THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) RSA No. 149/2000 1. Musstt. Sufia Khatun, W/O Late Danish Ali. 2. Md. Mintu Sheikh alias Wajidur Rahman. 3. Md. Milik Sheikh alias Minar Ali. 4. Md. Mojamil Hoque. Sl. Nos.2, 3 and 4 are sons of late Danish Ali. All are residents of Village-Ghopeli, Mouja-Dipila, PS-Sipajhar, Dist.-Darrang, Assam. -Versus- 1. Md. Bhoimuddin Sheikh alias Ahmed, S/O late Haji Eba Sheikh. 2. Md. Nabiruddin Sheikh alias Ahmed, S/O Bhoimuddin Sheikh. Plaintiffs/Appellants. Both are residents of Village-Ghopeli, Mouja-Dipila, PS-Sipajhar, Dist.-Darrang, Assam. Defendants/Respondents. Advocate(s) for the Appellants : Mr. B.K. Ghose, Mr. N. Chakraborty, Mr. C. Goswami. Advocate(s) for the Respondents : Md. A. Hussain, Mr. S. Baruah, Mr. C. Bhattacharyya. BEFORE THE HON BLE MR. JUSTICE B.P. KATAKEY Date of Hearing : 13.05.2010 Date of Judgment & Order : 13.05.2010
2 JUDGMENT AND ORDER (ORAL) This appeal by the plaintiffs, is directed against the judgment and decree dated 07.06.2000 passed by the learned Civil Judge (Sr. Division), Darrang, in Title Appeal No.5/1998, allowing the appeal preferred by the present respondents/defendants by setting aside the judgment and decree dated 28.01.1998 passed by the learned Civil Judge (Jr. Division) No.2, Mangaldoi, Darrang, in Title Suit No.55/1981, whereby and whereunder, the suit of the plaintiffs was decreed. 2. The plaintiffs/appellants instituted the Title Suit No.55/1981 in the Court of the learned Civil Judge (Jr. Division) No.2, praying for a decree for declaration of right, title, interest and confirmation of possession as well as for declaration that a gift deed dated 14.10.1980 allegedly executed by Haji Eba Sheikh in favour of the respondents/defendants is fraudulent, void and inoperative, contending inter alia that out of 21 bighas 15 lechas of land belonging to Haji Eba Sheikh, the grand-father of the plaintiff Nos.1, 2 and 3, 15 bighas 15 lechas of land in different Dags in Patta Nos.19(old) and 13(new) of village-ghopeli, Mouja-Dipila, in the District-Darrang, was sold by the plaintiff Nos.1, 2 and 3 by a registered deed of sale dated 26.07.1976 (Ext.-1), which land was kept by him after giving respective shares to other sons, namely, the defendants. According to the plaintiffs, they
3 were put in the possession of the land after such sale. It is also the case of the plaintiffs that the defendant Nos.1 and 2 by strength of a gift deed dated 14.10.1980 (Ext.-Ka) allegedly executed by Haji Eba Sheikh, their father, is claiming the right, title and interest over the land and on 03.01.1981 tried to dispossess the plaintiffs from the land, however, without any success. It is also the pleaded case of the plaintiffs that though an order of status quo was passed by the High Court in the revision petition filed, arising out of an application filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure, as the defendants dispossessed them after passing of such order, an application under Section 145 Cr.P.C. was filed apprehending breach of peace, wherein an order of attachment under Section 146 Cr.P.C. was passed by the learned Executive Magistrate, who consequently vide order dated 30.04.1986 passed in Misc. Case No.392/1982 declared the possession of the disputed land in favour of the plaintiffs and accordingly the plaintiffs were put back into possession. The plaintiffs, therefore, filed the suit praying for the decree as aforesaid. The plaintiffs, however, afterwards filed an application under Order 6 Rule 17 of the CPC for amendment of the prayer in the plaint to the effect that in case the plaintiffs are not found to be in possession then the decree for recovery of khash possession is to be passed. Such prayer for amendment was allowed.
4 3. The defendants on receipt of the summons entered appearance and contested the suit by filing joint written statement, denying the execution of the sale deed by Haji Eba Sheikh on 26.07.1976 and also the delivery of possession, with the further pleadings that the land measuring 16 bighas, which includes the suit land was transferred by Haji Eba Sheikh, the original owner of the land, to them by a registered deed of gift dated 14.10.1980 (Ext.-Ka) and also delivered the possession and as such they are in possession. The defendants have also filed the counter claim for declaring the order dated 30.04.1986 passed in Misc. Case No.392/1982 by the learned Executive Magistrate, declaring the possession of the suit land in favour of the plaintiffs, as fraudulent and void. 4. The learned Trial Court on the basis of the pleadings of the parties, framed the following issues for consideration and decisions:- 1) Whether the plaintiffs have got any cause of action for the suit? 2) Whether the suit properly valued? 3) Whether the suit can run in its present form? 4) Whether the defendant No.3 sold out the suit land to the plaintiff on 25.07.1976 and whether the sale deed is forged and fraudulent as alleged by the defendants? 5) Whether the gift deed No.7096 dated 14.10.1980 purportedly executed by defendant No.3 in favour of the defendant No.1 is fraudulent, collusive and void in law as alleged by the plaintiffs?
5 6) Whether the final order dated 30.04.1986 passed by the Executive Magistrate in Misc. Case No.392/1982 is liable to be declared void and inoperative in law? 7) Whether the plaintiffs have got right, title, interest and possession over the suit land? 8) To what reliefs, the parties are entitled? Addl. Issue: Whether the suit land has been properly valued and whether the plaintiffs have paid the proper court fee? 5. The plaintiffs in order to substantiate their plea taken in the plaint has examined 4(four) witnesses and proved a number of documents including the sale deed dated 26.07.1976 (Ext.-1). The defendants have also examined 3(three) witnesses in support of their pleadings in the written statement and also proved a number of documents including the gift deed dated 14.10.1980 (Ext.-Ka). The witnesses were duly cross-examined by the respective parties. 6. The learned Trial Court upon appreciation of the evidences on record has decreed the suit of the plaintiffs vide judgment and decree dated 28.01.1998 by holding that the plaintiffs could prove the right, title and interest over the suit land by proving the registered sale deed being Ext.-1 and though the defendants claimed their right, title and interest over the said land by virtue of a gift deed dated 14.10.1980 (Ext.-Ka), the same could not be proved as none of the attesting witnesses were examined, though Section 68 of the Indian Evidence Act
6 requires examination of at least one attesting witness. The learned Trial Court has further held that after the sale of the land by the original owner in favour of the plaintiffs vide sale deed dated 26.07.1976 (Ext.- 1), Haji Eba Sheikh ceased to have any right over the said land to make a valid gift in favour of the defendants. The contention of the defendants that the final order dated 30.04.1986 passed by the learned Executive Magistrate in a proceeding under Section 145 Cr.P.C. declaring possession in favour of the plaintiffs as fraudulent and invalid had also been rejected by the learned Trial Court. The learned Trial Court having found the plaintiffs to be in possession of the suit land confirmed their possession and issued the permanent injunction, as prayed for. 7. Being aggrieved, the defendants preferred Title Appeal No.5/1998 before the learned First Appellate Court, which has been allowed vide judgment and decree dated 07.06.2000, by holding that though the plaintiffs could prove the sale deed dated 26.07.1976 by exhibiting the same as Ext.-1, the contents of the said sale deed has not been proved, as neither the vendor nor the attesting witnesses have been examined. It has further been held that the sale deed being required to be attested by the attesting witnesses under the law, the same could not be proved by the plaintiffs, as none of the attesting witnesses has been examined as required under Section 68 of the Indian Evidence Act. Further finding of the learned First Appellate Court is that there being no partition of the land, the suit of the plaintiff
7 for declaration of right, title and interest without praying for a decree for partition is not maintainable. It has also been held that though the defendants could not prove the gift deed dated 14.10.1980 (Ext.-Ka), since the parties are governed by Mohammedan Law, the ingredients to constitute a valid oral gift under the Mohammedan Law have been proved and hence the defendants have acquired right, title and interest by virtue of oral gift. The learned First Appellate Court has also declared the order dated 30.04.1986 passed by the learned Executive Magistrate declaring the possession in favour of the plaintiffs as invalid, on the ground that such a proceeding under Section 145 Cr.P.C. ought to have been entertained by the learned Executive Magistrate during pendency of the Civil suit. Hence the present appeal. 8. The appeal has been admitted for hearing vide order dated 22.09.2000 on the following substantial questions of law:- (i) Whether the learned Civil Judge (Senior Division), Darrang, Mangaldoi misconceived the law relating to the mode of proof of a document and held wrongly that the contents of a document can be proved by examining the executant only and in no other way ignoring the provision of Section 67 of the Indian Evidence Act? (ii) Whether the learned Civil Judge (Sr. Division), Darrang, committed serious illegality by holding that
8 the sale deed is to be proved by examining an attesting witness u/s 68 of the Indian Evidence Act only? (iii) Whether the defendants having failed to prove the gift allegedly made by registered deed of gift (E- Ka ) by not examining the attesting witness the learned lower appellate court committed grave illegality by passing his finding on the evidence of oral Mohammedan gift which was not pleaded in the written statement? 9. I have heard Mr. N. Chakraborty, the learned counsel for the appellants. Though the respondents are represented by the learned counsel Md. A. Hussain, Mr. S. Baruah and Mr. C. Bhattacharyya, who have filed the power on 25.12.2000 and their names are reflected in the cause list, none has appeared today to argue the case on behalf of the respondents. 10. The learned counsel for the plaintiffs/appellants referring to the judgment and decree passed by the learned First Appellate Court has submitted that the learned First Appellate Court has committed error in holding that the plaintiffs could not prove the contents of the sale deed, only on the ground that the vendor of the said sale deed has not been examined, though the same was a registered document and marked as exhibit. It has been submitted by the learned counsel that it is not always necessary to examine the vendor to prove the contents of the sale deed as the same can be proved by adducing other evidence
9 including the vendee and in the instant case one of the witnesses to the sale deed as well as the writer of the deed apart from the mother of the plaintiffs, who were the minors, who were examined in the suit as witnesses have categorically stated about the transfer of the suit land by Haji Eba Sheikh in favour of the plaintiffs by such sale deed being Ext.-1. Referring to Section 67 of the Indian Evidence Act, it has been submitted that when the signature of the vendor has been proved and the petition writer, who was examined as PW-1, has also proved that the contents of the said sale deed was read over to the vendor, who accepted the same to be correct, the learned First Appellate Court ought not to have held that the plaintiffs could not prove the contents of the sale deed being Ext.-1. 11. Mr. Chakraborty further submits that since the sale deed is not required to be attested by any witness, under the law, the provisions of Section 68 of the Indian Evidence Act requiring proof of such document by examining at least one attesting witness, is not applicable, which aspect of the law has completely been ignored by the learned First Appellate Court, while holding that the plaintiffs could not prove the due execution of the sale deed (Ext.-1) by examining at least one attesting witness, in view of Section 68 of the Indian Evidence Act. According to the learned counsel it is being the case of the plaintiffs in the plaint as well as the evidence in that respect having been led that though the original owner had more than 21 bighas of land, he had
10 given certain portion of land to the defendants keeping the suit land with the original owner, the learned Court below ought not to have held that the suit of the plaintiff is not maintainable without there being any claim for partition, more so when it is not being the defendants case that the land was not partitioned. 12. Relating to the third substantial question of law formulated, Mr. Chakraborty submits that since it is the pleaded case of the defendants in the written statement that they got the suit land by virtue of the gift deed dated 14.10.1980 (Ext.-Ka), the learned lower Appellate Court ought not to have held that there was a valid oral gift made by Haji Eba Sheikh in favour of the defendants, on the basis of the evidence adduced by them, such evidence is being contrary to the pleading, cannot be taken into consideration. According to the learned counsel, the defendants though pleaded that there was a registered gift executed in their favour by the original owner on 14.10.1980 (Ext.-Ka), the said gift deed could not be proved as required under Section 68 of the Indian Evidence Act, they having failed to examine at least one attesting witness though they are admittedly alive and subject to the process of the Court as well as capable of giving evidence. 13. I have considered the submissions of the learned counsel for the appellants and also perused the materials available on record including the judgment and decree passed by the learned Courts below.
11 14. As noticed above, the learned Trial Court has decreed the suit of the plaintiffs by declaring the right, title and interest over the suit land by virtue of the sale deed being Ext.-1. The contention of the defendants that they acquired the right, title and interest by the gift being Ext.-Ka has been rejected by the learned Trial Court, as none of the attesting witnesses was examined to prove due execution of the gift deed as required under Section 68 of the Indian Evidence Act. The learned Appellate Court, however, reversed such findings on the ground that the plaintiffs though have proved the sale deed being Ext.-Ka, it doesn t amount to the proof of the contents of the documents, in the absence of the examination of the vendor and such sale deed also could not be proved as none of the attesting witnesses has been examined as required under Section 68 of the Indian Evidence Act. 15. It appears from the judgment and decree passed by the learned Trial Court as well as the evidences adduced by the plaintiffs that the land measuring 21 bighas 15 lechas was originally belonged to Haji Eba Sheikh, grand-father of the plaintiff Nos.1, 2 and 3 and during his lifetime he gave certain land to the defendant Nos.1 and 2, his sons, keeping 15 bighas 15 lechas of land with him, which land he has transferred for a valuable consideration to the plaintiffs, the minor sons of his predeceased son. The plaintiffs, thus, could establish that the total land measuring 21 bighas 15 lechas was delivered, out of which 15
12 bighas 15 lechas of land was with Haji Eba Sheikh. In view of the above, the learned Appellate Court ought not to have held that there was no partition of the land and therefore, the suit of the plaintiffs is not maintainable without the prayer for passing a decree for partition. 16. The learned First Appellate Court, it appears from the impugned judgment and decree passed, has held that though the sale deed (Ext.-1) has been admitted in evidence by marking the same, it does not amount to proof of the contents of the said document. According to the learned First Appellate court, the plaintiffs could not prove the contents of the documents as the vendor has not been examined. It is always not necessary that the contents of the document has to be proved by examining the vendor only. In the case in hand, the plaintiffs apart from examining the scribe (PW-1), has also examined one witness to the sale deed (PW-2) as well as the mother of the plaintiffs as PW-3. All these witnesses have stated about the contents of the documents. The thumb impressions of the vendor in such sale deed being Ext.-1 have also been duly proved as required under Section 67 of the Indian Evidence Act. 17. Moreover, Section 60 of the Registration Act, 1908 provides that after presentation of a document for registration on compliance of the requirement, the registering authority shall endorse thereon a certificate containing the word registered, together with the number
13 and page of the book in which the document has been copied. Subsection (2) thereof stipulates that such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by the Act, and that the facts mentioned in the endorsement, referred to in Section 59 have occurred as therein mentioned. 18. Section 59 of the Registration Act provides that the registering officer shall affix the date and his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day. Section 58 of the said Act requires endorsement of the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent; the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
14 19. It appears from the Ext.-1 sale deed dated 26.07.1976 that the registering authority has endorsed the due execution of the sale deed by the vendor, who admitted the contents of the same and put his signature. Therefore, the presumption has to be drawn in favour of due execution of such document as well as the contents thereof. Moreover, as noticed above, the plaintiffs by examining PWs-1, 2 and 3 could prove the contents of the documents and also the thumb impression of the vendor. That being the position, the plaintiffs could prove the contents of the documents. 20. One of the grounds on which the learned First Appellate Court has held that the due execution of Ext.-1 sale deed could not be proved by the plaintiffs, is that none of the attesting witnesses, as required under Section 68 of the Indian Evidence Act, has been examined, though according to the learned Court below such sale deed is required by law to be attested. 21. Section 54 of the Transfer of Property Act, 1882 defines the sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. It also provides that such transfer, in case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. It is not the requirement of law that the sale deed is to be attested by any
15 attesting witness so as to prove the due execution by examining at least one attesting witness. 22. Section 68 of the Indian Evidence Act provides how a document, required to be attested by law, is to be proved. It provides that such a document is to be proved by examining at least one attesting witness, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. The proviso to Section 68 stipulates that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. A sale deed being not required by law to be attested, the provisions of Section 68 of the Indian Evidence Act is not applicable and hence the finding of the learned First Appellate Court that the plaintiffs could not prove due execution of the sale deed (Ext.-1) by examining an attesting witness cannot be sustained in law. 23. The learned First Appellate Court has also held that an oral gift was made by Haji Eba Sheikh in favour of his sons, the defendants, and that all the ingredients to constitute a valid oral gift under the Mohammedan Law having been proved, the defendants acquired the right, title and interest in respect of the suit land by virtue of such oral
16 gift. The learned First Appellate Court, however, while recording such finding has ignored the fact that the same was not the pleaded case of the defendants in the written statement. According to the defendants as pleaded in the written statement, they acquired the right, title and interest by virtue of a registered gift dated 14.10.1980, which is marked as Ext.-Ka. 24. It is a settled position of law that no amount of the oral evidence, which is contrary to the pleadings, can be read into evidence. In the instant case, there is no pleading in the written statement relating to the existence of an oral gift. As noticed above, the pleaded case of the defendants is that they acquired the right, title and interest by virtue of the registered gift dated 14.10.1980 being Ext.-Ka. Under Section 23 of the Transfer of Property Act, the gift of immoveable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Hence a gift deed is required to be attested under the law. The due execution of such gift deed can be proved by examining at least one attesting witness as required under Section 68 of the Indian Evidence Act, if its due execution is denied by the donor. It is in the evidence that though there were two attesting witnesses in the gift deed (Ext.-Ka) and are capable of giving evidence and subject to the process of the Court, none of the attesting witness has been examined by the defendants to prove the due execution of such gift deed. Hence the defendants could not prove the
17 due execution of such gift deed. That apart as held above, the suit land has already been transferred by Haji Eba Sheikh in favour of the plaintiffs by executing the sale deed being Ext.-1 dated 26.07.1976. After transfer of the said suit land by executing such sale deed, Haji Eba Sheikh did not have any right over the land to execute the gift deed being Ext.-Ka on 14.10.1980 as claimed by the defendants. In view of the above, the finding of the learned First Appellate Court in that regard cannot be sustained in law. 25. The learned First Appellate Court has also declared the order dated 30.04.1986 passed by the learned Executive Magistrate as void and illegal, only on the ground that such proceeding under Section 145 Cr.P.C. was initiated during pendency of a civil dispute. There is no bar in law to initiate the proceeding under Section 145 Cr.P.C. during pendency of a civil suit, as the proceeding under the said provision of law is initiated when a dispute exists, which likely to cause breach of peace concerning any land or water or boundaries thereof. In an appropriate case, even though a civil suit between the parties is pending, there may be occasion to initiate the proceeding under Section 145 Cr.P.C. by the learned Executive Magistrate, subject to the conditions stipulated therein. That being the position, the finding of the learned First Appellate Court in that regard also cannot sustain in law.
18 26. In view of the aforesaid discussion, the impugned judgment and decree dated 07.06.2000 passed by the learned First Appellate Court in Title Appeal No.5/1998 is set aside. The judgment and decree dated 28.01.1998 passed by the learned Trial Court in Title Suit No.55/1981 is restored. The suit of the appellants stands decreed. The appeal stands allowed. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost throughout. 27. The Registry is directed to send down the records. Roy JUDGE