the execution of document and its admission by the defendant before
the registering authority followed by registration are found acceptable
being further backed by the statutory presumption as above and here
the defendant being neither illiterate nor old or infirm, the evidence
tendered from the side of the defendant in denial of the same being
not acceptable, this Court finds no reason to disagree with the finding
of the trial court on that score.
In so far as factum of possession of the suit land is
concerned, the evidence of plaintiff, examined as P.W.1 and her
witness P.W.4 being gone through are not found in any way as
deficient for being discarded. Their evidence have not been shaken.
On the other hand, the counter evidence let in by the defendant
through D.W.2, a mason do not stand to scrutiny, more so while
stating that the contractor was looking after the construction of the
house, he goes to produce some receipts showing payment for
different item of works which perse appears to be unbelievable. The
trial court upon vivid analysis has found the receipts to have been
manipulated for the said purpose. The plaintiff through evidence has
further proved the illegal act of trespass upon the suit land by the
defendant.
For the aforesaid discussion and reason, I hold that the
plaintiff has established her right, title and interest over the suit land
to have been so acquired by purchasing the same from the defendant
and as such her right to possess. Thus, her entitlement to the relief
claimed in the suit for recovery of the suit land from the defendant
firmly stands. Accordingly, I find no reason to disturb the decision of
the trial court on all the issues and the judgment and decree as
passed by the trial court are hereby confirmed.
IN THE HIGH COURT OF ORISSA: CUTTACK.
R.F.A. NO. 45 of 2006
Balakrushna Panda V Smt.Bilasini Das
PRESENT:
SHRI JUSTICE D.DASH
Citation: AIR 2017(NOC) 190 Orissa
Date of judgment- 18.10.2016
The unsuccessful defendant as the appellant here being
aggrieved by the judgment and decree passed by the learned Civil
Judge (Senior Division), Berhampur in T.S. No. 130 of 1997 directing
him to deliver the possession of the suit land together with the 2
construction standing thereon to the plaintiff- respondent has filed
this appeal.
2. Plaintiff’s case is that the defendant was the original
owner of the land under plot no. 1820/3235 of khata no.1030/893 of
mouza Baidyanathpur in the township of Berhampur in the district of
Ganjam. Being the owner in possession of the suit land, the
defendant had sold the land measuring Ac0.020 decimals from out of
that plot in total Ac0.055 decimals to the plaintiff by registered sale
deed dated 25.02.1983 for valuable consideration followed by delivery
of possession. Accordingly, the plaintiff deriving the title over that
purchased land, possessed the same. It is her further case that she
had raised foundation for the building over the suit land and then
proceeded with the construction of the house which had not been
completed. It is alleged that one day in the month of March, 1995
defendant openly declared in the locality that he would trespass upon
the suit land and dispossess the plaintiff. Thus apprehending
dispossession from the suit land in the hands of the defendant, the
plaintiff filed the suit for permanent injunction and in the alternative
for recovery of possession.
3. The defendant coming to contest the suit stoutly denied
to have sold the suit land to the plaintiff by executing the registered 3
sale deed on 25.02.1983. He has also denied to have ever delivered
the possession of the suit land to the plaintiff and the plaintiff to have
ever possessed the suit land. According to him, the plaintiff has never
possessed the suit land carrying the title and has asserted that the
possession of the suit land had remained with him all along as its
owner and accordingly the revenue records is standing in his name.
The claim of the plaintiff that he had made the foundation and
constructed the house over the suit land is also denied. It is his
specific case that he has constructed the house over the northern
portion of the suit land and the southern portion still remains vacant.
The suit land is said to have been given in mortgage to the Bank for
obtaining the house building loan for construction of another house
on that southern portion of the suit land. The first installment of the
loan having been disbursed, the defendant claimed to have also made
construction of the house on the southern portion of the suit plot.
Again when in second phase, the installment was released, he
asserted to have completed the roof work of the house. Thus the
claim of the plaintiff as regards her right, title and interest over the
suit land and the constructive possession stand denied with further
pleading that there remains no cause of action to file the suit which is 4
also said to be imaginary and the suit is further said to be
barred by limitation.
4. Faced with the rival pleadings, the trial court framed as
many as five issues, which are the followings:-
“1) Whether the plaintiff has right, title and possession
over the suit property?
2) Whether the defendant has executed the registered
sale deed dated 25.02.1983 in favour of the plaintiff?
3) Whether the defendant trespassed into the suit
property and dispossesses the plaintiff from the lawful
possession?
4) Whether the suit is maintainable?
5) To what relief plaintiff is entitled to ?.”
5. The trial court has rightly taken up issue nos. 1 to 3 for
decision as in that way it can be properly decided by clubbing by
proper discussion of the evidence in the touch stone of the pleadings
since one is having the impact over the other. The trial court thus
taking up the above three issues together for decision has answered
at the ultimatum that the plaintiff has the exclusive right, title and
interest over the suit land by virtue of her purchase by registered sale
deed dated 25.02.1983, Ext.1. The consequential answer has been
rendered on issue nos. 4 and 5 holding at the end that the plaintiff is 5
entitled to get recovery of possession of the suit land from the
defendant.
6. Learned counsel for the appellant contends that the
findings rendered by the trial court on those three crucial issues no.
1, 2 and 3 are unsustainable both in law and fact. According to him,
the evidence which are on record have not been appreciated in their
proper perspective and rather the same as available on record even
though have no foundation in the pleading of the plaintiff yet have
been very much pressed into service.
It is further argued that the trial court has unnecessarily
given the importance to the report of the finger print expert which
report has not been proved through its author. The same ought not to
have been in any way utilized in the suit either in favour of the party
or against.
He further contends that the settled position of law being
that the plaintiff has to independently prove her own case so as to
either stand or fall without receiving any aid from the case of the
defendant or failure to prove his case; here in the case the trial court
committed grave illegality by shifting onus upon the shoulder of the
defendant to prove his case, so as to non-suit the plaintiff when the
plaintiff has failed to discharge the burden of proof resting upon her.
He also submits that the appreciation of
evidence by the trial court in arriving at a conclusion as regards the
factum of possession of the suit land by the plaintiff and the
construction standing thereon is not just and proper and the reason
assigned for the same, according to him are far from satisfaction of a
prudent person.
7. Learned counsel for the respondent in supporting the
findings of the trial court as also the decree passed at the end in
favour of the plaintiff-respondent contends that here in the case,
there is absolutely no infirmity in the matter of appreciation of the
evidence by the trial court in arriving at the conclusion that the
plaintiff has discharged the burden of proof of having acquired title
over the suit land by virtue of her purchase by registered sale deed
Ext.1 and as the settled law stands, the trial court has rightly shifted
the onus upon the defendant to establish his case as projected in the
written statement, so as to thwart the plaintiff from her entitlement to
the reliefs claimed.
He for the purpose has placed the evidence of witnesses
examined on behalf of the plaintiff as also the defendant in pointing
out as to how those have been properly appreciated in recording the
finding. It is next submitted that here when the defendant had taken7
the plea to have never executed the sale deed Ext.1 which has been
registered, the same has not been established by him when the
plaintiff has duly proved it. Therefore, according to him, the trial
court has rightly discarded the plea of the defendant at the threshold
after it has found the plaintiff to have proved through evidence by
preponderance of probability that the Ext. 1 has been duly executed
by the defendant who admitted it before the Sub Registrar where after
it has been registered which squarely draws the presumption under
law as provided in section 60 of the Registration Act. It is also
submitted that the Director, State Finger Prints Bureau in his report
has made it clear by concluding that the disputed thumb impressions
are identical and tally with the specimen impression of the defendant
and the defendant having challenged the report on being asked to
cross-examine the said expert has not taken any step despite the
opportunities being given. So, the matter had been put to an end, and
therefore, the report has been accepted which now cannot be
questioned as faulty. In view of all these above, he contends that the
appeal bears no merit.
8. This Court is now called upon to judge the sustainability
of the finding of the trial on issue nos. 1, 2 and 3 which would
practically decide the fate of the suit as regards grant of the decree in 8
favour of the plaintiff holding her to have proved her case as
also holding the defendant to have failed to establish the plea taken
in the written statement, or its refusal by non-suiting the plaintiff.
This exercise of course has to be done by looking at the evidence
keeping in mind the rival case of the parties as projected in their
pleadings, simultaneously addressing the rival contentions as
advanced.
9. When the plaintiff asserted to have purchased the suit
land from the defendant by registered sale deed dated 25.02.1983
admitted in evidence and marked as Ext.1, the defendant denies it to
have at all been executed by him. The sale deed said is attacked as
under :-
“It is submitted that the defendant never sold the
suit property to the plaintiff nor executed any sale deed
dated 25.02.1983 for the same in favour of the plaintiff. The
plaintiff has manipulated the sale deed with a view to grab
the suit property”.
From the aforesaid two inferences are drawn; (i) it is
either said to be a fraudulent one created by impersonation or (ii) it
has been brought into existence as such taking the signatures from
the defendant surreptiously without his knowledge that it would be
utilized. The defendant as D.W.3 in his evidence has merely
denied the signatures on the deed to be his own and to have put any
LTI in the concerned office.
10. Admittedly, the husband of the plaintiff and the
defendant are colleagues.
Plaintiff has first examined the scribe as P.W.2, who has
deposed on oath to have scribed the sale deed as per the instruction
of the defendant in presence of the witnesses. His further evidence is
that he himself went through the sale deed giving a reading to it and
thereafter having found those to have been correctly written, signed
on it. The witnesses to the sale deed have also been examined from
the side of the plaintiff, P.W.3 whose evidence runs in the same vein
as that of P.W.2. The witnesses being cross-examined, no such
material has surfaced therein to disbelieve the positive evidence
tendered by them and no such doubtful features have either been
pointed out or seen. On carefully going through the evidence of those
two witnesses, this Court also finds no such material discrepancy in
the evidence of those two witnesses so as to say that both have stated
differently on the substratum as regards execution of sale deed by
defendant; admitting the same and the registration thereafter. These
evidence being taken together with the evidence of the plaintiff as also
viewed with the document in question Extr.1 leaves no room for
doubting the execution of Ext.1 by the defendant, its admission
before the registering authority and registration as per the certificate
which calls for drawal of the presumption under section 60 of the
Registration Act. Even with such evidence on record, the thumb
impression register maintained in the office of the Sub Registrar
concerning the sale deed under consideration had been called for and
that has been sent to the State Finger Prints Bureau for comparison
by taking a finger print of the defendant during the trial. The report
has been specific that those are identical with each other and tally
with the specimen impressions of the defendant. When such report
came to be received, the defendant filed the objection and then he
was asked to take all required steps for examination of the finger
print expert. The fact remains that he did not take any step thereon
and availed the opportunity of disproving the report placed before the
court. It is now contended that for that the expert’s conclusions are
not acceptable and cannot come to the aid of the plaintiff. It had
been also contended in the trial court and now it is contended that
the report ought not been used in the evidence in support of the
plaintiff in holding that the plea of the defendant on that score is
false. Without entering into that arena of controversy when as
already discussed and held that the evidence of execution of the
sale deed, its admission and registration are found to be satisfactory,
even without taking any aid from the expert’s report, the burden of
proof resting upon the plaintiff in proving the acquisition of title over
the suit land by said Ext.1 has to be said to have been well
discharged. Thus the onus shifts to the defendant in disproving the
same. For the purpose, let us go through the evidence of the
defendant to find out as to how he has tackled the onus falling on his
folded palm shifting upon him so as to receive a finding on that score
in his favour.
The defendant in the case examined as D.W.3, whereas
his brother has come to the witness box as D.W.1. Most interestingly,
when defendant himself has admitted the signature on the
vakalatnama filed in the suit while entering appearance through the
learned counsel to be his own, his brother D.W.1 has categorically
deposed that said signature is not that of his brother i.e. defendant
(D.W.3). This therefore leads the court to say assertively that D.W.1 is
a witness who is not telling truth which renders his evidence
unbelievable and highly exaggerated. He has not stopped there but
has further gone to deny the signature of his brother even on the
written statement filed in the suit. Then he has deposed that none of
the signature which appeared in the sale deed to be belonging to his
brother. The defendant as D.W.3 has also denied the signature
appearing on Ext.1 to be his own and he has merely stated to have
never put his LTI before the Sub Registrar in connection with the
Ext.1. It further reveals from the case record that he has not taken
the step as directed to challenge the report although opportunities
had been provided for the same. Thus even though the report appears
to have been admitted in evidence without objection, such conduct of
the defendant itself casts grave doubt on truthfulness of the plea
taken by him. When the evidence let in by the plaintiff with regard to
the execution of document and its admission by the defendant before
the registering authority followed by registration are found acceptable
being further backed by the statutory presumption as above and here
the defendant being neither illiterate nor old or infirm, the evidence
tendered from the side of the defendant in denial of the same being
not acceptable, this Court finds no reason to disagree with the finding
of the trial court on that score.
In so far as factum of possession of the suit land is
concerned, the evidence of plaintiff, examined as P.W.1 and her
witness P.W.4 being gone through are not found in any way as
deficient for being discarded. Their evidence have not been shaken.
On the other hand, the counter evidence let in by the defendant
through D.W.2, a mason do not stand to scrutiny, more so while
stating that the contractor was looking after the construction of the
house, he goes to produce some receipts showing payment for
different item of works which perse appears to be unbelievable. The
trial court upon vivid analysis has found the receipts to have been
manipulated for the said purpose. The plaintiff through evidence has
further proved the illegal act of trespass upon the suit land by the
defendant.
For the aforesaid discussion and reason, I hold that the
plaintiff has established her right, title and interest over the suit land
to have been so acquired by purchasing the same from the defendant
and as such her right to possess. Thus, her entitlement to the relief
claimed in the suit for recovery of the suit land from the defendant
firmly stands. Accordingly, I find no reason to disturb the decision of
the trial court on all the issues and the judgment and decree as
passed by the trial court are hereby confirmed.
11. Resultantly, the appeal stands dismissed. In the facts
and circumstance with cost throughout.
….………………
D.Dash, J.
Orissa High Court, Cuttack,
Dated the 18th day of October, 2016.
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