Ajay Prasad Kanoo vs Saroda Devi Goala
2025 Latest Caselaw 541 Gua

Gauhati High Court

Ajay Prasad Kanoo vs Saroda Devi Goala on 14 May, 2025

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GAHC010071072025




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

                                  Case No. : RSA/67/2025

            AJAY PRASAD KANOO
            S/O- LATE GONESH PRASAD KANOO, R/O- SIBBARI ROAD, HAILAKANDI
            TOWN WARD NO 12, PO AND PS- DIST- HAILAKANDI, ASSAM, PIN- 788155



            VERSUS

            SARODA DEVI GOALA
            W/O- SRI CHANDAN GOALA, D/O- LATE DEORAJ GOALA, R/O- VILL-
            PAIKAN, PO- PS AND DIST- HAILAKANDI, ASSAM, PIN- 788155



Advocate for the Petitioner   : MR B DEORI, MRS R CHETRI,MR. M H RAJBARBHUIYAN,MR
G BHARADWAJ

Advocate for the Respondent : ,




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                         ORDER

Date : 14.05.2025

Heard learned counsel Mr. M.H. Rajbarbhuiyan for the appellant Ajay Prasad Kanoo, who has preferred this second appeal against the judgment and decree dated 21.12.2024 passed by the Civil Judge (Senior Division), Hailakandi Page No.# 2/3

in connection with Title Appeal No. 24/2023 and the judgment and decree dated 15.09.2023 passed by the learned Munsiff No. 2, Hailakandi in connection with Title Suit No. 194/2020.

2. It is submitted that although this appeal is against the concurrent decisions, yet there are substantial questions of law to be considered.

3. Learned counsel for the appellant has relied on the decision of this Court in the case of Phoolmani Jok & Ors. Vs. Budhindra Nath Borgohain & Ors. reported in 2002 (3) GLT 490 wherein it has been held and observed that :-

"(13) None of the plaintiffs' witnesses deposed a single word that the scribe wrote the sale deeds as per version of the executant, the original defendant No. 1, nor any of the witnesses deposed that the recitals of the sale deeds had been read over to the executant in their presence. In the present case, once the execution is admitted in the written statement, proof of execution is not required afresh, but the recitals of the documents ought to have been brought on record either by examining the scribe who wrote the same or by any witness who was present at the time of execution of the documents, but no such witness had been examined. While the defendant No. 1 specifically denied to have executed the deeds knowing them to be sale deeds, rather knowing them to be the mortgage deeds, he executed the same and further statement was there in the written statement that none read over the contents to the executant, having regard to the aforesaid background of the case, it was imperative on the part of the plaintiffs to prove the recitals of the documents by adducing witnesses conversant with the transactions, but that was not done.

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(15) In the case of P. C. Purushothama Reddiar (supra) the Court was called upon to decide an election dispute and a police report was produced in evidence and that report was tendered in evidence by Head constable. Since the said police report was a record maintained by a police officer being a public servant in discharge of his official duties and was brought from official custody, the said document being a public document was rightly admitted in evidence being tendered by Head constable. The said police report was prepared by a police officer and that police officer never denied the correctness of the contents of his report. In other words, the contents of that police report had never been put under challenge, but in the present case, recitals of Page No.# 3/3

the purported sale deeds had been put under challenge by the executant himself from the very beginning and in such situation, unless it is proved to the satisfaction of the Court that the executant knowing well the recitals of the deeds executed the same either by reading the recitals himself/herself or the same having been read over to him/her by the scribe or other person, the requirement of section 61 of the Evidence Act cannot be said to have been satisfied."

3. I have considered the submissions at the bar. This appeal is admitted on framing the substantial questions as law as below :-

1. Whether the Courts below erred in decreeing the suit though the execution of Sale Deed (Exhibit - 1) being a certified copy was admitted but the contents thereof being denied is required to be proved by calling the attesting witnesses and scribe and fulfilling the provision of Section 63 and 67 of the Indian Evidence Act, 1872?

2. Whether the lower Appellate court erred in law interpreting Section 68 of the Indian Evidence Act, 1872 holding that the contents of the deed is not required to be proved as execution is admitted?

4. Meanwhile, issue notice to the respondent returnable within four weeks. Also call for the Trial Court Record of Title Appeal No. 24/2023 pending in the Court of Civil Judge (Senior Division), Hailakandi and Title Suit No. 194/2020 pending in the Court of learned Munsiff No. 2, Hailakandi.

5. List accordingly.

JUDGE

Comparing Assistant