Allowed

Basir Uddin Barbhuyan and Ors. v. Tazamul Ali and Ors.

Gauhati HC9 Mar 2018RSA/76/2004

Case brief

AI extract

What is this about?

Second appeal in a title and possession suit where the plaintiffs claimed Schedule I land under a 1903 unregistered sale deed; the lower appellate court, finding the deed illegible, had dismissed that claim. The High Court held the appellate court wrongly discarded the exhibit and failed to respect the trial court's judicial discretion, restored the trial court's decree and allowed the appeal.

What did the court decide?

Second appeal allowed; the judgment and decree of the first appellate court set aside and the judgment and decree of the trial court upholding the plaintiffs' title and possession restored.

Basir Uddin Barbhuyan and Ors. Vs Tazamul Ali and Ors. — Property and Title | Gauhati HC (2018)

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GAHC010004192004

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 76/2004

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1:BASIR UDDIN BARBHUYAN AND ORS

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VERSUS

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1:TAZAMUL ALI AND ORS

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Advocate for the Petitioner : MR.A MANNAF Advocate for the Respondent : MR .B MALAKAR

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:: BEFORE ::

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HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA

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For the Appellants	: Mr. MH Rajbarbhuiya Advocate
For the Respondents	: Mr. N Dhar
	Advocate
Date of Hearing	: 11.01.2018
Date of delivery of
Judgment and Order	: 09.03.2018

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JUDGMENT AND ORDER ( CAV )

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Heard Mr. MH Rajbarbhuiya, learned counsel for the appellants. Also heard Mr. N Dhar, learned counsel for the respondents.

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The present appellants as the plaintiffs, filed Title Suit No. 58/1999 in the court of learned Civil Judge (Jr. Divn.) No. 1, Hailakandi against the present defendants/ respondents for mandatory injunction with a direction for restoring possession for the entire suit land in favour of the plaintiffs/ appellants and restraining them from disturbing the possession of the

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plaintiffs/ appellants. It is the case of the plaintiffs/ appellants that they are the owners and possessors of about 6B 14K 11Ch 10Gs of land since the days of their predecessor-in-interest, Hasina Bibi, wife of Hamid Raja for more than 100 years. Hasina Bibi purchased land measuring 5B 10K 14Ch 10Gs by way of an unregistered sale deed of value of Rs. 95,000/executed by the sole patta holder Kokia Mia on 13.07.1903 corresponding to 28 Ashar of 1310 B.S. Apart from this land, Hasina Bibi got an additional area of 1B 4K 13Ch of land under the same C.S. Patta No. 8 subsequently corresponding to R.S. Patta No. 6 and Second R.S. Patta No. 4. Asaddur Ali and Mosaddar Ali are the legal heirs of Hasina Bibi. Plaintiffs/ appellants No. 1 to 6 are the legal heirs of Asaddar Ali and the plaintiff/ appellant No. 7 is the legal heir of Mosaddar Ali. Akinur Bibi, the other daughter of Mosaddar Ali, sold her entire interest to plaintiffs/ appellants No. 1 to 3. Thus, the plaintiffs/ appellants became the owner of the entire interest of the original purchased land by Hasina Bibi to the extent of 5B 10K 14Ch 10Gs of land described in the Schedule 1 of the plaint along with the additional area of 1B 4K 13Ch. The name of Hasina Bibi was duly recorded in the Jamabandi along with Kokia Mia, the original pattadar. Later on, Hazi Turai Mia, the predecessor in interest of the defendants/ respondents No. 1 to 7 purchased the remaining land of Kokia Mia in C.S. Patta No. 8 by way of a registered sale deed executed on 23.05.1904. The area of the land shown in the sale deed was 10 Kadar 1 Poa and the name of Hazi Turai Mia was recorded in the original CS Patta No. 8 along with Hasina Bibi. Subsequently, legal heirs of both Hasina Bibi and Hazi Turai Mia were accordingly included in the RS Patta No. 6 and subsequent Second RS Patta No. 4 lawfully. The defendant/ respondent No. 1 and his three sisters, namely, Saiful Nessa, Bilatun Nessa and Sonaban Bibi along with their mother late SI Bibi being the legal heirs of Hazi Turai Mia sold their total interest of land measuring 15K 8Ch out of the land so purchased by Hazi Turai Mia by way of a valid registered sale deed on 11.04.1978 in favour of the plaintiffs/ appellants No. 1 to 3 during the life time of their father, Asaddar Ali. The said sale deed shows the land so sold thereby defining the boundaries and on the southern side of the said sold land, the land of Asaddar Ali was shown. Subsequently, one of the legal heirs of Turai Mia, namely, Asman Ali (son) i.e. the father of the defendant/ respondent No. 3 along with his mother Khudeja Bibi and sister Sirajun Nessa sold their entire interest in Dag No. 14 of second RS Patta No. 4 over land measuring 15K 8Ch to plaintiffs/ appellants No. 1 to 3 by way of a registered sale deed dated 11.03.1983 during the life time of the father of the plaintiffs/ appellants No. 1 to 6. In the said sale deed on the southern side, the name of Asaddar Ali and to the west the purchased land of plaintiffs/ appellants No. 1 to 3 in the year 1978 are shown. It is pertinent to mention here that in the earlier sale deed dated 11.04.1978 on the eastern side of the land sold, the land of Asman Ali was shown. On the strength of the said purchase, the plaintiffs/ appellants on their own became the joint owner with respect to 1B 11K of land described in the Schedule 2 of the plaint and the total area of the suit land as claimed by the plaintiffs/ appellants is shown as 8B 6K 15Ch 10Gs. 3. The Title Suit No. 15/1976 had to be preferred by the plaintiffs/ appellants against one Tazamul Ali, son of Abbas Ali and others when they dispossessed them. The said suit ended in a decree in their favour which was affirmed even in the second appeal. On the strength of the said decree, the plaintiffs/ appellants got back their possession on 26.05.1999, however, the said judgment debtors removed the pillars and trespassed into the decreetal land following which the plaintiffs/ appellants were constrained to file another Title Suit No. 25/1999 which was pending while filing the present suit. It is pertinent to mention here that Tazamul Ali in Title Suit No. 15/1976 is not the present defendant/ respondent No.

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Being encouraged by such type of illegal dispossession and act of trespass, the present defendants/ respondents No. 1 to 7 also trespassed into the suit land on 12.07.1999 and started ploughing over the same. As such, the suit has been filed with the reliefs as mentioned hereinabove.

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The defendants/ respondents filed their joint written statement thereby denying the pleadings made in the plaint. It is their case that Hazi Turai Mia, their predecessor-in-interest purchased land measuring 12B 11K 10Ch of CS Patta No. 8 from Kokia Mia vide registered sale deed No. 1226 dated 01.06.1904. The vendor of the said sale deed was identified by Hamid Raja, the husband of Hasina Bibi through whom the plaintiffs/ appellants falsely claimed the suit land. The name of Hazi Turai Mia after the purchase was recorded vide order dated 24.08.1905 and his name was mutated in CS Patta No. 8 in place of his vendor Kokia Mia. The said Turai Mia possessed and enjoyed the land with his two sons, namely, Posan Mia alias Asman Mia and Eusuf Ali till his death without any disturbance from any quarter. The entire land covered by CS Patta No. 8 was shown to be in the name of Turai Mia at the time of settlement. During the said settlement operation, the name of Hasina Bibi was wrongly recorded without any right, title and interest and possession over the said land. It is the contention of the defendants/ respondents that the sale deed of Turai Mia wherein Hamid Raja stood as identifier of Kokia Mia itself shows that the mutation of Hasina Bibi was wrong. They admitted the sale of land to the plaintiffs/ appellants by way of two sale deeds dated 11.04.1978 and 11.03.1983 by the legal heirs of Turai Mia and they did not dispute their claim over the Schedule 2 land in the plaint. However, the defendants/ respondents disputed the claim purportedly inherited from Hasina Bibi by the plaintiffs/ appellants. Accordingly, they sought for dismissal of the suit.

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On the basis of the pleadings of the parties, the learned trial court framed the following issues:-

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1. Is there any cause of action for the suit?

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2. Is the suit maintainable in its present form?

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3. Whether the plaintiffs have right, title and interest over the suit Schedule – I & II land?

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4. Whether the plaintiffs are entitled to get khas possession of Schedule – I land by evicting the defendants therefrom?

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5. To what relief or reliefs the plaintiffs are entitled to get in the suit?

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Both the sides exhibited documents including the registered sale deeds and the unregistered sale deed on the strength of which the plaintiffs/ appellants claimed their right, title and interest over the suit land. The learned trial court decreed the suit. While discussing the issue No. 3, the learned trial court accepted the admission on the part of the defendants/ respondents so far the transfer of land in favour of the plaintiffs/ appellants by the legal heirs of Turai Mia are concerned and held that there is no dispute with regard to the right, title and interest and possession of the plaintiffs/ appellants over the Schedule-II land measuring 1B 11K. Further, the learned trial court considered the plea taken up by the defendants/ respondents that the entire land of RS Patta No. 8 was purchased by Hazi Turai Mia vide registered sale deed No. 1226, Exhibit-Ka and that Hamid Raja, husband of Hasina Bibi identified the executant Kokia Mia and the plea taken that the mutation of Hasina Bibi in CS Patta No. 8 was collusively done. On the other hand, the plaintiffs/ appellants exhibited the kutcha deed as Exhibit-3 by which Hasina Bibi purchased the suit land from Kokia Mia in the year 1903. The learned trial court held that though the said Exhibit-3 was unregistered deed

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but it has got its legal force. Further, it came to the finding that the name of Hasina Bibi was very much recorded in the Jamabandi i.e. CS Patta No. 8 and RS Patta No. 6 though the said name was recorded as per the defendants/ respondents wrongly as per the collusion of her husband Hamid Raja. However, no one had challenged to strike out her name including the present defendants/ respondents. It is held in the case law of Smti. Amiya Bala Dutta and others v. Mukul Adhikari reported in 1998 (2) GLJ 527 that the mutation entries shall always be deemed to be correct unless the contrary is proved and the said presumption which is attached to the records of rights must be given due weightage. Exhibit 3 was executed in the year 1903 prior to the date of purchase by the predecessor-in-interest of defendants/ respondents by way of a registered sale deed No. 1226 dated 01.06.1904. Accordingly, the learned trial court held that the plaintiffs/ appellants successfully proved the right, title and interest over the first Schedule land.

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With respect to the possession, while discussing issue No. 4, the learned trial court took into consideration the Exhibits 1 and 2 which are the registered sale deeds respectively dated 11.04.1978 and 11.03.1983 admittedly by way of which the legal heirs of Turai Mia sold land to the plaintiffs/ appellants. The schedule land sold by way of said Exhibits 1 and 2 shows that land of Asaddar Ali was on the southern side and considering the said material piece of evidence, the learned trial court came to the finding that by executing Exhibits 1 and 2 showing the name of Asaddar Ali on one of the boundaries of the land so sold itself is an admission of possession of the plaintiffs/ appellants by the defendants/ respondents. Entering into the evidence of PW 1 and the corroboration of PWs 2 and 3, the fact of possession of the plaintiffs/ appellants till the dispossession on 12.07.1999 was accepted by the learned trial court. On the other hand, though the defendants/ respondents examined three witnesses to show their long possession over the suit land, however, no boundary man was examined to prove their possession. Accordingly, the issue No. 4 was decided in favour of the plaintiffs/ appellants holding that the plaintiffs/ appellants are entitled to get khas possession of Schedule I land by evicting the defendants/ respondents therefrom.

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Being aggrieved, the defendants/ respondents preferred Title Appeal No. 29/2002 challenging the judgment and decree passed by the trial court and vide judgment and decree dated 25.11.2003 the learned first appellate court allowed the appeal partly. Thereafter, the plaintiffs/ appellants had preferred the present second appeal which was admitted on 18.05.2004 by framing the following substantial questions of law:-

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1. Whether the impugned judgment of the lower appellate court reversing the judgment and decree of the trial court without complying the mandatory provisions of Order XLI Rule 31 of the Code of Civil Procedure is correct or not? 2. Whether Ext. 3 having been proved by the plaintiffs without any objection by the defendant before the Trial Court can be ignored by the lower Appellate Court? 3. Whether the impugned judgment of the lower Appellate Court reversing the judgment of the trial court is justified for non-consideration of Ext. 11 whereby the defendant (D.W. 1) admitted the joint mutation of plaintiffs predecessor along with their predecessor on suit patta over 12 Bighas, 11 Katha, 10 Ch. and Ext. 10 whereby the defendant admitted that in 2^nd R.S. survey their names are mutated over 6 Bighas 12 Ch. land?

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The learned first appellate court disallowed the appeal to the extent of the Schedule II land owing to the admission on the part of the defendants/ respondents of transferring the same by way of Exhibits 1 and 2, the registered sale deeds dated 11.04.1978 and

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11.03.1983. So far reversal of the findings of the learned trial court with respect to the claim of Schedule I land on the strength of Exhibit 3 i.e. the unregistered sale deed is concerned, the learned first appellate court came to the finding that the Exhibit 3 is an unregistered deed and the same was in erased condition and the same being illegible, the signature of the alleged executant, date of alleged execution including the Dag patta numbers, the area of land are not legible and though the name of Hasina Bibi was mutated in the suit patta but it was not written thereon the basis of which her name was mutated. Hasina Bibi was not the legal heir of Kokia Mia and the fact of purchase of the land by unregistered deed was also not proved as the contents are illegible and holding further that the learned trial court ought to have rejected the Exhibit 3. Finally, appreciating the fact of purchase of the total land under CS Patta No. 8 vide Exhibit-Ka dated 01.06.1904 and further considering Exhibits Kha and Ga, the certified copies of the mutation order and the petition therein and the subsequent mutation of names of defendants in the mutation case, the learned first appellate court held that the entire suit patta land of CS Patta No. 8 was purchased by Turai Mia. On the other hand, the learned first appellate court also came to the finding that except Exhibit 3 which is totally illegible, the plaintiffs/ appellants have failed to show any document and as the total land was purchased by Turai Mia, so there is no scope of purchasing the land by the plaintiffs/ appellants from Akinur Bibi, one of the daughters of Mosaddar vide Exhibit-4. Accordingly, without disturbing the findings with respect to the Schedule II land, the learned first appellate court dismissed the suit with respect to the claim of Schedule I land alleged to be purchased through Hasina Bibi.

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Mr. Rajbarbhuiya, learned counsel for the appellants, submits that the learned first appellate court was not correct in coming to the finding that the Exhibit-3, the unregistered sale deed being totally illegible, the same ought to have been rejected by the learned trial court. He further submits that it is not disputed by the defendants/ respondents so far the recording of the name of Hasina Bibi in the CS Patta No. 8 along with Turai Mia, the predecessor-in-interest of the defendants/ respondents is concerned. The learned trial court held that the Exhibit-3 has its legal force meaning thereby the same is a valid sale deed and even if, Turai Mia, the predecessor-in-interest of the defendants/ respondents, purchased the total land of CS Patta No. 8 by way of registered sale deed Exhibit-Ka dated 01.06.1904, the said purchaser cannot be endowed with the status of land holder which forms part of the sale transaction of Kokia Mia and Hasina Bibi at a sale consideration of Rs. 95/-. Referring to the cross examination of the DW 1, Mr. Rajbarbhuiya submits that the said DW 1, Tazamul Ali Barbhuiya, the original defendant/ respondent No. 1 admitted the mutation of Hasina Bibi with Turai Mia. The said mutation of Hasina Bibi referred hereinabove was never disputed inasmuch as the Exhibit 11 is the copy of the Jamabandi of CS Patta No. 8. The learned trial court applied its judicial discretion properly and considered Exhibit 3 and as such, the finding of the learned first appellate court is liable to be set aside. The Exhibit 3 as apparent from the evidence of PW 1 was marked as Exhibit – ‘under objection’, but the said objection was not decided instantly at the time of raising of such objection. The learned first appellate court failed to consider the said aspect of the matter and in clear violation of the law holding the field that mode of proof of a document cannot be challenged belatedly once the same is exhibited. For the said reason, the impugned judgment and decree of the learned first appellate court is liable to be set aside.

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Mr. Dhar, on his part appearing on behalf of the respondents, raised the objection that the presumption drawn by the trial court with respect to Ext. 3 is totally wrong application of

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the judicial discretion of the court. The Ext. 3 is not at all legible and moreover, who executed the same also remained undecided. The presumption is rebuttable even if the said document was purportedly shown to be executed in the year 1903. Further, the said Exhibit 3 is not a registered sale deed in order to draw the presumption that the same was executed by Kokia Mia and to prove its execution by bringing certified copy from the office of the Sub-Registrar. On the other hand, Exhibit-Ka, the registered sale deed dated 01.06.1904 on the basis of which the defendants/ respondents are possessing the suit land has been duly proved including by calling the officials from the office of the Sub-Registrar. The said registered sale deed has a strong footing if compared to the unregistered sale deed Exhibit 3, on the basis of which the plaintiffs/ appellants claimed their right, title and interest over the Schedule I land. Reiterating further that the contents of the said Exhibit 3 has also not been proved as required under the law moreso, when the learned first appellate court rightly came to the conclusion that the said Exhibit 3 is illegible. Mere recording of the name of Hasina Bibi in the land records cannot give the title over the land on which the plaintiffs/ appellants had claimed their derivative title by way of inheritance from Hasina Bibi. The plaintiffs/ appellants failed to explain as to why and under what circumstances, the husband, Hamid Raja was the identifier of Kokia Mia, the executor of Exhibit A, the registered sale deed in favour of Turai Mia, the predecessor-in-interest of the defendants/ respondents. That itself goes to show that there was no existence of such Exhibit 3 at least on the date on which Exhibit Ka was executed. Ext. 3 was subsequently manufactured in order to deprive the defendants/ respondents. Judicial discretion if wrongly applied by any court, the same can be corrected and the learned first appellate court has rightly set aside the judicial discretion applied wrongly by the learned trial court in drawing the presumption of Exhibit 3 and that cannot be compared with the mode of proof as submitted by Mr. Rajbarbhuiya. Summing up his submission, Mr. Dhar finally submits that the learned first appellate court has rightly dismissed the suit so far Schedule I land is concerned.

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Considered the submission of the learned counsels for the parties to this appeal. Section 90 of the Indian Evidence Act, 1872 is reproduced hereinbelow:-

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“ 90. Presumption as to documents thirty years old. – Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

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Explanation. – Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”

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In the case of Mahasay Ganesh Prasad Ray & another v. Narendra Nath Sen & others reported in AIR 1953 SC 431 , it was held that Section 90 of the Indian Evidence Act, 1872 can be of necessary help where signature of a particular person is in question or sought to be established. In the case of Huidrom Achou Singh, Thoudam Mangol Singh and Smt. Longjam Ningol Yendrembam Ongbi Nungshi Devi v. Smti. Thokchom Ningol Ningthemcha Ongbi Ibempishak Devi & others reported in (1986) 1 GLR 98 ,

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Hon’ble Justice K.N. Saikia (as he then was) held the necessity of Section 90 of Indian Evidence Act and the force of its presumption as follows:-

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“ 12. In the instant case the Plaintiff proved that the land had been purchased by, and delivered possession to her and since purchase she had been in possession and the learned courts below concurrently found that fact. The certified copy of the registered sale deed was compared by the Court with the original called from the Record Keeper and no discrepancy was found. The reason for the rule as to thirty years old document is the great difficulty, indeed in many cases the impossibility, of proving the handwriting, execution and attestation of documents in the ordinary way after the lapse of thirty years. Another ground is the circumstance of age or long existence of the document together with its place of custody, its unsuspicious appearance, and perhaps other circumstances, suffice, in combination, as evidence to be submitted to the Court. This rule deals only with the amount of credit which is to be attached to the document. The document is said to prove itself, i.e. no witnesses need, unless the court so requires. Prove it. This section was designed to meet situations varying character, where passage of time might have onliterated the proof of the genuineness of any disputed document and wide powers are conferred on the Court. The section only says that the Court may raise the presumptions mentioned in it, not that it must do so, and the expression “may presume” ought generally to be construed in the more rigorous of the senses allowed by Section 4 of the Act. The presumption is rebuttable. The Court must examine the surrounding circumstances tending to establish the connection of the party producing the document with the person with whom the document should naturally have been.”

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In Sri Lakhi Baruah and others v. Sri Padma Kanta Kalita and others reported in AIR 1996 SC 1253 the Hon’ble Apex Court also discussed the object of Section 90 of the Indian Evidence Act as follows:-

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“ 15. Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question are produced from proper custody. It is, however, no manner of Court that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”

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The learned trial Court held that the Exhibit 3 has its legal force and while decreeing the suit including that of Schedule I land it presumed by applying its judicial discretion though the same has not been recorded explicitly. On the face of it the learned first appellate Court came to the finding that Exhibit 3 is an unregistered deed and the same is in erased condition and the same is unable to read. The signature of the alleged executant and date of alleged execution including the dag and patta number and the area of the land are not legible. On perusal of Exhibits 5, 6 and 7, the learned first appellate court came to the finding that though name of Hasina Bibi was mutated in the suit patta but it was not written on what strength and basis the name of Hasina Bibi was mutated in the suit patta. Wondering as to how the trial court decreed the suit on the alleged purchase of land by Hasina Bibi on the strength of Exhibit 3, the learned first appellate court expressed that the same ought to have rejected such illegible and not readable unregistered deed i.e. Exhibit 3. This view of the

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learned first appellate court is totally unwarranted.

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From the written statement of the defendants/ respondents it appears that nowhere they have raised the plea that Kokia Mia did not execute the said Exhibit 3. Under such circumstances, the learned first appellate court in order to examine the judicial discretion applied by the learned trial court ought to have taken note of Section 32(7) and Section 13(a) of the Indian Evidence Act.

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Section 32(7) is reproduced hereinbelow:-

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“ 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. – Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) ...

(2) ...

(3) ...

(4) ...

(5) ... (6) ...

(7) or in document relating to transaction mentioned in section 13, clause (a). – When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

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(8) ...”

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Similarly, Section 13(a) is also reproduced hereinbelow:-

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“ 13. Facts relevant when right or custom is in question. – Where the question is as to the existence of any right or custom, the following facts are relevant:-

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(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence; (b) ...”

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The plaintiffs/ appellants had claimed the right, title and interest over Schedule I land described in the plaint on the strength of the Exhibit 3 though to the extent of 5B 10K 14Ch 10Gs. The findings that the Exhibit 3 is not at all legible cannot be accepted inasmuch as on going through it, this Court finds that to some extent it is legible at least the sale transaction in favour of Hasina Bibi. It is pertinent to mention here that vide order dated 05.01.2017 passed by this Court in I.A.(Civil) 2089/2016 directed the appellants to send the Exhibit 3 for examination by the Forensic Science Laboratory (FSL), Guwahati and/ or handwriting expert for the purpose of ascertaining the genuinity of the said document Exhibit 3 and also to decipher the contents thereon along with a clear print of the contents thereof. The said order was passed in presence of the learned counsel for the respondents who did not object to it. The report from the FSL was placed on record on 18.09.2017 and while deciding this appeal the report of the said FSL is taken into consideration which is reproduced hereinbelow:-

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“ OPINION

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No.DFS/QDS-18/17 Dated 22/08/2017.

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The laminated document received vide your Memo No. HC.XXVI/3250/SA Dated 23/01/2017 has been carefully and thoroughly examined with the help of scientific

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instruments such as Docuexpert, VSC5000, VSC 6000, Forensic XP 4010 D etc. under different lighting systems.

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Examination of the document marked Q1 shows presence of watermark and printed matter showing its genuineness. The writings in the red enclosed part marked Q1 are faded due to the passage of time as the ink used was dyestuff ink. Hence, the complete decipherment of faded writings are not possible and some portion of the writings are deciphered (Figure 1). There is no sign of alteration in the document thereby indicating that it appears to be a genuine document.

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Sd/(DR. TILAKA DAS, M.Sc. Ph.D.) Deputy Director Questioned Documents division, Directorate of Forensic Science, Assam, Kahilipara, Guwahati – 781019”

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Exhibit 1 is the registered sale deed bearing No. 2897 dated 11.04.1978 executed by the legal heirs of Late Turai Mia in favour of some of the plaintiffs/ appellants. In the schedule of land mentioned in the said Exhibit 1, on the southern side the name of Asaddur Ali has been shown. The other undisputed sale deed is Exhibit 2 wherein also on one side of the land so sold to the plaintiffs/ appellants by the legal heirs of Turai Mia shows the name of Asaddur Ali, one of the sons of Hasina Bibi. The defendants/ respondents in the written statement never disputed the possession of the said Asaddur Ali and the learned trial court drew the presumption that the plaintiffs/ appellants were possessing the suit land prior to their dispossession by the defendants/ respondents. There is no specific explanation as to how the name of Asaddur Ali came into existence in the said Exhibits 1 and 2 by the defendants/ respondents. The introduction of the said name of Asaddur, the legal heir of Hasina Bibi itself goes to show that the defendants/ respondents recognised the possession of Asaddur Ali, one of the sons of Hasina Bibi over the suit land and itself is a relevant fact under Section 13(a) of the Indian Evidence Act if the Ext. 3 is considered. The said recognition can very well be linked with the presumption drawn by the trial court so far Exhibit 3 is concerned inasmuch as there is no explanation that the name of Asaddur Ali was through some transactions other than the sale transaction of Exhibit 3 (the sale deed of Hasina Bibi). There being no dispute with respect to the executant of Exhibit 3, the judicial discretion applied by the learned trial court is correct. A document marked as exhibit and allowed by the court to be so exhibited as material piece of evidence cannot be thrown away by the learned appellate court without examining the basis of judicial discretion applied by the learned trial court in drawing the presumption of Exhibit 3. In (1986) 1 GLR 98 (supra) it was held with respect to the presumption as to the genuineness of a document as follows:-

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“ 13. The presumption as to the genuineness of a document is a matter for judicial discretion and where the trial Court has exercised a proper discretion in raising the presumption of the genuineness of a document ordinarily it is not proper for the appellate Court to overrule the discretion of the trial Court. In Shafiqunnisa vs. Shaban Ali Khan, 30 I.A. 217 I.L.R. 26 All 581 (P.C.) , it was observed that where a document more than thirty years old, purporting to come from proper custody, is required by the Court before which it is produced, to be proved, and is left unproved and there are circumstances, both external and internal, which throw great doubts upon the genuineness of the document, the Court can, in the exercise of the discretion vested in it under the Section, decline to admit it

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in evidence without formal proof, and their Lordships of the Privy Council will be always slow to overrule the discretion exercised by a Judge under Section 90. However, a Judge should not reject a document without giving the party producing it an opportunity for supporting the presumption. Where the discretion has been exercised with due care and the presumption allowed by law has been made, an appellate Court should be slow to interfere with such discretion, but where it is shown that the exercise was made arbitrarily and not on judicial grounds it may be challenged even in second appeal, as was held in AIR 1938 Calcutta 763 . Where the trial Court exercises its discretion under Section 90 and admits a document and the first appellate Court finds no reason to interfere with it, the High Court should not overrule the discretion and reject the document as was ruled in Nathu Lal vs. Mst. Gomti Kuar, AIR 1940 PC 160 . Of course, whether the presumption under Section 90 can be raised or not is a question of law and can be urged at any stage of the litigation. In Basant Singh vs. Brij Raj Saran Singh, AIR 1935 P.C. 132 it was ruled that the presumption enacted in the section can be raised only with reference to original documents and not to copies thereof. This was followed in Harihar Prasad vs. Deo Narain Prasad, AIR 1956 SC 305. ”

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Section 4 of the Indian Evidence Act prescribes that the Court may presume a fact as provided unless and until it is disproved. This is a case wherein Section 90 of the Indian Evidence Act prescribes for drawal of such presumption with respect to the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed, that it was duly executed subject to the same is produced from the proper custody. It is not in dispute that the said Exhibit 3 is not produced from the custody of the plaintiffs/ appellants claiming right, title and interest over the plot of land being the subject matter of Exhibit 3. The learned first appellate court while deciding the first appeal considered the material piece of evidence on record and drawing its satisfaction with regard to the part of the findings of the learned trial court accepted the findings with respect to the Schedule II land on the basis of which the plaintiffs/ appellants’ title were declared and that too on the basis of the admitted sale deeds. The learned first appellate court failed to consider the reasoning of the trial court of the presumption drawn by the said court while deciding the issue with respect to the possession of the plaintiffs/ appellants over the suit land. Because it is the stand of the plaintiffs/ appellants that on the strength of Ext. 3, they have been possessing the suit land which stand, the defendants/ respondents failed to dislodge by giving any explanation as to how the plaintiffs/ appellants possessed suit land prior to execution of the admitted sale deeds. The learned first appellate court considering the material piece of evidence, came to the findings on wrong appreciation thereof and through its reasoning reversed the finding of the trial court with respect to the Schedule I land without examining the reasonableness of the judicial discretion applied by the learned trial court. From the discussions of the learned first appellate court it cannot be held that the judgment and decree passed by the learned first appellate court is hit under Order XLI Rule 31 of the Code of Civil Procedure. However, the learned first appellate court was wrong in discarding Exhibit 3 in the manner in which it has discarded and as such, the substantial question of law No. 2 is decided in the negative. Similarly, the Exhibit 11, the copy of Jamabandi showing the name of Hasina Bibi along with Turai Mia is a very vital document and the contents of the same has been admitted by one of the defendants/ respondents as DW 1. Under such circumstances, the substantial question of law No. 3 is also decided in the negative. Accordingly, this second appeal is allowed thereby

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Page No.# 11/11

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setting aside the judgment and decree passed by the learned first appellate court upholding the judgment and decree passed by the learned trial court.

¶79

Prepare a decree accordingly.

¶80

Send back the lower court records.

¶81

No order as to costs.

¶82

JUDGE

¶83

Comparing Assistant

Basir Uddin Barbhuyan and Ors. v. Tazamul Ali and Ors.

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Basir Uddin Barbhuyan and Ors. v. Tazamul Ali and Ors.

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