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2012 Supreme(Gau) 617
GAUHATI HIGH COURT
T.Nanadakumar Singh, J.
Legal Heirs of Palungbam Hitler Singh & Ors. -Appellant
Versus
Angom Ashok Singh -Resopndent
RSA No. 3 of 2006
Decided On : 25-05-2012
Advocate appeared for the Appellants: Mr. 1. Sharat Sharma
Advocate appeared for the Respondent: Mr. Th. Modhu
Headnote:
Code of Civil Procedure, 1908 – Section 100 – Property Act 1892 – Section 48 –Indian Evidence Act, 1872 – Sections 91 and 92 – Appellant-plaintiff filed Original Suit against the respondent-plaintiff for the reliefs – (i) A decree for declaration that the Sale Deed which was registered under Registration being fraudulent is invalid, inoperative and null and void – (ii) A decree for declaration that the order of the SDO/IE in his Mutation Appeal Case is illegal and not binding upon the plaintiff with a direction to the learned D.C., Imphal to correct the land records by canceling the name of the defendant (respondent) Ashok Singh, and replacing it with the name of the plaintiff, Hitler, who died during pendency of the suit, in the land records in respect of the suit land –Held, On conjoint reading of Sections 91 and 92 of the Indian Evidence Act, it is the forgone conclusion that Sections 91 and 92 of the Indian Evidence Act are applicable to the present case in hand and also that oral evidence to vary the terms of the document/instrument i.e. registered sale deed is excluded. Over and above Section 92 of the Indian Evidence Act is applicable only to the parties to the instrument and not to the stranger to the instrument and also that bar under Section 92 is to oral evidence to disprove the terms of the written contract or/ agreement – In the present case in hand as discussed above, the oral evidence on the part of the appellant/plaintiff is only to disprove the terms of the registered sale deed between the parties on one side of the parties in the sale deed and not to disprove the registered sale deed – Appeal is devoid of merit and, accordingly dismissed.
This is an appeal (Second Appeal) against the judgment and decree of the learned District Judge, Manipur East, dated 29.12.2005 allowing Civil Appeal No. 18/2004 by setting aside the judgment and decree of the Trial Court, i.e. Civil Judge, (Sr.Divn.), No.2, Manipur East dated 23.08.2004 granting reliefs sought for in the Original Suit (O.S) No.14 of 1996.
2. Heard Mr.L.Sharat Sharma, learned counsel for the appellants and Mr.Th. Modhu, learned counsel for the respondent.
3. The appellant-plaintiff filed Original Suit against the respondent-plaintiff for the reliefs:
(i) A decree for declaration that the Sale Deed dated 10.03.1986 which was registered under Registration No. 1103 dated 18.09.1986 being fraudulent is invalid, inoperative and null and void;
(ii) A decree for declaration that the order of the SDO/IE dated 21.10.1987 in his Mutation Appeal Case No.7 of 1987 is illegal and not binding upon the plaintiff with a direction to the learned D.C., Imphal to correct the land records by canceling the name of the defendant (respondent) Shri Angom Ashok Singh, and replacing it with the name of the plaintiff, Shri Palungbam Hitler, who died during pendency of the suit, in the land records in respect of the suit land;
(iii) A decree for declaration thereby permanently restraining the defendant (respondent) and his men from entering the suit land from attempting to demarcate it and from taking possession of it thereby restraining the defendant and his men from disturbing the plaintiff in his quite possession and enjoyment of the suit land;
(iv) A decree for the costs of the suit;
(v) Any other decree for declaration of permanent nature which this Hon'ble Court deems proper according to law, equity and natural justice.
4. The pleaded case of the appellant-plaintiff in his plaint is briefly noted:
The plaintiff is the owner in possession of 1/3 of the homestead covered by C.S.Dag No.350/784 of old Patta No.15/273 (P) corresponding to new Patta No. 15/400/590 measuring .02 acre situated at Khurai Sajor Leikai within Imphal East Tahsil, more fully described in Schedule 'A' to the plaint. On 29.11.1985 the plaintiff borrowed a sum of Rs. 10,000/- for a period of one year at an interest of 5% per month from the defendant-respondent by executing a Mortgage Deed mortgaging 1/3 of the plot of the shop site described in Schedule ‘A’, which is his share in its southern portion (described in Schedule 'B' to the plaint), as a security. The land described in Schedule CB' i.e. 1/3 portion of the said plot of land described in Schedule ' A' is the suit land. The said Mortgage Deed was submitted before the Sub-Registrar, Head Quarter (HQ) Imphal on 29.11.1985 for registration. Before registration of the said Mortgage, but four months after its execution, the appellant-plaintiff fell ill and his business of running a shop over the suit land was relapsed. As a result, he lost all hope for repayment of the loan and its interest on the expiry of a term of one year. Therefore, the appellant-plaintiff, Palungbam Hitler Singh and one Shri Chabungbam Ibomcha Singh (PW. 1) approached the defendant-respondent with a proposal for enhancement of the term of loan to five years and also enhancement of the amount of loan to Rs.20,000/- on the security of the same mortgaged property, i.e. the suit land on cancellation/supersession of the earlier Mortgage Deed dated 29.11.1985 on the condition that the enhanced sum of Rs.20,000/- be adjusted in satisfying the mortgage debt of the earlier mortgage i.e. Rs.10,000/- with a sum of Rs.2,000/- as interest thereon for four months and in paying another sum of Rs.8,000/- which will be the lump sum interest of the amount of Rs. 20,000/- plus Rs.2,000/- for the entire period of five years and the said sum of Rs.8,000/-will be considered to have been paid in advance thereby allowing him (appellant-plaintiff) to redeem the mortgaged property on payment of a sum of Rs.20,000/- to the defendant on expiry of five
