Gauhati High Court
RSA/46/2016 on 14 October, 2025
GAHC010201472016
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
RSA No. 46/2016.
1. Sri Harekrishna Raha,
S/O Late Sudhannya Mohan Raha,
2. Smt. Jhunu Rani Raha,
W/O Sri Harekrishna Raha,
Both are residents of Shib-bari Road, Malugram, Silchar Town,
P.S. Silchar, Dist Cachar, Assam.
Appellants/Defendants.
- Versus-
1. Smt. Pratibha Sundari Paul,
W/O Late Madhusudan Paul,
2. Sri Manik Paul
3. Sri Monoj Paul
4. Sri Tanmay Paul
All are sons of Late Madhusudan Paul,
All are residents of Village: Ghungoor, Vetenary Bazar,
P.O.: Ghungoor, Dist.: Cachar, Assam.
PIN: 788010
Respondents/Plaintiffs
Page 1 of 24
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellants :- Mr. I.H. Laskar
Advocate for the respondents :- Mr. M.J. Quadir .
Date of Hearing :- 24.07.2025.
Date of Judgment :- 14.10.2025.
JUDGMENT AND ORDER (CAV)
Heard Mr. I.H. Laskar, learned counsel for the appellants. Also
heard Mr. M.J. Quadir, learned counsel for the respondents.
2. In this appeal, under Section 100 of the CPC, the appellants
have put to challenge the correctness or otherwise of the judgment
and decree, dated 23.12.2013, passed by the learned Civil Judge
No.1, Cachar, Silchara (First Appellate Court hereinafter), in Title
Appeal No. 34/2009.
3. It is to be noted here that vide impugned judgment and decree,
dated 23.12.2013, the learned first appellate Court had allowed the
Title Appeal No. 34/2009 and thereby reversed the judgment and
decree, dated 19.06.2009, passed by the learned Munsiff No.1,
Cachar, Silchar (Trial Court hereinafter), in Title Suit No. 29/2006,
whereby the learned trial Court had dismissed the suit of the
plaintiffs.
Page 2 of 24
4. Herein, the status of the parties, as indicated in the Title Suit
No. 29/2006, is adopted for the purpose of convenience and to avoid
confusion.
Background Facts:-
5. The background facts, leading to filing of the present appeal, are adumbrated herein below:-
"One Sudhanya Mohan Raha, predecessor-in-interest of the defendants was the owner of plot of land, under 2nd RS. patta No. 27. The plaintiff‟s case is that said Sudhanya Mohan Raha had sold 13 katha land of the said patta by a registered sale deed, dated 05.08.86 (Exhibit-1) in favour of Madhu Sudan Paul, predecessor-in-interest of the plaintiff‟s. Subsequently, Madha Sudan Paul again purchased 1 katha 3 chattak 10 gondas of pathway type land, situated adjacent eastern boundary of the aforesaid 13 katha land, from the said predecessor-in-interest of the defendants by a registered sale deed, dated 13.10.1987 (Exhibit-2), and he became the owner of total 14 katha 3 chattak 10 gondas of land in the said patta.
Further case of the plaintiffs is that out of total 14 katha 3 chattak 10 gondas of purchased land their predecessor-in- interest, had sold 3 katha of land by a registered sale deed, dated 12.05.1987, (Exhibit-3) to one Sankar Ranjan Das and delivered possession to him. After such sale, the interest of Page 3 of 24 Madhu Sudhan Paul remained over 11 katha 3 chattak 10 gonda of land. Madhu Sudhan Paul died on 13-09-97 leaving behind the plaintiffs as his only legal heirs and successors to his estate.
Further case of the plaintiffs is that after death of Madhu Sudan Paul the plaintiff No.1, along with her children left the suit land and started living elsewhere in search of avocation. However, they occasionally use to visit the suit land and maintain her possession by putting bamboo fencing around it. Thereafter, on 01-06-2005, when the plaintiff by engaging labour was putting fencing around the suit land, then the defendants opposed her and tried to attack her. She then reported the matter to the local people and on arrival of local people the defendants fled away but they threatened her. She then initiated a proceeding u/s 144 Cr.P.C. Then from the case record of said 144 Cr.P.C proceeding, the plaintiffs came to know that the defendants had purchased the suit land from her predecessor-in-interest by a registered sale deed, dated 04.12.1990, (Exhibit-6). The plaintiff then obtained the certified copy of the sale deed and came to know that the sale deed is a fraudulent one. Then being aggrieved, the plaintiff had instituted the suit seeking following reliefs:-
(a) A decree declaring the right, title and interests of the plaintiffs over the lands described in the Schedule-I, Page 4 of 24
(b) For confirmation of possession or alternatively if dispossessed during the pendency of the suit for recovery of khas possession by removing all obstacles and hindrances,
(c) For a decree, declaring that the sale Deed registered on 4-12-1990, and described elaborately in schedule-II below is a fraudulent, illegal void and inoperative and not binding upon the plaintiffs and for cancellation of the same, deliver the khass possession and marking a copy of the decree to the concerned Registering Authority for noting of the fact of such cancellation in the concerned Book Volume.
(d) For permanent injunction, restraining the defendants and their men and agents from dispossessing the plaintiffs from the suit land described in Schedule-I and/or restraining them from alienating the suit land or any part and/or changing the nature and feature of the suit land and also for costs.
The defendants had contested the suit by filing written statement denying the averments made in the plaint and also tooth and nail. However, the defendants admitted the fact that their predecessor Sudhanya Mohan Raha had sold 14 katha 3 chattak 10 gonda lands in favour of Madhu Sudhan Paul, the predecessor-in-interest of plaintiffs. The defendants had taken the stand that Madhu Sudhan Paul, during his life time, had transferred the said land to the defendant No.2, on valuable consideration and since then the defendant No. 2 is in Page 5 of 24 possession of the same. Their further claim is that the said sale is within the knowledge of the plaintiffs and in spite of knowing the same they have instituted the false and frivolous suit. Accordingly, it is prayed for dismissal of the suit.
Upon the pleadings of the parties, the learned Trial Court had framed following issues:-
ISSUES (1) Whether there is cause of action for the suit? (2) Whether the suit is maintainable in its present form and manner?
(3) Whether the suit is bad for defect of parties? (4) Whether the plaintiffs have right, title and interest?
(5) Whether the plaintiff has possession over the suit land?
(6) Whether the sale deed registered on 04-12-90 is illegal, fraudulent and liable to be cancelled? (7) To what reliefs the parties are entitled to?
Thereafter, the learned Trial Court had examined two witnesses of the plaintiffs. The defendants had not adduced evidence of any witness. Then upon hearing arguments of learned counsel for both the sides, had dismissed the suit of the plaintiffs, vide judgment and decree, dated 19.06.2009.
Page 6 of 24Being aggrieved by and dissatisfied with such dismissal of the suit, the plaintiffs had preferred an appeal, being Title Appeal No. 34/2009. During pendency of the appeal, the plaintiffs had adduced additional evidence and the respondent side had cross-examined the witness. The learned Appellate Court had formulated following point for determination:
(i) Whether the deed No. 845 is a fraudulent or not?
Then hearing learned counsel for both the parties, the learned First Appellate Court, vide impugned judgment and decree, dated 23.12.2013, had allowed the Title Appeal No. 34/2009 and thereby reversed the judgment and decree, dated 19.06.2009, passed by the learned Trial Court and decreed the suit of the plaintiffs.
6. Being aggrieved, by the judgment and decree, dated 23.12.2013, so passed by the learned First Appellate Court, in the Title Appeal No. 34/2009, the defendants have preferred the present appeal challenging the correctness of the same. The said appeal was admitted for hearing on the following substantial questions of law:-
(i) Whether the learned Lower Appellate Court below was justified in drawing an adverse presumption under Section 114 of the Indian Evidence Act, 1872, against the present Appellants/Defendants Page 7 of 24 despite the failure of the prosecution side to discharge its burden of proof?
(ii) Whether the Learned Lower Appellate Court below was correct in interfering with the findings of the Learned Trial Court below by holding the Sale Deed No. 845 dated 05.11.1990 (Exhibit-6) as a fraudulent one, whereas it is admitted from the pleading of the plaintiffs that they could know about the said Sale Deed No. 845 dated 05.11.1990 only when they obtained the certified copy of the said Deed from the concerned authority?
Submissions:-
7. Mr. I. H. Laskar, learned counsel for the appellants/defendants, submits that P.W. 1 and 2 had failed to establish that the sale deed is fraudulent one. Secondly, Mr. Laskar submits that the learned First Appellate Court had arrived at an erroneous finding. He also pointed out that P.W.1 is ignorant about the sale deed and P.W.2 also admitted having no knowledge about the case and P.W.3 also cannot say about purchase of three kathas of land by the predecessor-in-
interest of the plaintiffs‟. Under such circumstances, Mr. Laskar submits that the learned Trial Court had rightly dismissed the suit of the plaintiffs, but on an erroneous finding, the learned First Appellate Court had allowed the appeal and decreed the suit. Therefore, Mr. Laskar has contended to allow the appeal by setting aside the Page 8 of 24 impugned judgment and decree so passed by the learned First Appellate Court.
7.1 Mr. Laskar has referred following case laws in support of his submissions:-
(i) Jagjit Singh vs. State of Haryana & Ors., reported in AIR 2007 SUPREME COURT 590;
(ii) Anil Rishi vs. Gurbask Singh, reported in 2006 (5) SCC 558;
(iii) Sontosh Kumar Mandal and others vs. Nandalal Chankrapani & Others, reported in AIR 1963 CALCUTTA 20;
(iv) Sundertal Bhanabhai Bhagat and Ors v. State of Gujarat and Ors., reported in AIR 2012 GUJARAT 71;
(v) Sobha Hymavathi Devi Appellant v. Setti Gangadhara Swamy and others Respondents, (Civil Appeal Nos.
4413-4414 of 2003, D-28-1-2005).
8. Per contra, Mr. M.J. Quadir, learned counsel for the respondents/plaintiffs submits that documentary evidence will always prevail over the oral evidence. In support of his submission, Mr. Quadir has referred to Section 91 of the Evidence Act. Mr. Quadir also submits that P.W.3, Shankar Ranjan Das had adduced evidence and exhibited the Sale Deed as Exhibit-3 and proved having purchased 3 kathas of land. Mr. Quadir also pointed out that the appellants had failed to prove their title and also failed to prove the titles of their vendor. He also pointed out that the appellants, as defendants had failed to enter in the witness box to state their case and as such their Page 9 of 24 case, as set out in their written statement remained unsubstantiated. Another submission of Mr. Quadir is that the vendor of the appellants had no title over the suit land, but, the vendor of the respondents/plaintiffs had. Under the given facts and circumstances, Mr. Quadir submits that the judgment and decree so passed by the learned Trial Court is null and void and that the impugned judgment and decree, so passed by the learned First Appellate Court has to be upheld.
9. In reply to above submission, Mr. Laskar, learned counsel for the appellants/defendants submits that the learned Appellate Court had held that the original deed, being the Exhibit-3, though exhibited, yet, in fact the original deed was not produced before the Court.
10. Having heard the submission of learned counsel for both the parties, this Court has gone through the memo of appeal, and the impugned judgment and decree, dated 23.12.2013, passed by the learned first Appellate Court in the Title Appeal No. 34/2009, and also the judgment and decree, dated 19.06.2009, passed by the learned Trial Court in Title Suit No. 29/2006. This Court has also gone through the record of the learned Trial Court as well as of learned First Appellate Court and through the decisions referred by learned Counsel for both the parties.
11. It appears from the record of the learned Trial Court as well as from the learned First Appellate Court that from the impugned judgment and decree so passed by the learned First Appellate Court Page 10 of 24 that the learned First Appellate Court had recorded a finding that-
"In this case also where the defendants claimed right, title, interest and possession over the suit schedule land by purchase from Madhu Sudhan Paul they ought to have adduced evidence proving execution as well as the genuineness of the Ext. 6. But they refrained themselves. In such a situation an adverse presumption lie against their case u/s 114 Evidence Act. Accordingly we are lest in no hesitation that the Ext. 6 is an illegal & fraudulent document. As such the point in hand is decided in the affirmative."
11.1 Further, it appears that while recording such a finding, the learned Trial Court had relied upon a decision of a Co-ordinate Bench of this Court in Mustt. Jurmati Bewa & Others vs. Anwar Rasul & Others, reported in AIR 1973 Gauhati 90.
11.2 Admittedly, the defendants had not adduced any evidence and entered into the witness box, in support of the statement and averment made in their written statement. And this being the factual scenario, the learned first Appellate Court has rightly drawn adverse inference under Section 114 of the Evidence Act, against the defendants and in respect of Exhibit-6. The law in this regard is well settled in catena of decisions of Hon‟ble Supreme Court and also in the decisions of various high Courts of the land.
Page 11 of 2411.3 In the case of Vidhyadhar vs. Manikrao, reported in (1999) 3 SCC 573, Hon‟ble Supreme Court has authoritatively settled this position. Relevant paragraph of the decision is quoted herein below:-
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh vs. Gurdial Singh [AIR 1927 PC 230: 32 CWN 119]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924].The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230: 32 CWN 119].
The Allahabad High Court in Arjun Singh vs. Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box."Page 12 of 24
11.4 In the case of Mustt. Jurmati Bewa(supra), a Co-ordinate Bench of this Court also, long back, in the year 1973, has dealt with the issue in question as under:-
26. On behalf of the defendants we have the statement of Punaram Singh, defendant No. 3, alone apart from certain documents placed on the record, In support of their defence. In paragraph 7 of the written statement the defendants had candidly admitted that they had no knowledge how and when Chengaram had entered upon the suit property. In his examination-in-chief though Punaram Singh happened to affirm that the property belonged to his father and that they had inherited the property from him, in his cross-examination he was frank in admitting that he could not detail how his father had got the land and that fact was also not known to his mother. He could not deny that the patta of the land firstly stood in the name of Anisur Rasul and that now it stands in the name of the plaintiff. The defendant No. 1 Jurmati. It has to be emphasized, avoided the witness box. That circumstance cannot be lightly ignored. It is for the reason that according to the plaintiff's unequivocal case she had let out the property to Jurmati and not to her husband Chengaram.
Therefore, it was proper for Jurmati to enter the witness box and take the Court into confidence about the true state of affairs.
27. It will be noticed that according to the allegations of the defendants the premises in dispute was in the first instance occupied by Jurmati along with her husband and that the Page 13 of 24 defendants Nos. 2 and 3 were subsequently born to the couple during the course of their residence in the same premises. In the context of those pleadings it was Jurmati and not her son Punaram Singh who knew the facts best. It is therefore; legitimate to raise a presumption that Jurmati has deliberately withheld herself from the witness box to avoid some vexing questions in cross-
examination."
11.5 In view of aforesaid legal proposition, this Court is of the view that the first substantial question of law, so formulated at the time of admission of this appeal does not flows out of the facts and circumstances herein this case. And accordingly, the same stands answered.
12. It is well settled proposition of law that documentary evidence will always prevail over the oral evidence. Mr. Quadir, learned counsel for the respondents/plaintiffs has rightly pointed this out during argument. Section 91 of the Evidence Act provides as under:-
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no [evidence] [Where, however, a Criminal Court finds that a confession or other statement of an accused person has not been recorded in the manner Page 14 of 24 prescribed, evidence may be taken that the recorded statement was duly made-see the Code of Criminal Procedure, 1973 (2 of 1974), Section 463.] shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. - Wills [admitted to probate in [India] [Substituted by Act 18 of 1872, Section 7, for "under the Indian Succession Act".]] may be proved by the probate.
Explanation 1. - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2. - Where there are more originals than one, one original only need be proved.
Explanation 3. - The statement, in any document whatever, or a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
13. The learned first Appellate Court has held as under:-
Page 15 of 24"There appears no dispute of the fact that vide two documents i.e. Ext 1 and 2 Madhu Sudan Paul, the predecessor of the appellants/plaintiffs, purchased 14 katha 3 chattak 10 gonda land in the suit patta and dag from Sudhanya Mohan Raha, the predecessor-in-interest of the respondents/defendants. In the suit, where the appellants/plaintiffs claim that their predecessor sold only 3 katha of land to one Sankar Ranjan Das and did not sell any other land, the respondents/defendants claimed that the Madhu Sudan Paul sold his entire interest of 14 katha 3 chattak 10 gonda in favour of the respondent/defendant No. 2 by registered deed No. 845. Thus the crux of the dispute between the litigating parties is over the question -whether the registered deed No. 845 is fraudulent or not?"
14. Thereafter, the learned First Appellate Court had held that the plaintiff side has proved in the record the purchase deeds of their predecessor Madhu Sudan Paul vide Ext. 1 and 2. These documents are original registered sale deeds dated 05-08-86, and dated 13-10- 87, respectively and Ext. 1 and 2 are undisputed documents. Ext. 1 shows transfer of right, title, interest and possession of 13 katha land and Ext. 2 shows transfer of 1 katha 3 chattak 10 gondas, in total 14 katha 3 chattak 10 gondas of land in the suit patta and dags within specific boundaries by the predecessor in interest of the defendants in favour of the predecessor in interest of the plaintiffs. The plaintiffs have also exhibited the original sale deed executed by Madhu Sudan Paul on 12-05-87, in favour of Sankar Ranjan Das vide Ext. 3, which Page 16 of 24 has duly been proved by Sankar Ranjan Das himself. After acquiring title over 13 katha land in the suit patta and dag, the predecessor-in- interest of the plaintiffs had transferred by sale 3 katha of land in the suit patta and dag in favour of Sankar Ranjan Das, by Ext. 3. So, after the sale, Madhu Sudan Paul's interest is reduced to 10 katha (i.e. 13 katha -3 katha) on 12-05-87. Thereafter, on 13-10-87 by Ext. 2 said Madhu Sudan Paul had purchased another 1 katha 3 chattak 10 gondas land in the suit patta and dag from the predecessor-in- interest of the defendants and after such purchase his total interest is increased from 10 katha to 11 katha 3 chattaks 10 gonda on 13-10-
87. Thus, it appears, after sale to Sankar Ranjan Das, Madhu Sudan Paul was having right, title, interest and possession over 11 katha 3 chattak 10 gonda of land in the suit patta and dag on 13-10-87. The registered document No. 845 is proved by exhibiting the same as Ext. 6, which shows sale of 14 katha 3 chattak 10 gondas of land in the suit pattta and dag by Madhu Sudan Paul in favour of the defendant No 2, on 05-11-1990.
14.1 The learned First Appellate Court had also held that- as seen above, on 13-10-87 Madhu Sudan Paul's right, title, interest and possession in the suit patta and dag land was reduced from 14 katha 3 chattak 10 gondas to 11 katha 3 chattak 10 gondas. In such a situation by Ext. 6 right, title, interest and possession over 14 katha 3 chattak 10 gondas of land cannot be legally transferred by Madhu Sodan Paul in favour of the defendant No.2.
Page 17 of 2414.2 On the other hand, the answering defendants have not come up with any evidence in support of their claim of purchase of the schedule mentioned land of the Written Statement from Madhu Sudan Paul, where Madhu Sudhan Paul had no right, title, interest and possession over 14 katha 3 chattak 10 goodas of land in the suit patta and dag and the Ext. 6 cannot convey right, title, interest and possession over 14 katha 3 chattak 10 gondas of land in the suit patta and in the absence of proof of execution of such document by Madhu Sudan Paul, we are left in no hesitation that the said document is fraudulent.
14.3 Thereafter, the learned First Appellate Court had held that the documents proved in the record will prevail over the oral evidence and ignorance on the part of the P.Ws. regarding the suit and the suit land has little bearing in deciding the fate of the suit. It had also held that the plaintiffs by documentary proof have been able to establish the fact that on the date of alleged execution of the Ext.6 the vendor did not nave right, title, interest and possession over 14 katha 3 chattak 10 gondas of land, it was the duty of the defendants /respondents to adduce evidence proving execution of the said deed by Madhu Sudan Paul or that on the date of execution of the Ext. 6 the vendor had right, title, interest and possession over those 14 katha 3 chattak 10 gondas of land.
14.4 The learned First Appellate Court also held that in this case where the defendants claimed right, title, interest and possession over the suit schedule by purchase from Madhu Sudhan Paul they Page 18 of 24 ought to have adduced evidence proving execution as well as the genuineness of the Ext. 6. But, the defendants/respondents did not appear in the witness box to prove their case. Thereafter, placing reliance upon the decision of a Co-ordinate Bench of this Court in Mustt. Jurmati Bewa (supra), the learned First Appellate Court had held that „when a party to a suit avoids the witness box, the presumption is that he withholding himself to avoid pertinent questions in cross examination‟.
14.5 The learned First Appellate Court had also held that from a perusal of the impugned judgment it transpires that it has not discussed and relied upon the documentary proof in arriving at a decision of the suit. The whole approach by the lower court appears to be not sustainable in the eye of law.
14.6 Thereafter, the learned first Appellate Court, after drawing adverse presumption against the case of the defendants, under Section 114 Evidence Act, held Ext. 6 is an illegal and fraudulent document and thereafter, it had decided the point so formulated for determination in the affirmative.
15. The finding so recorded by the learned first Appellate Court, when examined in the light of the facts and circumstances and also in the light of the submissions so advanced by the learned counsel for both the parties, this Court find sufficient force in the submission of Mr. Quadir, learned counsel for the plaintiffs/respondents.
Page 19 of 2416. The plaintiffs by their evidence and documents exhibited being Exhibit-1,2 and 3 had succeeded in establishing that after sale to Sankar Ranjan Das, Madhu Sudan Paul was having right, title, interest and possession over 11 katha 3 chattak 10 gonda of land in the suit patta and dag on 13-10-87. As such he had no right, title and interest and possession over 14 katha 3 chattak 10 gondas of land, under 2nd RS. patta No. 27, so as to sale and transfer the same vide the registered document No. 845, Exhibit-6, which shows sale of 14 katha 3 chattak 10 gondas of land in the suit patta and dag by Madhu Sudan Paul in favour of the defendants No 2, on 05-11-1990, and as such Exhibit-6 is a fraudulent document. On such count, they had succeeded in discharging the burden of establishing that Exhibit-6 is a fraudulent document, as held by Hon‟ble Supreme Court in the case of Anil Rishi (supra).
16.1 Notably in the case of Anil Rishi (supra), Hon‟ble Supreme Court has held that -
8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."Page 20 of 24
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side."
17. It appears that on 05.11.1990, when the Exhibit-6 allegedly executed and on the strength of which the defendants had claimed right, title and interest over the Schedule land of the Written Statement, had failed to establish their right, title and interest over Page 21 of 24 the 14 katha 3 chattak 10 gondas of land, under 2nd RS patta No. 27, by entering into the witness box. Further, they have also failed to establish the title of their vendor over the scheduled land. The series of events, if arranged chronologically, would reveal as under:-
(i) On 05.08.86, vide (Exhibit-1) Madhu Sudan Paul, predecessor-in-interest of the plaintiff‟s had purchased 13 kathas of land from Sudhunya Mohan Raha, predecessor -in-
interest of the defendants.
(ii) Then acquiring title over 13 katha land in the suit patta and dag, the predecessor-in-interest of the plaintiffs had transferred by sale 3 katha of land in the suit patta and dag in favour of Sankar Ranjan Das, by Ext. 3.
(iii) So, after the sale, Madhu Sudan Paul's interest is reduced to 10 katha (i.e. 13 katha -3 katha) on 12-05-87.
(iv) Thereafter on 13-10-87 by Ext. 2, said Madhu Sudan Paul, predecessor-in-interest of the plaintiffs had purchased another 1 katha 3 chattak 10 gondas land in the suit patta and dag from the predecessor-in-interest of the defendants and after such purchase his total interest is increased from 10 katha to 11 katha 3 chattaks 10 gonda on 13-10-87.
(v) Thus, after the sale to Sankar Ranjan Das, Madhu Sudan Paul was having right, title, interest and possession over 11 katha 3 Page 22 of 24 chattak 10 gonda of land in the suit patta and dag on 13-10-
87.
(vi) The registered document No. 845 (Ext. 6) on the otherhand shows sale of 14 katha 3 chattak 10 gondas of land in the suit patta and dag by Madhu Sudan Paul in favour of the defendants No 2, on 05-11-1990.
18. Since Madhu Sudhan Paul was in possession of over 11 katha 3 chattak 10 gonda of land in the suit patta and dag on 13-10-87, the question of selling 14 katha 3 chattak 10 gonda of land, by him on 05-11-1990, left this Court unimpressed in as much as he had no right, title and interest over the said parcel of land.
19. Coupled with above, the defendants have not adduced any evidence in support of their case as set out in their Written Statement. It is well settled in the case of Anil Rishi (supra), pleading is not evidence, far less proof. They have not entered into the witness box to tell their case, thereby giving raise to the presumption under Section 114 of the Evidence Act.
20. Under the given factual and legal backdrop, this Court is of the view that the second substantial question of law as formulated herein above is not at all involved in this second appeal and even if involved the same has to be answered in negative. And accordingly, the same stands answered.
Page 23 of 2421. I have carefully gone through the other decisions referred by Mr. Laskar, learned counsel for the appellants. There is no quarrel at the Bar about the proposition of law laid down in the said cases. But, in the given factual scenario, the same are found to be not applicable in the present case. Therefore, reference to all such decisions is found to not necessary herein this case.
22. In the result, this Court finds no merit in this appeal and accordingly, the same stands dismissed, leaving the parties to bear their own cost.
23. Send down the record of the learned courts below, with a copy of this judgment order, forthwith.
JUDGE Comparing Assistant Page 24 of 24