IMPORTANT POINT
In fiduciary relationships, the burden of proof shifts to the party in a position of active confidence to prove the good faith of the transaction.

JUDGMENT :

Supratim Bhattacharya, J.

1. This instant appeal has been preferred by the appellant/plaintiff being aggrieved by and dissatisfied with the judgment and decree passed by the Ld. Additional District Judge, 5th Court Burdwan on 13.11.2017 in Title Appeal being Title Appeal No. 16 of 2016 bearing an earlier no. 41 of 2010.

2. The aforementioned first appeal being Title Appeal no. 16 of 2016 was preferred by the instant appellant being aggrieved by the judgment dated 24.06.2010 passed by the Ld. Civil Judge (Junior Division) 2nd Court Burdwan in Title suit No. 175 of 2005.

3. The appellant herein was the plaintiff before the trial court and the appellant before the first appellate court while the respondents herein were the defendants before the trial court and respondents before the first appellate court.

4. Facts of the instant lis

As has been depicted by the appellant/plaintiff in the plaint, a registered instrument being an alleged sale deed is said to have been executed by the appellant/plaintiff in favour of the respondent No. 1 that is the elder daughter of the appellant. It has also been stated that the appellant executed the impugned deed on the garb of being a power of attorney. Instead of being a power of attorney the alleged instrument has been registered as a sale deed which the appellant is claiming to have been made falsely by the respondent No. 2 with the help of the respondent No. 2 who is the elder son-in-law of the appellant. It has been stated by the appellant that the appellant had full faith and confidence reposed upon the respondents/defendants and being an illiterate person had signed on the alleged instrument as such fraud has been committed upon him. As such the appellant/plaintiff has sought for a decree rejecting the alleged instrument.

5. Facts before the Trial Court:

The appellant/plaintiff instituted the instant lis against the respondents/defendants stating that the appellant while residing at the in laws house of his elder daughter for the purpose of treatment was stated by the defendants that trouble has cropped up involving the suit property as such to sort out the said trouble power of attorney is required in favour of the respondents/defendants so that the respondents/defendants can take appropriate steps before the appropriate forum to sort out the said trouble. As such the appellant on 06.10.2005 had gone to Burdwan to execute this power of attorney. The appellant while being seated in the vehicle had signed on the alleged deed thinking the said instrument to be a power of attorney having good faith upon the respondents/defendants. It has further been stated that on 11.11.2005 the appellant /plaintiff came to know that the document which he had executed is a deed of sale in favour of the respondent No.1/defendant No. 1 in respect of the suit property in lieu of Rs. 4,00,000/-(Rs. Four Lakhs). Being aware of the said misdeed and fraud committed upon him the appellant instituted the lis.

The respondents/defendants entered appearance in the suit and filed their written statement denying all the contentions of the appellant/plaintiff.

The Trial Court after considering the oral and documentary evidences on record ultimately dismissed the suit on contest without any cost.

On the basis of the pleadings of the parties the following issues were framed.

ISSUES

1. Is the suit maintainable in its present form?

2. Has the plaintiff any right, title, interest over the suit property?

3. Is the deed fraudulent, collusive, mis-representation?

4. Is the plaintiff entitled to get the decree as prayed for?

5. Is the suit barred for want of ad valorem Court Fees?

6. Is the plaintiff entitled to any other relief or reliefs as prayed for?

The Ld. Trial Court after adjudication dismissed the title suit.

6. Facts before the First Appellate Court

Being aggrieved by and dissatisfied with the judgment passed by the Ld Civil Judge the appellant/plaintiff preferred an appeal.

The Ld. First Appellate Court considered the submissions