Wednesday 6 July 2016

How to appreciate evidence if there is dispute as to title to property?

Admittedly, there are documents like Ext. 2 and Ext. 5 on
record to show that the public authorities had issued sale certificate
in favour of the plaintiff with regard to the suit land and also handed
over possession. The defendant, having claimed in written statement
of being in the possession of the suit land, did not come to the
witness box to establish his assertion. No witness from the locality
was brought to show as to whether the defendant was in possession 
of the land at any point of time as claimed. On the contrary, PW1,
being the father of the plaintiff, has asserted that the plaintiff is in
possession of the suit land and he proved the documentary evidence
as Ext.5 to show that the land was handed over to the plaintiff in the
year 1989 and in that event the claim of the plaintiff of being in
possession of the suit land is probable. The learned First Appellate
Court has considered Ext. 2 and Ext. 5 in their entirety and so such a
finding of the learned First Appellate Court in regard to possession of
the plaintiff cannot be erroneous or perverse. The only question
remains as to whether Ext. 3 was duly proved or not. Ext. 3, which
is available on record, is an unregistered document in the form of a
bank’s paper. This document described to be CLM form No. 13 of the
Bank, has been filled up by the appellant and it is not a mortgage
deed within the meaning of Section 59 of the Transfer of Property
Act. If this document is created by the bank by itself under CLM
Form No. 13, in that event, the learned First Appellate Court did not
commit any error in holding that the document having been
possessed by the bank and certified under the seal and signature of
Inspector of the Cooperative Society, was a valid document and is
admissible in terms of Section 30 of the 1960 Act. Had it been a case
of the plaintiff that mortgage deed was executed in compliance of
Section 59 of the Transfer of Property Act by executing and
registering document and attested by two witnesses, in that event, 
compliance of Section 68 of the Evidence Act would have been
necessary. The plaintiff presented the original document and it
shows that it is a bank document under CLM form No. 13 and so the
finding of the learned First Appellate Court in this regard, is correct.
13. In view of what has been stated above, it is clear that the land
in question was originally owned by Mahabir Ravidas, who died in
the year 1945 leaving behind 4 sons. Descendents of Mahabir
Ravidas acquired right, title and interest over the suit land and they
subsequently mortgaged the same in favour of the bank on
23.10.1973 and obtained loan of Rs.10,000/- and they having failed
to repay the debt, bank took recourse to auction sale and thereby
the sale certificate in question, vide Ext. 2 dated 13.02.1989, was
issued, which was confirmed by the Deputy Registrar of the
Cooperative Society. Under Section 18 of the Act, it is not open to
question the title of an auction purchaser on the ground that sale
has not been made by following the due procedure prescribed under
the Act.
14. In that view of the matter, the sale certificate, Ext. 2, cannot
be questioned. The defendant did not lead any evidence to show
that there was no such mortgage or there was no such sale and the
plaintiff having claimed to be the purchaser and having possession
over the suit land and not having come to the witness box to 
establish his case, presumption under Section 14 is liable to be taken
against him and the same has been done by the learned First
Appellate Court. Considering the entirety of the circumstances, the
findings arrived at by the learned First Appellate Court are neither
perverse nor erroneous and accordingly the sole substantial question
of law is decided in negative and against the appellant.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND
ARUNACHAL PRADESH)
RSA 22 of 2006
Md. Amir Uddin Laskar,

 - Versus –
Md. Abul Hussain Laskar,

BEFORE
HON’BLE MR. JUSTICE N. CHAUDHURY
Citation:AIR 2016 (NOC)380Gauhati

Two second appeals based on common facts are listed
together and are analogously heard. Except for two separate plots
under same dag and patta of same mouza, all other facts are same.
Even one set of residence was let by the plaintiff for his two identical
suits while defendant has no evidence at all to rely in either case.
Decision in one second appeal, therefore, would cover the other
second appeal. RSA No. 22/2006 is argued by the learned counsel
for both sides as lead case. It is accordingly decided.
2. In this second appeal, the defendant has challenged the
judgment of reversal passed by the learned First Appellate Court in
Title Appeal No. 32/2004. The learned Trial Court dismissed the suit
against which the plaintiff preferred title appeal and the same was
allowed by the impugned judgment and decree. Aggrieved, the
defendant has preferred this appeal. Admitting the second appeal on
07.04.2006, this Court framed the following substantial question of
law:-
“Whether the learned Appellate Court erred in law in
reversing the Issue No. 4 and thereby holding that the
plaintiff/respondent acquired right, title and interest and
possession over the suit land?”
3. Before proceeding to adjudicate the substantial question of
law referred to above, it is necessary to state the brief facts involved
in this appeal. Md. Abdul Hussain Laskar, respondent herein,
preferred Title Suit No. 6/2001 in the Court of learned Civil Judge
No. 1 (Junior Division), Silchar, against one Amir Uddin Laskar as
defendant and 27 others as proforma defendants. It is stated in the
body of the plaint that one Mahabir Rabidas was the original owner
and possessor of the suit land described under schedule-1 to the
plaint. He died in the year 1945 leaving behind 4 sons, namely,
Somaera Rabidas, Monichera Rabidas, Mohadev Rabidas and
Sonaram Rabidas. These 4 sons approached proforma defendant No.
28, Silchar Primary Co-operative Land Mortgage Bank Ltd. (later on
designated as ‘ASCARD Bank’), Silchar, for loan of Rs. 10,000/- and
executed a registered of deed of mortgage on 23.07.1973 in respect
of the suit land. As the mortgagee subsequently failed to repay the
loan, the Bank put the land on auction sale under the provision of
Assam Co-operative Land Mortgage Bank Act, 1960 (In short, “1960
Act”) and held public auction on 12.10.1988. The land was sold in
favour of the plaintiff. The sale was subsequently confirmed on
08.12.1989 by the Deputy Registrar of the Cooperative Society vide
No.DFC/O-7/63/539. Plaintiff obtained possession over the land from
SDC, Sonai Circle, vide Memo dated 13.02.1989. Plaintiff claimed to
be in continuous possession of this land peacefully and without any 
intervention from any quarter beyond the period of limitation. But, in
the month of November, 2000, the defendant No. 1 filed a case
under Section 144 Cr.PC, in the Court of the learned Additional
District Magistrate, Cachar, Silchar, and proceeding was drawn vide
Case No. 382M/2000. The plaintiff appeared and submitted objection
by producing the sale certificate and disclosed as to why he has
approached the same. But, even thereafter, the learned Executive
Magistrate drew up the proceeding under Section 145 Cr.PC., on
01.11.2000 and attached the land described at Schedule 2 to the
plaint. Since it was disclosed in the aforesaid proceeding by the
defendant No. 1 that he had purchased the land from the legal heirs
of Mahabir Rabidas vide sale deed dated 15.06.1999. The plaintiff
instituted the suit for declaration of his right, title and interest in
respect of the Schedule 2 to the plaint and for confirmation of
possession. The plaintiff also prayed for a declaration that the
defendant No. 1 did not have right, title and interest and possession
over the suit land and the registered sale deed No. 1761 dated
15.06.1999 described at Schedule 3 to the plaint is void, illegal and
inoperative and liable to be set aside and cancelled. A prayer for
temporary as well as permanent injunction restraining the defendant
No. 1 from encroaching and or creating any disturbance to the
schedule 2 land was also prayed for in the plaint. 
4. On being summoned, the defendant No. 1 appeared and
submitted written statement denying the case of the plaintiff in its
entirety. In para 16 of the written statement, the defendant No. 1
has stated his own facts. According to him, he is a bona fide
purchaser of the land described in schedule 2 to the plaint.
Defendant claimed to be in possession of the land and further
pleaded that plaintiff was never in possession of the land. A good
portion of land is low lying land and used as a fishery. The
defendant claimed to be the owner of the area of 9 Bigha 10 Katha
of land within specific boundaries and the same is the subject-matter
of proceeding under Section 382M/2000 in the Court of learned
Executing Magistrate, Silchar. It was disclosed that a separate suit
being Title Suit No. 7/2001 has already been instituted by the
plaintiff with regard to the remaining 2 Bighas 12 Kathas involved in
the said Dag and Patta. According to the defendant, he purchased
the suit land from the original owner vide registered sale deed No.
1761 dated 25.10.1987 for a consideration amount of Rs. 20,000/-
and obtained the possession of the land from the original owners. It
was claimed that the name of the vendors were mutated in the
revenue records. He denied that Sub-Deputy Collector, Sonai,
handed over possession of the land to the plaintiff. With such
pleadings, the defendant prayed that the suit be dismissed. Page No. 6
5. On the face of the aforesaid rival contentions of the parties,
learned Civil Judge (Junior Division) framed 6 issues. Subsequently
an additional issue was also framed. These issues are quoted
below:-
“1. Is there is any cause of auction for the suit?
2. Is the suit maintainable in its present form and under law?
 3. Is the suit barred by law of limitation?
4. Whether the plaintiff has right, title, interest and
possession over schedule-2 land which is within the schedule-
1 of the plaint?
5. Whether sale deed No. 1761 registered on 15.06.1999
under Sub-Registry Office, Silchar is void, illegal and
inoperative =?
6. Whether the plaintiff is entitled to a decree for any other
relief, as prayed for?
Additional Issue:-
1. Whether the proforma defendant Nos. 2 to 27 have got
any legal right to sell the property without redeeming the
mortgage?”
6. This suit was tried together with Title Suit No. 7/2001 as the
subject matter of both the suites are analogous and based on same
set of facts. It appears that the parties led one set of evidence for
both the analogous suits as they were tried together. The plaintiff
examined 2 witnesses as PW1 and PW2 and exhibited five
documents as Exhibit 1 to 5. The defendant examined himself as
DW1 by filing affidavit, but subsequently, did not come to the
witness box for cross-examination for which his affidavit evidence Page No. 7
was expunged by the Trial Court vide order dated 21.05.2004. Upon
consideration of the evidence available on record, the learned Trial
Court decided all the issues in favour of the plaintiff. Coming to
Issue No. 4, the learned Trial Court held that Exhibit 3, Mortgage
Deed, was not duly proved by the plaintiff by examining any
attesting witness as required under Section 68 of the Evidence Act.
Since Exhibit 2 is based on Ext. 3 and Ext. 3 was not duly proved, so
according to learned Trial Court, the plaintiff could not prove his
title. Moreover, the plaintiff himself did not come in the witness box
to prove his own case. Coming to the question of possession, the
learned Trial Court held that possession was handed over to the
plaintiff by Settlement Officer, Sonai Circle, in the year 1989,
whereas, it was pleaded that the Sub-Deputy Collector, Sonai Circle
had delivered the same. Relying on Ext.5 (report of the Settlement
Officer), the learned Trial Court noted that one Noni Gopal Das,
Patowary of Sonai Circle handed over possession of the land to the
plaintiff on the strength of a Sale Certificate. But, under Section 16
of the 1960 Act, possession has to be handed over by the Court and
PW1 had specifically admitted in Court in his cross-examination that
he did not get possession through the Civil Court. With these
findings, the learned Trial Court was of the view that plaintiff did not
get possession by due process of law as Patowary has no legal
authority to deliver possession of such land to the plaintiff. 
Accordingly, Issue No. 4 was decided in the negative and against the
plaintiff. Consequently, Issue No. 5 involving the validity of the sale
deed registered on 15.06.1999 was decided in favour of the
defendant. This is because the plaintiff had sought for declaration
that this deed did not confer any title to the defendant the same
being subsequent to auction purchase by him. The learned Trial
Court first held that the plaintiff did not acquire any title by Ext. 2
and Ext. 3 and so the defendant acquired title in view of execution
of Sale Deed dated 16.06.1999 by the original owner. Accordingly,
both the principal issues, namely, Issue No. 4 and Issue No. 5 were
decided in favour of the defendant. Consequently, suit of the plaintiff
was dismissed in entirety with cost by judgment and order dated
21.06.2004.
7. Aggrieved, the plaintiff preferred Title Appeal No. 32/2004 in
the court of learned Civil Judge (Senior Division) No. 1, Cachar,
Silchar, challenging the aforesaid judgment and decree passed by
the learned Trial Court. The learned First Appellate Court having
considered the materials available on record and after hearing the
learned counsel for the parties, reversed the findings of the learned
Trial Court in so far as Issue No. 4 and Issue No. 5 were concerned.
Based on reversal of findings in regard to Issue No. 4 and 5, the
learned First Appellate Court decreed the suit in entirety. According
to the learned First Appellate Court, Ext. 2 and Ext. 3 were issued to Page No. 9
the plaintiff by the Bank. Ext. 2 is a sale certificate issued by the
official of the Cooperative Department, which was proved in original.
Ext. 3 is a signed copy of mortgage deed and the same having been
issued by the Bank, it was admissible in evidence under Section 30
of the 1960 Act. Relying on the two deeds, the learned First
Appellate Court was of the view that there was an auction sale of
the suit land in favour of the plaintiff and the sale was duly
confirmed by the appropriate authority. Coming to the question of
possession over the suit land, the learned First Appellate Court held
that possession as claimed by the plaintiff over the land is no way
contradicted by the defendant by adducing evidence or asserting
claim over it and so there is force in the submission made by the
learned counsel for the appellant that plaintiff has acquired right,
title and interest including the possession over the schedule 2 land.
Having found that title was already acquired by the plaintiff by way
of sale certificate dated 12.02.1989, the learned Trial Court decided
Issue No. 5 in favour of the plaintiff and held that subsequently
executed sale deed dated 15.06.1999 is void having been executed
after the auction sale of the property. This is because if the auction
sale was made, the original owners were no longer owner in
possession of the suit land and so they could not have transferred
any title whatsoever. This appellate judgment and decree dated
30.09.2005 has been called in question in the present second appeal Page No. 10
leading to formulation of the sole substantial question of law as
quoted at the beginning.
8. I have heard Mr. Das learned counsel for the appellant and
Mr. N. Dhar learned counsel for the sole respondent. I have perused
the lower Courts record including depositions of the two witnesses
adduced by the plaintiff.
9. Mr. Das submits that Ext. 2 does not attract the suit land as
no boundaries have been mentioned therein. So, on the basis of
such sale certificate, plaintiff cannot acquire title and so the learned
First Appellate Court committed error in deciding Issue No. 4. He
further submits that Ext. 3 has not been proved in accordance with
law. It is neither a registered document nor had the plaintiff
examined any attesting witness to prove the same and so the
plaintiff having failed to prove the Ext. 3, the learned First Appellate
Court committed error in declaring title and possession of the
plaintiff over the suit land. According to him, statute has laid down a
procedure under Section 16 for obtaining possession by a purchaser
in an auction sale under the 1960 Act, and so the possession
claimed to have been obtained by the plaintiff without complying
with such procedure was not a valid one. He also raised the issue
that the plaintiff having impleaded the Manager of the Silchar
Primary Cooperative Bank Limited, the suit is bad for necessary Page No. 11
parties and even on that count, the learned First Appellate Court
ought to have dismissed the appeal.
10. Per contra, Mr. N. Dhar, learned counsel, appearing for the
sole respondent, submits that Ext. 2 has been proved in original,
which is a sale certificate, issued by the Civil-Officer-cum-Sub
Registrar of Cooperative Society. This being a public document
proved in original, sale has duly been proved. Referring to the
provision of order VII Rule 3 of the CPC, Mr. Dhar would argue that
the land has been suitably described in the sale certificate by making
mention of 32 Bighas 4 Kathas 13 Chithas and the same has been
described to be the area of the full Dag of the land. Once, it is
mentioned in the sale certificate that the full Dag has been sold and
Dag No. and Patta No. has been specifically mentioned, it is
substantial compliance of Order VII Rule 3 of the CPC. Coming to
the admissibility of Ext. 3, Mr. Dhar would argue that mortgage has
no where been denied by the defendant in the present case. The
defendant specifically admitted in para 10 of the written statement
that he does not have any knowledge in regard to the mortgage in
question. In the absence of a specific denial within the meaning of
order 8 Rule 5 of the CPC, the plaintiff was not under any obligation
to comply with the provision of Section 68 of the Indian Evidence
Act, 1872. The Learned First Appellate Court, therefore, did not
commit any illegality in passing the impugned judgment and rather 
the learned Trial Court committed error in dismissing the suit. Mr.
Dhar further argues that whether or not possession was given by
following the procedure under Section 16 of the Act, facts remains
that the plaintiff is in possession of the suit land and so the
procedure as to how the possession has been handed over to the
plaintiff cannot come for adjudication in the present case. Rightly or
wrongly the plaintiff is in possession of the land since auction
purchase in 1989 and he has been possessing the same for period of
over limitation. Relying on a judgment of the Hon’ble Supreme Court
in the case of Pratapray N. Kothari -Vs- John Braganza,
reported in (1999) 4 SCC 403, Mr. Dhar would argue that any
person in long and continuous possession of an immovable property
can definitely claim for a decree of injunction against any person in
the World except the original owner and so the suit filed by the
plaintiff for permanent and temporary injunction restraining the
defendant from dispossessing him from the suit land is very much
maintainable. With these arguments, Mr. Dhar would pray that the
sole substantial question of law be decided in favour of the
respondent and consequently, this second appeal be dismissed.
11. I have given my anxious consideration to the respective
submissions made by the learned counsel for both the parties. The
parties have a common case in so far as the original owner of the
land is concerned. Both the parties admit that Mahabir Ravidas was 
the original owner in possession of 32 Bigha 4 Kathas 13 Chithas of
land covered by Dag No. 34 of second RS Patta No. 199 of Sonapur
Mouza Baghpur Part-II in the District of Cachar and on his death, the
same devolved on his 4 (four) sons, who or their heirs are the
proforma defendants in the main suit. The principal defendant No. 1
also admits that proforma defendants, who are descendants of
Mahabir Ravidas, are the original owners of the suit land and so
there is no dispute as to the original ownership of the land. The
parties have diverged only on the question of transfer of title from
the original owners. Where it is the case of the plaintiff that original
owners mortgaged the suit land in favour of Silchar Primary
Cooperative Land Mortgage Bank, which, in turn, sold the land in
auction by provision of the 1960 Act, the defendant does not admit
this position. The defendant has a clear case that original owners
being in possession of the suit land executed registered sale deed
dated 15.06.1999 in his favour and handed over the possession and
consequently they have been so possessing. When the plaintiff
wanted to dispossess them in the year 2000, he approached the
learned Executive Magistrate by instituting a proceeding under
Section 144 Cr.PC., leading to registration of Case No. 382M/2000
and the same was subsequently converted into a proceeding under
Section 145 Cr.PC. The learned Executive Magistrate, thereafter,
attached the land. At this stage, plaintiff rushed to the Civil Court 
and instituted two different suits, being Title Suit No. 6/2001 and
Title Suit No. 7/2001 making identical pleadings in both the cases
and taking claim of right, title and interest on the basis of auction
sale by the Land Mortgage Bank. So far as a sale certificate is
concerned, it has been proved as Ext. 2 in original and that
document having been issued in respect to the entire land covered
by Dag No. 34 of second RS Patta No. 199, the whole dag has been
sold in favour of the auction purchaser. The plaintiff, by examining
himself, claimed that he has been in possession of the land all along
since 1989. The fact as to possession of the land is a matter of
documentary evidence by Ext.5. Besides Ext. 5, the plaintiff adduced
oral evidence of being in possession. The correctness as to the claim
of the plaintiff being in possession of the land has not been
questioned by the defendant in course of cross-examination. The
defendant did not lead evidence to prove that he is in possession or
that as on 15.06.1999, the original owners were in possession. At
this stage, Mr. Das has further pointed out that the sale deed was
really executed on 25.10.1987 i.e., prior to auction sale, but it was
subsequently registered on 15.06.1999. Such a revelation made by
the learned counsel for the appellant creates yet another hurdle for
the defendant adding another shot in the arms of the plaintiff in its
endeavour to get a declaration of a decree. This is because under
Section 23 of the Registration Act, 1908, time for presenting a 
document for registration has been prescribed. It is provided therein
that subject to provision contained in Sections 24, 25 and 26 of the
Registration Act, 1908, no document other than a Will shall be
accepted for registration unless presented for that purpose to the
proper officer within 4 months from the date of its execution. No
evidence has been led by the defendant to show that the document
was presented in time and it was registered later on for some or
other reasons. In the absence of any evidence to that effect, the
sale deed registered on 15.06.1999 comes under the mischief of
Section 47 of the Registration Act, 1908 and consequently by
operation of Section 49 of the Registration Act, 1908, the sale deed
registered on 15.06.1999 normally cannot confer any title to the
purchaser. Be that as it may, such a revelation having been made at
the second appellate stage, on the absence of any pleadings or
evidence to that effect, the same is kept out of consideration for the
time being.
12. Admittedly, there are documents like Ext. 2 and Ext. 5 on
record to show that the public authorities had issued sale certificate
in favour of the plaintiff with regard to the suit land and also handed
over possession. The defendant, having claimed in written statement
of being in the possession of the suit land, did not come to the
witness box to establish his assertion. No witness from the locality
was brought to show as to whether the defendant was in possession 
of the land at any point of time as claimed. On the contrary, PW1,
being the father of the plaintiff, has asserted that the plaintiff is in
possession of the suit land and he proved the documentary evidence
as Ext.5 to show that the land was handed over to the plaintiff in the
year 1989 and in that event the claim of the plaintiff of being in
possession of the suit land is probable. The learned First Appellate
Court has considered Ext. 2 and Ext. 5 in their entirety and so such a
finding of the learned First Appellate Court in regard to possession of
the plaintiff cannot be erroneous or perverse. The only question
remains as to whether Ext. 3 was duly proved or not. Ext. 3, which
is available on record, is an unregistered document in the form of a
bank’s paper. This document described to be CLM form No. 13 of the
Bank, has been filled up by the appellant and it is not a mortgage
deed within the meaning of Section 59 of the Transfer of Property
Act. If this document is created by the bank by itself under CLM
Form No. 13, in that event, the learned First Appellate Court did not
commit any error in holding that the document having been
possessed by the bank and certified under the seal and signature of
Inspector of the Cooperative Society, was a valid document and is
admissible in terms of Section 30 of the 1960 Act. Had it been a case
of the plaintiff that mortgage deed was executed in compliance of
Section 59 of the Transfer of Property Act by executing and
registering document and attested by two witnesses, in that event, 
compliance of Section 68 of the Evidence Act would have been
necessary. The plaintiff presented the original document and it
shows that it is a bank document under CLM form No. 13 and so the
finding of the learned First Appellate Court in this regard, is correct.
13. In view of what has been stated above, it is clear that the land
in question was originally owned by Mahabir Ravidas, who died in
the year 1945 leaving behind 4 sons. Descendents of Mahabir
Ravidas acquired right, title and interest over the suit land and they
subsequently mortgaged the same in favour of the bank on
23.10.1973 and obtained loan of Rs.10,000/- and they having failed
to repay the debt, bank took recourse to auction sale and thereby
the sale certificate in question, vide Ext. 2 dated 13.02.1989, was
issued, which was confirmed by the Deputy Registrar of the
Cooperative Society. Under Section 18 of the Act, it is not open to
question the title of an auction purchaser on the ground that sale
has not been made by following the due procedure prescribed under
the Act.
14. In that view of the matter, the sale certificate, Ext. 2, cannot
be questioned. The defendant did not lead any evidence to show
that there was no such mortgage or there was no such sale and the
plaintiff having claimed to be the purchaser and having possession
over the suit land and not having come to the witness box to 
establish his case, presumption under Section 14 is liable to be taken
against him and the same has been done by the learned First
Appellate Court. Considering the entirety of the circumstances, the
findings arrived at by the learned First Appellate Court are neither
perverse nor erroneous and accordingly the sole substantial question
of law is decided in negative and against the appellant.
Consequently, the second appeal stands dismissed. Interim order, if
any, stands automatically vacated.
15. Send down the records.

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