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Judgment
S.C. Das, J.—1. This second appeal has been admitted for hearing on the following substantial questions of law:-
"i. As to whether Ext. D was a document fraudulently executed violating the Allotment of Land Rules and
ii. Whether the finding of the trial Court and the first appellate Court was perverse in respect of the decision in issue No. 5."
Heard learned counsel Mr. A. Dasgupta for the appellant and learned Sr. counsel Mr. A.K. Bhowmik assisted by learned counsel Mr. R. Dutta for the respondent Nos. 1 to 4 and 9.
No representation on behalf of other respondents.
The appellant as plaintiff (hereinafter mentioned as plaintiff) instituted Title Suit No. 19/2008 seeking declaration that the plaintiff and Pro-defendant Nos. 10 to 15 have got right, title and interest over the suit land as described in the schedule of the plaint and also sought for further declaration that Sale-deed No. 1-3344 dated 30.08.1982 (Exbt.D) is a fraudulent Deed of Transfer and therefore, should be declared as null and void and not binding upon the plaintiff and those Pro-defendants and further prayed for recovery of possession of the suit land described in the schedule of the plaint from the possession of the defendants.
The appeal is filed challenging concurrent finding of two Courts below.
The Plaintiff, inter alia, contended that the suit land was allotted in the name of his father Aswini Kumar Nath, since deceased, on 29.10.1978 and Aswini Kumar Nath was possessing the suit land. The allotted land was recorded in the name of Aswini Kumar Nath in Khatian No. 973, Plot No. 28 and 28/2722, under Mouja Ichailalchara, Sub Division Dharmanagar. Thereafter it was recorded in finally published Khatian No. 504 in Plot No. 149. In that Khatian the predecessor of defendant Nos. 5, 6, 7 and 8 were wrongly shown as possessor. On 02.02.2000, the plaintiff found that defendant Nos. 1 to 4 and 9 were trying to sell the suit land to some other people and they claimed that they purchased the suit land from Chayab Ali, the predecessor-in-interest of defendant Nos. 5 to 8. Thereafter, the plaintiff made a search and found that a Sale-deed No. 1-3344, dated 30.08.1982 was executed in favour of Chayab Ali, the predecessor of defendant Nos. 5 to 8 whereas, the plaintiff and the other legal heirs of Aswini Kumar Nath knew nothing about any such Deed. It is contended by the plaintiff that the said Deed dated 30.08.1982 was a forged Deed procured in collusion by the defendants and it was not binding on the plaintiff and other legal heirs of Aswini Kumar Nath. It was an allotted land and was not transferable by the allottee Aswini Kumar Nath and any such transfer was void. The plaintiff immediately reported the incident to Churaibari Police Station and a police case was registered but no effective investigation was done and a final report was submitted. The plaintiff thereafter instituted the suit for declaration as aforesaid and for recovery of possession.
Defendant Nos. 1 to 4 and 9 submitted written statement contending that they purchased the suit land by means of registered Deed executed by Chayab Ali, the predecessor of defendant Nos. 5 to 8. They were in possession of the suit land after purchase and they found Chayab Ali as the rightful owner in possession of the suit land and purchased the same. Other defendants did not contest the suit.
The trial Court framed 10 issues namely-
"i) Is the suit maintainable?
ii) Does the plaintiff have any cause of action to sue the defendants?
iii) Is the suit barred by the law of limitation?
iv) Whether the suit is bad for non-joinder of necessary parties?
v) Whether the plaintiff and the proforma defendant have right, title and interest over the suit land?
vi) Whether the story projected by the plaintiff regarding his dispossession on 01/09/2000 is true?
vii) Whether the registered sale deed bearing No. 1-3344 dated 30/08/1982 is fraudulent, void and inoperative?
viii) Whether the record of right has been properly prepared by the settlement authority in the name of Chayeb Ali and Ambar Ali?
ix) Is the plaintiff entitled to get the decree as prayed for?
x) Is there any other relief for the parties?"
In course of trial, plaintiff examined himself as P.W.1 and also examined two more witnesses namely P.W.2 Sri Bimal Mallik and P.W.3 Sri Premananda Nath.
The plaintiff also proved the following documents:-
"Exhibit-1. Certificate dated 21-05-05 issued by S.D.M. Dharmanagar certifying that the suit land was allotted in the name of Sri Aswini Kr. Nath vide allotment order No. 13 dated 29/10/78.
Exhibit-2. Khatian No. 973 of Ichailalchara mouja showing Aswini Kr. Nath as allottee of the suit land.
Exhibit-3. Finally published Khatian No. 504 of Ichailalcharra mouja showing Aswini Kr. Nath as allottee of the suit land.
Exhibit-4. Trace map of Ichailalchara mouja sheet No. 1(part).
Exhibit-5. Trace map of Ichailalchara mouja sheet No. 1(part).
Exhibit-6. Certified copy of deed No. 1-3344, dated 01/03/1983.
Exhibit-7. Notice issued to the plaintiff in a proceeding U/S-95 of the TLR and LR Act.
Exhibit-8 Order dated 21/08/2000 whereby Ld. S.D.J.M. accepted the final report in CRB P.S. case No. 15 of 2000 lodged by the plaintiff on the allegation of forgery.
Exhibit-9. FIR of CRB P.S. case No. 15 of 2000.
Exhibit-10. Printed form of FIR of CRB P.S. case No. 15 of 2000.
Exhibit-11. Final report submitted in CRB P.S.case No. 15 of 2000."
On behalf of the contesting defendants, defendant No. 2 examined himself as D.W.1 and defendant No. 9 examined himself as D.W.2. The defendants also examined three more witnesses namely- D.W.3 Sona Miah, D.W.4 Abdul Mannan and D.W.5 Abdul Gaffar Kha respectively.
Defendants also proved the following documents:-
"Exhibit-A. Finally published Khatian No. 1044 of Ichailalchara mouja in the name of Ambar Ali.
Exhibit-B. Finally published Khatian No. 504 in the name of Chayeb Ali.
Exhibit-C. Khatian No. 1044 in the name of Ambar Ali.
Exhibit-D. Original copy of Sale Deed No. 1-3344, Dated 30.08.82.
Exhibit-E. Original copy of Sale Deed No. 1-2598, dated 29/07/97.
Exhibit-E2. Signature of D.Ws an attesting witness thereon.
Exhibit-F. Original copy of Sale Deed No. 1-2599, dated 29/07/97.
Exhibit-F2. Signature of D.Ws as attesting witness thereon.
Exhibit-G. Original copy of Sale Deed No. 1-2761, dated 14/08/97."
The trial Court decided the material issues against the plaintiff and hence, dismissed the suit.
Aggrieved, the plaintiff filed Title Appeal No. 8/2010 in the Court of Addl. District Judge, North Tripura, Dharmanagar and the appeal was dismissed by judgment dated 20.07.2011.
Learned counsel, Mr. Dasgupta appearing for the appellant has submitted that Aswini Kr. Nath, the father of the plaintiff got the allotment of the suit land on 29.10.1978 and was possessing the suit land exercising all acts of possession. The plaintiff and the Pro-defendants entered into possession after the death of their father. The plaintiff knew nothing about execution of any Sale-deed by Aswini Kr. Nath in favour of Chayab Ali. The Sale-deed, Exbt.D is a fraudulent Deed and so it was not binding on the plaintiff. It was executed within 10 years from the date of allotment and so the Sale-deed was null and void.
On the other hand, learned Sr. counsel, Mr. Bhowmik has submitted that Exbt.D is a registered Sale-deed. There is a presumption of genuineness of the document unless contrary is proved. There is nothing in the pleadings and evidence to show that the Sale-deed was forged or that it was obtained fraudulently. Learned Sr. counsel, therefore, submitted that the plaintiff has no case at all and so, the trial Court and the appellate Court arrived at a concurrent finding.
Exbt.1 is the certificate issued by SDM, Dharmanagar, certifying thereby that the suit land was allotted in the name of father of the plaintiff on 29.10.1978. The original allotment order has not been produced. However, it is not in dispute that the suit land was allotted land. Exbt.D, the Sale-deed alleged to have executed by Aswini Kr. Nath in favour of Chayab Ali was on 30.08.1982 which means the transfer was within 10 years from the date of allotment. Exbt.1 does not reflect any condition that the allotted land was not transferrable within 10 years. Even if it was not transferable within 10 years but the sale was effected by the allottee, action is to be taken by the Revenue authority that the allotting authority and on that ground transfer itself cannot be liable to be cancelled. Exbt.3 i.e. the Khatian No. 504 shows that it was prepared in the name of Aswini Kumar Nath and there was an endorsement that it was not transferable within 10 years. In Col. No. 24 of the Khatian possession of Chayab Ali i.e. the predecessor of defendant Nos. 5 to 8 was recorded. It means at the time when the Khatian was finally published Chayab Ali was in possession of the suit land whereas the plaintiff has come out with a plea that they were dispossessed in the year 2000. Exbt.D is a registered Deed of sale. Normal presumption is that it was genuine unless contrary is proved. In the pleadings of the plaintiff no particulars of forgery or fraud has been stated. In the evidence adduced by the plaintiff, I find nothing to arrive at a conclusion that the Deed was forged or that it was obtained fraudulently by Chayab Ali. Learned counsel, Mr. Dasgupta referred to the cross examination of D.W.4, the Deed-writer and submitted that the Deed-writer admitted that he did not know Aswini Kr. Nath and that Aswini Kr. Nath was introduced by Chayab Ali. That statement itself does not render the registered instrument as void or to treat the instrument as forged instrument. The particulars of fraud are to be stated and to be proved with cogent evidence. Here, we find no cogent evidence that fraud was exercised while Exbt.D was executed. If any rule of allotment was violated, action is open to be taken by the allotting authority and for that reason the Court is not required to declare the document as null and void. I cannot appreciate the submission of learned counsel, Mr. Dasgupta that on this score the judgment of the trial Court and the appellate Court should be interfered.
The next argument advanced by learned counsel, Mr. Dasgupta is that the evidence on record has not been properly appreciated while deciding issue No.V. I have meticulously gone through the pleadings and evidence on record. I find that both the Courts below considered the pleadings and evidence on record and taking into account the documentary as well as oral evidence rightly decided the issue and I find no perversity in the finding.
The second appeal, therefore, is found to be devoid of any merit and hence stands dismissed.
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