(Dipak Basak vs Goutam Mukherjee & Ors.)
2023 Latest Caselaw 3017 Cal

                        IN THE HIGH COURT AT CALCUTTA
                                   Civil Appellate Jurisdiction
                                      APPELLATE SIDE



Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee


                                          FA 134 of 2018
                                               with
                        IA No.: CAN 1 of 2017 (Old No. CAN 2447 of 2017)
                          (Dipak Basak -vs- Goutam Mukherjee & Ors.)
                                               with
                                         FA 66 of 2023
                                       FAT 262 of 2017
                           (Goutam Mukherjee -vs- Dipak Basak & Ors.)


For the Appellant
(in FA 134 of 2018) &
for the respondent
(in FA 66 of 2023)            :      Mr. Probal Kumar Mukherjee, Sr. Adv.,
                                     Mr. Susenjit Banik,
                                     Ms. Sutapa Mukhopadhyay,
                                     Mr. Mrinal Saha.

For the Appellant
(in FA 66 of 2023) &
for the respondents
(in FA 134 of 2018)           :      Mr. Shiba Prasad Mukherjee,
                                     Mr. Debanjan Mukherjee,
                                     Mr. Shuvajit Bose.



Hearing is concluded on       :      29th March, 2023.



Judgment On                   :      28th April, 2023.
                                        2




Tapabrata Chakraborty, J.

1. Judgment and decree dated 27th January, 2017 passed by the learned

Civil Judge (Senior Division) Small Causes Court & Sessions Court at Sealdah

in Title Suit no. 18 of 2010, whereby the suit preferred by one Dipak Basak (in

short, Dipak) and the counter-claim of the defendants, namely, Goutam

Mukherjee (in short, Goutam) and Rani Mukhejee (in short, Rani) were

dismissed, have been impugned in the present appeal. The appeal against the

dismissal of suit has been registered as FA 134 of 2018 and the appeal against

rejection of the counter-claim has been registered as FA 66 of 2023. As both

the appeals arise out of the same judgment, the same have been heard

analogously.

2. Facts spelt out in the plaint, in brief, are that one Saraswati Devi (in

short, Saraswati) happened to be absolute owner of the land and building at

11/48, Ultadanga Road, Kolkata - 700004 under police station Ultadanga. The

plaintiff, namely, Dipak came to know that Saraswati was interested to dispose

of the entire ground floor, second floor together with the roof over the second

floor of the building and he accordingly approached her to purchase the same

at a consideration of Rs.4,00,000/-. Both sides having agreed, two separate

deeds of conveyance were executed on 16th November, 2000 in consideration of

Rs.4,00,000/-. Thereafter, the possession of the suit property was handed over

to Dipak and he put his belongings in the same. Defendant no.1, namely,

Goutam is the son of Saraswati and the defendant - 2, namely, Rani is the wife

of Goutam, who are residing in the 1st floor of the building. Saraswati was a

resident of the ground floor and 2nd floor of the suit property and after delivery

of possession, she left Kolkata on 16th January, 2000 with her youngest

daughter, namely, Dola Chakraborty and went to Mumbai. On the next date,

Goutam and Rani with some antisocial put padlock at the ground floor and 2nd

floor of the suit property and prevented Dipak to enter into the suit property.

Aggrieved thereby, Dipak filed a petition u/s 144 (2) of the Code of Criminal

Procedure (in short, the said Code) before the learned Executive Magistrate,

Sealdah. Goutam and Rani have no right, title and interest over the suit

premises and they dispossessed the plaintiff from the suit property in utter

violation of the law and as such, the suit.

3. The defendants, namely, Goutam and Rani filed a written statement

on 27th March, 2002 contending inter alia that Saraswati never proposed to sell

the property to Dipak and that the deeds claimed to have been executed are

illegal and invalid. The original deeds are fabricated because Saraswati had no

capacity to sign or put any thumb impression as she was suffering from

serious illness during that time. Saraswati always used to put her signature in

Bengali and Dola forcibly took away Saraswati from the custody of Goutam and

Rani. The thumb impression in the deeds are not of Saraswati. If at all any

such deed was executed, the contents of the same were never explained to

Saraswati and she did not receive the consideration money. The only witness to

those deeds was the conspirator Dola, a resident of Mumbai whose intention

was to oust Goutam from the suit property. Goutam and Rani denied the

allegation of putting padlock at the suit property. Dipak never got possession of

any portion of the suit property and he cannot be dispossessed.

4. Thereafter on 4th July, 2015, Goutam filed a counter-claim seeking a

declaration that the alleged two purchase deeds dated 16th November, 2000

were not executed by Saraswati in favour of Dipak and are illegal, invalid

asserting that Saraswati was merely a name lender and holding the property in

benami for his father Late Sanat Mukherjee. After demise of his father,

Saraswati along with her son and two daughters became the legal heirs and

Goutam being the only son is in possession and enjoyment of the entire suit

property as one of the co-owners and rightful occupier and Dipak was not

entitled to purchase any portion of the suit property solely from Saraswati. The

purchase deeds dated 16th November, 2000 are forged and manufactured. No

consideration money ever passed through the said deeds and the same needs

to be declared as void documents. Saraswati was suffering from physical

disabilities since 1994 when she was attacked with 'cerebral thrombosis' and

was again attacked in the year 1995 and from that time, Saraswati lost all his

memory. She could not move and act on her own and lost all her mental

ability.

5. The plaintiff/Dipak filed a written statement against the counter claim

denying that Saraswati was holding the suit property as benamdar for her

husband. Saraswati was owner of the suit property as her exclusive property

and Goutam was never occupying the entire suit property and denied the

aspersions upon his sisters regarding collusive execution of the deeds.

Saraswati after going through the deeds and its contents duly executed the

deeds putting her left thumb impression. Saraswati was not suffering from

physical disability or memory loss.

6. The proforma defendant no.3, namely, Dola appeared in the suit and

filed a written statement supporting Dipak's case. She admitted that Dipak

was put in possession of the suit property after execution of the deeds of

conveyance and averred that Saraswati resided with her till her last breath.

7. Considering the pleadings, the learned Court below framed the

following issues :

i. Are the suit and counter claim maintainable in its present form ?

ii. Has the plaintiff/defendant any cause of action to file the instant suit

and counter claim ?

iii. Is the plaintiff lawful owner of the suit property ?

iv. Is the plaintiff entitled to the decree of recovery of possession of the suit

property ?

v. Is the plaintiff entitled to get the damages as prayed for ?

vi. To what other relief, the plaintiff/defendants are entitled ?

After acceptance of the counter claim, in view of the order of the Hon'ble

High Court, in C.O. No.1190/2015 dated 22.06.2015 following three additional

issues were re-casted :

vii. Is the defendant -1 a lawful occupier in the suit property ?

viii. Are the deeds dated 16.1.2000 legal, valid and binding upon the

parties ?

ix. Is the defendant - 1 a rightful co-owner of the suit property ?

8. In corroboration of the facts depicted in the plaint, the plaintiff

adduced himself as PW - 1 and tendered the sale deeds dated 16th November,

2000, which were marked as Exhibit nos. 1 & 2. Goutam adduced himself as

the sole witness of the defendants and tendered certified copy of the petition

u/s. 144 Cr.P.C. in M.P. Case No.2614/2000, certified copy of the Police Report

in the said M.P. Case, orders dated 10th November, 2000 and 14th November,

2000 in the said M.P. Case which were marked as Exhibit nos. A, A/1, A/2 &

A/3 respectively. A certified copy of the partition deed dated 17th June, 1986

was marked as Exhibit no. B. A rent receipt dated 21st August, 1960 and

certified copy of injunction order dated 14th February, 2007 were marked as

Exhibit nos. C and D respectively. One Babin Chatterjee appeared as a

summoned witness and was examined as D.W.2. During pendency of the suit,

proforma defendant Saraswati died and she was substituted by her two

daughters, namely Mira Banerjee and Dola Chakraborty.

9. The learned Court below by the judgment and decree impugned

dismissed the suit disbelieving the contention of the appellant that delivery of

possession of the suit property was effected in his favour since the appellant

failed to discharge the onus to establish such positive assertion as regards

delivery of possession. The deposition of the appellant, according to the learned

Court, was insufficient towards grant of a decree for recovery of possession and

restoration. The learned Court was also skeptical as regards genuineness of

the plaintiff's claim since no explanation was furnished as regards the delay of

about 15 years towards registration of the deeds. The counter claim of the

respondents was also rejected by the learned Court since the said respondents

failed to discharge their onus to establish that Saraswati was suffering from

severe medical ailments and that the thumb impression in the deeds of

conveyance is not of Saraswati. The fact that the respondents chose not to

summon Dola and to cross-examine her though she was a witness to the deeds

of conveyance also weighed with the learned Court in rejecting the counter

claim. The presumption about validity of the deeds also could not be disrupted

by the respondents on the basis of the evidence brought on record by the

respondents and accordingly their counter claim was refused.

10. Mr. Probal Kumar Mukherjee, learned advocate appearing for the

appellant in FA 134 of 2018/respondent in FA 66 of 2023 submits that Dipak

became the lawful owner of the suit property by virtue of the deeds of

conveyance executed by Saraswati, since deceased. Dola was one of the

witnesses of the said deeds and she had admitted the execution of the same in

favour of the appellant. Goutam also in course of his deposition had admitted

that his mother was the absolute owner of the suit property. Such fact also

stands corroborated through the deposition of D.W. 2, namely, Babin

Chatterjee (in short, Babin), the cousin brother of Goutam. In course of his

examination, Babin stated that 'Saraswati Devi got all properties from her

matrimonial side'.

11. He argues that the deeds of conveyance are registered and contains

an unambiguous declaration of total divestment of property. A registered

document carries with it a presumption that it was validly executed and as

such it was incumbent upon the party questioning the genuineness of such

transaction to show that the transactions were not valid in law. In support of

such contention reliance has been placed upon a judgment delivered in the

case of Abdul Rahim and others -vs- Sk. Abdul Zabar and others, reported in

(2009) 6 SCC 160.

12. He contends that on the date of execution of the deeds, Saraswati

handed over peaceful vacant possession to Dipak but on 17th November, 2000,

he was forcibly dispossessed and aggrieved thereby Dipak filed an application

u/s 144 of the Code. In the backdrop of such sequence of facts, the learned

Court below ought to have appreciated that there was no further necessity on

the part of the appellant to establish his dispossession by asking for an

inspection.

13. According to Mr. Mukherjee, the learned Judge failed to appreciate

the scope and ambit of Section 34 of the Specific Relief Act and proceeded on

the basis that the declaration sought for by the appellant was otiose since no

evidence surfaced to imperil his title to the property. Such finding is absolutely

contrary to the finding that 'from the evidence it appears that the entire

transaction was nothing but a paper transaction'.

14. He further submits that Goutam, having knowledge about the fact

that Dola was the witness to the deed and that she had filed a written

statement, did not take any steps to summon Dola or to cross-examine her and

miserably failed to establish that the deeds were invalid and the learned Court

rightly rejected the counter claim of the respondents.

15. Drawing our attention to the averments made in the plaint, Mr.

Shiba Prasad Mukherjee, learned advocate appearing for the respondent,

namely, Goutam submits that there was no proper pleading to the effect that

Dipak approached Saraswati and in turn Saraswati agreed to sell the ground

floor and second floor of the house property at a paltry consideration of Rs.4

lakhs though in the year 2000 the value of the property, which is situated at

Ultadanga Road, was about Rs.55 lakhs. The averments in the plaint would

reflect that the deed of conveyance was allegedly executed on 16th November,

2000 and on the self-same date Dipak was allegedly handed over peaceful

vacant possession and on the said date itself Saraswati left Calcutta with Dola

for Mumbai and on the very next date, i.e., 17th November, 2000, the

respondents along with anti- socials put lock and key over the pad lock affixed

by Dipak in the ground floor flat and in the second floor flat of the building.

Such fact was stated to have been put on record through an application under

Section 144(2) of the Code and it was further stated that a report was

submitted by the concerned official of the local police station between the

learned Court. However, no such report was exhibited and in course of his

cross examination, Goutam stated that on 17th November, 2000 the defendants

restrained him and though he filed an application u/s 144 of the Code, he did

not lodge any complaint with police.

16. He argues that the allegation that Goutam and Rani had tortured

Saraswati is absolutely unfounded. Goutam's father, namely, Sanat along with

Saraswati were residing along with Goutam and Rani in the suit property since

long. Sanat ultimately expired on 5th June, 2000 and even thereafter till the

date of alleged execution of the sale deeds there was no contemporaneous

complaint to the effect that Goutam and Rani had tortured Saraswati. It would

be surprising to note that Dola filed the application under Section 144 of the

Code of Criminal Procedure on 10th November, 2000 stating inter alia that

Saraswati was suffering from various ailments and also 'suffered twice with

cerebral paralyses and for want to food, necessary treatment and nursing she is

facing tremendous troubles' and that she came to learn that for want of proper

treatment, food and nursing Saraswati was passing her days in constant

hardship and that she wants to reside with her daughter. In the said

application an order was passed on 10th November, 2000 directing the OC,

Ultadanga P.S. enquire and report by 14th November, 2000 and to issue notice

upon the opposite parties, i.e., Goutam and Rani to appear before the Court on

14th November, 2000. No such notice was served and abruptly on 14th itself an

order was passed directing the OC P.S. 'to see that at the time of taking away

petitioner's mother from the schedule premises by the petitioner no obstruction,

disturbance is created by the Ops leading to any breach of peace'. In the said

proceeding ultimately a police report was submitted on 19th November, 2000

though there was a direction to file such report on 14th November, 2000. In the

said report it was stated inter alia that in course of enquiry Saraswati was

contacted and she expressed her willingness to go with Dola. In the written

statement Dola had not disclosed the date on which Saraswati was removed by

her from the suit property on the strength of the order dated 14th November,

2000. It would be surprising to note that the deeds were executed on 16th

November, 2000 and the memo of the first deed executed at 1.23 hours refers

to a bank draft dated 14th November, 2000 of Rs.2 lakhs drawn on Indian

Overseas Bank, Central Clearing Office, Bombay and purchased from Indian

Overseas Bank, Dumdum Park Branch. The memo of the second deed executed

on the same date at 13.40 hours refers to five bank drafts dated 13th

November, 2000 of Rs.40,000/- each drawn on UBI, SR Branch, Mumbai and

all the drafts purchased from UBI, Sovabazar Branch. The drafts were, thus,

drawn up about three dates prior to execution of the deed. The very execution

of the deeds is shrouded with suspicious circumstances moreso when

Saraswati was literate, the deeds were executed on the basis a left thumb

impression.

17. He contends that the chain events leading to execution of the sale

deed in the year 2000 with a consideration of Rs. 4 lakhs, the belated

registration of the deeds about 15 years thereafter, the hot haste in filing

application under Section 144 and removal of Saraswati from the suit property

on the strength of an order passed in the absence of Goutam and Rani on 14th

November, 2000 and shifting Saraswati to Mumbai on 16th November, 2000

casts serious doubts about execution of the deeds moreso when there is no

evidence on record towards delivery of possession in favour of Dipak and as

such the learned Court erred in law in law in not declaring the deeds to be

invalid.

18. In reply, Mr. Probal Kumar Mukherjee submits that the paramount

title of Saraswati as regards the suit property stands admitted and no evidence

has been brought on record on the strength of which the validity of the deeds

can be doubted.

19. The key to unravel the complexities of the problem posed lies in the

pleadings and the deposition tendered by the respective parties. The precise

degree of imperfections needs to be investigated and categorised on the

rudiments of preponderance of probabilities. Inference from the evidence and

circumstances must be carefully distinguished from conjectures or speculation.

Standard of proof cannot be put in a strait-jacket formula. No mathematical

formula could be laid on degree of proof. The probative value could be gauged

from facts and circumstances in a given case.

20. In a suit for recovery of possession based on title it is for the plaintiff

to prove his title and satisfy the Court that he, in law, is entitled to dispossess

the defendants from their possession over the suit property and for the

possession to be restored to him. There is an essential distinction between the

burden of proof and onus of proof; burden of proof lies upon a person who has

to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of

onus is a continuous process in the evaluation of evidence. In the present case

Dipak in course of his cross examination stated that he had no document to

show that Saraswati got the property. He got possession of the property in the

afternoon of 16th November, 2000 and that on that day Saraswati and Dola

came to the Registry Office and left. He also deposed that on the very next date

the defendants restrained him and though he filed an application u/s 144 of

the Code, he did not lodge any complaint with police. He also deposed that

Saraswati was literate in Bengali and that Binod Goswami can say that he got

possession by virtue of the deeds. However, Binod Goswami was not

summoned.

21. Dipak has failed to discharge his onus to prove his assertion that he

was put in possession of the suit property and was forcibly dispossessed

thereafter. He has not been able to create a high degree of probability so as to

shift the onus on the defendants. In view thereof, we do not found any infirmity

in the observation of the learned Court that question of issuance of any decree

towards recovery of possession in favour of the plaintiff does not arise when the

factum of possession does not stand established and as such the title suit has

been rightly dismissed by the learned Court. That apart, Dipak is a stranger

purchaser and as such he is not entitled to claim joint possession.

22. In their counter claim, the respondents prayed for declaration that

the deeds were invalid and that Goutam was the rightful co-owner of the suit

property and that Saraswati was holding the property in benami and her

husband was the real owner.

23. The respondents could not establish that the left thumb impressions

in the deeds were not of Saraswati and that the deeds were void. The allegation

of fraud towards execution of the deeds does not stand corroborated through

the deposition of Goutam inasmuch as in course of cross examination he

stated that he has 'never filed any criminal case against Dola Chakraborty that

she got the suit property transferred by my mother by execution of a deed'. The

evidence brought on record by the respondents was not strong enough to

overcome the rigors of legal presumption as regards validity of the deeds since

they were registered.

24. Goutam himself in course of his cross examination stated that his

mother 'became owner of the suit property by partition' and that his 'mother

during her life time sold the property after demise of my father'. Babin

Chatterjee, the cousin brother of Goutam in course of his examination also

stated that 'Saraswati Devi got all properties from her matrimonial side'. As

such, the respondents' claim that Goutam was the rightful owner of the suit

property and that Saraswati was holding the property in benami and her

husband was the real owner, have no legs to stand. Question of cancellation of

the deeds at the instance of Goutam would have occasioned had his title been

affected by the deeds. Having admitted in course of his deposition that his

mother was the absolute owner of the property, he cannot turn back and claim

cancellation of the said deeds, moreso when the same had not been executed

by a stranger to that title or least to say by any co-sharer of the property.

25. In view thereof, the decision towards rejection of the respondent's

counter claim does not suffer from any infirmity warranting interference of the

Court.

26. Accordingly, both the appeals are dismissed. Judgment and decree

impugned herein is affirmed. Parties shall bear their own costs.

27. Let a decree be drawn up, accordingly.

28. Let a copy of this judgment along with LCR be sent down to the

learned Court below forthwith.

29. Urgent Photostat copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of all

formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)