Page No.# 1/4 vs On The Death Of Ganesh Chandra ...
2022 Latest Caselaw 383 Gua

                                                                 Page No.# 1/4

GAHC010050942021




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

                              Case No. : CRP/24/2021

         DINESWARI KALWAR AND 2 ORS
         W/O LATE SONALAL KALWAR,
         RESIDENT OF TITABAR CHARIALI, PO AND PS TITABOR, DIST JORHAT,
         ASSAM

         2: SRI BIJAU KALWAR
          S/O LATE SONALAL KALWAR

         RESIDENT OF TITABAR CHARIALI
         PO AND PS TITABOR
         DIST JORHAT
         ASSAM

         3: SRI SANJIB KALWAR
          S/O LATE SONALAL KALWAR

         RESIDENT OF TITABAR CHARIALI
         PO AND PS TITABOR
         DIST JORHAT
         ASSA

         VERSUS

         ON THE DEATH OF GANESH CHANDRA DUTTA HIS LEGAL HEIRS ANU
         DUTTA AND 3 ORS
         W/O LATE GANESH CHANDRA DUTTA
         C/O SRI ANU DUTTA, RESIDENT OF VILLAGE DHOLI SONARI GAON,PO
         THENGAL, PS TITABOR, DIST JORHAT, ASSAM

         2:SRI RANJAN DUTTA

         S/O LATE GANESH CHANDRA DUTTA
         C/O SRI ANU DUTTA
         RESIDENT OF VILLAGE DHOLI SONARI GAON
                                                                                           Page No.# 2/4

             PO THENGAL
             PS TITABOR
             DIST JORHAT
             ASSAM

             3:ANTRA DUTTA

             D/O LATE GANESH CHANDRA DUTTA
             C/O SRI ANU DUTTA
             RESIDENT OF VILLAGE DHOLI SONARI GAON
             PO THENGAL
             PS TITABOR
             DIST JORHAT
             ASSAM

             4:PALLAVI DUTTA
              D/O LATE GANESH CHANDRA DUTTA
             C/O SRI ANU DUTTA
              RESIDENT OF VILLAGE DHOLI SONARI GAON
             PO THENGAL
              PS TITABOR
              DIST JORHAT
             ASSA

Advocate for the Petitioner     : MR. M U MAHMUD

Advocate for the Respondent :




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                               ORDER

07.02.2022

Heard Mr. M. U. Mahmud, learned counsel appearing for the petitioners. The Office Note dated 25.03.2021 shows that the petitioners took steps for service of notice upon the respondents but till today, no report has come. I have gone through the office notes. The notices are deemed to have been served.

This is an application under Article 227 of the Constitution of India whereby the impugned order dated 20.02.2021 passed by the learned Munsiff, Titabor in Misc (J) Case No. 02/2015 is put to challenge.

On 04.04.1973, on execution of a registered sale deed, late Ganesh Chandra Dutta had purchased a plot of land measuring 14 lechas from Shri Ali Nesim Hazarika. Thereafter, in the year 1985 late Page No.# 3/4

Ganesh Chandra Dutta filed a suit being TS 13/1985 against the present petitioners praying for their ejectment and for recovery of possession of 5 lechas of land out of the said 14 lechas of land. The vendor Shri Ali Nesim Hazarika was also made one of the defendants in the suit.

The only plea taken by the petitioners (defendants in the suit) is that they have been possession in the said plot of land before late Ganesh Chandra Dutta purchased it from Shri Ali Nesim Hazarika. They pleaded that though late Ganesh Chandra Dutta had purchased the land, possession of the land was never handed over to him by the said vendor.

During the course of trial, the name of Shri Ali Nesim Hazarika was stuck off from the plaint. Finally, the Court of the Munsiff dismissed the suit, primarily on the ground that the plea of dispossession could not be proved by late Ganesh Chandra Dutta.

Late Ganesh Chandra Dutta preferred the first appeal being Title Appeal No. 02/1997. The appellate court dismissed the appeal.

Late Ganesh Chandra Dutta did not file any second appeal. Therefore, the present petitioners filed an execution case being Title Execution Case No. 06/2014 for possession of some lands which are occupied by some other persons.

In the meantime, late Ganesh Chandra Dutta filed an application before the trial court under section 47 of the Code of Civil Procedure that was registered as Misc (J) Case No. 02/2015. In that petition, he has claimed that he never received the notice of the execution case. Late Dutta further claimed that since the trial court did not pass any decree in his favour, therefore, there is nothing to be executed.

After filing of the aforesaid petition, late Ganesh Chandra Dutta expired and his son was substituted in his place. But son of late Ganesh Chandra Dutta informed the trial court he would not appears as a witness in the said case. Therefore, on 20.02.2021, court below accepted the said request and directed him to take steps for service of notice upon official witnesses.

Mr. Mahmud submits that though late Ganesh Chandra Dutta purchased the land from Shri Ali Nesim Hazarika but this vendor was never examined in the trial court. Mr. Mahmud further submits that for more than 90 years from today these petitioners have been in occupation of the land. According to Mr. Mahmud, though Shri Ali Nesim Hazarika sold the land to late Ganesh Chandra Dutta, the possession of the land was never handed over to the purchaser late Ganesh Chandra Dutta and in order to gain possession of the land the suit was filed in the court below.

I have heard Mr. Mahmud at length.

At this stage, this court is concerned with Misc. (J) Case No. 02/2015. Shri Ranjan Dutta being the son of late Ganesh Chandra Dutta filed an application on 20.02.2021 informing the court below that he did not want to examine himself as a witness in the case.

It is a cardinal principle of law of evidence that whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must proved that those facts exist. The burden of proving those facts lies upon him (see section 101 of the Indian Evidence Act).

In the case of Vidhyadhar v. Manikrao, reported in (1999) 3 SCC 573, the Supreme Court held as under:

"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would Page No.# 4/4

arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119] . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924].The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN 119]. The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box."

When the petitioners refused to examine himself as a witness for proving the facts alleged in his petition, naturally, the court will have no hesitation to hold that the allegations raised in the petition are not true. The learned trial court was unnecessarily proceeding further with the matter by wasting precious judicial time. Therefore, the impugned order dated 20.02.2021 passed by the Munsiff, Titabor in Misc. (J) Case No. 02/2015 is set aside.

The revision petition stands disposed of accordingly.

JUDGE

Comparing Assistant