Sri Khukan Debnath vs Sri Gopal Biswas And Ors

Heard Mr. A. C. Sarma, learned senior counsel assisted by Mr. G. Bharadwaj, learned counsel appearing for the appellant as well as Mr. A. K.

Sahewalla, learned counsel appearing for the respondent No. 1.

By this appeal under Section 100 CPC, the appellant has challenged the judgment anddecree dated 06.05.2017 passed by the learned Civil Judge,

Nagaon in Title Appeal No. 23/2015, thereby affirming the judgment and decree dated 03.07.2015 passed by the learned Munsiff No. 2, Nagaon in

Title Suit No. 147/2008, thereby dismissing the suit filed by the appellant/plaintiff.

The appellant’s case in brief is that the appellant had purchased 04 kathas 14 lechas (04K-14L) land covered by Dag No. 377 of P.P No.

52 of Rupahi Town Kissam under Khatual Mouza, Nagaon, Assam which was purchased vide sale deed dated 22.12.2005Â registered as Deed

No.4111/05 dated 22.12.2005 from  (i) Sri Banku Das, (ii) Sri Sanku Das, (iii) Sri Raju Das, (iv) Smt. Sumi Das and (v) Smt. Champa Das, all

legal heirs of Late Priyalal Das. It is projected that the appellant had been in occupation of purchased land long before the execution of the sale deed

and there are several residential houses constructed by the appellant. It is further projected that in the southeast corner of the said land, the father of

the respondent No. 1 had occupied 14 lechas of land and houses with the permission of the appellant and he was allowed to reside therein since the

year 2006 without any rent with a condition to vacate the house as and when demanded. However, to defraud and deprive the appellant from the 14

lechas of land, the father of the respondent No. 1, by a conspiracy, created a fraudulent Sale Deed No. 2399/07, showing that the respondent No. 1

had purchased 14 lechas of said suit land from one Md. Karim Bepari. The said Sale Deed was executed on 26.10.2007 and registered on

02.11.2007. The stand of the appellant was that the father of the respondent No. 1, who is shown as pattadar No. 3 in respect of the suit patta had

died thirty years back and therefore, the Sale Deed No. 2399/07 dated 02.11.2007 was fraudulent and collusive. It was stated that in the month of

August, 2008, the appellant had requested the respondent No. 1 to vacate the suit land but he had refused to do so, claiming to have purchased the

suit land from Md. Karim Bepari in the year 2007. Therefore, the appellant had filed Title Suit No. 147/2008 before the learned trial Court. The

following prayers were made in the plaint:-

(A) A decree be passed declaring the sale deed as described in Schedule “A†below to theplaint is fraudulent, void and never executed by the

executant’s and as such liable to be cancelled, AND

(B) A decree be passed, if by this with the strength of said so-called Sale Deed any mutation order passed in the name of defendant No. 1 said also

shall be cancelled accordingly, AND

(C) A precept be issue to the Registrar of the registration office, Nagaon for recordingcancellation of the sale deed given in Schedule “A†below

of this plaint as per decree passed by the Hon’ble Court in the relevant record, AND

(D) All cost of the suit also be decreed against the defendants and in favour of theplaintiff, AND

(E) Any other relief or relief’s the plaintiff is entitled to in law and equity may also be decreed.

The respondent No. 1 denied the allegations made in the plaint by filing his writtenstatement and has stated that the he was the original owner of the

suit land which was under his possession and the land was mutated in his name, further projecting that neither the house owner of the property or his

legal representatives have challenged the Sale Deed. It was further stated that 14 lechas of land claimed by the appellant in the suit was without

claiming any right, title or interest thereon and the respondent No. 1 had prayed for dismissal of the suit.

On the basis of pleadings, the learned trial Court had framed the following six issues for trial:-

Whether the suit is maintainableâ€​

Whether the deceased Karim Bepari had share of land under dag No. 377 of P.P. No. 52?

Whether he was alive on the date of execution of the sale deed No. 2399/07?

Whether the sale deed No. 2399/07 is a forged sale deed?

Whether the plaintiff is entitled to the decree as prayed for?

To what relief, if any, the parties are entitled?

In support of the pleadings, the appellant had examined five witnesses, viz. Sri Khukan Debnath (Plaintiff) (P.W. 1), Smti. Anjali Das (P.W. 3),

Sri Banku Das (P.W. 4), Abdul Mazid (P.W. 5) and Abdul Barek (P.W. 6) and exihibited seven documents. In defence, the respondent No. 1 had

examined himself as DW-1 and did not exhibit any documents.

In respect of relevant issues No. 2, 3 and 4, the learned trial Court arrived at a findingthat the certificate issued by the Gaonburah of the death of

Md. Karim Bepari is not admissible. It was further held that the appellant had examined witnesses only to prove the execution of Sale Deed No.

4111/05 and that he had not laid any evidence to dispute the registered Sale Deed No. 2399/07. By holding that the land covered by both the sale deed

were different, the learned trial Court had arrived at a finding that there was no evidence on record to prove fraud and therefore, it was held that Sale

deed No. 2399/07 was a genuine one. Accordingly, the said issues were decided against the appellant and suit was dismissed by holding that the said

Sale Deed No. 2399/07 was not liable to be cancelled.

The matter was taken up in appeal and the learned first appellate Court revisited the relevant issues No. 2, 3 and 4 and had found that as

per the documents on record, they were three original pattadars of the suit land covered by Dag No. 377 and 378 being Gauranga Das, Priyalal Das

and Karim Bepari having equal share in the suit patta. The learned first appellate Court had held that in the cross-examination, the PW-1 had admitted

that he had no objection if the respondent No. 1 possesses any land beyond the purchased land and also admitted that if the respondent No. 1 had got

land within the boundary of Ext. 1 (i.e. Sale Deed No. 2399/07), he had no objection. Therefore, concurring with the decision of the learned Trial

Court that the certificate (Ext. 4) issued by a Gaonburah was of no relevancy, the appeal was dismissed.

The learned senior Counsel for the appellant has pressed the following grounds substantial question of law:-

Whether the learned trial Court erred in law in holding that the suit is not maintainable?

Whether the learned Courts below erred in law in dismissing the suit of the plaintiff?

Whether the defendant failed to discharge their burden to proof the sale deed according to the provisions of law and whether the same was

executed and registered during the life time of vendor?

Whether the learned Courts below erred in law in holding the Exhibit 4 (Death Certificate) is inadmissible in evidence?

Whether in any view of the matter the judgment and decree passed by the Courts below are perverse and the same are liable to be set aside and

quashed?

Upon the said five substantial questions of law as formulated by the learned senior counsel for the appellant, it appears that the relevant questions

of law are No. 3 and 4. In this regard, it is seen that the questions raised by the learned senior counsel for the appellant is on discharge of burden of

proof of the said sale deed as well as the decision by both the learned Courts below, holding of the death certificate (Ext. 4) to be inadmissible. It

appears that both the learned Courts had concurred at the finding that no evidence was led to show that the execution of Sale Deed No. 2399/07 was

a fraudulent one. Both the learned Courts below had also recorded that the PW-5, being the Gaonburah had admitted that he did not maintain the

register of births and deaths. Under the circumstances, the Certificate issued in respect of death of Late Karim Bepari cannot be admissible in the

absence of any proof of recording the death of the said person in the official records. That the Gaonburah did not do his official duty to

maintain the Births & Death Register in accordance with law, as such, his certificate was rightly not accepted by the learned Courts below.

Moreover, in his evidence, the PW-1 is found to be admitted that he had no objection if the respondent No. 1 occupied the land within the four

boundaries of the said Sale Deed No. 2399/07 (Ext. 1), as such, the said evidence amounts to an unequivocal admission of the right of the

respondent No. 1 to continue to enjoy the land covered by the said Sale Deed.

Under the circumstances, this Court is of the view that no substantial questions of law is made out for interference in respect of the finding

recorded by the learned Courts below. No perversity could be found in respect of the judgments and the consequent decree passed by both the

learned Court below.

Therefore this appeal fails and the same is dismissed.