Calcutta High Court (Appellete Side)
Chittaranjan Mondal & Ors vs Ar Swapan Mondal & Ors on 10 January, 2023
31 10.01.2023 SAT 11 of 2015
with
Ct-08 I.A No. CAN 1 of 2015(Old CAN No. 5077 of 2015)
CAN 2 of 2015(Old CAN No. 6029 of 2015)
Chittaranjan Mondal & Ors.
Vs.
ar Swapan Mondal & Ors.
The appeal is defective. However, no attempt
has been made to remove the defects. The
appeal is of the year 2015.
The appeal appeared in the warning list on
29th November, 2022 with a clear indication that
the same shall be transferred to the regular list
on 5th December, 2022, since then the matter is
appearing in the list. Therefore, the appellants
have due notice.
The defects notified by the stamp reporter in
his report dated 17.01.2015 have not yet been
removed by the appellants.
The appellate decree dated 7th August, 2014
affirming the judgment and decree passed by the
trial court on 30th August, 2011 in a suit for
declaration and permanent injunction is the
subject matter of challenge in this second
appeal.
We have carefully gone through the judgment
of the trial court as well as the first appellate
court.
The trial court decreed the suit on contest
against the defendant nos. 2 to 4. The trial court
arrived at a clear finding that 4 plots comprising
of the schedule property, only 15 decimal out of
1.
22 acres in plot no. 775 has been recorded in
favour of the contesting defendants. Therefore, it
cannot be said that the defendants have
obtained possession of the schedule property by
virtue of the disputed deed.
The trial court has declared the registered
deed no. 665 of 2006 executed by the defendant
no. 1 in favour of the defendant nos. 2 to 4 void.
On the basis of the finding it appears that
one Jagannath Mondal was the original owner of
the suit property. The defendants alleged that
after the demise of Jagannath the schedule
properties along with other non-suited properties
devolved upon his four sons and one daughter
and each of them had 1/5th share in the same.
However, the plaintiffs have contended that they
obtained the 'Ka' schedule properties, partly from
Jagannath Mondal and partly from Bidyutprava
Mondal and others by virtue of registered deeds
in the year 1965 and 1976 respectively and
accordingly they have produced such deeds by
marking Exhibits 1 and 2 respectively. While
defendant nos. 2 to 4 have alleged that they have
no knowledge of such deeds in favour of the
plaintiffs. They have in the same breath
contended that Exhibits 1 and 2 are illegal,
collusive without jurisdiction and as such void
ab initio, though it is worth mentioning that they
have sought no relief in their counter claim
regarding declaration to the effect that the
impugned title deeds of the plaintiffs are void.
The contesting defendants traced their title
on execution of a deed in favour of the defendant
no. 1, who happens to be the daughter of
erstwhile owner Jagannath Mondal. The
defendant no. 1 was never produced as witness
to prove Exhibit-5/Exhibit-A as title deed.
The first appellate court in concurring with
the views taken by the trial court noticed that
the defendants did not produce any original deed
of sale being no. 665/2006. They also could not
explain the occasion for executing such deed in
their favour. Exhibit-5/Exhibit-A would show
that that the appellant nos. 1(ka) and 1 (Gha)
who were the legal heirs of the defendant no. 1
have neither participated in the alleged deed of
sale nor there was any clear finding to that effect
that they were present at the time of execution of
the said deed.
It is an admitted position of fact that the Ka
schedule property belonged to Jagannath
Mandal, Bidyutprabha Mandal and others. In
his cross-examination Chittaranjan Mandal, the
defendant no. 2 as D.W 1 has categorically
admitted that the Ka schedule land previously
belonged to Jagannath Mandal and
Bidyutprabha Mandal. From Exhibit-1 and the
Exhibit-2 it is sprouted that Jagannath Mandal
by executing deed of gift being no. 1570/1965
and Bidyutprabha Mandal, Chittaranjan Mandal,
Ashok Kumar Mandal and Amar Kumar Mandal
by executing deed of sale being no. 10494/1976
transferred the Ka schedule property to the
plaintiffs. In his cross-examination the D.W1
has also admitted that Bidyutprava Mandal
transferred her share in the suit property in
favour of the plaintiffs by way of sale. Exhibit-3
and Exhibit-3(1) raise presumption that the
plaintiffs are the raiyats-in-possession of the Ka
schedule property. So, it is crystal clear that the
plaintiffs have right, title and interest in the Ka
schedule property and the learned Trial Court
has rightly declared the title of the plaintiffs in
the Ka schedule property.
The first appellate court had relied upon the
decision of the Hon'ble Supreme Court in
Vidhyadhar Vs. Mankikrao, reported in AIR
1999 SC 1441 with regard to the adverse
interference that the court shall draw and
presume when a party does not appear and give
evidence with regard to the fact in issue and in
Shri Ranjit Kumar Bysack Vs. International
Airports Authority and Ors., reported in 2001
WBLR (Cal) 659 for the consequences that are
likely to follow for not producing the best
evidences.
The trial court has also relied upon the
decision of Bhaskar Sahu vs. Anama Swara,
reported in AIR 1987 Ori 138 with regard to the
requirement to lead oral evidence to prove the
contents of the documents. The said judgment
was relied upon as the defendant was unable to
produce the original sale deed. The relevant
observation of the said judgment -"....... It is so
well settled in law that it requires no reference to
any decided case for the proposition that a
foundation must first be laid for the reception of
secondary evidence and no secondary evidence of
a document is permissible unless the conditions
mentioned in S. 65 are satisfied........"
"From the evidence on record we do not find
that the plaintiff has adduced any evidence
explaining the reasons for non-production of the
original sale deed, even though objection was
taken to its admissibility at the time when the
certified copy of the sale deed was sought to be
introduced in evidence. The certified copy of the
sale deed was tendered in evidence through P. W.
1 and in the deposition recorded, the certified
copy of the sale deed is mentioned to have been
marked as Ext. 1 with objection. It was improper
on the part of the Court not to make a note thereof
in the order-sheet of the date on which the
document was so admitted in evidence and not to
decide the objection at all which he was expected
to do either immediately thereafter or at least at
the close of the evidence. It further appears that
the contesting defendant did not press their
objection against the admissibility of Ext. 1 for
which there is no mention about the same in the
impugned judgment. That apart, from the evidence
of P. W. 1 we do not find any statement which will
prove the contents of the original the certified copy
of which was sought to be proved. When a
certified copy is allowed to be produced under
Section 65, Evidence Act, there is no presumption
as to the genuineness or the execution of the
original and the Court should not admit a
document merely on the ground that it is a
certified copy of the original, unless the execution
of the original is proved or admitted by the
persons against whom the same is to be relied on.
The admission of Ext. 1 in evidence without laying
the foundation for reception of secondary evidence
and without proof of the contents of the original by
proving its execution was improper specially when
the objection raised about its admissibility was
never decided by the Court."
The first appellate court has also relied upon
the decision of the Hon'ble Supreme Court in A.
Raghavamma & Ors. Vs. A. Chenchamma &
Ors., reported in AIR 1964 SC 136 where it has
been held that " now coming to the documentary
evidence, as we have already indicated, all the
relevant documents admitted to have been in
existence have not been placed before the Court
and an adverse inference has, therefore, to be
drawn against the appellant."
The learned Trial Judge has also refused to
exercise its discretion in allowing Order 41 Rule
11 of the C.P.C as it is well-settled principle of
law that a party cannot be permitted to adduce
additional evidence for the purposing of filling up
the lacuna.
On the basis of the evidence on record, we
are of the view that it is a possible view that the
trial court and the first appellate court could
have taken the preponderance of probabilities.
In view of the above, we do not find any
reason to interfere with the concurrent finding of
facts.
The appeal accordingly fails.
The second appeal is, therefore, summarily
dismissed under Order XLI Rule 11 of the Code of
Civil Procedure at the admission stage.
In view of dismissal of the appeal CAN 5077 of
2015 and CAN 6029 of 2015 are also dismissed.
There will be no order as to costs.
(Uday Kumar,J.) (Soumen Sen, J.)
