Calcutta High Court (Appellete Side)
Sk. Mosaddek Hossain vs Sk. Taharul Haque & Ors on 24 April, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 (17) 24.04.2017
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. 632 of 2015 Sk. Mosaddek Hossain
-versus-
Sk. Taharul Haque & ors.
Mr. Sandip De Mr. Somnath Gangopadhyay ... for the petitioner Mr. Gobinda Ch. Bandopadhyay ... for the SBI Mr. Sandip Das ... for opposite party no. 1 This revisional application under Article 227 of the Constitution of India, at the instance of the plaintiff is directed against the order dated January 14, 2015 passed by the learned Civil Judge (Junior Division), 3rd Court at Diamond Harbour, District : South 24 Parganas in Title Suit No. 72 of 2004.
The plaintiff petitioner filed the suit challenging three deeds of gift dated July 11, 1994 (Deed No. 2174, Deed No. 2175 and Deed No. 2176) allegedly executed by his father Sk. Mossaraf Hossain in favour of the opposite party no. 1, Sk. Mustaq Ahamed, the predecessor of the opposite party no. 2(a) to 2(e) and the opposite party no. 3, respectively. In the suit, the plaintiff petitioner filed an application before the learned Court below praying for an order directing the opposite 2 parties to disclose the said three deeds of gift, as well as for appointment of a handwriting expert to examine and compare the left thumb impression of his deceased father as appearing in the said deeds of gift with those as appearing in the documents relied upon by him. By the order dated January 10, 2012 the learned Court below rejected the said application filed by the plaintiff petitioner. The plaintiff petitioner challenged the said order dated January 10, 2012 by filing a revisional application, being CO 604 of 2012 before this Court.
By order dated September 4, 2013 a learned Single Judge of this Court recorded that the defendants opposite parties have already produced the deed of gift allegedly executed by the father of the plaintiff petitioner in favour of the opposite party no. 3, Rebeka Begum and they are also ready to file the deed of gift executed by the plaintiff deceased father in favour of the defendant opposite party no. 1. From the said order dated September 4, 2013 it appears that a submission was made before the learned Single Judge of this Court that the deed of gift allegedly executed by the petitioner's deceased father in favour of the original defendant no. 2, Sk. Mustaqe Ahmed was deposited with the State Bank of India, as a security for obtaining certain loan. Considering all these facts by the order dated September 4, 2013 a learned Single Judge of this Court disposed of the said revisional application, being CO 604 of 2012 by directing the learned trial Judge to call for the said original deed of gift relating to Sk. Mustaqe Ahmed, since deceased from the bank authority and then send all three original deeds of gift, along with the deeds bearing admitted left thumb impression of the donor to the handwriting expert for comparison and report.
Once the matter went back before the learned trial Judge, the defendant opposite party no. 1 filed an application praying for exemption to produce the deed of gift allegedly executed by the petitioner's father in favour of the original defendant no. 2, Sk. Mustaqe Ahmed. The State Bank of India, Diamond Harbour Branch also filed an application before the learned trial Judge for 3 exemption to produce the alleged deed of gift executed by the petitioner's father in favour of Sk. Mustaqe Ahmed, since deceased on the ground that the same was not deposited with them. By the order dated January 14, 2015 the learned trial Court below allowed the said applications filed by the defendant opposite party no. 1 and the State Bank of India. As stated above, it is the said order dated January 14, 2015 passed by the learned Court below which is the subject-matter of challenge in this revisional application.
On March 9, 2017 when the revisional application was taken up for hearing, this Court directed the Branch Manager, State Bank of India, Diamond Harbour Branch to be personally present in the Court on March 14, 2017. The Chief Manager, State Bank of India, Diamond Harbour Branch appeared before this Court on March 14, 2017 and submitted since the agricultural loan was obtained by the original defendant no. 2 Sk. Mustaqe Ahmed against agricultural crops the bank did not obtain mortgage of any immovable property. Subsequently, the said Chief Manager, State Bank of India, Diamond Harbour Branch affirmed affidavit on March 24, 2017 stating that against the agricultural loan obtained from the bank the deceased defendant no. 2 Sk. Mustaqe Ahmed was not required to mortgage any immovable property and as such, he did not deposit any title deed of any immovable property with the bank. The Chief Manager, State Bank of India, Diamond Harbour Branch also prayed that the bank be kindly relieved from producing the alleged title deed of the deceased opposite party no. 2 which was not deposited with them. The copies of the said affidavit filed on behalf of the State Bank of India was also served upon the petitioner and all the opposite parties appearing before this Court. However, none of the opposite parties could substantiate that the averments of the Chief Manager, State Bank of India, Diamond Harbour Branch in his said affidavit is incorrect or that the original defendant no. 2, Sk. Mustaqe Ahmed during his life time at all deposited the alleged deed of gift executed in his favour by the 4 said Sk. Mossaraf Hossain. There is no dispute that remaining two deeds of gift which have been challenged by the plaintiff petitioner in the suit filed before the learned trial Judge have already been produced by the opposite parties before the learned trial Judge.
Having considered the facts of the case, I find that the State Bank of India, Diamond Harbour Branch has substantiated that the original defendant no. 2 Sk. Mustaqe Ahmed, since deceased, did not deposit any alleged deed of gift with them.
Therefore, I do not find any infirmity in the impugned order passed by the learned trial Judge, in so far as the same allowed the prayer of State Bank of India, Diamond Harbour Branch exempting them from producing the alleged deed of gift executed by the said Sk. Mossaraf Hossain, since deceased in favour of the deceased defendant no. 2 Sk. Mustaqe Ahmed. However, the learned Court below fell into an error of law in exempting the opposite party no. 1 from producing the original of the alleged deed of gift executed by Sk. Mossaraf Hossain in favour of the original defendant no. 2. If the defendants cannot produce of the alleged deed of gift executed by Sk. Mossaraf Hossain in favour of the deceased defendant no. 2, they have to face the legal consequence thereof. Therefore, the impugned order passed by the learned Court below, in so far as the same, exempted the defendant opposite party no. 1 to produce the original alleged deed of gift executed by Sk. Mossaraf Hossain in favour of the deceased defendant no. 2 is set aside.
The order dated September 4, 2013 passed by this Court in CO 604 of 2012 stands modified to the effect that the learned trial Judge is directed to call for the original deed of gift relating to Sk. Mustaqe Ahmed from the defendants and then send all the said three original deeds of gift, being the subject matter of challenge in the suit along with deeds bearing the admitted left thumb impression of Late Mossaraf Hossain to the handwriting expert for comparison and report. 5
Accordingly, the impugned order dated January 14, 2015 directing that the petition of the plaintiff for notice to produce the documents is allowed.
With the above directions, CO 632 of 2015 stands disposed of. However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)