9911796707
TMI Blog2012 (7) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... ] The plaintiffs, namely, Shri Puspadhar Baruah ( plaintiff No.1) and Smt. Niroda Gogoi, ( plaintiff No.2) had filed a suit for declaration of right, title and interest over the suit land and for confirmation of possession over the suit land alternatively for delivery of khas possession. [5] The plaintiffs state that the plaintiff No.1 had purchased the suit land from one Sri Siba Nath Sharma ( proforma Defendant No. 2) by a registered sale deed on 22.8.77 after obtaining necessary permission from the authorities and took possession thereafter. The said Sri Siba Nath Sharma had purchased the said suit land from Smt. Jina Gohain, the proforma Defendant No. 3 and appellant herein vide registered sale deed in the year 1975 and thereafter, he was in possession of the suit land till he sold the same to the plaintiffs, as stated above. [6] The plaintiffs state that they continued to be in peaceful possession of the suit land having a kutcha construction and some trees standing thereon and by paying land revenues. After purchasing the said suit land from Sri Siba Nath Sharma as stated above, the plaintiffs got the suit land mutated in their names in the records of right. Smt. Jina G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. [7] Defendant No. 3, Smt. Jina Gohain, in her written statement denied the execution of the aforesaid registered sale deed in favour of the Defendant No. 2, Siba Nath Sharma and stated that the registered sale deed No.1771 of 1975 was false and fabricated. The Defendant No. 3 also stated that in the year 1975, her father had forcibly trespassed and dis- possessed her from the suit land and inspite of her request, did not vacate the land. However, she did not take any action against him as he was her father. Accordingly, she prayed for dismissal of the suit and to declare the registered sale deed No.1771/1975 purportedly executed in favour of the Defendant No. 2 and the subsequent registered sale deed No.1311/1977 executed by the Defendant No. 2 in favour of the plaintiffs as null and void. As many as 10 issues were framed, of which Issue Nos. 6 and 7 are relevant for the purpose of the present appeal and reproduced hereinbelow:- 6. Whether the defendant No.3 sold the suit land to defendant No.2 vide sale deed No.1771 of 1975 and if so, whether the plaintiff acquired ownership over the suit land by the sale deed No.1311 of 1977? 7. Whether the defendant No.1 is in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in adverse possession in respect of the suit land for 12 years? [11] Learned counsel appearing for the appellant submits that the execution of the registered sale deed (Ext.2) by which the suit land was said to have been sold by the appellant in favour of the Defendant No. 2 in the year 1975 cannot be said to have been proved in absence of examination of either the scribe or the attesting witness in view of the fact that the appellant had specifically denied the execution of the same as required under Section 67 of the Evidence Act. In this connection, learned counsel appearing for the appellant had relied on the following judgments rendered in Lourembam Heramot Singh -vs- Laisram Angahal Singh ors, reported in AIR 1979 Gauhati 68, Bhaiyalal - vs- Ram Din, reported in AIR 1989 Allahabad 130, Bhutkani Nath ors. -vs- Mt. Kamaleswari Nath anr. reported in AIR 1972 Assam and Nagaland 15 (V.59 C6), P.G.D' Ombrain ors. etc., - vs- Collector of Kamrup Gauhati anr. etc.. reported in AIR 1980 Gauhati 55 Bhaskar Sahu-v- Anama Swara ors. reported in AIR 1987 Orissa 138. [12] The appellant therefore submits that in the present case, since neither the scribe nor the at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, it was not a fact that when she went to the Sub- Registrar Office to sell the land, her father also went with her, also implies that she had sold the land to Sri Siba Nath Sharma. The learned Trial Court also observed that Smt. Jina Gohain denied her own signature in the written statement which was filed by her, which clearly indicates that she was a tutored witness to deny the signature in the Exbt.-2. The learned Trial Court also observed that Nilakanta Gohain, the Defendant No. 1, in his written statement did not specifically deny the averment of the plaint in para No.3 that he witnessed the execution of the sale deed executed by his daughter, Smt. Jina Gohain and that he identified Smt. Jina Gohain before the Sub-Registrar. He merely gave his reply in para No.3 of the written statement that the statement made in para 3 of the plaint is not within his knowledge. The learned Trial Court held that it was not a total specific denial but rather an evasive denial and held that as provided under Rule 5 of Order VIII of CPC , if averments are not specifically denied, they must be deemed to have been admitted and to say that the Defendant No.1 did not have any knowledge of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 that the Ext.2 is a forged document. Accordingly, the learned Appellate Court also held that the execution of the Ext.2 is proved and consequently, the good title passed through Ext.2 in favour of the Defendant No. 2 and consequently, through Ext.1, the Defendant No.2 Sri Siba Nath Sharma transferred his title over the suit land in favour of the plaintiffs. [18] As regards the third substantial questions of law framed regarding the issue of adverse possession claimed by the Defendant No. 1 in respect of the suit land, we may refer to the observations and findings of the learned Trial Court in this regard. The learned Trial Court observed that after the Defendant No. 2 purchased the suit land from the Defendant No. 3, he dug up a boundary drain between the suit land and the land belonging to Defendant No.1, which was admitted by the Defendant witness, DW-2. (i) The learned Trial Court also observed that the statement of the DW-2 in the cross-examination that he did not know when the house which was constructed over the suit land broke down and also he did not know who resided in the house, would indicate that there was a house over the suit land. (ii) The learned Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that he had been possessing the suit land adversely against the interest of the true owner. The learned Appellate Court also observed that there is no material to find that the mutation of the suit land in favour of the Defendant No. 2 or the plaintiffs was challenged by the Defendant No. 1 and the registered sale deed was also never challenged by the Defendant No. 3 and accordingly, the learned Appellate Court was also of the view that the claim of the Defendant No.1 for adverse possession is not proved. [21] Heard the learned counsel appearing for the parties. The main contention of the appellant is that the documents exhibited as Ext.2, the sale deed, which was executed by the Defendant No. 3 in favour of the Defendant No.2 was not proved inasmuch as neither the scribe nor the attesting witnesses were examined and merely because of the fact that the said document was a registered will not, ipso facto proved in view of the specific denial by the Defendant No.3. [22] To press home his arguments, the learned counsel appearing for the appellant has relied on the judgments as mentioned above. In the case of Lourembam Heramot Singh (supra) , this Court had held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document. In the present case, there are other admissible evidences on record other than the registration. In the case of P.G.D' Ombrain (supra) , the Court in the said case was dealing with a case where no witness was examined for examination of proof of document relied by the claimant and accordingly, held that mere marking of an exhibit does not dispense with the proof of documents, which, however, is not the case in the present case, as there are other evidence on record, as discussed above. As regards the case of Bhaskar Sahu (supra), the Court observed that from the evidence on record the Court did not find that plaintiffs had adduced any evidence explaining the reasons for non- production of the original sale deed, even though objection was taken to its admissibility at the time when the certified copy is sought to be introdcued in evidence. In the said case, the certified copy of the sale deed was tendered in evidence through P.W.-1 and in the deposition recorded, the certified copy of the sale deed was mentioned to have been marked as Ext.1 with objection. In the present case, position was different. When Ext.2, the sale deed of 1975, was exhibited through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s proof of Delivery of possession and as such it can not be accepted that the plaintiffs ever exercised possession over the suit land. The Court below has rightly considered the matter found in Ext. Sha (case record) and accepted this as circumstantial evidence which clearly establish that the suit land was sold by Defendant No.3 in favour of Siba Nath Sharma. In the teeth of such document by which the Defendant No.1 had stated to have sold the suit land to the Defendant No. 2, the absence of examination of the scribe and attesting witnesses may not be fatal. [25] It may be also observed that the Defendant No. 2 who purchased the land from the Defendant No. 3 was examined and perusal of his deposition before the Court does not indicate that his statement before the Court was not reliable or untrustworthy when he had clearly stated about the execution of the sale deed by Defendant No. 3 before the office of the Registrar and also the presence of Defendant No. 1 who identified the Defendant No.3 at the time of execution of the sale deed. No attempt was made in the cross-examination of the Defendant No. 2 by the Defendant Nos. 1 and 3 to discredit the evidence about the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, if there be other evidences, failure to examine the scribe or the attesting witness would not be fatal in proving any document. [29] Learned counsel appearing for the Respondents have also strenuously argued that it is now well settled principle of law that the Court exercising jurisdiction u/s 100 CPC ought not to re-appraise evidence and come to a different conclusion on finding arrived at by the Courts below, more particularly, the concurrent findings of facts unless such findings is perverse and has relied on the judgment rendered by this Court in Md.Majibur Rahman vs. Md.Sabed Ali and 42 ors. reported in 1996 (1) GLT 272. This Court is also of the view that the finding as regards the execution of the sale deed in 1975 to have been proved, both by the learned Trial Court as well as by the learned Appellate Court, are based on certain evidences, even though neither the scribe nor the attesting witnesses have been examined. The learned Trial Court as well as learned Appellate Court have arrived at findings based on other reliable evidence on record, as stated above. This Court does not find the aforesaid concurrent findings of facts to be perverse or patently illegal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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