BALE THAKUR Vs. ANIRUDHA PRADHAN

JUDGEMENT

(1.) Defendant is the appellant against a reversing judgment in a suit for declaration of title and recovery of possession. Plaintiff-respondent filed the suit in respect of 70 decimals of land purported to have been purchased by him through registered sale deed Ext. 1 on 26-4-1965 from the appellant and to be in possession of the same and paying rent till 13-11-77 when he was dispossessed by the appellant the latter reaping the crop raised by him and also creating disturbance over his possession. The suit was contested by the appellant refuting the fact of sale and taking the stand of his having suffered from insanity for about three years ten to twelve years back and that during that time the plaintiff might have got the sale deed executed as a sham document. He also denied the possession of the respondent at any time. The trial Court framed seven issues and came to the finding of the sale deed having got executed during the insanity of the appellant but the respondent having paid Rs. 650.00 as the consideration amount recited in the sale deed. Besides, he also held the property to the joint family property but the sale was not on behalf of the joint family and as such no right, title or interest could have passed by the same. The further finding reached by the trial court was that the property sold suffered from indefiniteness as no sketch map was attached to the sale deed. The appellate court reversed the findings of the trial court taking the view that so far as insanity of the appellant was concerned, there is no sufficient evidence to support such a plea and that no adjudication regarding the joint family character of the properly was available to be made by the trial court in absence of any pleading to that effect. The trial court had found the appellant to be insane at the time of execution of the sale deed relying upon the evidence of the appellant himself and D.Ws 2, 3 and 4 as well as the fact that in Ext.1, the sale deed, the L.T.Is. of the appellant appeared instead of his signature though he had signed the written statement and the deposition in court. He thus concluded from such facts that the appellant must have been made to put his L.T.Is. even though he could sign the deed. It was further held that admittedly the appellant being an illiterate person as is deducible from the fact of his having put L.T.Is. on the sale deed, the onus was on the respondent to establish the fact that he had consciously put his L.T.Is. in the sale deed after understanding the contents thereof. While the proposition of law as relied upon by the trial court was wholly correct, as has been decided in (Somanath Misra Vs. Narahari Das and others, 44 (1977) CLT 26, (Laxmi Bai alias Lachhmi Bai and another Vs. Kesari Mai and another, 1974(1) CWR 630), yet the application of the principle of law to the circumstances of the case was not correct, inasmuch as in the entire evidence of the appellant or of P.Ws. 2 and 3, there was no statement regarding the insanity of the appellant except a single-line assertion of his being insane twelve to thirteen years back. Such a statement by itself would not establish insanity as more substantial nature of proof is necessary for the same. No evidence has been absolutely led regarding the conduct of the appellant from which the fact of his insanity, could be inferred. There is also no documentary evidence of his having been insane. Since the normal presumption of the mental faculty of a person is of sanity, the onus is upon him who alleges the negative and in discharging such onus sufficient facts bearing upon the question as regards the conduct of the person concerned must be placed for consideration of the court to hold that he was insane at the time. Of course the question would be different if documentary evidence regarding the fact would be forthcoming which is also not a fact here. As regards the presumption attached to execution of a deed by an illiterate person, it has been rightly observed by the appellate court that the plaintiff stated of the document having been read over and explained to the appellant and no cross-examination was directed in that aspect of the matter. Besides, the appellant himself had acknowledged receipt of the consideration money before the Sub-Registrar and the other witnesses of the appellant also corroborate this fact. In that view of the matter, the findings of fact reached by the learned appellate court are not liable to be disturbed.

(2.) It is however a fact that the property purported to have been purchased by the plaintiff defies identification. In the sale deed Ext. 1, the property has been described merely as 70 decimals out of Parcha Khata No. 27/1/2 of village Pudajalanga. The recitals in the sale deed say the plaintiff to have purchased only a portion measuring 70 decimals out of the Parcha land. There is no measurement nor the boundaries of the land sold. In the plaint also the suit land has not been specific except stating the same to be Mukherjee Settlement plot No. 838/1137/1 Berna with an area of the decimals appertaining to Parch Khata No. 27/1/2 of village Pudajalanga. Without question, the land is not identifiable by such description and hence even though the plaintiff must be held to have title to the 70 decimals of land out of the Parch land, yet no decree for recovery of possession can be granted, the suit land being not specific. There is no discussion over this aspect of the matter in the appellate court judgment

(3.) In the result, the appeal is dismissed subject to the modification of the judgment of the lower appellate court that the suit is decreed a regards the plaintiff's title to the land purported to have been purchased by him but however no decree for possession can be passed the question being left open to be decided in appropriate action that may be brought by the plaintiff for demarcation of his property. No costs. Appeal dismissed.