Calcutta High Court (Appellete Side)
Snjay Ghosh vs Ajoy Kumar Ghosh & Anr on 6 November, 2017
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Acting Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
S.A.T. 228 of 2017
with
CAN 6486 of 2017
Snjay Ghosh
-versus-
Ajoy Kumar Ghosh & Anr.
For the Appellant : Mr. Piyush Chaturvedi,
Mr. Anirban Mitra,
Mr. Nipa Mullick,
Mr. Mumpy Sarkar.
Heard On : 6th November, 2017.
Judgement On : 6th November, 2017.
Jyotirmay Bhattacharya, J.
This second appeal is directed against the judgment and decree dated 1st March, 2017 passed by the learned Additional District Judge, First Track Court, Basirhat, in Title Appeal No. 29 of 2013 affirming the judgment and decree dated 29th February, 2013 passed by the learned Civil Judge, Junior Division, First Court at Basirhat, in Title Suit No. 25 of 2016 at the instance of the plaintiff/appellant.
Let us now consider as to whether any substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
Here is the case where we find that the plaintiff has filed a suit for declaration that the four deeds of gift executed by the father of the parties in favour of two sons were void as those deeds were obtained by those donees by exercising fraud and misrepresentation upon the donor. The plaintiff also wanted to avoid those deeds on the ground that the donor did not execute the said deeds and those deeds were procured by false personification. The plaintiff has also claimed that the donor was not mentally alert at the time when those deeds were executed. He further claimed that even after the death of their father he continued to possess the suit property alongwith his other brothers peacefully and he is still in possession of there. It is only when the possession of the plaintiff was threatened to be disturbed, the plaintiff has filed the suit for declaration and he also prayed for permanent injunction for restraining the defendants from disturbing his joint possession in the suit property.
The defendants contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint. They contended that their father executed the said deeds of gift voluntarily and consciously and those deeds were registered in accordance with law. They also got the property mutated in their names in the municipal records. They, thus, claimed their title in the suit property by virtue of those four deeds.
The parties led their evidence in support of their respective claims.
Though the plaintiff wanted to avoid those deeds on various grounds, including the ground of creation of such deeds by false personification, but no step was taken by the plaintiff for examining the disputed signature of the donor appearing in those deeds with the admitted signature of the donor by an expert.
The learned Trial Judge, thus, held that since the plaintiff failed to take step for getting the said disputed signature of the donor appearing in those deeds compared with the admitted signature of the donor by an expert, the plaintiff has failed to prove his claim for creation of those deeds of gift by false personification. Thus, the learned Trial Judge dismissed the said suit. The learned Trial Judge disbelieved the plaintiff's claim that the donor was not physically fit and mentally alert at the time of execution of those deeds as the plaintiff did not file and/or prove any doctor's certificate in support of his such claim.
Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiff/appellant filed an appeal before the learned First Appellate Court. The plaintiff/appellant filed an application for referring the disputed signature of the donor appearing on those four deeds for comparing the same with his admitted signature by the expert. The said application was rejected by the learned First Appellate Court as the learned First Appellate Court was of the view that such an application was filed by the plaintiff/appellant only to fill up his lacunae in his evidence.
According to the learned First Appellate Court, filling up the lacuna in evidence at the appellate stage is not permissible. As such, the learned First Appellate Court rejected the said application of the plaintiff/appellant and also dismissed the said appeal.
While dismissing the said appeal, the learned First Appellate Court also observed that the plaintiff has not adduced any evidence to prove his allegation about the creation of those four deeds of gift by false personification.
The legality and/or correctness of such judgment and decree passed by the learned First Appellate Court is under challenge in this second appeal before this Court.
Let us now consider the legality and/or correctness of the findings of the learned First Appellate Court which are impugned in this appeal before us.
We have heard Mr. Chaturvedi, learned advocate, appearing for the appellant. We have examined the materials-on-record, including the judgment and decree of the Courts below.
On perusal of the pleadings of the plaintiff, we find that the plaintiff has made out two alternative cases to avoid those four deeds of gift executed by his father. The plaintiff stated that the father of the plaintiff fell down from the tree in the year 1995 and thus became seriously injured. The plaintiff stated that one of the donees took his father to the house of Basirhat and took his signature on plain papers and subsequently those plain papers were turned into those disputed documents. He claimed that at the time of execution of those deeds, the donor was not mentally alert. The plaintiff made out a case for avoiding those disputed documents on the ground of creation of those documents by false personification.
These two defences are mutually destructive to each other.
Be that as it may, we have scrutinised the pleadings of the plaintiff and we find that the plaintiff wanted to avoid those disputed signatures on the ground of fraud, misrepresentation and undue influence but the pleadings did not conform to the provision contained in Order 6 Rule 4 of the Civil Procedure Code. Particulars of the fraud, i.e., who exercised such fraud, upon whom such fraud was exercised, when such fraud was exercised are not mentioned in the pleadings of the plaint. Not only such particulars are absent in the pleadings, but no evidence was led by the plaintiff with regard to the allegations of fraud.
As such, we hold that the plaintiff has miserably failed to prove his case.
That apart, the plaintiffs are five brothers. The father executed those four deeds of gift in favour of his two sons. Thus, apart from the plaintiff, two other sons were not given any property by their father. They did not challenge those deeds. On the contrary, they supported the claim of the donees by giving evidence in the suit. The suit was not filed by the plaintiff during the lifetime of the father. The suit was filed after the death of the father. No step was taken by the plaintiff to mutate his name in respect of the suit property to the extent of his share therein in the municipal records.
If all these facts are taken together, then we have no hesitation to hold that the learned courts below did not commit any illegality in dismissing the plaintiff's suit and/or his appeal arising therefrom.
We, thus, do not find involvement of any substantial question of law in this appeal.
We, thus, decline to admit this appeal under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The appeal, thus, stands dismissed.
Since we have refused to admit this appeal, no further order need be passed on the application filed in connection with this appeal. The said application is, thus, deemed to be disposed of.
(Jyotirmay Bhattacharya, A.C.J.) (Arijit Banerjee, J.) ac