Page No.# 1/15 vs Md.Ashirruddin Ahmed
2025 Latest Caselaw 3381 Gua

Gauhati High Court

Page No.# 1/15 vs Md.Ashirruddin Ahmed on 21 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/15

GAHC010008072010




                                                        2025:GAU-AS:1949

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

                             Case No. : RSA/250/2010

         SARASWATI GHOSH and10 ORS


         2: BIMAL GHOSH


         3: SMTI UMA GHOSH


         4: NIRMAL GHOSH


         5: SMTI CHAYA GHOSH


         6: SMTI RADHA GHOSH


         7: SMTI KRISHNA GHOSH


         8: SMTI REENA GHOSH


         9: JHUMA GHOSH


         10: SMTI KABITA GHOSH


         11: SMTI RATIRANI GHOSH

          ALL ARE THE LEGAL HIRE OF LATE BHAKTA CHANDRA GHOSH
          RESIDENTS OF WARD NO. 1
                                                                   Page No.# 2/15

            KARUPETIA TOWN
            MAUZA and P.O. KHARUPETIA
            P.S. DALGAON
            DIST. DARRANG
            ASSAM

           VERSUS

           MD.ASHIRRUDDIN AHMED
           S/O LATE MAFIZUDDIN, VILL. BOLOGARAH, MAUZA-SHYAMABARI, P.S.
           DHULA, P.O. KHARUPETIA, DIST. DARRANG, ASSAM.




                                  BEFORE
                HON'BLE MR. JUSTICE DEVASHIS BARUAH


          Advocate for the appellant(s) : Ms. P Chakraborty


          Advocate for the respondent(s): Mr. S Banik


          Date of hearing & judgment     : 21.02.2025



                        JUDGMENT & ORDER (ORAL)

Heard Ms. P Chakraborty, the learned counsel appearing on behalf of the appellants. Mr. S Banik, the learned counsel appears on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dated 07.07.2010 Page No.# 3/15

passed in Title Appeal No. 02/2008 by the Court of the learned Additional District Judge (FTC) Darrang, Mangaldoi (hereinafter to be referred to as the First Appellate Court) whereby the judgment and decree dated 28.09.2007 passed by the learned Civil Judge Darrang, Mangaldoi in Title Suit No.60/2000 was reversed.

3. It is seen from the records that the Coordinate Bench of this Court had admitted this appeal by formulating a substantial question of law, in terms with Section 100 (4) of the Code. The said substantial question of law so formulated reads as under:

"Whether in a suit for declaration of a registered sale deed as void,

inoperative and forged, the issue regarding the declaration of the right, title and interest of the plaintiff over the suit land in exercise of discretion under Section 34 of Special Relief Act would be necessary?"

4. This Court while hearing the instant appeal on 20.02.2025 framed another substantial question of law which reads as under:

"Whether the findings of the learned First Appellate Court that there was

no pleadings and proof as regards fraud in respect to Exhibits-1 and 2 is perverse?

5. Taking into account that an additional substantial question of law was framed, this Court fixed the matter today i.e. 21.02.2025 so that both the parties could address their arguments in respect to the additional substantial question of law.

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6. The question which arises in the instant appeal is as to whether the said substantial questions of law so formulated are involved in the instant appeal?

7. For ascertaining as to whether the substantial question of law arises in the instant appeal, this Court finds it relevant to briefly take into account the facts which led to the filing of the instant appeal.

8. The appellants herein as plaintiffs have filed a suit seeking a declaratory decree that the registered sale deed No. 1095 dated 16.06.2000 and the registered sale deed No.1124 dated 28.06.2000 are forged, collusive, void, inoperative in law as well as for a permanent injunction against the defendants restraining them, their servants, agents, workmen from entering into the suit land which have been specifically described in Schedule 'A' and 'B' to the plaint and from disturbing the peaceful possession of the plaintiffs over the suit land.

9. It is seen from a perusal of the plaint that the plaintiffs No.1 claimed to be the owner of a plot of land ad measuring 8 bighas out of 25 bighas 4 kathas and 10 lechas covered by dag No.165 of periodic patta No.78 of village Bologarah under Shyamabari Mouza. It was also claimed that the plaintiff No.1 was the owner of another plot of land ad measuring 4 bighas 4 katha 1 lechas covered by Dag No.172 and the plaintiff No.2 was the owner of a plot of land ad measuring 3 bighas 1 katha 1 lechas covered by dag No. 174 of periodic patta No. 96 of village Bologarah under Shyamabari Mouza.

10. The further case of the plaintiffs is that they intended to sell 10 bighas of Page No.# 5/15

land from the aforesaid lands belonging to the plaintiffs and in that regard the plaintiff No.1 entered into an agreement on 06.07.1998 with the defendant No.1 to the effect that the defendant No.1 would purchase 10 bighas of land @ Rs. 16,100/- per bigha from the plaintiffs. The plaintiffs also admitted in the plaint that the defendant No.1 had paid Rs.50,000/- as earnest money to the plaintiff No.1 and the plaintiff No.1 had executed an agreement acknowledging the receipt of the amount of Rs.50,000/- as earnest money. Thereupon, both the plaintiffs and the defendant No.1 had jointly applied to the Deputy Commissioner Darrang, Mangaldoi for transfer of 10 bighas of land covered by Dag No. 165 of periodic patta No.78 and Dag No.172 of periodic patta No.96 of village Bologarah under Shyamabari Mouza to the defendant No.1 by executing a Registered Sale Deed. The said permission was obtained on 07.04.2000. It was averred in the plaint that the Registered Sale Deed was not executed on or before 10.07.1999 as agreed between the parties on 06.07.1999. Subsequent thereto, it was specifically alleged in the plaint that on 16.06.2000, the defendant No.1 in concert and in collusion with the defendant Nos.2 and 3 executed a Sale Deed by forging the signature of the plaintiff No.1 in the Sale Deed and falsely representing somebody to be the plaintiff No.1 in the office of the Sadar, Sub-Registrar at Mangaldoi and got the Deed registered which is numbered as 1095 dated 16.06.2000. It was specifically mentioned that the plaintiff No.1 never signed in the said Registered Deeds of Sale No.1095, dated 16.06.2000 and the signature supposed to be signed by the plaintiff No.1 in the Registered Deed of Sale No.1095 dated 16.06.2000 is forged and the deed is collusively made by the defendants. It was also mentioned in the plaint that on 28.06.2000, the defendant Nos.1 and 2 had collusively made the Sale Deed, wherein it was shown that the plaintiffs No.1 and 2 have sold the plot of land Page No.# 6/15

measuring 4 bighas 4 kathas 10 lechas which is described in Schedule B to the plaint to the defendant No.1. In the said paragraphs 8, 9 and 10, the plaintiffs have stated that both the Deeds of Sale were not executed by the plaintiffs and the said Deeds of Sale were fraudulently executed for which the plaintiffs filed the suit seeking the reliefs as aforementioned.

11. The defendant No.1 filed the written statement denying to the allegations made in the plaint. It is very relevant to take note of paragraph No.5 of the said written statement, wherein the defendants have duly admitted the paragraph Nos.1 to 5 of the plaint, except the fact that the plaintiffs were in possession of the whole 16 bighas 0 katha 2 lechas of land. It is the case of the defendants that the defendants had been in possession and enjoyment of the suit land since 16.06.2000 and 28.06.2000 respectively by right of purchase and possession and hence the suit for permanent injunction is not maintainable.

12. The defendants in their written statement have categorically denied the allegations so made. As regards the fraudulent execution of the Deeds of Sale, it was mentioned that the plaintiff Nos.1 and 2 out of their free consent executed and registered the sale deed in respect of 4 bighas 4 kathas 10 lechas on 28.06.2000. It was categorically mentioned that the plaintiff No.1, after receipt of permission from the Deputy Commissioner for sale of the Schedule A land, voluntarily came to Mangaldoi and instructed the defendant No.2 to write a Sale Deed for consideration stated therein. The defendant No.2 wrote the Sale Deed as per the instruction of the plaintiff No.1 and he read over the document to the plaintiff No.1 and thus the plaintiff No.1 was fully aware of the contents of the Sale Deed dated 16.06.2000. It was further mentioned that after receiving the Page No.# 7/15

price stated in the Sale Deed, the plaintiff No.1 duly presented it for registration before the Sadar Sub Registrar at Mangaldoi, being identified by the witnesses mentioned in the reverse side of the first page of the Sale Deed. It was, therefore, stated that the question of executing the Sale Deed dated 16.06.2000 collusively and by forging the signature of the plaintiff No.1 does not arise at all. It was also mentioned that the plaintiff No.1 delivered the possession of the land stated in the Registered Sale Deed dated 16.06.2000 to the defendant No.1. As regards the allegation in respect to the Sale Deed dated 28.06 2000, it was categorically mentioned in the written statement that the plaintiff Nos.1 and 2 out of their free consent executed and registered the Sale Deed in respect of 4 bighas 4 kathas 10 lechas on 28.06.2000. The plaintiffs further instructed the defendant No.2 to write the Sale Deed in respect of the Schedule B land out of their free consent for consideration stated in the said Sale Deed and after the Sale Deed was read over and explained to them by the defendant No.2, they signed and put their thumb impression on the said Sale Deed after receiving full consideration mentioned therein. It was also mentioned that there is no question of collusion and forging the signature or the thumb impression of the plaintiffs.

13. On the basis of the said pleadings, the learned Trial Court framed 9(nine) issues, which being relevant are reproduced hereinunder:

(1). Whether there is cause of action for the suit?

(2). Whether the suit is properly valued?

(3). Whether the plaintiff has got right, title, interest over the suit land?

(4). Whether the suit is maintainable in the present form?

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(5). Whether the registered sale deed No.1095 dated 16.06.2000 and 1124 dated 28.06.2000 are forged, collusive, void and inoperative in law?

(6). Whether the plaintiffs are in possession of the suit land?

(7). Whether the defendants are in possession of the suit land?

(8). Whether the suit is bad in law of estoppel?

(9). To what relief, the parties are entitled?

14. On behalf of the plaintiffs' side, 5(five) witnesses were examined and certain documents were exhibited in support of their case, whereas on behalf of the defendants' side 4(four) witnesses were examined and they had also exhibited certain documents.

15. The learned Trial Court by the judgment and order dated 28.09.2007, decreed the suit in favor of the plaintiffs. In doing so, the learned Trial Court declared that the alleged Registered Sale Deed No.1095 dated 16.06.2000 and the Registered Sale Deed No.1124 dated 28.06.2000 were forged, collusive, void and inoperative in law. In addition to that, the learned Trial Court further passed a decree for permanent injunction against the defendant No.1 restraining him, his servants, agents, workmen from entering into the suit land and disturbing in the peaceful possession of the plaintiffs.

16. Being aggrieved, the defendant No.1 preferred an appeal before the Court of the learned District Judge, Darrang Mangaldoi which was registered and numbered as Title Appeal No.2/2008. The said Appeal was endorsed to the Page No.# 9/15

Court of the learned Additional District Judge (FTC) Darrang for disposal. The learned First Appellate Court vide the judgment and order dated 07.06.2010 allowed the said appeal and set aside the judgment and decree passed by the learned Trial Court. It is under such circumstances, the present appeal has been filed.

17. In the backdrop of the above, the question which arises is as to whether the two substantial questions of law which have been formulated are involved in the instant appeal.

18. Let this Court first take up the first substantial question of law. The first substantial question of law which was formulated by the order dated 23.12.2010 was whether in a suit for declaration of a Registered Sale Deed as void, inoperative and forged, the issue regarding the declaration of the right, title and interest of the plaintiffs over the suit land in exercise of discretion under Section 34 of Special Relief Act would be necessary? This Court had duly perused the plaint as well as the written statement of the parties in the suit. The plaintiff had averred that they are the owners of plots of land which have been specifically described in Schedule A and B to the suit. It is further averred that the plaintiffs had entered into an agreement with the defendant No.1 for sale of 10 bighas of land dated 06.07.1997, at a consideration of Rs.16,100/- per bigha and out of that Rs.50,000/- was paid by the defendant No.1 to the plaintiffs and the remaining amount was to be paid at the time of execution of the Deed of Sale. It is the further case of the plaintiffs that both the parties thereupon applied for permission and the permission was granted by the Deputy Commissioner on 07.04.2000. At this stage, if this Court takes note of the Page No.# 10/15

pleadings of the defendant No.1 in the written statement, there is no denial to the fact that the plaintiffs were the owners of the lands described in Schedule A and Schedule B to the plaint. There is also no denial that the permission for sale of the land was applied. There is no denial of entering into the agreement for sale as well as the consideration for sale of the lands as stated in the plaint and the payment of Rs.50,000/- made as earnest money. There is also no denial to the fact that both the parties jointly applied for the permission on 10.07.1999 and the permission was accorded by the Deputy Commissioner on 07.04.2000.

19. The dispute in question is whether the plaintiff No.1 had executed the Deed of Sale on 16.06.2000 and the plaintiffs Nos.1 and 2 had duly executed the Deed of Sale on 28.06.2000, after receiving the entire consideration. From the above pleadings, it is apparently clear that the plaintiffs No.1 had the title over the land described in Schedule A and the plaintiffs No.1 and 2 had joint title over the Schedule B from whom the defendant claimed to have purchased. Under such circumstances, the suit was essentially a suit filed under Section 31 of the Specific Relief Act 1963 (for short, 'the Act of 1963) for cancellation of the Registered Deeds of Sale executed on 16.06.2000 and 28.06.2000.

20. Section 31 of the Act of 1963 deals with suit for cancellation of a written instrument, whereas a suit under Section 34 of the said Act of 1963 relates to suits seeking of status or right. There is a vast distinction between both the types of suits. A suit can be filed under Section 31 of the Act of 1963 when there exists a written instrument which is void or voidable against a person and the person has reasonable apprehension that if the written instrument is allowed to remain it would cause a serious injury. In the instant case, the Page No.# 11/15

plaintiffs have approached the Court seeking declaration that the Deeds of Sale were forged, fraudulent and void and for cancellation of the same. Therefore, the suit was filed in terms with Section 31 of the Act of 1963.

21. On the other hand, a suit under Section 34 of the Act of 1963 is required to be filed when there is a denial of the right(s) of the person to any property. In the instant case, it would be seen that there is no denial to the title of the plaintiffs over the suit lands prior to the purported Deeds of Sale. In fact, it is the case of the defendant No.1 that he purchased the suit lands on the basis of the purported Deeds of Sale from the plaintiffs. Under such circumstances, there was no requirement for seeking a declaration as regards the rights of the plaintiffs, if the purported Deeds of Sale are cancelled. In the opinion of this Court, the suit so filed by the plaintiff was a composite suit seeking cancellation of the purported Deeds of Sale with permanent injunction which would come within the ambit of Section 31 of the Act of 1963. The learned First Appellate Court completely erred in law in understanding the scope of the suit. It is the opinion of this Court that when the title of the plaintiff No.1 over the Schedule A land and the plaintiffs Nos.1 and 2 over the Schedule B land was duly admitted by the defendants No.1 and the defendant No.1 having claimed his right on the basis of the title of the plaintiff Nos.1 and 2 on the basis of the purported Deeds of Sale, the first Appellate Court ought not to have arrived at the opinion that the suit was not maintainable without the relief for seeking declaration of right, title and interest over the land in question. Under such circumstances, it is the opinion of the Court that the first substantial question of law so formulated by this Court was involved in the instant appeal.

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22. The second substantial question of law as to whether the finding of the learned First Appellate Court that there was no pleadings and proof as regards fraud in respect to Exhibits-1 and 2 is perverse? This Court had duly taken note of the determination of Issue No.5 by the learned Trial Court, as to whether the Registered Deeds of Sale No.1095, dated 16.06.2000 and 1124, dated 28.06.2000 were false, collusive, void and inoperative in law.

23. The learned Trial Court, while deciding the issue No.5, came to a finding that the Registered Deeds of Sale bearing deed Nos.1095, dated 16.06.2000 and 28.06.2000, were forged, collusive, void and inoperative in law. It is, however, relevant to take note of that the learned Trial Court, in arriving at the said decision in respect to Issue No.5, applied the wrong principles, insofar as, the burden of proof is concerned. The learned Trial Court while deciding the Issue No.5 came to a finding that the purported Registered Deeds of Sale were forged, collusive, void and inoperative on the basis that the defendant No.1 failed to prove that the purported Registered Deeds of Sale were not forged, collusive, void and inoperative which is contrary to Section 101 of the Indian Evidence Act, 1872. It is the opinion of this Court that as the plaintiffs have alleged that the purported Deeds of Sale were forged, collusive, void and inoperative in law, the burden was upon the plaintiffs to prove the same. Now, coming to the judgment passed by the learned First Appellate Court, it is seen that the said judgment in respect to issue No.5 is completely perverse, on the ground that material facts as well as the evidence were not at all taken into consideration. In the previous segments of the instant judgment, while narrating the pleadings of both the parties, it is seen that the plaintiffs duly pleaded in terms of Order VI Rule 4 of the Code, to the effect that the plaintiffs did not Page No.# 13/15

sign the purported Registered Deeds of Sale. In support of that, the plaintiffs have also adduced evidence. However, the learned First Appellate Court, in the most perfunctory manner came to a finding that there was no pleadings as required under Order VI Rule 4 of the Code, and further laid emphasis on the evidence of PW1, without taking into account the evidences of PW-2, PW-5 and DW-4 which ought to have taken into consideration.

24. Therefore, the judgment and decree passed by the learned First Appellate Court in respect to Issue No.5 suffers from patent perversity. Now the question, therefore, arises as to whether this Court should remand the suit back to the learned First Appellate Court, in exercise of its powers under Order XLI, Rule 23A of the Code or this Court should decide the Issue No.5 in terms with Order XLI Rule 24 of the Code.

25. For a proper decision in respect to Issue No.5 there would be a requirement for appreciation of the evidence so adduced by both the parties during the trial of the suit. It would not be proper on the part of this Court at the second Appellate stage to appreciate the evidence. Additionally, the learned First Appellate Court as observed earlier had perfunctorily passed the impugned judgment and decree and, more particularly, in respect to the Issue No.5 as well as the maintainability of the suit. Under such circumstances, this Court is of the opinion that the learned First Appellate Court ought to decide afresh the Issue No.5 and the other issues which would have implication upon the decision on Issue No.5.

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26. Accordingly, this Court sets aside the impugned judgment and decree dated 07.07.2010 passed by the learned First Appellate Court in Title Appeal No.02/2008 and remands the Appeal back to the learned First Appellate Court in exercise of the powers under Order XLI Rule 23A of the Code to decide afresh the Appeal by taking into account the evidence of the parties in the proper perspective and further taking note of that the suit is otherwise maintainable in view of the observations made hereinabove in respect to the first substantial question of law. It is further observed that the learned First Appellate Court shall decide the Appeal on the basis of the materials and evidence already available on record.

27. This Court further in terms with Order XLI Rule 26A of the Code fixes the Appeal being Title Appeal No.02/2008 before the learned District Judge, Darrang, Mangaldoi on 24.03.2025, on which date, the parties shall appear before the said Court.

28. The Registry is directed to forthwith send the records to the Court of the learned District Judge, Darrang Mangaldoi so that the records are made available before the said Court on the next date as fixed by this Court hereinabove and in that regard the Registry may employ the services of a Special Messenger.

29. This Court further observes that as the dispute has been pending for long, the Court of the learned District Judge, Darrang shall make all endeavour to dispose of the same within 4(four) months from the date of appearance of the Page No.# 15/15

parties as directed hereinabove.

30. With the above, the appeal stands disposed of.

JUDGE

Comparing Assistant