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Judgment
N. Chaudhury, J. (Oral)—This second appeal has been preferred by defendant of title suit No. 7/1997 of the Court of learned Civil Judge (Jr. Divn.) No. 1, Tinsukia. The suit of the plaintiff was decreed by the learned trial court by judgment and decree dated 15.09.2004 and the appeal preferred there-against before the learned Civil Judge (Sr. Divn.) was dismissed on 17.08.2005. Aggrieved, the two defendants preferred the present second appeal before this court. The second appeal was admitted on 14.09.2011 framing following two substantial questions of law:-
(i) Whether decree declaring title can be passed without there being any averment of adverse possession in the pleadings as well as in evidence?
(ii) Whether a registered sale deed validly executed can be declared invalid without there being any ground except an allegation of forgery in the pleadings and also there being no evidence to that effect?
Before proceeding to decide the substantial questions of law, it is necessary to briefly narrate the facts involved in the suit. Two plaintiffs instituted title suit No. 66/1989 in the Court of learned Civil Judge (Jr. Divn.) No. 1 at Tinsukia stating that suit land measuring 1B 1K 17L covered by dag No. 126 of PP No. 49 (old) of Dekhiajuri, Bongali Gaon under Tinsukia mouza originally belonged to one Janaki Sai, W/o late Musafir Sai. Janaki did not have any issue and according to the plaintiffs, she initially invited Sewgobind Chowhan, father of plaintiff No. 1 and thereafter Ram Prasad, father of plaintiff No. 2, to come and settle on the suit land and to look after her. Sewgobind and Ram Prasad accordingly started living in the suit land for over 60 years and after death of Janaki Sai they got their names mutated in the municipal records. The last rites of Janaki Sai were done by the predecessors of the plaintiffs by engaging other persons. After death of Sewgobind and Ram Prasad, their legal heirs continued possessing the suit land. They were making payment of municipal revenue as well as land revenue. On 15.02.1989, plaintiffs received a notice from Tinsukia Municipal Board in regard to a mutation of the names of the defendants in regard to suit holdings. During that proceeding, the plaintiffs for the first time came to know that defendants have raised claim of purchase of the suit land vide sale deeds No. 1707/1968 and 519/1979 of Tinsukia Sub-Registry and also they have obtained mutation. According to the plaintiff, the defendants never had any possession over the suit land and the sale deed was a forged one and this is why the defendants could not have acquired any title with respect to the suit land on the basis of forged sale deed. They, therefore, prayed for a decree declaring that they are the absolute lawful owners of the suit land and that defendants do not have any manner of right over the same. They also prayed for a decree for confirmation of their possession over the suit land and cancellation of the aforesaid two sale deeds apart from permanent injunction restraining the defendants and their men etc. from getting mutation in the suit land and/or from disturbing the ownership and possession of the plaintiff etc.
On being summoned, the defendants appeared and submitted written statement denying the case of the plaintiff. The defendants also stated their own facts in paragraph 7 of the written statement. According to the defendants, Janaki Sai being original owner, leased out the land to Abdul Hai, the predecessor of the defendants. Abdul Hai after getting the suit land on lease constructed houses on a part of it and thereafter let out the suit land to Sewgobind sometime in the year 1951 at a monthly rental of Rs. 25/-. In the year 1954, another house was similarly let out to Ram Prasad at a monthly rental of Rs. 30/-. This rent was subsequently enhanced to Rs. 75/- per month. After death of Ram Prasad and Sewgobind, their legal heirs continued enjoying the suit property as tenants under the defendants. In the mean time, Janaki Sai sold out the suit land to the defendants vide registered sale deed No. 1707/1968 for valuable consideration. On 19.03.1979, Md. Khalil who was one of the purchasers, sold his title to the defendants by another registered sale deed being No. 519/1979. The plaintiff thereafter became defaulters since 1985 and did not make any payment of rent. They cooked false story and thereby staked claim over the suit land. With these averments, the defendants prayed for dismissal of the suit with cost.
Learned trial court on consideration of the pleadings of both sides framed following 11 issues:-
(1) Whether there is any cause of action for the suit?
(2) Whether the suit is barred by the law of limitation?
(3) Whether the suit is bad for non-joinder of all the heirs of Seogobind Chowhan and Ram Prasad?
(4) Whether the father of the defendants Abdul Hai have been in occupation of the entire land as lessee under Janaki Sai?
(5) Whether the plaintiff are using and occupying the suit land as per their sweet will without any objection or hindrance from any quarter and they acquired ownership rights by prescription?
(6) Whether the suit is properly valued and proper court fee has been paid?
(7) Whether the defendants acquired any title through the Deed of sale No. 1707 of 1968 and 519 of 1979 of right of purchase?
(8) Whether the plaintiffs are the absolute lawful owners of the suit land and the defendants have no manner of right over the same?
(9) Whether the sale deed No. 1707 of 1968 and 519 of 1979 of Tinsukia Sub-Registry and the mutation granted by the S.D.C., Tinsukia are inoperative and void and liable to be cancelled?
(10) Whether the plaintiffs are entitled to get a permanent injunction restraining the defendant from doing any act of ownership or possession on the suit land?
(11) To what other relief if any the plaintiffs are entitled?
In course of trial, plaintiff examined two witnesses and adduced as many as 58 documents while defendants did not examine any witness and did not adduce any document. Learned trial court on perusal of the evidence led by the plaintiffs decided issues No. 4, 5 and 8 together and held that the plaintiffs are absolute owners of the suit land. It is also held that there is no oral or documentary evidence to support the claim of the defendants that they had purchased the suit land from Janaki Sai or that Sewgobind and Ram Prasad were the tenants. Coming to issue No. 7, the learned trial court held that apart from making mention of the documents in their written statement, the defendants did not do anything in support of their claim. They ought to have proved the execution of the sale deeds as required under Section 67 of the Evidence Act and so they failed to bring any rebuttal evidence which leaves no other option but to accept the plaintiffs case to be true. Thus, having decided issues No. 4, 5, 8 and 7 in favour of the plaintiffs, the learned trial court without making any discussion whatsoever decided issue No. 9 in favour of the plaintiff and such finding amounts to cancellation of the sale deed. Virtually there is no discussion as to why the issue No. 9 was decided in favour of the plaintiff. With these findings, the other issues were also decided in favour of the plaintiff and thereupon decree was passed declaring that families of the plaintiffs are absolute lawful owners of the suit land and that defendants do not have any manner of right over the same. A decree for confirmation of possession of the plaintiffs over the suit land was also passed and sale deed No. 1707/1968 and 519/1979 of Tinsukia Sub-Registry and consequential mutation in the Records of Rights were also cancelled. The suit of the plaintiff for permanent injunction was also decreed. This judgment and decree passed on 27.09.2004 was challenged by the defendants before the learned Civil Judge (Sr. Divn.) at Tinsukia by Title Appeal No. 8/2005. Learned first appellate court did not frame the points for determination as required under Order 41, Rule 31 of the Code of Civil Procedure but proceeded to re-appreciate the case issue wise. According to the learned first appellate court, there was nothing to interfere with the findings of the learned trial court in regard to issues No. 4, 5 and 8. The learned first appellate court held that plaintiffs acquired ownership rights by prescription and thus, they are absolute owners of the suit land. It was also held that burden lies on the defendants to prove the execution of the sale deed by adducing evidence. They were also supposed to prove delivery of possession consequent to execution of the aforesaid sale deeds but the defendants did not lead any evidence to discharge their burden and so it was held that learned lower court rightly decided issue No. 7 in favour of the plaintiffs. The learned first appellate court has not made any discussion in regard to issue No. 9. It is not clear as to whether this issue was argued by the first appellants before the learned first appellate court. The learned first appellate judgment and decree dated 17.08.2005 is the subject matter of the present second appeal whereupon the aforesaid substantial questions of law have been framed.
I have heard Mr. GN Sahewalla, learned senior counsel appearing for the appellants assisted by Mr. P Deka. No one has come forward to argue on behalf of the respondents although names of the learned counsel have been shown in the cause list. The appeal was called up for hearing in the first half of the day and hearing continued till the second half but no one came up. The hearing of the appeal was duly notified on the display board. I have perused the lower court records including the exhibits and the depositions of the PW 1 and PW 2. Since, the defendants stayed away from the witness box, there was no deposition or documentary evidence on behalf of the defendants to be looked into.
Mr. GN Sahewalla, learned senior counsel appearing on behalf of the appellants argued that the first substantial question of law has to be decided in the negative and against the respondents/plaintiffs as the plaintiffs could not produce any scrap of paper to show that they had acquired right, title and interest with respect to the suit land. Having perused the recital made in the plaint and the written statement it appears that both the parties admitted Janaki Sai to be the original owner. When the plaintiffs say that their predecessors were inducted into the suit land by Janaki Sai during her life time and thus for over 60 years, they have been possessing the same from the time of their predecessors, it is the case of the defendants that Janaki Sai had leased out the land to Abdul Hai, the predecessor-in-interest of the defendants. According to the defendants, Abdul Hai leased out the suit premises to the predecessor of the plaintiff at a nominal monthly rental which was subsequently enhanced to Rs. 75/-. Defendants claimed that such rents were paid till 1985 where after the plaintiff stopped paying rents and became defaulter and in 1989 for the first time they challenged the title of the defendants by instituting the suit and claiming title over the suit premises. The defendants after having claim that they came into possession of the suit land on the basis of lease from Janaki Sai, they have not led any evidence whatsoever to prove their leasehold right over the suit land. But they admitted that since 1951 predecessor of the plaintiff as being in possession of the land may be in the capacity of tenant under Abdul Hai. So far as possession of the suit land by the predecessor of the plaintiff till 1951 thus, stands admitted by the defendants in their pleadings. Under Section 110 of the Indian Evidence Act, if someone claims that the person under possession of the land is not the real owner in that event, it is the burden of such person to prove so. Here in this case, defendants having claimed that predecessor of the plaintiffs has been in possession of the land since 1951 and that they were mere tenants under Abdul Hai but did not lead any evidence to prove so, in that event, presumption has to be taken against the defendants. This aspect of the matter may be relevant for the purpose of declaration of title of the plaintiff over the suit land vis-a-vis the claim of title of the defendants. Defendants claimed that they purchased the suit land by two sale deeds but they did not come to the witness box to prove their assertion. Be that as it may, plaintiffs having instituted the suit for cancellation of the very same instruments, existence of sale deeds are accepted and admitted. Certified copies of two sale deeds, proved by the plaintiffs, have been exhibited as Ext. 55 and Ext. 56 and they are available on record. The plaintiffs claimed that the defendants had obtained the sale deeds by forgery. Except making the statement in the pleading and one or two sentences in examination-in-chief, the plaintiffs also did not lead any evidence to prove that the sale deeds were really forged. Neither the plaintiff nor the defendants made any attempt to examine the witness of the sale deeds in question. It is not the case of either party that the witnesses were not surviving as on the date of leading evidence in the case.
Since the plaintiff claimed ownership over the suit land, burden lies on the plaintiff to prove so. Acquisition of title to an immovable property can take place only through the procedures prescribed under the Transfer of Property Act, namely, sale, mortgage, lease, gift or exchange. It is not the case of the plaintiffs that they have either purchased or got on mortgage or lease or gift of the suit land. Except for the aforesaid procedures prescribed under the Transfer of Property Act, there is no other valid procedure whereby title can be acquired. Title to immovable property in the State of Assam is nothing but the rights acquired under Section 9 of the Assam Land and Revenue Regulation, 1886. After all, State being the owner of the immovable properties, the private persons are only settlement holders within the meaning of Section 8 of the Assam Land and Revenue Regulation, 1886. Plaintiffs did not make any attempt to bring Jamabandi to show that they have been settled with the land by the Government. The plaintiffs also did not make any attempt to show that land was settled with Janaki Sai and she either gifted the property to them or sold, leased, mortgaged or alienated in any other way. In the absence of any mention about the means of transfer of title, it is not possible to hold that merely by long possession plaintiffs can acquire title.
Instituting a suit for decree for injunction on the basis of long possession by any party may be maintainable against the whole world except the true owner. In the case of Prataprai N. Kothari v. John Braganza reported in (1999) 4 SCC 403, the Hon�ble Supreme Court recognised such right by holding that it is a principle of law. A person who has been in long possession continuously can protect his possession by seeking an injunction against any person other than true owner. Originally an owner can always recover possession by due process of law. Here in this case, plaintiffs� suit can be viewed from two different angles. In the light of the pleadings made, it can be viewed as a suit for declaration of title and confirmation of possession on the basis of title. On the other hand, in view of the recital made in the plaint, it can also be viewed as a suit for protection of their possession in the light of long possession over 60 years. But in that event, they may be entitled to protection of their possession in perpetuating but not for declaration of title. Here in this case, admittedly the plaintiffs did not adduce any document of title. The first substantial question of law, therefore, has to be decided in the negative and against the respondents. It is, accordingly, decided.
Coming to the second substantial question of law, Mr. GN Sahewalla, learned senior counsel, would argue that existence of the registered sale deed is an admitted fact. This is why, plaintiffs instituted the suit for cancellation of the same. But having instituted the suit with such prayers, the plaintiffs did not call for the original documents from the custody of the defendants in accordance with law and refrained from leading any evidence to prove the lone ground that the sale deed was a forged one. PW 1 stated in course of his deposition by way of examination-in-chief that the defendants forged title deed No. 1707/1968 and have claimed title and mutation on the basis of the forged sale deed. Such claim of title and mutation, therefore, is liable to be refused. Having perused the cross examination it could not be found out as to whether the PW 1 was confronted by the defendants on such allegation. No question was put to him that there was no forgery. True, in the written statement the defendants claimed that original owner, Janaki Sai executed sale deed in favour of the defendants but since after making such statement in the written statement, the defendants did not come to the witness box, presumption under Section 114 has to be taken against them. In the case of Vidhyadhar v. Manikrao & anr. reported in AIR 1999 SC 1441, the Hon�ble Supreme Court held the view that a party who after having made claim does not come to the witness box to depose, presumption is liable to be taken against him under Section 114 of the Evidence Act. Applying the aforesaid view, it is possible to hold that the defendants having stayed away from the witness box and not having made any overt step to challenge the claim made by the plaintiffs as to the forgery of the sale deed, presumption is liable to be taken against the defendants. The first part of the second substantial question of law, therefore, that the registered sale deed was validly executed, itself comes under cloud. The second substantial question of law is based on the premises that registered sale deed was validly executed. Defendants claimed that the sale deed was validly executed and registered but thereafter no evidence was led. So the first premise of the second substantial question of law has not been established. The plaintiffs claimed that the sale deed was forged. Allegation has been made. The original sale deed must be in the custody of the defendants but they did not produce it to court to show that there was signature of Janaki Sai on it. Once they produce the sale deed and claim that signature appearing on the sale deed is that of Janaki Sai, then plaintiffs would have an opportunity to challenge the same and so unless and until defendants discharge the burden of producing the sale deed, onus cannot shift to the plaintiffs so far as acquisition of title is concerned. This is because it is the defendant who claimed that they acquired title on the basis of the sale deed. It is the defendants who claimed that they obtained the land first by way of lease from Janaki Sai. The defendants have not proved either execution of lease deed or execution of sale deed and so the second substantial question of law cannot be decided in favour of the appellants. In view of what has been stated above, the second substantial question of law does not arise and it is, accordingly, not required to be answered.
In view of what has been above, the decrees passed by the learned courts below will stand modified to the extent that the plaintiffs do not have any title over the suit land but in view of possession over 60 years over the suit land, they are entitled to retain their possessory right. The decree insofar as it relates to Clause (b) and (d) of the original decree is hereby confirmed and the same in regard to Clause (a) insofar as it relates to declaration of ownership of plaintiffs over the suit land is hereby set aside. The declaration in Clause (a) insofar as the right of defendants is concerned is not interfered with. However, declaration in Clause (c) is also set aside as plaintiffs did not prove the forgery.
The second appeal stands partly allowed.
No order as to costs. Send down the LCR.