PANKAJ KUMAR CHAKRABORTY Vs. PRAVASH CHANDRA CHAKRABORTY

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 30th November, 2010 passed by the learned Additional District Judge, 2nd Court, Malda in Title Appeal No. 48 of 2009 reversing the judgment and decree dated 30th June, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Malda in Title Suit No. 120 of 2000. The present appellant was the plaintiff in the suit and prayed for a declaration that the Trust Deed dated 19th March, 1991 was absolutely a forged deed and the same was never executed by Chandi Pada Chakraborty who had no mental and physical capacity to execute any such deed. And further prayed for an injunction restraining the defendants from claiming absolute ownership of the suit property on the basis of alleged Trust Deed as the same was void and was never executed on 19.03.1991.

(2.) Defendant nos. 1, 2, 4, 5 and 6 filed written statements denying the plaint averments and that the plaintiffs have no right, title and interest over the suit property and they are not entitled to get any decree for permanent injunction. The learned trial Judge settled as many as six issues. While answering issue no.3 "Whether the deed dated 19.03.1991 is valid in the eye of law?" which is the prime issue in the suit the trial Judge held that the plaintiff completely failed to establish his title in the suit property. Plaintiff could not prove that the Trust Deed was procured by the false personification and by exercising fraud. Therefore, the trial Judge dismissed the suit on contest. The plaintiff/respondent preferred appeal against the said judgment and decree passed by the trial Court dismissing the suit. The Appellate Court reversed the findings of the trial Court and set aside the judgment and decree passed by the 1st Court.

(3.) Plaintiff challenged the authenticity of the Trust Deed and produced a certified copy of the same before the Court which was marked Exhibit on admission (emphasis by me). It was not denied that the deed was registered and the defendant was supposed to be in custody of the original deed inasmuch as the same was registered in 1991. The learned Appellate Court below relied on the certified copy of the said deed and held that since it was the onus of the defendant to produce the original deed and since they failed to produce it on the ground that the same was not delivered to them from the Registry Office, the learned Appellate Court drew adverse presumption and held that the defendant failed to discharge their onus by not producing the deed before the Court.