness was also taken in Ex.A/1 Sale Deed. After all this, the Sub Registrar signed the deed.
31. In paragraph 35 of the judgment, the trial Judge held that on his examination of Ext.A/1 the contents states as Sale Deed dated 29/12/1986 transferring the suit land at a consideration of Rs.35,000/- executed by the Proforma defendant No.2 in favour of the plaintiff. However, the trial Judge came to the conclusion that Section 31 of the Registration Act permits registration to be made in ordinary cases either in the office of the Registrar or Sub Registrar or at the place of residence of the person executing the document, but special cause, reasons is „to be shown for not presenting the document in the ordinary course to the Registrar Office if registered at the residence of the person executing the document.
32. From the evidence produced by the parties, the special reason for visit registration might be the age of the second defendant vendor, as at the time of registration of Ex.A/1, he was RSA No. 3 of 2010 P a g e | 32 aged 84/85 years old, which fact has not been disputed and/or denied by „the defendants. Therefore, the conclusion drawn by the trial Judge that no special cause or reason shown for not presenting the document in the ordinary course is not sustainable and in fact, the special reason for visit registration has been shown by the plaintiffs. In this regard, the evidence of official witnesses examined on the side of the plaintiffs supports the plea of the plaintiffs.
33. The trial Judge then came to the conclusion that Ex.A/1 Sale Deed appears to be manufactured and that the registration of Ex.A/1 is illegal and void for not complying the provisions of the Manipur Town and Country Planning Act, 1975. Thus, the conclusion of the trial Judge is that the omission of non- complying Section 27 of the Act is not curable under the provisions of the Registration Act, 1908 and as such the registration of Ex.A/1 is void. Therefore, the transfer would not be effective so as to pass title of the suit land to the transferee unless the instrument of transfer is validly registered.
34. In my view, the trial Judge, without application of mind held that Ex.A/1 Sale Deed as null and void for non- compliance of the provisions of Section 27 of the Manipur Town and Country Planning Act, 1975 by shifting the onus for production RSA No. 3 of 2010 P a g e | 33 of the approval obtained from the Planning and Development Authority, which in fact lies upon the Registering Authority specially when the registration was given effect almost 17 years prior to the filing of the suit. In this regard, it would be appropriate to mention the evidence of P.W.6, who had deposed that whenever prior approval or permission from the concerned authority is made a condition precedent for registering any Deed, the same were allowed to be obtained from the parties concerned and in the similar manner, the said Sale Deed was executed on 29.12.1986 was registered on 30.12.1986 is sufficient enough to conclude the genuineness of the document. The said evidence of P.W.6 has not been disproved by the defendants. Therefore, the finding of the trial Judge, which was affirmed by the First Appellate Court that Ex.A/1 Sale Deed appears to be manufactured and that the registration of Ex.A/1 is illegal and void for not complying the provisions of the Manipur Town and Country Planning Act cannot be sustained.
35. The execution of Ex.A/1 Sale Deed by the second defendant in favour of the original plaintiff and its registration was proved by the plaintiffs by way of oral evidences of P.Ws.5, 6 and
7. In the instant case since the scribe of Ex.A/1 died, his writings and signatures in Ex.A/1 were identified by P.W.5 and P.W.6, who RSA No. 3 of 2010 P a g e | 34 are the responsible officers of the Sub Registrar Office and their evidences give much weightage to the case of the plaintiffs in proving Ex.A/1 Sale Deed. Therefore, mere non-examination of the scribe and attesting witness, it cannot be said that the document viz., Ex.A/1 has not been proved. As rightly contended by the learned counsel for the appellants, the Courts below misconstrued the fact that the Sale Deed Ex.A/1 is a document which does not require attestation contemplating the production of attesting witness under Section 68 of the Indian Evidence Act, 1872, as the same is to be proved by invoking Section 67 read with Sections 72 and 73 of the said Act.
36. Though in his evidence D.W.1 denied that Ex.A/1 was not executed by the second defendant, nothing has been produced to disprove the version of the plaintiffs. On the other hand, D.W.1 (first defendant) claims the suit land by way of Ex.B/9 gift deed stated to have been executed by his father, the second defendant in favour of him and he had also accepted the said gift. He further stated that Ex.B/9 was registered by visit at the residence of the donor, who had been living with him at the relevant point of time. When the defendants questioned the registration of Ex.A/ 1 by visit registration, as no special reason RSA No. 3 of 2010 P a g e | 35 has been stated, in respect of Ex.B/9 gift deed also, the First defendant has not stated any special reason for visit registration.
37. The fact remains that the original gift deed has not been produced by the .defendants and based on the certified copy of the gift deed, the trial Judge improperly and without justification accepted hurriedly the certificate copy which was a scribble by one of the employee of the Sub Registrar‟s office without original in which the certified copy of the gift deed suffered from serious lacuna or total blank of which no signatures, thumb impressions of the donor and donee, scribe, witnesses, identified and Sub Registrar were nil. No one identified the donor and donee of gift which was Compulsory in the registration. The alleged gift deed is hit by for want of identifier. In the absence of identification of donor and donee and also the identifier, the trial Court erred in arriving at the conclusion that the second defendant executed the gift deed in favour of the first defendant transferring the suit land by way of gift.
38. The other witnesses viz., D.Ws.2 to 7 were examined by the defendants to prove the execution of Ex.B/9 gift deed. Though in his evidence D.W.2 stated that the second defendant gifted the suit land in favour of the first defendant, the evidence of D.W.4 is to the effect that he do not know the donor and the RSA No. 3 of 2010 P a g e | 36 donee. D.W.5 is the grand son of the second defendant and the son of the First defendant. In view of the close relationship, the evidence of D.W.5 cannot be taken as true as he is an interesting witness. D.Ws.6 and 7 are the official witnesses and they have deposed for issuance of the certified copy of B/9 gift deed. The alleged gift deed Ex.B/9 stated to have been executed by the second defendant in favour of the first defendant is dated 31.7.1998 and the second defendant died on 24.1.2006. Since Ex.A/1 Sale Deed is dated 29.12.1986 much prior to the execution of the alleged gift deed by the second defendant in favour of the first defendant and Ex.A/1 Sale Deed was proved by the plaintiffs, the first defendant cannot claim any right over the suit B schedule through Ex.B/9 gift deed.
39. After the execution of Ex.A/1 Sale Deed, the revenue records were changed and the original plaintiff‟s name was entered into the relevant books. Taking advantage of the fire in 1990 in connection with the incident of counting of votes and as such all relevant land records in the custody of the office in the name of the original plaintiff were destroyed by fire including the records pertaining to the suit land, the first defendant approached the revenue authority and recorded his name in the relevant RSA No. 3 of 2010 P a g e | 37 Jamabandi and thereafter, issued notice dated 10.12.2003 demanding the plaintiffs to vacate the suit land.
40. The plaintiffs have also produced Ex.A/3 patta standing in the name of the original plaintiff in respect of the suit land. Having sold the suit land to the original plaintiff by the second defendant in the year 1986 itself, he has no right to gift the said land in the year 1998 in favour of the first defendant and pursuant to the alleged gift deed Ex.B/9, the defendants, particularly, the First defendant cannot claim any right over the suit land. Therefore, both the Courts below erred in holding that Ex.B/9 gift deed establishes the fact that the first defendant is the owner of the suit land. In fact, while answering Issue No.6, the trial Judge erred in holding that in any case the First defendant being the son of the second defendant, he is entitled to the share left behind by his father. There cannot be two views of the trial Judge.
41. In view of the above, it is to be held that the non- examination of the attesting witness to Ex.A/1 is no way affect the case of the plaintiffs as the execution of Ex.A/1 Sale Deed and its registration have been duly proved by the plaintiffs. In fact, the witness to Ex.A/1 viz., Kh. Dolen Singh is one of the defendants in the suit, who was subsequently impleaded as legal heir of the second defendant. It is also to be noted that at the time of marking RSA No. 3 of 2010 P a g e | 38 Ex.A/1 Sale Deed, no objection made by the defendants. In the absence of any such objection raised, the defendants have no right subsequently to say that Ex.A/1 has not been proved by examining the attesting witness. As stated supra, Ex.A/1 has been proved by the plaintiffs by examining P.Ws.5 to 7.
42. It is not the mandate of law as contended by the defendants that Ex.A/1 can be proved only by examining the scribe or the attesting witnesses. As discussed above, if there be other evidences, failure to examine the scribe or the attesting witness would not be fatal in proving Ex.A/1 Sale Deed.
43. It is settled that a registered deed of sale carries presumption that the transaction was a genuine one. If the execution of sale deed is proved, onus is on the other side to prove that the deed was not executed and it was a sham transaction. Thus, the burden to prove that it is not genuine lies on the person who alleged that it is not so.
44. It is also well settled that the registration by itself, in all cases, is not proof of execution, but, if no other evidence is available, the certificate of registration is prima facie evidence of its execution and the certificate of Registering Officer is relevant for proving the execution.
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45. In the instant case, as stated supra, the Registering Authorities viz., P.W.6 and P.W.5 have categorically stated execution of Ex.A/1 Sale Deed by the second defendant in favour of the original plaintiff and their oral evidence assumes much importance qua execution of Ex.A/1 Sale Deed. In fact, the Courts below failed to appreciate the evidence of P.W.6 and P.W.5.
46. Yet another case of the defendants is that the original plaintiff was a tenant of the suit land and that the dispute arose on account of non-payment of monthly rent and therefore, notice dated 10.12.2003 was issued to the original plaintiff to vacate the suit land. In this regard, it is pertinent to note that the original plaintiff's occupation in the suit land from the year 1953 till 1986 on payment of rent is not disputed. In the year 1986, the second defendant proposed to sell the suit land to the original plaintiff and accordingly, the original plaintiff purchased the suit land under Ex.A/1 Sale Deed and the same has been proved by the plaintiffs. There is also no dispute that from the date of purchase, the original plaintiff and after his demise his legal heirs are in possession and enjoyment of the suit land. The dispute started only from the year 2003 when the First defendant issued notice. RSA No. 3 of 2010
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47. As stated supra, without having right over the suit land, the first defendant had issued the notice seeking to vacate from the suit land. Since the possession and enjoyment of the suit land by the plaintiffs is pursuant to Ex.A/1 Sale Deed executed by the second defendant in favour of the original plaintiff, the defendants, more particularly, the first defendant has no right to make a counter claim to declare that Ex.A/1 Sale Deed as null and void and for eviction of the plaintiffs from the suit land and also arrears of rent. The alleged default of rent pleaded by the defendants is not proved. Since the original plaintiff purchased the suit land in the year 1986 and was in possession of the same during his life and thereafter his legal heirs, the question of payment rent after the purchase of does not arise. Therefore, the plea of the defendants that the plaintiffs committed default in payment of rent is only for making a counter-claim and there is no merit in the counter-claim made by the defendants and the trial Court without looking into the factual aspects allowed the counter- claim. The First Appellate Court had also without appreciating the facts and documents, affirmed the judgment of the trial Court and therefore, the findings of the Courts below are perverse.
48. In view of the findings that Ex.A/1 Sale Deed is valid in law, this Court is of the view that the Courts below erred in RSA No. 3 of 2010 P a g e | 41 coming to the conclusion that Ex.A/1 Sale Deed is manufactured. Since the sale in favour of the original plaintiff was established by the plaintiffs, the plea of the defendants that the plaintiffs have no right over the suit land has no force and the Courts below erred in dismissing the suit of the plaintiffs and decreeing the counter-claim made by the defendants. Thus, the substantial questions of law are answered accordingly. Resultantly, this Court find and hold that the plaintiffs are entitled to the relief of declaration over the suit B schedule and also permanent injunction restraining the defendants their men and agents from interfering with the peaceful possession and enjoyment of suit B Schedule.
49. Accordingly, I am inclined to pass the following orders :-
(a) this second appeal is allowed by setting aside the judgment and decree of both the Courts below;
(b) the suit is decreed by declaring that the plaintiff has right and title of the suit land/suit portion of land as the absolute owner of the suit B Schedule;
(c) there shall be a decree for permanent injunction restraining the defendants, their men RSA No. 3 of 2010 P a g e | 42 and the agents from entering/or interfering with the peaceful enjoyment of the suit B Schedule by the plaintiffs;
(d) the counter claim made by the defendants is dismissed;
(e) the parties are directed to bear their own costs;
(f) in view of the order passed by allowing the appeal, the two miscellaneous cases filed by the respondents/defendants in MC (RSA) No. 9 of 2019 and MC(RSA) No. 14 of 2019 are dismissed.
50. On 27.03.2012, while this Court has granted the interim order by directing both the parties to maintain the status quo of the suit land subject to deposit of a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) by the Appellants/Plaintiffs within a period of 3 (three) months. In the same order, this Court also directed that the appellant shall deposit the monthly rent at the rate of Rs. 1,000/- (Rupees One Thousand) per month regularly before this Court. Since the appellants have established their titles and this Court set aside the concurrent findings of the courts below, the question of payment of monthly rent by the appellants/plaintiffs does not arise. The amount of Rs.1,50,000/- RSA No. 3 of 2010
P a g e | 43 and the monthly rents, if any, deposited by the appellants/plaintiffs and are lying in Court, the same is permitted to be withdrawn by the appellants/plaintiffs on filing proper application.
JUDGE FR/NFR Sushil RSA No. 3 of 2010