Calcutta High Court (Appellete Side)
Sribas Kumar Majumdar & Ors vs Gour Mohan Biswas & Ors on 9 February, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
SA 170 of 2015
Sribas Kumar Majumdar & Ors.
Vs.
Gour Mohan Biswas & Ors.
For the appellants : Mr. Mrinal Kumar Das
Mr. Kalimuddin Mondal
Mr. Sankar Biswas
For the respondents : Mr. Asit Baran Raut
: Mr. Nirmal Maity
CAV on : 06.12.2017
Judgment on : 09.02.2018
SHIVAKANT PRASAD, J.
This appeal is directed against the judgment and decree dated 30th August, 2004 passed by Additional District & Sessions Judge, Fast Track Court No. 1, Barrackpore, North 24-Parganas in Title Appeal No. 64 of 2012 reversing the judgment and decree both dated 16.7.2012 passed by Civil Judge (Junior Division), Barrackpore, North 24-Parganas in Title Suit No. 522 of 2000.
The grounds inter alia taken by the appellants are that the Appellate Court below erred in law by reversing the judgment and decree dated 16.7.2012 and 26.7.2012 respectively.
It is contended that the Appellate Court below failed to consider the express provision of Section 103 read with Section 102 of the Indian Evidence Act, 1872 inasmuch as the burden of proof as to the particular fact of "forgery" as alleged in the plaint lies upon the plaintiffs and, sought for setting aside the judgment and decree both dated 30.4.2014 and also failed to consider that self same lands were purchased by the defendants covered by the plaintiffs' deed of sale being prior in point of time, no title can pass in favour of the plaintiffs in respect of the lands covered by the defendants deed.
Lower Appellate Court misunderstood Section 28 of the Registration Act, 1908 in its application in the facts and circumstances of the instant case.
It is also submitted that the Record of Right (ROR) is not the proof of right, title and interest in the land in question viz. Plot No. 125 under Banshphul Mouza, P.S. Habra, since the same is in the name of Chandra Kanta Chakraborty as alleged by the plaintiffs inasmuch as the case of impersonation of the vendor Mst. Tafurunnesa Bibi was not proved by the Plaintiffs by adducing evidence of the deed writer.
Accordingly, the appellants prayed for setting aside the impugned judgment and decree both dated 30.04.2014 as not tenable in law.
It is submitted that there is no finding by the Learned Lower Appellate Court as to the deed of gift dated 09.6.2000 although the plaintiffs claimed the same to be void inasmuch as no such relief sought for against the School authorities i.e. the Proforma Respondents.
It is also submitted that the appellants are in actual physical possession of the lands in question by constructing their dwelling house in the portion of the land purchased by them vide Sale Deed dated 1/2.6.1987.
It is argued that the findings of the learned Appellate Court below that the Plaintiffs/Respondents are the owners of the lands in question in consideration of barga recording is beyond the scope of the pleading as no such case of barga has been made out in the plaint.
In this appeal, this Court is called upon to decide the substantial question of law as to whether the learned Judge of the lower Appellate Court substantially erred in law in reversing the judgment and decree of the Trial Court failing to consider the provision of Sections 102 and 103 of the Indian Evidence Act, 1872 inasmuch as the burden of proof as to the particular facts as alleged in the plaint lies upon the plaintiffs and in absence of discharge of initial onus on behalf of the plaintiffs, the burden cannot be shifted to the defendants.
The plaintiffs filed suit being Title Suit No. 522 of 2000 in the Trial Court below contending that they have purchased the suit property from the original owner Mst. Tafurunnesa Bibi by a registered deed of sale and have been possessing the same. While in possession plaintiff no. 1 transferred 10 satak land of Plot No. 1809 to Ganapati Poddar by deed no. 6743 dated 06.12.1989 who is now in possession of his purchased land by a construction of building. The plaintiff no. 1 has also transferred land of Plot Nos. 1809, 1806 and 1807 to several persons.
It is alleged by the plaintiffs that Phanibhusan Majumdar managed to get a sale deed registered in the name of defendants in respect of the suit land at ADSRO at Guma under P.S. Habra including ½ satak land of Plot No. 125 of Mouza Banshphul by Mst. Tafurunnesa Bibi who never owned and possessed said piece of land rather it belonged to Chandra Kanta Chakraborty. Accordingly, the plaintiffs claimed that the deed in respect of ½ decimal of land in Plot No. 125 of Mouza Banshphul is forged one without any foundation and accordingly, the defendants have not acquired any right title interest and possession therein.
According to plaintiffs/ respondents since on 20.5.2000, defendant nos. 2, 3, 4 and 6 have declared in the locality to take possession of the suit land on the strength of three deeds and they having granted 10 satak land of Plot No. 1809 to respondent no. 7 on 09.6.2000 for construction of a Primary School thereon, right title interest and possession of the plaintiffs have been clouded.
On the other hand, the defendants/ respondents maintained the plea that said Mst. Tafurunnesa Bibi during her lifetime had executed three sale deeds being nos. 1383, 1384 and 1385 dated 01.6.1987 in favour of Kumud Bandhu Majumder, Srribas Kumar Majumder and Sripati Kumar Majumder, defendant nos. 1, 2, 3 and in favour of Phani Bhushan Majumder, father of defendant nos. 5 and 6 and husband of defendant no. 7 and Prafulla Kumar Majumder defendant no. 4 at a valuable consideration of Rs. 16,000/- each respectively and the original owner having delivered the possession to the defendants and their names having been recorded in the RSROR, plaintiffs' plaint is liable to be dismissed.
Thus, the learned Advocate for the defendants supported the judgment and decree dated 16th July, 2012 dismissing the suit on the finding that the plaintiffs had miserably failed to prove their plaint case by adducing any cogent evidence whereby the plaintiffs prayed for declaration that the sale deed being deed nos. 1383, 1384 and 1385 dated 01.6.1987 executed and registered by Mst. Tafurunnesa Bibi are forged, fictitious and invalid deeds and also prayed for permanent injunction restraining the defendants/appellants herein from disturbing the peaceful possession of the plaintiffs/respondents.
Learned Advocate for the appellants has challenged the grant of decree reversing the judgment and the decree dated 16.7.2012 passed in Title Suit No. 522 of 2000 by the Trial Court and for having declared by the plaintiffs right title interest over 4.59 acres of land.
Learned Advocate for the defendants/appellants at the outset submitted that since the plaintiffs have admittedly sold the plots including Plot No. 1809 in dispute, decree of declaration and permanent injunction cannot be granted in favour of the plaintiffs/respondents.
If one goes through the plaint case itself it is crystal clear that the plaintiffs/respondents have admittedly having sold out the land in suit plots, as they cannot maintain a suit for declaration and injunction.
Plaintiffs/respondents' case as made out is that the plaintiff no. 1 purchased 4.82 acres by nine Registered Deeds, the plaintiff no. 2, 1.76 acres by three Registered Deeds which have been adduced in evidence as Exhts. 1 to 12.
It would appear from the deeds of the plaintiffs Exhibit-1, Exhibit-2, Exhibit-10 and Exhibit-11 that they were all registered on 28.9.1987. The Registered Deed Exhibit-3 is dated 28.11.1987. The Registered Deed Exhibit-4 is dated 26.11.1987. The Registered Deed Exhibit-5 is dated 07.12.1987. The Registered Deeds Exhibit-6 & 12, both are dated 08.12.1987. The Registered Deed Exhibit-7 is dated 24.03.1988. The Registered Deed Exhibit-8 is dated 29.05.1990 and Registered Deed Exhibit-9 is dated 19.01.1989 whereas the three deeds of the defendants/appellants being the Registered Deed of Sale are dated 02.6.1987 that is to say, the prior deed compared to that of the plaintiffs/respondents' deeds. If by these deeds self same lands are covered, then on the principle of priority of the deed, the defendant deeds being prior in point of time have to prevail. But the schedule of lands as mentioned in the plaint reflects that the lands which the respective parties have purchased from one vendor Mst. Tafurunnesa Bibi are the lands out of vested lands. It is also explicit from the schedule mentioned in the plaint that plaintiffs/respondents had purchased lands in the plots barring the land which are already sold earlier. That means the plaintiffs were well in the knowledge that some of the land in the same plot were sold to the defendants/appellants herein prior to the purchase by the plaintiffs/respondents.
The plaintiffs/respondents by making averments in the paragraph 5 of the plaint have clearly pointed out the quantum of land which they have purchased in the R.S. Plot Nos. 1798, 1806, 1807, 1809 and 1810 barring the lands which were earlier sold.
PW 1 in his cross-examination has clearly stated that he has not seen the certified copy of the deeds of the defendants in respect of the land purchased in Plot No. 1809 and even cannot say the land in which Mouza the lands were sold but in cross-examination, PW 1 admitted that he only purchased .40 decimals of land in Dag No. 1809 in Western side barring the land previously sold on Eastern portion of land in the said plot. This fact has been recited in their deed Exhibit-1 at paragraph 5 which reflects that the portion of the land in the Eastern portion was previously sold and the plaintiffs purchased portion of the land in plot situated in the Western side. The quantum of the purchased land on the Eastern portion appears to have been typed through and deleted, might be intentionally.
Be that as it may, I am well aware that there can be no reappreciation of the evidence on record by the 2nd Appellate Court but since the plaintiffs/respondents have urged on the points that the Registered Deeds in favour of the defendants/appellants are registered at ADSRO under PS- Habra are false, collusive, forged, fabricated, null and void and created by false personification showing another lady as Tafurunnesa by way of practicing swindle by incorporation of ½ decimal of land in Plot No. 125 of Mouza- Banshpul, PS- Habra never owned by said Tafurunnesa inasmuch as LRROR No. 181 of Mouza Banshpul, PS- Habra, Exhibit-15 stands recorded in the name of one Chandra Kanta Chakraborty in Plot No. 125/1380 and 125 to the extent of 5 Satak and 16 Satak respectively, as per the provision of 28 of the Registration Act, 1908, the document in respect of immovable property presented for registration in the Office of the Sub-Registrar within Sub-district wholly or some portion of the property to which the document relates to is situates, it necessary follows that if no portion of the property is situate within the Sub-district where the document is registered, the registration is void. Therefore, this Court is called upon to consider the substantial question of law in respect of the provision of 28 of the Registration Act, 1908 in the light of the factual aspects of the case on record. Adverting my attention to the LRROR (Exhibit-15) in respect of Khatian No. 181 of Mouza- Banshpul., it would appear that the said Plots are recorded as against 'Bastu' classification of land showing one house therein. Mere production of the LRROR is not the proof that the same really belonged to the said person at the time of execution of the Registered Deed in favour of the defendants/appellants. It was imperative for the plaintiffs/ respondents to have examined said Chandra Kanta Chakraborty in order to have a full proof of the plaintiffs' case in order to conclude that the ½ Satak of land of that plot of land sold in Mouza- Banshpul under P.S.-Habra by three registered deeds in favour of the defendants/appellants was for the purpose of attracting the jurisdiction of the Registrar under Section 28 of the Registration Act, 1908 and since the sub- plots do not belong to Mst. Tafurunnesa Bibi there has been practicing of fraud on the Registry.
As regards allegation of personification of the vendor Mst. Tafurunnesa Bibi if the LTI is compared from the original deeds of the defendants and so also from the deeds of the plaintiffs/respondents by invoking the provision of Section 73 of Evidence Act, 1872, it would appear that it is the said vendor Mst. Tafurunnesa Bibi who had put the LTI in presence of the same witnesses to all deeds. Now, it would be apt to take into consideration the provision of Section 73 of Evidence Act, 1872 which provides as under--
"73. Comparison of signature, writing or seal with others admitted or proved.--In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1[This section applies also, with any necessary modifications, to finger-impressions.]"
It deals with the comparison of signature, writing or seal on the disputed document with that of admitted or proved document by a party disputing the signature. Admittedly, the LTI of Mst. Tafurunnesa Bibi on the deeds produced on behalf of the plaintiffs are not in disputed. It is a trite law that the opinion of the Expert is required which ought have been resorted to on behalf of the plaintiffs when the plaintiffs themselves dispute the LTI as that of Mst. Tafurunnesa Bibi saying that by presenting another lady by personification, the deeds were got executed and registered before registering authority, it was imperative for the plaintiffs to have taken steps for those documents for comparison by the Expert under the provision of Section 45 of Evidence Act.
It is equally a settled position of law that a Court is the master of masters and provision of Section 73 of Evidence Act gives the power to a Court of law to compare the signature, writing or seal with that of the admitted documents. Nevertheless, the rule of prudence is that the comparison of signature by Court as mode of ascertaining the truth should be used with care and caution. (see. Pakala Narayana Swami vs. Emperor reported in AIR 1939 PC 47) This Section does not infringe Article 20(3) of the Constitution of India. Therefore, I am prompted to take into consideration the provision of Section 73 of Indian Evidence Act, 1872 to compare the admitted LTI of Mst. Tafurunnesa Bibi appearing on the deeds of the plaintiffs with that of the deeds of the defendants and in doing so, I am of the clear opinion that the averment as made in paragraph 5 of the plaint with regard to the fabricated deeds allegedly obtained by the defendants by personification of another lady in the name of Mst. Tafurunnesa Bibi cannot be sustained inasmuch as the plaintiffs did not take any step before the Trial Court for examination by a Questioned document Examiner or by Expert.
In a Civil Suit, rule of preponderance of probability is applied in appreciation of the evidence on record. It is for the plaintiffs to substantiate the plaint case in conclusive manner by a full proof evidence but the plaintiffs cannot win on the weakness of the defendants.
Therefore, I hold that the Appeal Court below has failed to consider the burden of proof as per the provision of Section 103 read with Section 102 of the Indian Evidence Act, 1872 inasmuch as the allegation of forgery alleged in the plaint is upon the plaintiffs.
The major portion of the land in plots, as it appears from the Exhibits-A, B and C, are situated in Mouza- Keutia save and except fraction of ½ decimal area of land in Plot No. 125 being a 'Danga' land appertaining to Khatian No. 570, Mouza- Banshpul under P.S. Habra ½ decimal each in all three of deeds whereas the LRROR as put forth on behalf of the plaintiffs/respondents goes to show that it appertained to Khatian No. 181. The plaintiff was confronted during cross- examination as to whether he would produce the RSROR in respect of the disputed land in order to show as to who was the actual recorded owner in respect of the Plot Nos. 125, 125/1380 in revisional settlement but the PW-1 has flatly refused to produce any RSROR. Therefore, it cannot be said that the Plot No. 125 did not belong to Mst. Tafurunnesa Bibi. This is not for the defendant no. 1 to prove. It is enough to show that Mst. Tafurunnesa Bibi the same vendor has executed a deed in respect of the plots in Keutia and a fraction of land in Plot No. 125 of Mouza- Banshpul of which there is no denial as to the fact that the defendants/appellants are not in possession of the same.
Therefore, the provision of Section 28 of Indian Registration Act, 1908 cannot be applied as against the defendants/appellants, ergo, the finding of the learned Appeal Court below that by insertion of ½ decimal of land in Plot No. 125 under Mouza- Banshpul under P.S.- Habra in the deeds to get them registered at ADSRO under P.S.- Guma only with the object to attract the jurisdiction as provided under Section 28 of the Registration Act, 1908 cannot be accepted.
It is profitable to reproduce hereunder the provision of Section 28 of the Registration Act, 1908 -
"28. Place for registering documents relating to land.--Save as in this Part otherwise provided, every document mentioned in section 17, sub-section
(l), clauses
(a) , (b), (c) [, (d) and (e), section 17, sub-section (2), insofar as such document affects immovable property,] and section 18, clauses (a), (b) 2[(c) and (cc),] shall be presented for registration in the office of a Sub-
Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. State Amendments Andhra Pradesh: In section 28, for the expression "clauses (a), (b), (c), (d) and (e) of section 17, sub-section 2", the expression "clauses (a), (b), (c), (d),
(e), (f) and (g) of section 17, sub-section (2)", and for expression "clauses
(a), (b), (c) and (cc)" the expression "clauses (a), (b) and (cc)" shall be substituted. [Vide Andhra Pradesh Act 4 of 1999, sec. 5]. Bihar: Substitute section 28 as under: "28. Place for registering documents relating to land.--Save as in this part otherwise provided every document mentioned in clauses (a), (b), (c), (d) and (e) of sub-section (1) and sub-section (2) of section 17 insofar as such documents affect immovable property and in clauses (a), (b), (c) and (cc) of section 18 shall be presented for registration in the office of the Sub-Registrar within whose sub-district or district the whole of the property to which such document relates is situated in the State of Bihar." [Vide Bihar Act 6 of 1991, sec. 3 (w.e.f. 8-8-1991)]. Gujarat:
Amendment is the same as that of Maharashtra. [Vide Act 11 of 1960, sec. 87; Gujarat A.L.O., 1960 (w.e.f. 1-7-1961]. Maharashtra:
(i) In section 28 for the letters, brackets and word "(b) and (c)" substitute the brackets, letters and word "(b), (c), (cc) and (ee)". [Vide Bombay Acts 14 of 1939, sec. 4; 14 of 1947, read with 35 of 1958, sec. 2 (w.e.f. 28-4-1958) and 6 of 1960, sec. 43 (w.e.f. 1-1-1961)].
(ii) For brackets, letters, word and figure "(ee) and (eee)", brackets, letters and words "and (ee)" shall be substituted. [Vide Maharashtra Act 20 of 1971, sec. 58 (w.e.f. 15-6-1972)]. Pondicherry: Section 28 shall be substituted as under: "28. Place for registering documents relating to land.--Save as in this Part otherwise provided,--
(a) every document mentioned in clauses (a), (b), (c), (d) and (e) of sub- section (1) and sub-section (2) of section 17, in so far as such document affects immovable property and in clauses (a), (b), (c) and (cc) of section 18 shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate in the Union Territory of Pondicherry; and
(b) any document registered outside the Union Territory of Pondicherry in contravention of the provisions of clause (a) shall be deemed to be null and void." [Vide Pondicherry Act 5 of 1999 (w.e.f. 4-5-1999)]. Uttar Pradesh:
(1) In section 28, omit the words, figures and letters "sub-section (1), clauses (a), (b), (c), (d) and (e), section 17, sub-section (2)". For the words "section 18, clauses (a), (b), (c) and (cc)", substitute "every document mentioned in section 18, clause (c)". [Vide Uttar Pradesh Act 19 of 1981, sec. 8 (w.e.f. 1-8-1981)].
(2) (i) The words "or some portion" shall be omitted.
(ii) The following proviso to be inserted, namely:-- "Provided that the document of award, exchange, gift, mortgage, partition, settlement and trust insofar as such document affects immovable property shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or major portion or half-portion of the property to which such document relates is situate." [Vide Uttar Pradesh Act 27 of 1994, sec. 3]. Comments The burden of proving that the property is situate within the jurisdiction in which a document relating thereto registered is on the person relying on such document; Mohd. Khaja v. Monappa, AIR 1953 Hyd 280."
Thus, it goes to show that provision embodied under Section 28 of the said Act relates to place for registration documents relating to land.
Learned Advocate for the respondents has relied on a decision in case of Collector of Gorakhpur vs. Ram Sundar Mal and others reported in 1934 Indian Appeals 286 wherein it was held that the deed was not validly registered under the Indian Registration Act, 1908 as the evidence shown that the parties did not intend that the share in the garden-room should really be sold, its inclusion in the deed being a mere device to evade the Act. The grounds taken in the decision was that the sale deed was not validly registered in the Gorakpur District. The parties did not really intend share the garden-room should form part of the sale. It was wholly inaccessible, admittedly of not value and the vendor had no title. It has been observed at page 291 that the sale deed to the respondents was properly registered in the Gorakhpur sub-district under Section 28 of the Indian Registration Act, 1908. The property in that sub-district included in the deed was an actual property, and it was found that both parties believed that it belonged to the transferor. It was therefore not a "fictitious" property, as was held to be the case in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi reported in (1914) L.R. 41 I.A. 110 the mortgagor had acquired no title to the property in question and there was no intention to include it in the mortgage.
This decision is undoubtedly distinguishable. The learned Advocate for the respondents submits that the ratio on decision may be taken into consideration. True, but the ratio has to be applied on a particular facts of the case.
I am of the view that unless it is proved that the vendor Mst. Tafurunnesa Bibi had no title to the fraction of the property i.e. 1½ decimals of land in Plot No. 125 of Mouza- Banshpul located within the jurisdiction of a registration office with a motive to create jurisdiction to get registration of said three deeds Exhibits A, B & C in favour of the appellants/defendants, there is no fraud committed on the registrar within the meaning of Section 28 of Registration Act.
In case of Inuganti Venkatarama Rao vs. Sobhanadri Appa Rao and others reported in ILR 1934 PC (Madras series) 539, plaintiff had instituted a suit to recover possession of the Somavaram lands sold, alleging, inter alia, that the yard of vacant land included in the sale was not in existence, was not owned by him or his father at the time of the sale and was included to avoid registration in the Kistna district and that its inclusion was a fraud on the law of registration and rendered the sale void. The Subordinate Judge upheld the contention that the yard included in the sale was not owned by the plaintiff or his father and was included merely to effect registration in the Godavari district and found that both parties were aware of this, that there was a fraud on the law of registration and the sale was void. On appeal, the High Court, on this point, held that the yard of land in Vundoor actually existed, that the title to it was in the plaintiff's father, that it was not clear that there was no intention of passing possession of the item nor was it shown that the parties had any reason to practice a fraud on the law of registration and that the-sale was valid.
In that set of facts, the Privy Council held that there was no intention to convey the square yard of land and the registration of the sale deed in the district in which the yard of land was situated was a device to evade the law of registration. There was, therefore, no effective registration and the deed was invalid.
It would appear from the facts of the case that the plaintiffs' father had gifted a piece of land which he subsequently challenged in the suit. The fact of the cited decision is not well nigh within the facts of the case in hand because there is no evidence adduced on behalf of the plaintiffs to conclude that the said vendor Mst. Tafurunnesa Bibi had no intention to transfer the said piece of land. Plaintiff has adduced LRROR to show that Chandra Kanta Chakraborty is the owner of the Plot No. 125 but no RSROR has been produced for real investigation to conclude that said Chandra Kanta Chakraborty is the recorded owner.
The learned Advocate for the appellants, in rebuttal has referred to a decision in case of Brojo Gopal Mukherjee vs. Abhilash Chandra Biswas reported in The Calcutta Weekly Notes Vol. XIV at page 532 in which case the title to the only item of property sold by a kobala which would give the Sub-Registrar jurisdiction to register. It was disputed and ultimately found the title not to have been in the vendor. It was held that this alone in the absence of fraud on the part of the vendor or the vendee or collusion between them would not render the registration of the kobala by the Sub-Registrar invalid when the property did in fact exist within his jurisdiction.
In case of Baij Nath Tewari v. Sheo Sahoy Bhagut 1891 ILR 18 Cal. 556 a Full Bench held that where the description of the property was misleading and insufficient for the purpose of identification, no registration of the document had been effected within the provisions of the Registration Act, so the lower Court ought to have held in this case that there was no registration because the property described as situated in Barheya in the mortgage-deed executed by the Defendant No. 1 in favour of the Defendant No. 3 was property which did not belong to the Defendant No. 1 and, therefore, must be treated as no property at all.
In that set of fact the Hon'ble Court was of the opinion a case like the present where apparently an item of property is included in the bond but there is a dispute as to the title to it of the executants of the bond, and it has been found that he has no title that circumstance is not sufficient to justify a Court in holding that, in fact, there is no such property covered by the deed situated within the jurisdiction of the Sub-Registrar as would give that officer power under the law to register the bond. In the case of Hari Ram v. Sheodial Ram reported in L.R. 16 I.A. 12 (1888) their Lordships of the Privy Council held that where a portion of the property covered by a deed is situated within the jurisdiction of the Registration Office, even though that portion may be a very small portion of the property covered by the deed, that is sufficient to give the Sub-Registrar jurisdiction.
I have discussed in the foregoing paragraphs that in the instant case there is no proof on behalf of the plaintiffs/respondents, as regards practicing fraud on the registrar except an averment that the fraud has been practised on the Registry Office by the defendants/appellants. I am of the considered view that the plaintiffs/respondents have failed to substantiate the case of practicing fraud for creating a fictitious deed as alleged by them in their plaint. Taking cue from the decision in the case of Brojo Gopal Mukherjee (supra), I do hold that mere averment of fraud without any proof thereto that the vendor or the vendee in collusion of each of them have committed fraud for the purpose rendering registration of the deed of sale Exhibits- A, B and C in favour of the appellants, by the Registrar cannot be held to be invalid for the reason of no proof in conclusive manner that the fraction of the land in Plot No. 125 in Mouza- Banshpul did not actually belonged to the said vendor Mst. Tafurunnesa Bibi or that the said fraction of land was included in the deeds so as to create the forum before the Sub-Registrar Guma. I have found on the evidence based on the deeds of the respective parties that though the fraction of the land situates in Mouza- Banshpul but the same is situated within the same District of North 24-Parganas and the deeds Exhibits A, B and C cannot be held to be invalid, null and void and fictitious inasmuch as the vendor has not laid such allegation.
Yet, learned Advocate for the defendants/appellants has referred to a decision in case of Chandi Prosad v. Hrishikesh Shaha and others reported in AIR 1946 Cal. 465 wherein it has been held that the crucial test to be applied in order to find out whether the registration law was evaded or defrauded is whether or not the parties intended that the property in question on the basis of which the document was registered should form part of the transaction. In order to find out the intention, the fact whether the property admits of physical enjoyment may no doubt be sometimes relevant; but it is not the crucial test.
Where the law permits registration of a document in the intended jurisdiction, independent of the inclusion of any item of property in it, it cannot be said that the parties intended by such inclusion to commit a fraud on the law of registration. A charge of fraud is not to be lightly laid. Where the admitted facts themselves rule out a possible foundation for fraud, a superstructure of fraud cannot be raised, merely by trying to show that the property which was included in the document was a "fictitious" property in the larger sense of the word, that is, property existing but being of inconsequential character and not intended to be transferred.
Having taken into consideration the factual aspect of the matter together with the findings of the learned Trial Court and that of the Appeal Court below I am of the considered view and accordingly hold that though the plaintiffs have averred in paragraph 5 of their plaint that the sale deeds in the name of the defendants/appellants herein vide Exhibits-A, B and C are fictitious but the burden of proof lies heavily on the plaintiffs/respondents herein to prove that there was no transfer and that there was no intention to transfer the ownership.
Lastly it is argued by the learned Advocate for the defendants/appellants that 10 decimals of land in Plot No. 1809 was gifted by them to School in 2000 which is what is the cause of action by the plaintiffs taken in their plaint that the School has clouded the right title interest and possession of the plaintiffs. In this context, it is submitted that since no prayer of recovery of that land transferred to the School is made in the plaint suit for declaration of the plaintiffs' title is not maintainable and there being no boundary of the suit property, decree for permanent injunction cannot be granted.
It is pointed out that as it appears from Exhibits-18 and 19 Barga recording was set aside at the instance of the plaintiffs and thereafter, their names were mutated and recorded and lands were transferred to 36 persons, which the plaintiffs themselves have admitted and the transferee not being impleaded in the suit, therefore, the learned Trial Court had rightly observed on plain reading of the plaint and on appraisal of the evidence that the plaintiffs have no cause of action to maintain a suit for declaration of right title interest of their share as purchased by them.
Learned Advocate for the defendants/appellants further submitted that the suit filed by the plaintiffs was hopelessly barred by limitation of Article 59 of the Limitation Act, which lays down that, to cancel or set aside an instrument or decree or for rescission of a contract, the limitation prescribed is three years when the facts in titling the plaintiffs to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
To fortify his argument learned Advocate for the defendants/ appellants relied on a decision in case of Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors. reported in AIR 2010 SC 211 and adverted to observe made in paragraph 19 to the effect that a suit for cancelation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
I find on plain reading of the prayer portion of the plaint that this is not in substance a suit for cancellation of transaction on the ground that the deeds in the name of defendants are void or voidable. So, I agree with the proposition cited above but in the facts of the case it does not apply as the plaintiffs prayed for declaration and permanent injunction. But I do agree with the proposition as laid in Bachaspati Bhattacharya & Ors. v. Smt. Mira Bhattacharjee & Ors. reported in AIR 2008 Cal. 68 wherein it has been held that permanent injunction cannot be maintained against other co-sharer to restrain them from exercising their right over any part of property in joint possession without claiming partition thereof but the facts in hand is altogether different as I have found on record and on admitted averment made by the plaintiffs and evidence that the plaintiffs have transferred the lands in the suit plot to several other persons numbering 36 persons, therefore, question of declaration of their right title interest and possession does not arise and so also a decree of permanent injunction cannot be granted.
For the reasons stated above, the appeal is allowed by setting aside the judgment dated 30th April, 2014 passed by Additional District & Sessions Judge, Fast Track Court No. 1, Barrackpore, North 24-Parganas in Title Appeal No. 64 of 2012 and the judgment and decree both dated 16.7.2012 passed by Civil Judge (Junior Division), Barrackpore, North 24-Parganas in Title Suit No. 522 of 2000 is hereby affirmed and restored.
There shall be no order as to costs.
Certified website copies of the judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)