The burden of proof in civil trials must be borne by the plaintiff, who must substantiate allegations of fraud with appropriate evidence and particulars.

JUDGMENT AND ORDER (Oral)

Date : 29-01-2019

Heard Mr. S. K. Ghosh, learned counsel for the appellant. I have also heard Mr. P. K. Deka, learned counsel representing the sole respondent.

2. This appeal has been preferred against the judgment and decree dated 07.06.2014 passed by the learned Civil Judge, Hailakandi in Title Suit No.02/2012 decreeing the suit filed by the plaintiff/respondent.

3. The facts of the case, in a nutshell, is that the plaintiff is one of the sons of Late Uttar Singha, who had acquired certain shares in his ancestral land on the basis of a deed of family partition. Subsequently, by means of a registered deed of sale dated 15.09.1999 bearing No.1168, Uttar Singha during his lifetime, had transferred land measuring 2 Bighas 8 Kathas and 8 Chataks in favour of his two sons viz., Birendra Singha and Jogendra Singha i.e. the defendant Nos.1 and 2 herein. Asserting that the deed of sale executed by his father in favour of the defendant Nos.1 and 2 is a fraudulent transaction and therefore, liable to be set aside, the respondent as plaintiff, had instituted Title Suit No.02/2012 inter-alia praying for a decree declaring that the sale deed bearing No.1168 was collusive, fraudulent, forged and as such void and inoperative in the eye of law; a decree declaring 1/5^th “ejmali” share of the plaintiff along with defendant Nos.1 and 2 and proforma defendant Nos.5 and 6 over the Schedule-I land along with the shed standing thereupon. It would be pertinent to mention herein that the proforma defendant Nos.5 and 6 are the plaintiff’s sisters. The scribe and the attesting witness of the registered deed of sale had been impleaded in the Suit as defendant Nos.3 and 4, respectively although no relief had been prayed against them by the plaintiff.

4. The defendant Nos.1, 2 and 5 and 6 have contested the suit by filing a joint written statement inter-alia assailing the maintainability of the suit. In their written statement, the contesting defendants have asserted that the sale deed No.1168 executed by their father Uttar Singh was a genuine document and therefore, there was no cause of action for filing the suit.

5. Based on the pleadings of the parties, the learned trial Court had framed the following issues :-

“I) Whether the suit is barred by the Limitation Act?

II) Whether the plaintiff is bound to pay advolerum court fees in respect of the valuation of the suit?

III) Whether the suit is bad under the Suit Valuation Act ?

IV) Whether the plaintiff is entitled to get decree as prayed for?

V) To what relief or reliefs, the plaintiff is entitled to get?”

6. During trial, the plaintiff had examined only one witness as PW 1, i.e. the plaintiff himself. The defendants did not adduce any evidence.

7. Based on the evidence available on record, the learned trial court had decided all the issues in favour of the plaintiff and decreed the suit. The Issue Nos.IV and V are the material issues in this case and therefore, the findings and conclusion recorded by the learned trial Court in paragraph 22 of the judgment while discussing the said issues are extracted herein below for ready reference :-

“22. So, in view of my detailed discussion as above, I am of the opinion that the alleged deed in question is liable to be treated as null and void on the grounds mentioned below.

a) Non production of original of Ext-2, the alleged deed in question by the defendant side in the court for inspection by the court:

b) Non examination of the Scribe and the attesting witnesses to prove the genuineness and authenticity of the deed in question:

c) For executing and register