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2002 Supreme(Gau) 300
GAUHATI HIGH COURT
B.B.Deb, J.
Phoolmani Jok -Appellant
Versus
Budhindra Nath Borgohain -Respondent
Second Appeal No. 91 of 1995
Decided On : 19-07-2002
H.K.Baishya, N.N.B.Choudhary
The central legal point established in the judgment is that the recitals of documents must be proved in accordance with the provision of law, and the court should not rely on them if not proved satisfactorily.
Headnote:
Admission of Deed - Property Dispute - Section 61 of the Indian Evidence Act, 1872 - The court examined whether the learned first appellate Court mis-interpreted the provision of Section 61 of the Indian Evidence Act, 1872. The defendant admitted the execution of the deeds but claimed they were mortgage deeds, not sale deeds. The court held that the recitals of the purported sale deeds were not proved in accordance with the provision of law, and therefore, the learned first appellate Court should not have relied on them.
Fact of the Case:
The plaintiffs filed a suit seeking declaration of right, title and interest, recovery of possession, compensation, and perpetual injunction for a land they purchased from the defendant. The defendant contested, claiming the land was mortgaged, not sold.
Finding of the Court:
The court found that the recitals of the purported sale deeds were not proved in accordance with the provision of law, and therefore, the learned first appellate Court should not have relied on them.
Issues: The main issue was whether the recitals of the sale deeds were admissible in evidence, as the defendant admitted the execution of the deeds but claimed they were mortgage deeds, not sale deeds.
Ratio Decidendi: The court held that the recitals of the purported sale deeds were not proved in accordance with the provision of law, and therefore, the learned first appellate Court should not have relied on them.
Final Decision: The second appeal was allowed, and the judgment and decree of the learned first appellate Court were reversed, restoring the judgment and decree of the learned trial Court.
This second appeal has been filed by the defendant-appellants being aggrieved by the judgment/decree dated 27.1.1995, passed by the learned Additional District Judge, Jorhat in Title Appeal No. 10/91 setting aside the judgment and decree dated 14.6.1991, passed by the learned Munsiff, Jorhat in Title Suit No. 93/86.
The learned Munsiff dismissed the suit while the learned first appellate Court reversed the same and decreed the suit.
2. The plaintiffs-respondents (hereinafter called the plaintiffs) filed the Title Suit No. 93/86 against the defendants-appellants (hereinafter called the defendants) seeking declaration of right, title and interest, recovery of possession, compensation of Rs.3,150/- and for perpetual injunction contending, inter alia, that the suit land comprising an area of 9 bighas 14 lechas covered by periodic patta No. 58, Dag No. 206 and 208 in Chereli Gohain Gaon, Amguri Kharikatia Mouza was purchased by them from the defendant No. 1 through five registered sale deeds on different dates viz. 28.5.1965, 19.4.1966, 31.1.1967, 1.9.1967 and 31.5.1968 for adequate consideration. The plaintiffs had been jointly possessing the suit land and had been paying Govt. revenue regularly, but unfortunately on 29.4.1982, after lapse of about 11/2 decades, the defendant No. 1 with his sons forcibly trespassed into the suit land and started possessing the same illegally. The plaintiffs protest put in deaf ears of the defendants. Being helpless, the plaintiffs moved the Executive Magistrate for drawing up a proceeding under Section 145 of the Code of Criminal Procedure and that was initiated vide Misc. Case No. 247/ 82 against the defendant No. 1 and his sons. Another criminal case bearing No. CR 545/82 under Sections 447/5061.P.C. had been launched against the defendants. In the 145 proceeding, the possession in favour of the defendant No. 1 was declared vide order dated 11.8.86 and in the criminal trial, the defendants were acquitted on 19.1.1985. Hence for recovery of khas possession, the plaintiffs filed the suit.
3. The defendants No. 1 and 2 contested the plaint case by filing written statement contending, inter alia, that the defendant No. 1 never sold the suit land or any part of it to the plaintiffs, but he mortgaged the suit land in favour of the plaintiffs as he took some loan from late Padmanath Borgohain, the father of the plaintiffs on different phases. He took loan of Rs.750/-on 28.5.1965, Rs.600/- on 19.9.1966, Rs.650/- on 31.1.1967, Rs.350/- on 1.9.1967 and Rs.500/- on 31.5.1968. To secure the loan, he took, on the demand of the creditor Padmanath Borgohain, he had to execute five mortgage deeds. The mortgage deeds were arranged to have been written at the instance of the creditor Padmanath Borgohain and the illiterate defendant No. 1 knowing the said deeds to be the mortgage deeds executed the same. The recitals of the deeds had never been read over to him. The creditor enjoyed all the usufructs of the lands mortgaged for considerable period and on expiry of the mortgage period the defendant No. 1 took back his lands. In the proceeding under Section 145 CrPC both the parties, according to the written statement, divulged their respective cases and the possession of the defendants over the suit land was declared. The principal defendant No. 1 being died his legal heirs are made party during trial.
4. At the time of admission of this second appeal on 15.9.1995, this Court referred Ground No. 'A' of the memo of appeal to be the substantial question of law and as such the related part of Ground No. 'A' needs to be re-produced below:
"Whether mere admission of a deed amounts to admission of the contests of the deed while admittedly the plaintiffs failed to show or prove that the contents of deeds were read over and explained?"
5. From the afore quoted Ground No. 'A' which was treated to be the substantial question of law by this Court at the time of admission of the appeal, it appears to me that for the de
