Dismissed

Smti. Abala Kalita and 6 Ors. v. Sri Umesh Kalita and 13 Ors.

Gauhati HC13 Feb 2020RSA/232/2019

Case brief

AI extract

What is this about?

In a regular second appeal regarding a title suit and counter-claim concerning a disputed gift deed, the Gauhati High Court held that counter-claimants failed to prove the deed was forged and the non-production by defendants did not nonsuit them.

What the court decided

AI extract

Smti. Abala Kalita and 6 Ors. Vs Sri Umesh Kalita and… — Specific Performance | Gauhati HC (2020)

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Page No.# 1/9

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GAHC010041842019

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

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Case No. : RSA 232/2019

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1:SMTI. ABALA KALITA AND 6 ORS.

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W/O- SRI BAPURAM KALITA, D/O- LATE THANURAM KALITA, R/O- VILL.TETELIA, P.O. MANAKUCHI, DIST.- KAMRUP(M), ASSAM.

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2: SRI PRAFULLA KALITA S/O- LATE JAYANTI BALA KALITA R/O- VILL.- PACHARIA P.O. DADARA DIST.- KAMRUP ASSAM.

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3: SRI BIPUL KALITA S/O- LATE JAYANTI BALA KALITA R/O- VILL.- PACHARIA P.O. DADARA DIST.- KAMRUP ASSAM.

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4: SMTI. LABANYA BARUA D/O- LATE JAYANTI BALA KALITA R/O- VILL.- PACHARIA P.O. DADARA DIST.- KAMRUP ASSAM.

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5: SMTI. REETA DAS D/O- LATE JAYANTI BALA KALITA R/O- VILL.- PACHARIA P.O. DADARA DIST.- KAMRUP ASSAM.

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6: SMTI. MINU DAS D/O- LATE JAYANTI BALA KALITA R/O- VILL.- PACHARIA P.O. DADARA DIST.- KAMRUP ASSAM.

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7: SMTI. SABITA KALITA D/O- LATE JAYANTI BALA KALITA R/O- VILL.- PACHARIA P.O. DADARA DIST.- KAMRUP ASSAM

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VERSUS

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1:SRI UMESH KALITA AND 13 ORS.

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S/O- LATE THANURAM KALITA, R/O- VILL.- KETEKIBARI, P.O. BOROMBOI, P.S. HAJO, DIST.- KAMRUP, ASSAM.

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2:SRI DEBEN KALITA S/O- LATE THANURAM KALITA R/O- VILL.- KETEKIBARI P.O. BOROMBOI P.S. HAJO DIST.- KAMRUP ASSAM.

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3:SRI BHARAT KALITA S/O- LATE THANURAM KALITA R/O- VILL.- KETEKIBARI P.O. BOROMBOI P.S. HAJO DIST.- KAMRUP ASSAM PIN- 781104.

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4:SMTI. ANNABALA KALITA W/O- LATE RAMESH KALITA R/O- VILL.- LACHI P.O. LACHI BALISATRA P.S. RANGIA DIST.- KAMRUP

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ASSAM PIN- 781354.

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5:SRI LUKESHAR KALITA S/O- LATE RAMESH KALITA R/O- VILL.- LACHI P.O. LACHI BALISATRA P.S. RANGIA DIST.- KAMRUP ASSAM PIN- 781354.

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6:MISS POPI KALITA MINOR DAUGHTER OF LATE RAMESH KALITA WHO WILL REP. BY NATURAL GUARDIAN I.E. SMTI. ANNABALA KALITA R/O- VILL.- LACHI P.O. LACHI BALISATRA P.S. RANGIA DIST.- KAMRUP ASSAM PIN- 781354.

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7:MISS RUNUMI KALITA MINOR DAUGHTER OF LATE RAMESH KALITA WHO WILL REP. BY NATURAL GUARDIAN I.E. SMTI. ANNABALA KALITA R/O- VILL.- LACHI P.O. LACHI BALISATRA P.S. RANGIA DIST.- KAMRUP ASSAM PIN- 781354.

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8:SMT. UTTARA KALITA D/O- LATE RAMESH KALITA R/O- VILL.- LACHI P.O. LACHI BALISATRA P.S. RANGIA DIST.- KAMRUP ASSAM PIN- 781354.

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9:SRI NARAYAN KALITA S/O- SRI BHUMIDHAR KALITA

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10:SRI MADHAB KALITA S/O- SRI SUDDHARAM KALITA

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11:SRI HARI KALITA S/O- LATE ABHOY KALITA

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12:SRI MOTIRAM KALITA S/O- LATE CHANDRA KALITA

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13:SRI SARAT KALITA S/O- LATE SANMAL KALITA

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14:SMTI. PRATIBHA KALITA W/O- SRI MADHAB KALITA ALL ARE R/O- VILL.- KETEKIBARI P.O. BOROMBOI P.S. HAJO DIST.- KAMRUP ASSAM PIN- 781104

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Advocate for the Petitioner : MR. N N JHA

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

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Date : 13-02-2020

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Heard Mr. N N Jha, learned counsel for the appellants.

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The respondents No.1, 2 and 3 along with their mother Dharmay Bala Kalita had instituted title suit No.111/2000 in the Court of learned Civil Judge Senior Division No.1, Kamrup Guwahati claiming for the following reliefs:

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Page No.# 5/9

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“ It is therefore prayed that your Honour would graciously be pleased to pass a decree declaring –

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Right, title, interest and possession of the plaintiffs over the schedule deed land,

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That sale deed no.2206 dated 21.03.63 Gift No.4411 dated 08.06.66 Sale No.38 dated 17.01.97, No.191 dated 17.02.2000, No.192 dated 17.02.2000, No.201 dated 21.06.83 and No.879 dated 25.11.94 are void, illegal, inoperative and not binding upon the plaintiffs

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A permanent injunction restraining the defendants, their servants, agents, employees to enter into the schedule A-F deeds land.

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A precept may kindly be issued to Sub-Registrar, Guwahati as well as Circle Officer, Hajo to cancel the registered sale deed Nos. 4411 dated 08.06.66, Sale Deed No.38 dated 17.01.97, No.191 dated 17.02.2000, No.192 dated 17.02.2000, No.201 dated 21.06.83 and No.879 dated 25.11.94.

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Costs of the suit,

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Any other relief or reliefs as your Honour may deem fit and proper.”

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It is taken note of that one of the reliefs sought for in the title suit was that gift deed No.1144 dated 08.06.1966 is void, illegal, inoperative and not binding on the plaintiffs. The appellants, who were arrayed as defendants No.6 and 7 respectively in the title suit in their written statement stated that they have no comment to make against the statement in the plaint in paragraph 5 that the gift deed No.4411/66 was forged. A counter claim was also made that the gift deed No.4411/86, amongst others is void, illegal, inoperative and not binding on the appellants. We have taken note of that the nature of the prayers made in the plaint as well as in the counter claim of the appellants in respect of gift deed No.4411/86, are same.

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It is also taken note of that subsequently the title suit was renumbered as 804/2006 in the Court of the learned Munsiff No.1, Kamrup. In the trial, amongst others, the issue No.4 was framed as to whether a right to sue had accrued in favour of the plaintiffs for a declaration and cancellation of the gift deed No.4411/66. The learned trial court in its judgment dated 20.05.2010 arrived at its conclusion that if the gift deed is fraudulent, then it would be injurious to the plaintiffs, and, therefore, to determine the question, the right to sue had accrued in favour of the plaintiffs.

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The additional issue No.4 was also framed by the learned trial court as to whether the appellant defendants No.6 and 7 are entitled to the reliefs prayed for in the counter claim. One of the reliefs claimed for was whether the gift deed No.4411/66 was forged and fraudulent. While deciding the said issue, the learned trial court in its judgment dated 20.05.2010 arrived at its conclusion that the counter claimants had also prayed for a joint title along with the plaintiffs and the plaintiffs have nowhere denied the title of the claimants. Therefore, the claim of the counter claimants was basically against the other defendants and they have also prayed for declaring the gift deed No.4411/66 to be forged and also claimed 1/7^th share of the total properties of the deceased Thanuram Kalita. Such claim of the counter claimants would be maintainable when the two gift deeds in question are declared to be illegal. The counter claimants had not assailed the gift deed in the name of the plaintiffs No.1 and the gift deed in the name of Ramesh Kalita was not found to be forged. The counter claimants being the sisters of Ramesh Kalita were excluded from the inheritance as because of the presence of the class I heirs of Ramesh Kalita. Therefore their claim of share against the defendants would not be maintainable. Accordingly, the counter claim was rejected. Along with the counter claim the suit was also dismissed.

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On an appeal being carried by the counter claimants being TA No.63/2010 (Old) corresponding to TA No.45/2014 (new), the learned Civil Judge No.2 Kamrup Amingaon by the judgment dated 12.11.2018 took a view that under Section 101 of the Evidence Act, the burden of proving a fact lies with the party who subsequently asserts the affirmative issue and not the party who denies it.

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Accordingly, a distinction was made by relying upon the provisions laid down by the Supreme Court in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, reported in AIR 1964 SC 136 wherein it was held that there is a distinction between burden of proof and onus of proof and burden to proof lies upon a person who has to prove the fact, which never shifts, however, onus of proof shifts. Such a shifting of onus is a continuous process. Accordingly, the learned appellate court took note of that there was an order for production of the original gift deed No.4411/66, but the plaintiffs failed to take steps in this regard to call for the original copy of the disputed gift deed.

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Accordingly, the learned appellate court arrived at its conclusion that the exhibit-4 gift deed No.4411/66 is not a forged document, and, therefore, it is not void, illegal and inoperative and further that the conclusion is also binding upon the counter claimants too and therefore, amongst others, the gift deed was held to be not void and liable to be cancelled.

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Being aggrieved by the judgment and order dated 12.11.2018 in TA No.63/2010 (Old) corresponding to TA No.45/2014 (new), the defendants No.6 and 7 being the counter claimants have preferred this regular second appeal. Before proceeding further, we reiterate that the prayer of the plaintiffs for a declaration that the gift deed No.4411/66 to be void and inoperative and the prayer of the counter claimants in their counter claim are same, amongst others, to the extent that the gift deed No.4411/66 is void and inoperative. We further take note of that against the dismissal of the suit which also included the relief for a declaration that the gift deed No. 4411/66 no appeal filed by the plaintiffs is before us, when this regular second appeal is being taken for its consideration.

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Mr. NN Jha, learned counsel for the appellants seeks to frame the following substantial question of law:

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‘Whether non-production of the gift deed No.4411/66 by the defendants No.1 to 5 had nonsuited the counter claimants.”

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In order to answer the said substantial question of law, the relevant facts to be taken note of would be firstly the prayer of the plaintiffs and that of the counter claimants as regards the illegality and inoperativeness of the gift deed No.4411/66 is one and the same. The appellant counter claimants in their written statement, amongst others, had taken a stand that the gift deed No.4411/66 was forged. A reading of the written statement of the appellant counter claimants, being the defendants No.6 and 7, would show that it is a positive stand of the appellant counter claimants that the gift deed is a forged document. Accordingly in order to arrive at a conclusion as regards the prayer for a declaration that the gift deed No.4411/66 is a forged document for the purpose of allowing the counter claim, the onus of proving that the gift deed is forged would also be upon the appellant counter claimants. In this respect, we require the appellant counter claimants to produce the relevant materials on evidence that they may have produced in discharge of their burden to prove that the gift deed is a forged document. In response thereof, the evidence in chief of the counter

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claimant, namely, Jayanti Bala Kalita has been referred to. After going through the evidence in chief of the counter claimant witness, it is taken note of that except for a statement that the gift deed No.4411/66 is a forged document, no evidence in any other form has been adduced by the counter claimants to substantiate their claim that the gift deed is a forged document.

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The propositions laid down by the Supreme Court in Addagada Raghavamma (supra) that the shifting of the onus of proving is a continuous process would also be applicable in respect of the contention raised by the appellant counter claimants in the present case. There being no appeal against dismissal of the suit by the plaintiffs and the appellant counter claimants having made the same prayer as that of the plaintiffs for a declaration that the gift deed No.4411/66 is forged and fraudulent, in order to substantiate the claim made in the counter claim, there would be a shifting of onus of proving also upon the appellant counter claimants that the gift deed No.4411/66 was a forged and fraudulent document.

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In such situation, the conclusion that we can arrive is that the appellant counter claimants had not discharged their burden to prove their positive stand taken in the counter claim that the gift deed is a forged document. In the circumstance, the only question that Mr. NN Jha, learned counsel for the appellants seeks to raise is that the original of the gift deed No.4411/66 which was in possession of the defendants No.1 to 5 was not produced in the Court. This aspect of the matter was gone through by the learned Civil Judge and in paragraph 20 of its judgment a conclusion was arrived that although there was an order for production of the original gift deed No.4411/66, but the plaintiffs had failed to take any steps in this regard to call for the original disputed gift deed No.4411/66. Apart from the said conclusion of the learned First Appellate Court there is no other material available on record that the appellant claimants/defendants No.6 and 7 at any stage of trial proceeding had taken the necessary steps requiring the disputed gift deed No.4411/66 to be called from the defendants. In the absence of any material being produced that the appellant counter claimants had infact called for the gift deed No.4411/66 to be produced by the defendants No.1 to 5, who were stated to have been in possession of the same, the substantial question of law sought to be raised in this second appeal that ‘whether non-production of the gift deed No.4411/66 by the defendants No.1 to 5 had non-suited the counter claims’ has to be answered in the negative against the appellant.

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In view of such conclusion, we do not find any merit in this regular second appeal and the same stands dismissed.

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JUDGE

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Comparing Assistant

Smti. Abala Kalita and 6 Ors. v. Sri Umesh Kalita and 13 Ors.

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Smti. Abala Kalita and 6 Ors. v. Sri Umesh Kalita and 13 Ors.

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