CIVIL APPEAL 5 of 1996 on 7 June 1996

1. Whether there is any cause of action for the suit?

2. Whether the suit is in proper form?

3. Whether the suit is barred by limitation?

4. Whether the plaintiff was dispossessed in 1982?5. Whether the plaintiff is entitled to compensation amounting to Rs.600/- P.A. 6. Whether the plaintiff has right, title and interest over the suit land?7. Whether the parties are joint pattadar as such who are entitled to how much land?8. To what relief the parties are entitled?

[6]The plaintiff in order to prove his case has examined 7 (seven) witnesses including himself, apart from proving 9 (nine) documents being Exhibits-1 to 9. The defendants have also examined 4 (four) witnesses in support of their case and proved 5 (five) documents, which were marked as Exhibits-Ka to Unga.

[7]The trial Court upon appreciation of the evidence on record has partly decreed the suit of the plaintiff declaring his right, title and interestin respect of 3 Bighas 1 Katha 17 2/3rd Lechas, out of 10 Bighas 13 Lechas and that of the defendant Nos.1 and 2 in respect of the remaining land and has also decreed the joint possession of the plaintiff in respect of the said 3 Bighas 1 Katha 17 2/3rd Lechas, by holding that the right, title and interest of Kasem Ali in respect of 1/3rd of total land of 10 Bighas 13 Lechas has been transferred in favour of the plaintiff by virtue of the sale deed dated 15th October, 1959 (Exhibit-1).

[8]Being aggrieved, the defendant Nos.1 and 2 preferred the aforesaid first appeal before the first Appellate Court, which has been allowed vide judgment and decree dated 18th January, 2000 by setting aside the judgment and decree passed by the trial Court, by holding that the title in respect of Kasem Ali’s share did not passed on the plaintiff by virtue of the sale deed dated 15th October, 1959 (Exhibit-1) as the plaintiff could not prove that the remaining unpaid consideration amount of Rs.1000/- has been paid to the vendor, namely, Kasem Ali.The First Appellate Court while holding so has also held that the plaintiff could not discharge his burden to prove that Exhibit-9, money receipt dated 14th November, 1959, allegedly executed by Kasem Ali is not forged and fabricated. The first appellate Court has also held that the suit of the plaintiff is barred by time, having not instituted within 12(twelve) years from the date of executionof the sale deed dated 15th October, 1959, as the plaintiff could not prove handing over possession and subsequent dispossession thereof. Hence, the present appeal.

[9]The appeal was admitted for hearing on 16th February, 2001 on the following 2(two) substantial questions of law:-

1. Whether Ext.1 the document of title of the plaintiff was wrongly interpretedby the lower appellate court?

2. Whether the learned Civil Judge (Sr. Division) was right in holding that the plaintiff’s suit was not being filed within 12 years from the date of the sale (13.10.1959) was barred by limitation? —

[10]I have heard Mr. P.K. Kalita, learned counsel for the appellantsand Mr. B. Banerjee, learned counsel appearing for the respondent No.9. None appears for the other respondents.

[11]Referring to the judgment passed by the First Appellate Court, it has been submitted by Mr. Kalita, learned counsel for the appellants, that since the defendants in their written statement have pleaded that Exhibit-9 money receipt dated 14th November, 1959 is forged and fabricated, the burden lies on them to prove the same and hence, the First Appellate Court has committed error oflaw in holding that the burden lies on the plaintiff to prove that the said Exhibit-9 money receipt is not forged and fabricated. It has also been submitted that since the sale , as defined in Section 54 of the Transfer of Property Act, is a transfer of ownership in exchange for a price paid or promised or part-paidand part-promised, even if the entire consideration amount has not been paid bythe plaintiff to Kasem Ali, the vendor, the title, in so far as it relates to the share of Kasem Ali has been transferred in favour of the plaintiff by virtue of Exhibit-1 sale deed dated 15th October, 1959 and hence, Kasem Ali cannot transfer his right, title and interest in respect of his share to the defendant Nos.1 and 2 vide subsequent sale deeds executed on 9th April, 1966 and 25th September, 1967, i.e. Exhibit-2 and Exhibit-8/Kha. The learned counsel referring to the judgments and decrees passed by the learned Courts below has also submitted thatas the plaintiff could prove, by adducing oral as well as documentary evidence,including Exhibits-5 and 6 rent agreements, that the possession of the suit property was handed over by Kasem Ali in his favour on execution of the sale deed, who was subsequently dispossessed during the period from 1982 to 1985 when he was away in Bihar, the first appellate Court ought not to have held that the suit of the plaintiff is barred by time having not filed within 12(twelve) years fromthe date of execution of the sale deed dated 15th October, 1959, more so when the plaintiff could prove his dispossession by the defendant Nos.1 and 2 between 1982 to 1985. The learned counsel, therefore, has submitted that the trial Courthas rightly decreed the suit of the plaintiff in so far as it relates to 3 Bighas 1 Katha 17 2/3rd Lechas of land and declared joint possession with the defendant Nos.1 and 2, which ought not to have been disturbed by the first Appellate Court, as has been done in the instant case.

[12]Mr. Banerjee, learned counsel appearing for the respondent No.9/defendant No.2, on the other hand, supporting the judgment and decree passed by the first appellate Court has submitted that since Kasem Ali was not the sole owner of the land measuring 10 Bighas 13 Lechas, no right, title and interest by virtue of the sale deed dated 15th October, 1959 (Exhibit-1), can be transferred in favour of the plaintiff, not even in respect of the share of Kasem Ali. It has also been submitted that since the plaintiff has executed a document on 19th October, 1959 (Exhibit-Gha) with the stipulation that unless he pays the remaining consideration amount of Rs.1,000/-, he will not take possession of the suit property and would not mutate his name in the revenue records, the burden lies onthe plaintiff to prove the payment of the unpaid amount, which the plaintiff has failed to do. It has also been submitted that the defendants, on the other hand, could prove that the Exhibit-9 receipt dated 14th November, 1959 is fabricated and forged document. It has further been submitted that the first appellate

Court has rightly held that the burden lies on the plaintiff to prove that the Exhibit-9 money receipt dated 14th November, 1959 is not forged and fabricated. The learned counsel further submits that as the plaintiff could not prove handing over of possession and subsequent dispossession as alleged, the first Appellate Court has rightly dismissed the suit of the plaintiff by holding that the sameis barred by time, having not instituted within 12(twelve) years from the date of execution of the sale deed dated 15th October, 1959 (Exhibit-1). The learnedcounsel, therefore, submits that the second appeal deserves to be dismissed.

[13]I have considered the submissions advanced by the learned counsel appearing for the parties and also perused the judgments and decrees passed bythe learned Courts below. Since it is a judgment of reversal, I have also perused the evidence, both oral and documentary.

[14]There is no dispute that the land measuring 10 Bighas 13 Lechas was originally belonged to Karim Musalman, on whose death the said land devolvedon his 3(three) sons, namely, Kasem, Jamiruddin and Didaruddin. It is also notin dispute that Kasem Ali alone had executed a sale deed dated 15th October, 1959 (Exhibit-1) in favour of the plaintiff transferring the entire land measuring10 Bighas 13 Lechas for a consideration amount of Rs.1999/-, though he alone cannot transfer the entire land. The said sale deed was a registered instrument. It is also an admitted fact that the plaintiff executed a document on 19th October, 1959 (Exhibit-Gha) stipulating that he will not possess the said property unless he pays the remaining consideration amount of Rs.1000/- and would also notmutate his name on the revenue records. Execution of 3(three) sale deeds beingdated 9th April, 1966 (Exhibit-2) by Kasem Ali, Jamiruddin and Didaruddin transferring 6 Bighas of land to defendant Nos.1 and 2; dated 29th June 1966 (Exhibit-7/Ka) executed by Jamiruddin and Didaruddin transferring 2 Bighas 3 Kathas 14‰ Lechas in favour of the defendant No.2 and dated 25th September, 1967 (Exhibit-8/Kha) executed by Kasem Ali in favour of the defendant No.1 transferring 1 Bigha1 Katha 19 2/3rd Lechas are also not in dispute.

[15]The plaintiff claimed the right, title and interest in respect of 4 Bighas 13 Lechas of land claiming to be the share of Kasem Ali, by virtue ofthe sale deed dated 15th October, 1959 (Exhibit-1). On the other hand, the defendant Nos.1 and 2 have claimed that by virtue of the sale deeds dated 9th April, 1966; 29th June, 1966 and 25th September, 1967, the entire land measuring 10 Bighas 13 Lechase have been transferred by the 3(three) brothers in their favour and as such, they have acquired right, title and interest in respect of entire land measuring 10 Bighas 13 Lechas, which includes 4 Bighas 13 Lechas of land claimed by the plaintiff.

[16] As discussed above, the land measuring 10 Bighas 13 Lechas was inherited by 3(three) brothers, namely, Kasem, Jamiruddin, Didaruddin and hence, Kasem cannot transfer the land which fell in the share of Jamiruddin and Didarauddin, as has been done vide sale deed dated 15th October, 1959, transferring 10 Bighas 13 Lechas of land in favour of the plaintiff. The said sale, however, would not altogether be void and would be operative so far as Kasem’s share is concerned, i.e. 1/3rd of 10 Bighas 13 Lechas.

[17]The defendants, as noticed above, have claimed that the entire consideration amount has not been paid to Kasem Ali by the plaintiff and hence, the title in respect of the share of Kasem Ali also cannot be passed on to the plaintiff. It has also been contended that Exhibit-9, money receipt dated 14th November, 1959 is forged and fabricated. Since the defendants have raised the plea that Exhibit-9, money receipt, is forged and fabricated, the burden lies on the defendants to prove that the said document is forged and fabricated. The first appellate Court has wrongly shifted the burden on the plaintiff to prove that the said document is forged and fabricated though the plaintiff has proved the said document as well as the signature of Kasem Ali in the said document. The de fendants could not prove, by adducing any cogent and reliable evidence, that theExhibit-9 money receipt is forged and fabricated. In any case, since sale — isdefined in Section 54 of the Transfer of Property Act, 1882 as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised and such sale was for a consideration amount of Rs.1999/- and is a registered instrument, in any case the title has passed on to the plaintiff in respect of theshare of Kasem Ali by virtue of the said sale deed dated 15th October, 1959, even if part of the consideration amount has not been paid. The plaintiff could also prove that he was dispossessed in the year 1982 after being put to possessionby Kasem Ali. The plaintiff also could prove his earlier possession through the tenants by proving Exhibis-5 and 6 tenancy agreements. The First Appellate Court, therefore, was not justified in holding that the suit of the plaintiff is barred by time, as he has instituted the suit within 3(three) years of dispossession.

[18]In view of the aforesaid discussion, the judgment and decree passed by the first appellate Court is set aside. The judgment and decree passed by the trial Court is restored. Consequently the right, title and interest of the plaintiff in respect of 3 Bighas 1 Katha 17 2/3rd Lechas out of 10 Bighas 13 Lechas of land has been decreed and that of the defendant Nos.1 and 2 in respect of the remaining land, with joint possession with the defendant Nos.1 and 2.

[19]The appeal stands accordingly allowed. The parties are directedto bear their own cost.

[20]The Registry is directed to send down the records forthwith.