Nilima Kerketta vs Paulush Minz

Anubha Rawat Choudhary, J

This appeal arises out of judgment dated 02.06.2017 passed by the learned District Judge, Simdega whereby Title Appeal No. 7 of 2016 has been dismissed. Title Suit No. 09 of 2012 was decided vide judgment dated 30.06.2016 passed by the learned Sub Judge-I (Civil Judge Senior Division-I) Simdega whereby the suit was decreed on contest against the defendant no.1 and ex-parte against defendant no.2 and the defendant no.1 was directed to vacate the suit land and hand over peaceful possession to the plaintiff.

This second appeal has been admitted for hearing and following two substantial questions of law have been framed vide two different orders: -

i. Whether elements of fraud are required to be pleaded and proved by cogent evidence, the findings of the learned court below otherwise in this regard are wholly perverse and against the mandate of law?

ii. Whether the sale deed executed through impersonation of the vendor was at all required to be specifically challenged in order to hold the same as nullity/void-ab-initio?

The learned counsel for the appellant submits that there are concurrent findings recorded by both the Courts and the defendant no. 1 of the suit is the appellant before this court. The suit proceeded ex-parte against the defendant No. 2 [the Deputy Commissioner] who neither appeared before the first Appellate Court nor is appearing in this second appeal.

Argument of the appellant ( defendant no.1)

I. It is submitted that in the plaint there was an allegation of impersonation of the plaintiff while seeking permission from the Deputy Commissioner u/s 46 of the Chhota Nagpur Tenancy Act, 1908 (hereinafter referred to as CNT, Act) for sell of the property in favour of defendant no. 1 and the sale deed was also executed through impersonation but the allegation of impersonation was not proved in the trial through cogent evidence.

II. The learned counsel while referring Trial Court’s judgment has referred to the issue framed in paragraph no. 4 and has submitted that issue nos. 1,2,3,4 and 6 were dealt with together in paragraph 10. He has submitted that specimen thumb impression of the plaintiff was not taken in the Court and the thumb impression of the vendor of the sale deed, as per the sale deed, was marked as Exhibit-A. The handwriting expert deposed that exhibit-A did not match with exhibit-X and exhibit-Y. He has submitted that handwriting expert’s report was marked as exhibit-2. The learned counsel has submitted that the report of handwriting expert is not conclusive proof and for this he has relied upon the judgement passed by Hon’ble Supreme Court reported in AIR 1963 SC 1728 paragraph 26. The learned counsel has submitted that the approach of the learned courts with respect to reliance on handwriting expert was misplaced and they have treated the report of the expert as conclusive proof.

III. The learned counsel has further submitted that even if finding with regard to impersonation is taken as correct for a moment, then also no relief could have been granted to the plaintiff as the plaintiff never challenged the sale deed in the suit, rather the plaintiff only sought a declaration of right, title, interest and possession, although as per the sale deed, the vendor was the plaintiff. He has further submitted that no relief was prayed for seeking declaration of the sale deed as null and void or void-ab-initio.

IV. The learned counsel has referred to Section 31 of the Specific Relief Act and has relied upon the judgment passed by the Hon’ble  Supreme  Court  reported  in  AIR  2000  SC  211 paragraph 19 to submit that when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that instrument cancelled or set aside or rescinded and he is bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the instrument set aside first became known to him.

V. In the present case, the sale deed duly registered created a serious obstruction in the right of the plaintiff which was otherwise binding on him being the vendor and in absence of any relief seeking cancellation of the instrument, no relief could have been granted to the plaintiff. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court reported in (2021) 4 SCC 786 paragraph 19 to submit that the earlier section 39 of Specific Relief Act, 1877 corresponding to section 31 of Specific Relief Act, 1963 has been considered while referring to earlier judgment reported in 1959 SCC Online Madras 314 wherein it was clarified that three conditions are required for exercise of jurisdiction to cancel an instrument, (1) The instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left standing and (3) in the circumstances of the case, the court considers it proper to grant his relief of preventive justice.

Argument of the respondent no.1 (a) to 1(c)  (plaintiff)

A. The  substantial  questions  of  law  are  fit  to  be  answered  in favour of the plaintiff. He has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2024) SCC Online SC 2456 paragraph 23 and has submitted that the Hon’ble Supreme Court has held that the relief under Section 31 of the Specific Relief Act, 1963 to be granted by the Court is accompanied with the word ‘may’ and therefore it is the discretion of the Court. He has submitted that in case of fraud/impersonation as in the present case, the impersonation having been proved, the sale deed is void-ab-initio and nullity and therefore there was no need to seek such a declaration by making a specific prayer for such relief. The learned counsel has submitted that the learned courts have referred to Article 59 of the Limitation Act but Article 59 has no role to play, rather it is Article 56 which would apply.

B. So far as evidence of handwriting expert is concerned, the other evidences were also placed on record and at no point of time there was any objection with regard to taking of sample of finger print, that is, exhibit X and Y particularly the manner in which it was taken and the expert also appeared and was cross examined. He submits that it is not a case that the courts have only relied upon the report of the expert to give a finding, rather the appellant is trying to make out a new case by objecting to the manner the sample of thumb impression was taken. The learned counsel has submitted that there are concurrent findings in connection with impersonation and it has been admitted by the learned counsel for the appellant that there was foundational pleading in the plaint itself regarding impersonation/fraud and accordingly the first question of law is also required to be answered in favour of the plaintiff.

Findings of this Court

Title Suit No. 9 of 2012 filed seeking a declaration of right, title and interest over the suit property with a further relief of confirmation of possession. A prayer was also made that if the plaintiff is not found in the possession on the suit land the same may be delivered to the plaintiff by the process of the Court and the defendant no. 1 may be permanently restrained from interfering with the possession of the plaintiff.

Case of the plaintiff.

a. It was the specific case of the plaintiff that the plaintiff is a member of Schedule Tribe and is protected by the provisions of CNT, Act and claimed to be the sole surviving heir of the recorded tenant. It was the case of the plaintiff that in order to earn better living the plaintiff moved to West Bengal in between 1980-1983 as labourer and handed over the suit property for cultivation to one Julyus Xess son of late Stanislas Xess who happened to be his distant relative.

b. The defendant no. 1 came in contact with the plaintiff and came to know that the land of the plaintiff was being cultivated and managed by said Julyus Xess. It has been alleged in the plaint that Julyus Xess entered into evil design with defendant no. 1 to grab the landed property of the plaintiff and connived with each other. The defendant no. 1 had also offered that she would manage the property of the plaintiff better than Julyus Xess and ultimately the defendant no. 1 won over the confidence of the plaintiff and took all related documents of landed property. The defendant no.1 came to Simdega and played fraud to get permission for sell in the name of Paulush Minj under Section 46 of the CNT, Act by getting an application filed by impersonating the plaintiff and no such petition was filed by the plaintiff to seek such permission. Thus, permission to sell the suit land was obtained through impersonation. The fraudulent permission to sell was followed up by registration of sale deed where plaintiff was not present in person but someone else had impersonated the plaintiff and fraudulently put the signature of the plaintiff. It was the specific case of the plaintiff that neither any application seeking permission for sale under Section 46 of the CNT Act nor the sale deed was executed by the plaintiff. It is alleged that somebody else had impersonated the plaintiff and manufactured the documents to grab the property of the plaintiff mentioned in schedule-A of the plaint.

c. It was alleged that after manufacturing the documents the defendant no. 1 kept mum and stopped Julyus Xess from cultivating the land and told that the plaintiff had given the land under the cultivation and management of the defendant no.1. The defendant no. 1 asserted her claim of title on the land before the villagers stating that she got the valid sale deed of the suit property sometimes in the year 2004. The plaintiff enquired about the claim of the defendant No.1 and kith and kin of the plaintiff informed the fact about manufacturing of the documents in the year 2004. On enquiry the defendant no. 1 assured the plaintiff that the document was executed only to protect the interest of the plaintiff and there was no foul play. The plaintiff having faith on the defendant allowed the defendant to continue possession and cultivate the land on behalf of the plaintiff. The defendant refused to give the share of the yield in the month of February 2011 kept with her since last several years and denied the title of the plaintiff over the land and for the first time the defendant denied the title of the plaintiff and claimed her title and possession over the suit land. Ultimately the plaintiff obtained the certified copy of the sale deed no. 465 of 1995 and instituted the suit on 20.09.2012.

Case of the defendant no.1

The defendant no. 1 raised the plea that the suit was barred by limitation and it was asserted that it was the plaintiff who had filed the petition seeking permission to sell the land under Section 46 of the CNT, Act which was duly granted vide case no. 1 of 1994-95 on 24.07.1995 followed by execution of registered sale deed no. 465 dated 21.09.1995 by the plaintiff after receiving full consideration amount of Rs. 50,000/- and thereafter the property was mutated in the government record vide order dated 29.11.1995 and the defendant no.1 was in peaceful cultivating possession over the suit property from the year 1995 onwards without any interruption from any corner. It was asserted that the wife of the plaintiff came in the village in the month of June 2012 and created trouble in the peaceful possession of the defendant no. 1 and also instituted a proceeding under Section 144 of the Cr. P.C The allegation in connection with impersonation, fraud etc. was denied. The learned Trial Court framed as many as eight issues which are as follows: -

“(i) Whether the plaintiff is entitled to relief of adjudication of his right, title, interest and confirmation of possession over the suit land and decree for delivery of possession of the suit land by the process of court in case of dispossession and also entitled for decree of permanent injunction against defendant no. 1?

(ii) Whether the suit is liable to be dismissed with comprehensive cost?

(iii) Whether the suit is not maintainable in its present form?

(iv) Whether the suit is barred by limitation?

(v) Whether the suit is barred by the principle of waiver, estoppel and acquiescence?

(vi) Whether the plaintiff has proper cause of action for the suit?

(vii) Whether the suit is undervalued and the court fee paid insufficient?

(viii) Whether the plaintiff is entitled for decree of any other relief or reliefs?”

The defendant no. 2 did not appear in the suit and the suit was decided ex-parte as against the defendant no. 2, the Deputy Commissioner.

The plaintiff examined 8 witnesses including himself as P.W. 1, Juliyus Xess as P.W. 3 and Khatiyan was filed by the plaintiff and the report of the expert (Exhibit-2) in connection with thumb impression of the plaintiff who was alleged to be the vendor of the sale deed. Defendant examined four witnesses including herself as D.W. 1 and produced the sale deed no. 465 dated 21.09.1995 which was claimed by the defendant to have been executed by the plaintiff and the LTI on the sale deed was marked as Exhibit-A. The sale deed was followed by mutation and issuance of various rent receipts from the year 1995-96 marked as Exhibit-B to B/3. Two specimen LTI of the plaintiff were marked as Exhibit-X and Exhibit-Y. The plaintiff contended that the LTIs A, X and Y were photographed by S.I Shailendra Kumar Chaturvedi, who was not examined in the court and exhibit-A with X and Y were compared by Dhirendra Prasad, Santosh Sudhakar who had also not deposed before the court. P.W-8 (Neeraj Sahay) is the finger print expert who found that specimen A did not match with specimen X and Y.

The learned Trial Court while considering the materials and deciding issue no. 1 to 4 and 6 recorded a finding that defendant (D.W-1) got impersonated some other person by making Paulus minz to get the sale deed executed in her favour and the trial court also recorded a finding that forged documents were prepared for taking permission till the execution of sale deed 465/95 which was followed by mutation, issuance of correction slip and rent receipts in favour of the defendant no.1 and it came to the knowledge of the plaintiff in the year 2012 when he came to the village and defendant no.1 had also caused institution of a proceeding under section 144 Cr.P.C. against both the sides.

The finding of the learned Trial Court in paragraph 10 and 11 is quoted as under :-

“10. On perusal of case record, testimonies of the plaintiff and the defendant witnesses at the stage of discussion first of all if I am going through the issues which has to be decided by this court as Issue No. 1,2,3, 4 and 6. In nut shell the plaintiff Paulus Minz has brought this suit for declaring the sale deed executed by another Paulus Mine in favour of defendant No.1 Nilima Kerketta vide sale deed No. 465/95 null and void. Plaintiff has brought evidence before the court that he never executed the sale died No. 465/95 in favour of defendant No.1 Nilima Kerketta. Plaintiff claims that he is an illiterate person and he is not able to even write his name but the person who impersonated him put his signature on sale deed No. 465/95 which is Ext-"A" of this case. Plaintiff in this regard examined PW8 Niraj Sahay, he is State Finger Print examiner. He in his testimony stated that he examined and analysis the sample and thumb impression on sale deed No 465 dated 21.9.95 on two pages. It was marked as Ext A. The other thumb impression which was sent to him was marked as X and Y. The photocopy of thumb impression A. X and Y was taken by S.1 Shailendra Kumar Chaturvedi, thereafter it was resembled and examined which was done by Dhirendra Prasad and Santosh Kumar with him. It was found that thumb impression A and thumb impression X and Y did not match which clear cut shows that the person who came before the court had not executed the sale deed. The ridge of A and ridge of X & Y the flows are completely different. Here it appears that finger print expert which is produced before the court as P.W. 8 Neeraj Sahai very much categorically opined that the person who executed sale deed No 465/95 is another person except this Paulus Minz who is plaintiff in this case. That means plaintiff and the witnesses very much able to supported and corroborated the case in favour of plaintiff that plaintiff had not executed the sale deed and D.W.1 got impersonated some any other person by making Paulus Minz get the sale deed executed in her favour. He prepared forged documents from taking permission till the execution of sale deed no. 465/95. Plaintiff witnesses also able to establish the fact that on the sale deed No. 465/95 mutation was done in favour of Defendant No.1 thereafter correction slip was issued and rent receipts was issued in favour of defendant No.1 when the matter was came in the knowledge of plaintiff. He came to village Pahargurda, he objected in the year 2012, thereafter quarrel took place in between the wife of plaintiff Merry Alexia Minz and D.W.1 causes institution of Proceeding U/s 144 of Cr.PC. against both the sides. Plaintiff in this regard informed the village punchayat also and the proceeding of 144 of Cr.P.C. became cause action for institution of this suit. Learned counsel for the defendant hammered issue no. 4 and submitted that this suit is barred by law of limitation. Plaintiff had executed sale deed in the year 1995 and now he came before the court in 2012 to agitate that he has not executed sale deed which comes under limitation, he has filed this suit after three years of sale deed. Therefore, this suit is fit to be dismissed. In this regard if I am going through the part of 3 of Limitation Act 1963 Section 56 of the CNT Act speaks about forgery of instrument issue or register in which the period of limitation is about 3 years when the issue or registration becomes known to the plaintiff. In this regard it is the pleading and written statement of plaintiff as well as defendant both have admitted that defendant shown the certified copy of sale deed in village punchayat where plaintiff was also present in the year 2010 then the plaintiffs believed that defendant committed forgery within. Thereafter in the year 2012 a proceeding U/s 144 of the Cr. P.C. was drawn which become the cause of action and from there the limitation also starts. From the written statement of defendant it is also very clear that the case of defendant is that plaintiff Paulus Minz has executed sale deed 465/95 in her favour. She never stated that some one impersonated Paulus Minz and executed sale deed in her favour. The entire defendant witnesses have also not stated a single line that some one has executed sale deed in favour of defendant. Plaintiff as well as defendant have got no objection that Paulus Minz S/o Juel Minz was the original owner of the land of Mauza Pahargurda, P.S. and Distt. Simdega P.S. No. 56, Khata No. 09, Plot No. 562 measuring an area 0.60 acres. In conclusion on above made discussion I find that issue No. I, II, III, IV and VI are decided in favour of the plaintiff and against the defendant.

With regard to the issue No. V.VII and VIII these issues are the ornamental issue. Therefore, I do not want to waste time and no separate finding is given for these issues.

The suit was decreed on contest against the defendant No. 1 and ex-parte against defendant No. 2 and the defendant was directed to vacate the suit land and hand over peaceful possession to the plaintiff within three months from the date of the judgment.

The learned Trial Court upon scrutinizing the materials on record and upon considering the examination and cross examination of the thumb impression expert (P.W-8) recorded findings in paragraph 10 and decided all the issue nos. 12,3 , 4 and 6 in favour of the plaintiff and held that P.W. 8 categorically opined that the person who executed the sale deed is another person except Paulus Minj [the plaintiff] and also held that the witnesses of the plaintiff were very much able to support and corroborate the case of the plaintiff and recorded a clear finding that the plaintiff had not executed the sale deed and D.W. 1 (defendant no 1) impersonated another person as Paulush Minj and got the sale deed executed in the favour of defendant no.1 and held that the defendant no. 1 prepared forged documents right from taking permission from defendant no.2 till the execution of the sale deed and it was not in dispute that Paulush Minj (plaintiff) was original owner of the land in question. So far as the point of limitation is concerned it was held that the suit was filed within three years of the knowledge about execution of the sale deed and Article 56 of the Limitation Act was referred with respect to the period of limitation.

The learned Appellate Court also considered the same issues as that of the Trial Court treating them as the point of determination and issue nos. 1,2.3.4 and 6 were decided vide paragraph 11. The learned Court also recorded that P.W. 2 in his cross examination has stated that plaintiff had studied in Tamra School up to 7th standard and Juliyus Xess, P.W. 3 had also deposed that no registered sale deed was executed by the plaintiff in favour of defendant no. 1. The learned Court considered the deposition of P.W. 8, the expert and Exhibit-2 clearly showed that specimen-A was not resembling with specimen X and Y. The learned Appellate Court recorded finding that sale deed was executed by impersonating the plaintiff. The learned Appellate Court held that the learned Trial Court had rightly decided the issue no. 1,2,3,4 and 6 in favour of the plaintiff and against the defendant which included the point of limitation. Issue no. 5,7 and 8 were taken up together and it was held that the suit was maintainable. The appeal was dismissed and the judgment and decree of the Trial Court was upheld.

Thus, from the perusal of the plaint it is apparent that there was a clear allegation of fraud against the defendant no. 1 and it was adequately pleaded.

This Court finds that there are concurrent findings recorded by both the Courts that sale deed was executed through impersonation and the findings were arrived after scrutinizing the materials on record. The finger print expert P.W. 8 who along with two other persons had examined the finger print on the sale deed exhibit -A and compared with the sample finger prints exhibit X and Y had deposed in favour of the plaintiff and P.W. 8 was also thoroughly cross examined and his evidence has been duly discussed by the learned Trial Court as well as the learned Appellate Court. It is not a case where the evidence of the finger print expert was taken as gospel truth or the report of the finger print expert (exhibit-2) was taken as a gospel truth but the evidence of finger print expert was scrutinized and other oral evidences were also taken into consideration to conclude that the sale deed was executed through impersonation.

In view of the aforesaid facts and circumstances, this Court is of the view that the element of fraud by impersonation was not only pleaded but also proved by cogent evidence and the findings of the learned Courts are neither perverse nor against the mandate of law. The first substantial question of law is accordingly answered against the appellant and in favour of the respondents.

Substantial question of law No. 2.

Admittedly the suit was filed for declaration of title/confirmation of possession/recovery of possession and there was no prayer to set aside the sale deed as null and void which was alleged to have been fraudulently executed by impersonating the plaintiff. This Court finds that both the Courts have given concurrent findings that the sale deed was not executed by the plaintiff (Poulush Minj) but was executed by someone else through impersonation. The findings of both the Courts have been upheld while deciding substantial question no. (1)

In the judgment passed by the Hon’ble Supreme Court reported in AIR 2010 SC 211 (Abdul Rahim and Others vs. Abdul Zabar and Others) (supra) it has been observed that a registered document carries with it a presumption that it was validly executed and it is for the party questioning the genuineness of the transaction to show in law that the transaction was not valid. It has also been held that a suit for cancellation of transaction whether on the ground of being void or voidable, would be governed by Article 59 of the Limitation Act and the suit is therefore required to be filed within 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. In the present case, there is concurrent finding of both the Courts with regard to the point of  limitation  and  both  the  Courts  have  held that  the  case  was  filed within a period of three years from the date of knowledge of the plaintiff. The Hon’ble Supreme Court has also referred to the earlier judgment of Md. Noorul Hoda v. Bibi Raifunisa and Others reported in 1996 (7) SCC 767 wherein it has been held that in a suit to set aside or cancel an instrument on ground of fraud, Article 59 is attracted. It has been held in the aforesaid judgment of Noorul Hoda that when the plaintiff seeks to establish his title to the property, which cannot be established without avoiding the instrument that stands as an insurmountable obstacle in his way, which otherwise binds him though not a party, the plaintiff necessarily has to seek a declaration and have the instrument cancelled or set aside or rescinded. The judgment passed by the Hon’ble supreme  court  in  Abdul  Rahim (supra) relying on the case of Noorul Hoda (supra) has been quoted in the aforesaid judgment at Paragraph 19 which is quoted as under:-

A suit for cancellation 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. In  Md.  Noorun  Hoda  v.  Bibi  Raifunnisa  and  Others [1996 (7) SCC 767], this court held

“…… There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter-se-parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party , the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word person in Section 31 of the Specific Relief Act is wide enough the encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within entitling the plaintiff to have the decree set aside, first became known to him.”

(emphasis supplied)

This Court finds that once while answering the first substantial question of law in this case, the finding of both the Courts has been upheld that the sale deed was executed by impersonating the plaintiff, the plaintiff can neither be said to be a party to the sale deed nor can he be said to be a person claiming under the party to the sale deed. In aforesaid circumstances this Court is of the considered view that the sale deed executed by impersonating the plaintiff is a nullity in the eyes of law and merely because the same was not specifically challenged for being set aside through the relief prayed for in the plaint, such omission to pray for the relief to set aside the alleged sale deed is not fatal to the relief by way of declaration of title which has been granted to the plaintiff by the learned Courts. This Court is of the considered view that in a fact situation where the finding that the sale deed was executed by impersonating the plaintiff, the plaintiff can still avoid the same and get his title declared without specifically challenging the sale deed and such a sale deed executed through impersonation would not bind the plaintiff in any manner whatsoever. This Court is of the considered view that once the finding of the Courts that the sale deed was executed through impersonating the plaintiff is upheld, the confirmation of title of the plaintiff automatically follows as admittedly the plaintiff is the descendant of the recorded tenant. Accordingly, the second substantial question of law is answered in favour of the plaintiff and against the defendant by holding that the sale deed executed through impersonation of the vendor (plaintiff) was not required to be specifically challenged in order to hold the sale deed as nullity/void ab initio.

Both the substantial question of law having been answered in favour of the respondents and against the defendant no.1 /appellant, this second appeal is accordingly dismissed.