Anup Pramanick & Ors vs Md. Nur Islam Mondal & Ors

Bibek Chaudhuri, J

A suit for declaration of title and permanent injunction filed by the appellants as plaintiffs was dismissed on contest by the trial court. The plaintiffs preferred an appeal before the lower appellate court which was allowed in part on contest against the respondent No.1 and ex-parte against others. Right, title and interest of the appellants/plaintiffs jointly with the proforma respondents/defendant Nos.2-4 in 'Ka' schedule property of the plaint was declared. However, plaintiffs' prayer for title over 02 decimal of land in suit plot No.125 was refused.

Against the judgment and decree passed by the First Court of Appeal, the original plaintiffs have preferred the instant second appeal.

It is necessary to state in brief the background leading to filing of the instant appeal.

The plaintiffs/appellants filed a suit for declaration of title and permanent injunction against the defendants in the 3rd Court of the learned Civil Judge (Junior Divison) at Krishnagar, being Title Suit No.31 of 1989 stating, inter alia, that 'Ka' schedule property originally belonged to one Nirapada Molla. The said Nirapada Molla died leaving behind two sons, namely, Bishram and Bimal and one daughter Latika as his legal heirs and representatives. The eldest son of Nirapada, i.e., Bishram Molla died leaving behind one son and four daughters who inherited the share of their father in the suit property. The said heirs of Bishram Molla transferred 05 decimal of land out of 23 decimal of land in suit plot No.125 by a registered deed of sale in favour of proforma defendant Nos.2-4. Remaining 18 decimal of land were transferred by them by registered deeds of sale dated 27th February, 1989 and 1st March, 1989 in favour of the plaintiffs. Thus, the plaintiffs and proforma defendants became owners of 23 decimal of land in suit plot No.125. The respondent/defendant No.1 had no right, title and possession over the suit property or any portion thereof. However, sometimes in 1989, he disclosed that the said Bishram Molla had transferred 02 decimal of land in suit plot No.125 by executing a registered deed of sale dated 31st January, 1986. It was specifically pleaded by the plaintiffs/appellants that Bishram Molla, since deceased was a literate person. He was group-D employee of Hatchapra King Edward High School. He never executed any deed of sale on 31st January, 1986 in favour of defendant No.1 putting his LTI thereon. The said deed of sale in favour of defendant No.1 was a forged document created by him in collusion with the deed writer and the witnesses. On the strength of the said forged deed, the defendant No.1 tried to take forcible possession over the suit property as a result of which right, title and interest of the plaintiffs and proforma defendants were clouded. So was the suit for declaration of their title and permanent injunction.

The said suit was contested by the defendant No.1/respondent by filing written statement wherein he denied entire allegation made out by the plaintiffs in the plaint against him. Specific case of the defendant No.1 was that the suit plot No.125 and non suited plot No.125/1847 are two adjacent plots. The defendant No.1 has his dwelling house in the non suited plot. There is no thoroughfare for ingress and egress to and from the dwelling house of the defendant No.1. therefore, the vendor of the defendant No.1 had entered into an oral agreement with Bishram Molla being owner of suit plot No.125 for transferring 02 decimal of land appertaining to suit plot No.125 lying on the extreme eastern side of the suit plot in exchange of similar area of land in non suited plot No.125/1847. After the said oral agreement, the vendor of the defendant No.1 used to possess the said 02 decimal of land as pathway for ingress and egress to non-suited plot No.125/1847. After the death of Lalit Mohan his legal heirs transferred 02 decimal of land in non suited plot No.125/1847 by executing a registered deed dated 31st January, 1986 in favour of Bishram Molla and on the same date Bishram Molla transferred 02 decimal of land in plot No.125 directly in favour of the defendant No.1. He specifically denied that the deed executed by Bishram Molla in favour of him was forged and fabricated one.

On the pleadings of the parties the learned trial judge framed as many as seven issues. Parties led evidence in support of their respective cases. On the basis of the pleadings of the parties and evidence adduced by the witnesses on behalf of the parties, the learned trial judge dismissed the suit on contest.

In appeal being Title Appeal No.1 of 2001 filed by the present appellants, the learned District Judge, 3rd Court at Krishnagar by his judgment and decree dated 24th March, 2004 allowed the appeal in part and declared right, title and interest of the appellants/plaintiffs jointly with the proforma respondents/defendant Nos.2-4 in respect of 21 decimal of land out of 23 decimals of land in 'Ka' schedule property of the plaint. The appellants have challenged the judgment and decree passed by the lower appellate court in the aforesaid appeal by preferring the instant appeal.

It is found from the record that vide order dated 28th April, 2006, the Division Bench of this Court admitted the appeal for hearing on the following substantial questions of law:-

(1) Whether learned Judge of the first Appellate Court committed substantial error in law by not considering that the learned Trial Court did not frame material issue as to whether the impugned deed (Ext. B) was a forged document or genuine one.

(2) Whether the learned Judge of the first Appellate Court committed substantial error in law in approving the decision of the learned Trial Court in rejecting the prayer of the plaintiff for comparing the alleged L.T.I of Bishram Molla in the impugned deed i.e. Ext. B with any other admitted document by an expert.

(3) Whether the learned Judge of the first Appellate Court committed substantial error in law in reversing the judgment and decree of the learned trial court.

It is submitted by the learned Advocate for the plaintiffs/appellants that the suit was for declaration that the alleged deed executed in favour of the defendant No.1 by the predecessor-in-interest of the appellants is forged or void. In the Trial Court, the plaintiffs preferred an application for appointment of an expert to verify as to whether the predecessor-in-interest of the appellants, namely Bishram Molla executed the said deed by putting his LTI or not. Though the defendant No.1 did not raise any objection against such application, the Trial Court rejected the said application. Therefore, the allegation of the appellants was not proved; rather the appellants did not get any opportunity to prove by producing expert's evidence that the alleged deed executed by the said Bishram Molla in favour of the defendant No.1 was forged or void.

Learned Advocate for the appellants next draws my attention to relevant portion of Trial Court's judgment where the learned Trial Court discussed the evidence of P.W.1 Pravat Ranjan Biswas. The said P.W.1 was the Headmaster of Hatchapra King Edward High School. In his cross-examination he stated that the said Bishram Molla took advance money against his salary on 1st April, 1986 by putting his LTI, previously he used to put his signature on the acquaintance roll as well as other documents pertaining to his service. However, in the year 1986, Bishram Molla's signature was somewhat illegible and therefore, he used to put his LTI on different documents of his school. It is also found from his evidence that on 31st January, 1986, the school was open and the said Bishram Molla was present in the school. Therefore, it was absolutely impossible for him to attend the Registry Office for execution of the deed. Both the courts below did not consider all such aspects.

It is further contended by the learned Advocate for the appellants that originally one Nirapada Molla was the owner of suit plot No.125, measuring about 23 decimals of land. Nirapada died leaving behind two sons, namely Bishram Molla and Bimal and one daughter namely Latika. Subsequently, Bishram died leaving behind one son and four daughters. The suit property was not partitioned amongst the co-sharers. Therefore, Bishram Molla had no authority to transfer by executing a deed of sale, a specific portion measuring about 0.2 decimal from plot No.125. It is also submitted by the learned Advocate for the appellants that the appellants were absolutely dark with regard to execution and registration of the alleged deed of sale by Bishram Molla in favour of defendant No.1. The said deed came to light only after the death of the said Bishram Molla after filing of the suit.

It is further submitted by the learned Advocate for the appellant that the First Court of Appeal declared right, title and interest of the plaintiffs and proforma respondent in respect of the 21 decimal of land in suit plot No.125. But the Appellate Court failed to consider that no issue was framed to decide such question and thus, the First Court of Appeal failed to apply its power contained in Rule 25 of Order 41 of the Code of Civil Procedure.

Learned Advocate for the respondent No.1, on the other hand submits that both the Courts below concurrently held that on 31st January, 1986 Bishram Molla executed the deed of sale in favour of the defendant No.1 in respect of 0.2 decimal of land in suit plot No.125. This concurrent finding of fact cannot be challenged in second appeal. In support of his contention, the learned Advocate for the respondent refers to a decision of the Hon'ble Supreme Court in Har Narain Daga Vs. Heeralal and others reported in (2001 )1 SCC 41. The aforesaid report is in connection with an appeal arising out of an eviction proceeding. In Paragraph 6 of the said report, the Hon'ble Supreme Court held that the trial Court, the first appellate court and the High Court concurrently found that the respondent was an Assistant Teacher and he was very often requested by his students to impart private tuition to them and one room is required for such purpose. The Hon'ble Supreme Court refused to reconsider such requirement of the respondent on the ground that it would be interfering with the concurrent finding of fact.

Coming to the instant case, it is submitted by the learned Advocate for the respondent that this Court cannot look into the questions as to whether the deed of sale executed by Bishram Molla in favour of defendant No.1 was forged or not because both the Courts below concurrently found that the said deed in question was executed by Bishram Molla on 31st January, 1986 and the said concurrent finding of fact cannot be reagitated in this appeal.

Learned Advocate for the respondent also refers to a decision of the Hon'ble Supreme Court in Vidhyadhar Vs. Manikrao & Anr. reported in AIR 1999 SC 1441 and submits that the appellants could have examined the witnesses and the deed writer of the said deed in question but they failed to examine them. Therefore, they cannot raise any question as to the validity of the said deed.

Having heard submissions made by the learned Advocates for the appellants and the respondent and on perusal of the entire materials on record, I like to state at the outset that the defendant examined one of the witnesses to the deed as D.W.2. D.W.2 clearly stated in his evidence that the vender, namely Bishram Molla was identified by him and he put his LTI on the deed. One Tarapada Halder wrote the said deed and D.W.2, one Sanat Kumar Chatterjee and Fazlur Haque put their signature as witnesses in the said deed. The evidence of D.W.2 remained unshaken during his cross-examination. Similarly, D.W.3 Fazlur Haque stated in his evidence that he was one of the witnesses to the said deed.

It is important to note that on the self same date, the owners of non-suit plot No.125 /1847 transferred 02 decimal of land to Bishram Molla by a registered deed of sale. It is surprising to note that the plaintiffs did not challenge execution and registration of the said deed by virtue of which the predecessor-in-interest of their vender became the owner of 02 decimal of land in plot No.125/1847. If the said transfer is accepted by the plaintiffs and it is claimed that Bishram became the owner of 02 decimal of land in non-suit plot No.125/1847, his presence in the registration office on 31st January, 1986 cannot be question by plaintiffs/appellants after his death. It is needless to say that a deed duly executed and registered raises presumption as to its correctness and ownership of transferee. The appellants failed to rebut such presumption during trial of the suit.

In view of the above discussion, I am of the view that no substantial questions of law are involved in the instant appeal.

The appeal is, therefore, dismissed on contest, however, without costs.

Judgment and decree passed by the First Appellate Court in Title Appeal No.1 of 2001 dated 24.03.2004 is affirmed.

Lower Court Records be returned to the Courts below immediately along with a copy of this judgment.