Supreme Court Rendered In Janki Vashdeo ... vs Indusind Bank Limited And Ors. Reported ... on 17 June, 2019

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Tripura High Court

Supreme Court Rendered In Janki Vashdeo ... vs Indusind Bank Limited And Ors. Reported ... on 17 June, 2019

Bench: Arindam Lodh

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                            HIGH COURT OF TRIPURA
                                  AGARTALA
                                  RS 30/2019

For Appellant(s)            :      Mr. PK Dhar, Advocate
For Respondent(s)           :      None

HON'BLE MR. JUSTICE ARINDAM LODH Order 17/06/2019 Heard Mr. PK Dhar, learned counsel appearing for the appellants. The proposed substantial questions of law, as formulated, in this second appeal, are as follows:

(i) Can the Civil Court render any decision beyond the subject matter of the suit?

(ii) After admission of an instrument in a suit, whether further proof of such document by the Plaintiffs is necessary?

(iii) If any Gift Deed is made in violation of Foreign Exchange Regulation Act, 1973, further proof as void can be said to be necessary?

(iv) Can a Bangladesh National make registered Gift Deed entering into India without Passport?

(v) Is the registration of instrument by Bangladesh National entering into India without Passport, such document would be void and invalid in view of Passport (Entry into India) Act, 1920?

(vi) Are the Judgment and Decree of the Learned First Appellate Court below as well as Learned Trial Court below had been suffering from perversity, impropriety and illegalities?

The appellants have prayed for the following reliefs in the plaint:

(a) Declaring the disputed instrument namely the registered gift deed No. 1-3699 dated 18.05.85 described in schedule-B below allegedly executed by late Hemnalini Bhattacharjee in favour of Smti. Rama Bhattacharjee, Principal-Defendant No.1 is void/voidable and cancelled being purported, manipulated, created and forged;

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(b) In consequent of decree in terms of prayer No.(a) above an order directing to send a copy of the decree to the Registering Authority of the disputed instrument for making necessary note of the copy of such instrument contained in his books the fact of its cancellation;

(c) Declaring that the suit land described in schedule-B is the joint properties of the Plaintiffs and Pro-Defendant No. 2,3,4 and 5;

(d) Declaring that the Plaintiffs and the Pro-Defendant No.5 are co-

sharer in respect of suit land in Schedule-B below to the extent of one fourth share therein;

(e) perpetual injunction restraining the Principal-Defendant No.1, her men and agents from entering into the suit land and from creating any disturbance in the peaceful possession of the Plaintiffs over the suit land in any way;

         (f)    Cost of the suit and incidental thereto;
         (g)    Any other relief or reliefs to which the Plaintiffs may be found
         entitled to;

In course of hearing for admission of the Second Appeal, Mr. Dhar, learned counsel appearing for the appellant, has drawn my attention to the findings of the First Appellate Court while dismissing the First Appeal preferred by the present appellants.

It is admitted that the plaintiff-appellants never appeared before the Trial court or before the First Appellate Court for adducing evidence. The plaintiffs filed the suit through the Attorney. It is revealed that the Attorney has also adduced evidence and the plaintiffs did not adduce any evidence personally in support of the contentions averred in the plaint. It is also transpired that in course of hearing before the Trial Court, the learned counsel appearing for the plaintiffs had submitted that the Deed executed by Hemnalini Bhattacharjee infavour of Benudhar Bhattacharjee was not the subject matter of the suit.

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The First Appellate Court, in my considered opinion, has rightly held that in view of this submission for deciding the fact of execution of the Gift Deed in question infavour of Benudhar Bhattacharjee could not be taken into consideration for deciding the suit, but, the entire case of the plaintiffs was centered around the proper execution of the Gift Deed. The Attorney or the plaintiffs themselves had withdrawn the very challenge of the Gift Deed, which they contended in the plaint and the principal prayer of the plaintiffs was to declare the Gift Deed as forged.

The Trial court has rightly relied upon the judgment of the Hon'ble Supreme Court rendered in Janki Vashdeo Bhojoani and anr. Vs. Indusind Bank Limited and ors. reported in AIR 2005 SC 439, wherein the Hon'ble Apex Court has observed as under:

"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 the presumption would arise that the case set up by him is not correct".

The Hon'ble Supreme Court has rightly held that the conduct of the parties to the suit is very relevant for deciding the dispute raised in a civil suit.

After going through the evidence, it is found that the plaintiff-appellants have failed to discharge their initial burden to prove that the document is forged. It is settled law that if the plaintiff-appellants can successfully discharge their initial burden, then, the burden to prove that the deed or any document is genuine will be shifted upon the defendants. In the instant Second Appeal, it is found that the plaintiff-appellants have miserably failed Page 4 of 4 to prove their burden to prove that the document is forged. As such, I do not find any ground to interfere with the concurrent findings of the courts below.

Accordingly, the instant Second Appeal does not deserve any consideration for admission. Hence, the instant Second Appeal stands dismissed.

JUDGE Saikat

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