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2001 Supreme(Cal) 310
High Court Of Calcutta
Subhro Kamal Mukherjee
KUMARESH MAJUMDAR - Appellant
Versus
BINAPANI SARKAR - Respondent
S. A. 685 Of 1989
Decided On : 05/24/2001
JYOTIRMOY BHATTACHARYA, Saptangshu Basu
A registered document does not require the examination of attesting witnesses to prove its execution unless its execution is specifically denied.
Headnote:
EVIDENCE ACT, 1872 - SECTION 68 - REGISTERED DOCUMENT - ADMISSIBILITY - SPECIFIC DENIAL OF EXECUTION - NECESSITY - INTERPRETATION OF PROVISO.
Fact of the Case:
In a suit for eviction of a licensee and permanent injunction, the plaintiff claimed ownership of the suit property by virtue of a registered deed of gift executed in his favor. The defendants denied the execution of the deed and claimed ownership by adverse possession.
Finding of the Court:
The courts below dismissed the suit on the ground that the deed of gift was not proved as the plaintiff failed to examine the attesting witnesses. The court held that the proviso to section 68 of the Evidence Act, 1872 dispenses with the need to call an attesting witness to prove the execution of a registered document unless its execution is specifically denied.
Issues: Whether the courts below erred in refusing to admit the registered deed of gift as an exhibit in the suit in the absence of specific denial by the defendants.
Ratio Decidendi: The court held that the proviso to section 68 of the Evidence Act, 1872 dispenses with the need to call an attesting witness to prove the execution of a registered document unless its execution is specifically denied. The court found that the defendants did not specifically deny the execution of the deed of gift and, therefore, the courts below erred in refusing to admit the deed of gift as an exhibit in the suit.
Final Decision: The appeal was allowed and the judgment and decree passed by the courts below were set aside. The plaintiff was granted a decree for eviction of the defendants from the suit premises and a decree of permanent injunction restraining the defendants from interfering with the plaintiff's possession of the suit property.
( 1 ) THIS is a plaintiffs appeal against a judgement of affirmance in a suit for eviction of a licensee and permanent injunction.
( 2 ) ON or about August 2, 1971 title Suit No. 271 of 1971 was instituted by the plaintiff in the court of the learned Munsif, Third Court at sealdah. District 24-Parganas alleging that by a registered deed of gift dated september 8, 1970 Shrimati Braja bala Sarkar, the owner of Premises No. 14/h/6, Ratanbabu Road, Cossipore gifted the property in suit in favour of the plaintiff including structures standing thereon. The plaintiff applied for amendment of the plaint and by such amendment contended that the plaintiff by virtue of a deed of purchase executed on September 19, 1970 by jagat Jyoti Seal purchased the land measuring about 3 kotthas, 1 chittak and 12 sq. ft. appertaining to premises no. 14, Ratanbabu Road and, thus, became the absolute owner of the land as well as structures standing thereon. That after purchase, the plaintiff has applied for mutation of his name in the records of the Calcutta Municipal corporation and the name of the plaintiff has been duly recorded in the records of the Calcutta Municipal Corporation. It was contended that a fresh leave or licence was granted by the plaintiff to the defendants on his becoming owner of the suit property.
( 3 ) THE defendants contested the suit by filing a written statement.
( 4 ) IN the paragraph 1 of the plaint of the said suit the plaintiff coptended that the Brajabala Sarkar executed a registered deed of gift in favour of the plaintiff on September 8. 1970.
( 5 ) IN reply to the said Statements, the defendant contended in paragraph 1 of the written statement as under:"that the defendants deny the statement of para 1 (one) of the plaint as Braja Bala sarkar was never the owner of the premises No. 14/h/ 5, Ratan Babu Road, P. S.-cossipore, Cal-2".
( 6 ) IN the additional written statement filed on January 14, 1986 the defendants alleged in paragraph 3 that "the plaintiff has not acquired any right, title or interest in the suit property either by alleged deed of gift or by deed of purchase".
( 7 ) THE defendants applied for amendment of the written statement and by such amendment paragraph 7 (a) was inserted in the written statement. In the said paragraph 7 (a)the defendants contended "the defendants do not admit the truth and statement regarding the execution of deed of gift on 8th September, 1970 in favour of the plaintiff by Broja Bala sarkar who was the owner of the suit property as stated in para 1 of the plaint. The plaintiffs have not acquired any right, title or interest in the suit property. The so-called deed of gift in favour of the plaintiffs is false, vague and fraudulent and it was never acted upon. "
( 8 ) IT was, further, contended in the written statement that the defendants became the owners of the suit property as they have acquired title by adverse possession and that the defendants have been living there by making construction therein since 1953.
( 9 ) BY the Judgement and degree dated May 29, 1986, the learned munsif, Third Court at Sealdah dismissed the suit on contest with cost against the defendants although alleged that the deed of gift was a forged document, they did not adduce an evidence as to the forgery and as such the allegation of forgery was not proved. It was held that the deed has been properly registered under the provisions of Indian Registration Act, 1908 and the original deed has been brought in order to elucidate the matter in dispute. The learned Munsif accepted the plaintiffs claim of ownership in respect of land-in-question, but the claim of ownership of the defendants by adverse possession was rejected as the defendants have failed to produce any paper in support, of their claim or ownership. The learned Munsif categorically found that the status of the defendants in relation to the suit property was nothing but as that of licensees, but held that it was not
