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2018 Supreme(Tri) 207
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Smt. Parul Das W/o Late Rabindra Kumar Das – Appellant
Versus
Smt. Amiya Prava Das W/o Shri Subal Chandra Das – Respondent
RSA Nos. 37, 38 of 2015
Decided On : 23-07-2018
For the Appellant : Mr. A. Nandi.
The main legal point established in the judgment is the proper application of Section 73 of the Indian Evidence Act in the absence of expert evidence and the determination of a Benami transaction based on the validity of the Muktipatra deed.
Headnote:
Benami Transaction - Property Dispute - Indian Evidence Act, Section 73 - The court discussed the application of Section 73 of the Indian Evidence Act in the absence of expert evidence and the issue of Benami transaction. The court also considered the relevance of Muktipatra deed and the exercise of power under Section 73 of the Indian Evidence Act for comparison of signatures.
Fact of the Case:
The case involved a property dispute where the plaintiff sought declaration of right, title, and interest over a land and the defendants filed a counter claim for the same. The dispute revolved around the validity of a sale-deed and a Muktipatra deed, with the courts below ruling in favor of the plaintiff.
Finding of the Court:
The court found that the Muktipatra deed, which declared a Benami transaction, was not executed by the plaintiff. It also upheld the exercise of power under Section 73 of the Indian Evidence Act for comparison of signatures, dismissing the appeals for lack of merit.
Issues: The key issues included the validity of the sale-deed and the Muktipatra deed, the application of Section 73 of the Indian Evidence Act, and the exercise of power under the Act for comparison of signatures.
Ratio Decidendi: The court held that the exercise of power under Section 73 of the Indian Evidence Act was proper and that the Muktipatra deed was not executed by the plaintiff, leading to the dismissal of the appeals.
Final Decision: The appeals were dismissed, and the court ordered the preparation of the decree accordingly.
1. Heard Mr. A. Nandi, learned counsel appearing for the appellants as well as Mr. G.K. Nama, learned counsel appearing for the respondent No. 1. None appears for the remaining respondent despite due notice from this court.
2. Both these appeals being RSA No. 37 of 2015, Smt. Parul Das vs. Smt. Amiya Prava Das and Another and RSA No. 38 of 2015, Smt. Parul Das vs. Smt. Amiya Prava Das are combined for disposal by a common judgment inasmuch as the substantial questions of law as emerged from the challenge are common and these appeals arise from the suit being Title Suit No. 02 of 2007 and the suit being Title Suit [counter claim] 17 of 2007 arising out of Title Suit No. 02 of 2007. It is to be noted that both the suits being Title Suit No. 02 of 2007 and the suit being Title Suit [counter claim] 17 of 2007, hereinafter referred to as the suit and the counter claim respectively, were tried together by the trial court and decided by two separate judgments. Since the suit was decreed by the trial court [the court of the Civil Judge, Jr. Division, Dharmanagar, North Tripura] and the counter claim was dismissed, the present appellants filed one appeal under Section 96 of the CPC against both the judgments irregularly in the court of the Additional District Judge, North Tripura, Dharmanagar [later on, the District Judge, Dharmanagar, North Tripura] being Title Appeal No. 06 of 2012. The judgment delivered in the said appeal is the subject matter of RSA No. 37 of 2015 and RSA No. 38 of 2015. By the judgment dated 10.08.2015, the said appeal being Title Appeal No. 6 of 2013 was dismissed and it has been challenged in the appeal filed under Section 100 of the CPC being RSA No. 37 of 2015 and RSA No. 38 of 2015. The first appellate court has decided the said appeal against two judgments without taking any exception. Two separate appeals were required to be filed in law. This court however has to take note of that aspect. However, in this court, two appeals have been filed under Section 100 of the CPC from the judgment of the solitary appeal, in an astitute move to make good of irregularity that the appellants have committed, but without leave of this court. At the time of admission of both the appeals, a common substantial question of law was framed by the order dated 24.11.2015 which reads as under:
“Whether application of the provision of Section 73 of the Evidence Act by the trial court which has been affirmed by the appellate Court in the absence of any expert evidence was proper?”
3. The facts which are relevant for determining the appeal are introduced in brief at the outset.
One Pratima Bala Das, PW-3 in the suit and DW-3 in the counter claim purchased the suit land as described in the plaint by the sale-deed No. 1-6918 dated 09.12.1971. Pratima Bala Das sold the said land to Amiya Prava Das, the plaintiff of Title Suit No. 2 of 2007 by the sale-deed No. 1-8 dated 01.01.2003. The plaintiff had been maintaining her possession by her tenant but after about 4 months from the date purchased, her tenant was dispossessed from the said land. To protect the possession, she instituted the suit for declaration of right, title and interest over the suit land and for recovery along with the consequential reliefs of perpetual injunction against the counter claimants [the defendants in the suit]. The defendants of the suit filed the counter claim for declaration of their right, title and interest over the suit land as described in the counter claim as well and for cancellation of the sale-deed No. 1-8 dated 01.01.2003, description of which has been given in the separate schedule of the counter claim and for confirmation of possession along with the perpetual injunction against the plaintiff. According to the counter claimants, the suit land was purchased by the husband of Pratima Bala Das from his own fund in Pratima Bala’s name. In Para-9 of the counter claim it has been asserted that in the year 1981 Smt. Pratima Bala Das tran
