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Judgment
This appeal by the defendants is directed against the judgment and decree dated 17.7.2000 passed by the learned Civil Judge (Senior Division), Hailakandi in Title Appeal No. 4/1999 whereby and whereunder the appeal preferred by the defendants has been dismissed by affirming the judgment and decree dated 22.12.1998 passed by the learned Civil Judge (Junior Division) No. 1, Hailakandi in Title Suit No. 31/1981.
The aforesaid suit was instituted by the present respondent, as plaintiff, against the predecessorininterest of the present appellants for declaration of right, title and interest, in respect of the schedule I land, in ejmali and also for declaring the sale deed dated 12.2.1973 (Ext. 1) purportedly executed by the mother of the plaintiff and the defendant No. 1 in favour of the defendant No. 1 as fraudulent and also for refund of Rs. 2000/ which was paid by the plaintiff to the defendant No. 1 for the purchase of the land vide sale deed 21.2.1976.
The case of the plaintiff in the plaint is that after the death of the original owner Suresh Chandra Sarma, the property left by him devolved on his widow, apart from the plaintiff and the defendant No. 1, who are brothers and amongst whom there was amicable partition on 11.4.1958 allotting respective shares of land and accordingly they were possessing their respective share by virtue of such partition deed. It is also the case of the plaintiff that the defendant No. 1 sold his share of the land to his brother, the plaintiff, and also to other persons from whom the plaintiff again purchased the land in the said patta and accordingly the plaintiff''s share in the land increased from 9 bighas 6 kathas 3 chataks to 17 bighas 3 kathas 4 chataks. It is also the case of the plaintiff that his mother Sabitri Bala Devi got land measuring 3 bighas 8 chataks under dag No. 123 of patta No. 15 and subsequently purchased more land in the said patta, who died thereafter leaving behind the plaintiff and the defendant. It is also the case of the plaintiff that after the death of the mother he also inherited his share in the land in Dag No. 122 of patta 15 and accordingly his share in the land became 18 bighas 1 katha, which he possessed. The further case of the plaintiff is that the defendant, after the death of their mother, showing a registered deed of sale dated 12.2.1973, allegedly executed by the mother in favour of the defendant No. 1, proposed to sell the land measuring 2 bighas to the plaintiff and accordingly the plaintiff purchased the said land measuring 2 bighas from the defendant No. 1 on 21.2.1976 by executing a registered deed of sale. According to the plaintiff he, however, subsequently came to know on 28.8.1977 from his sister, proforma defendant No. 3, that Sabitri Devi did not sell the land. Thereafter on enquiry he came to know that the defendant by impersonation of his mother created a false and collusive sale deed dated 12.2.1973 i.e. Ext. 1 showing that 2 bighas of land was transferred in his favour and sold the said land to the plaintiff at Rs. 2000/. It is also the pleaded case of the plaintiff that the defendant No. 1''s wife instituted Title Suit No. 80/1977 for declaration of her right, title and interest over the said land measuring 2 bighas claiming that she has purchased the same, which, however, was dismissed.
The defendant No. 1, his wife and the defendant No. 15 contested the suit by filing written statement denying the contention of the plaintiff in the plaint and contended that the mother of the defendant No. 1 on 12.2.1973 transferred the land measuring 2 bighas in favour of the defendant No. 1 by registered deed of sale (Ext. 1) which is not forged but a genuine document.
The learned trial court upon appreciation of the pleadings of the parties framed the following issues for consideration and decision :
Whether there is cause of action?
Whether the suit is maintainable in its present form?
Whether the plaintiff has a right to sue in view of the fact that the plaintiff purchased the land from the defendant?
Whether the suit is barred by waiver, estoppels and acquiescence?
Whether the suit is bad for defect of parties, whether all the cosharer of the patta are necessary party?
Whether the suit land is properly valued and plaint properly stamped?
Whether the plaintiff''s purchased deed can be declared void in view of the fact that the plauintiff purchased voluntarily and got the original deed in �waposh� from the defendant No. 1?
Whether the plaintiff is bound to produce the original deed?
Whether plaintiff is entitled to refund of Rs. 2000/?
To what relied etc.?
During the course of trial, when the plaintiff examined five witnesses including himself, the defendant, however, did not examine any witness.
The learned trial court on the basis of the evidences on record decreed the suit of the plaintiff declaring the ejmali right over the suit land and also declaring that Ext. 1 sale deed dated 12.2.1973 is forged.
Being aggrieved, the defendant No. 1 preferred Title Appeal No. 4/1999, which has also been dismissed by the aforesaid judgment and decree by the first appellate court. Hence the present appeal.
The appeal was admitted for hearing vide order dated 6.12.2000 on the following substantial questions of law :
For that there being no findings by both the courts below as to who admitted the so called admitted thumb impression by corroborative evidence, a substantial question of law arises as to whether the Ext. 26 is legally tenable in view of the fact that there was no admission of documents or thumb impression by the defendant?
For that the sale of the schedule land having taken place by the registered deed on 12.2.1973 and the suit having been filed on 26.11.1977, a substantial question of law arises as to whether the suit was barred by limitation?
I have heard Mr. RP Sarma, learned senior counsel for the appellants/defendants and Mr. Sarma, learned counsel appearing for the respondent/plaintiff.
Referring to the substantial questions of law formulated, it has been submitted by the learned counsel for the appellant that as there was no admitted thumb impression of the mother of the plaintiff and the defendant No. 1, the Ext 26 i.e. the report of the expert to the effect that the thumb impression of the vendor appearing in Ext 1 is not the thumb impression of the mother of the plaintiff and defendant cannot be sustained in law, unless admitted thumb impressions are available on record, without which there cannot be any comparison of the admitted thumb impression with the disputed thumb impression and hence the judgment and decree passed by the learned courts below holding that Ext. 1 sale deed dated 12.2.1973 is forged require to be set aside.
Relating to the second substantial question of law it has been submitted by the learned counsel for the appellant that since the Ext. 1 sale deed was executed on 12.2.1973 the suit ought to have been brought within three years thereafter as required under Article 56 of Schedule of the Limitation Act and in the instant case the suit having been instituted on 26.11.1977 the same is barred by time and hence the learned court below ought to have dismissed the suit of the plaintiff.
Mr. Sarma, learned counsel appearing for the respondents/defendants on the other hand supporting the judgments and decrees passed by the learned courts below has submitted that it is evident that the admitted thumb impressions of the mother of the plaintiff and the defendant were sent for comparison by the hand writing expert with the disputed thumb impression appearing in Ext. 1 sale deed dated 12.2.1973, for opinion and the learned court below having regard to the opinion of the expert (Ext. 26) and also comparing both the admitted thumb impression and the disputed thumb impression, as required under Section 73 of the Evidence Act, came to the conclusion that the thumb impression appearing in Ext 1 sale deed dated 12.2.1973 is not of the mother of the plaintiff and the defendant No. 1 and as such no illegality has been committed by the learned courts below in recording the finding that the Ext. 1 sale deed is a fraudulent document. Mr. Sarma further submits that though the document Ext. 1 sale deed was executed on 12.2.1973, the suit instituted by the plaintiff cannot be held to be barred under the law of Limitation in view of the provision contained in Article 56 of the Limitation Act, which provides that the period of limitation of three years would begin from the date when the execution of the said document came to the knowledge of the plaintiff, as it is the pleaded case of the plaintiff as well as the evidence adduced that the plaintiff came to know about such forgery only on 28.8.1977.
I have considered the submissions of the learned counsel for the parties and also perused the impugned judgment and decree passed by the learned first appellate court apart from the judgment and decree passed by the learned trial court.
It is evident from the judgments and decrees passed by the learned courts below that the admitted thumb impressions of the mother of the plaintiff and the defendant No. 1 were sent to the handwriting expert for comparison with the disputed thumb impression of the mother appearing in Ext. 1 sale deed dated 12.2.1973. The handwriting expert has given his opinion, which has been marked as Ext 26. In the said opinion it is opined that the thumb impression appearing in the questioned document i.e. Ext. 1 is not the thumb impression of their mother as it does not tally with her admitted thumb impression. The learned courts below also compared both the thumb impressions i.e. the admitted thumb impression as well as the disputed thumb impression, as provided under Section 73 of the Evidence Act. The courts below thereafter came to the conclusion that the thumb impression appearing in Ext. 1 is not the thumb impression of the mother of the plaintiff and the defendant and hence recorded the finding that the said document is forged document. The said concurrent finding of fact, therefore, needs no interference in the second appeal.
Relating to the second substantial question of law as formulated, it appears that the plaintiff came to know about the forgery committed by the defendant No. 1 on 28.8.1977. Article 56 of the Limitation Act provides that the suit for declaration that an instrument is forged is to be instituted within three years of coming to the notice of the plaintiff. The plaintiff instituted the suit on 26.11.1977 i.e. within three years from the date of coming to know about such forgery and hence the plaintiff''s suit was within the time allowed.
In view of the above, I do not find any merit in the appeal and hence it is accordingly dismissed without any order as to cost.
At this stage the learned counsel for the appellants submits that on the basis of the finding recorded relating to the forgery a criminal proceeding has been instituted against the defendant No. 1 and his wife, which has been put to challenge in a criminal revision petition which is pending for decision. It is submitted that during the pendency of the criminal revision one of the accused, namely the original defendant No. 1 has expired.
Having regard to the aforesaid submission I hope and trust that since both the parties are closely related to each other they will try to resolve the dispute relating to the criminal proceeding amicably so as to avoid further enmity.
The Registry is directed to send down the records forthwith.