SABHA RAM DAS Vs. MAHENDRA DAS

JUDGEMENT

(1.) This Second Appeal arises from the judgment and decree dated 27.5.1994 passed by Shri K. Sarma, District Judge, Nalbari in Title Appeal No. 4 of 1992 upholding the judgment and decree passed by Shri M. Uzir, learned Munsiff No. 1 Nalbari decreeing the suit of the plaintiff-respondent in Title Suit No. 7 of 1990. The plaintiff-respondent filed the suit for declaration of right, title and interest and also for khash possession of the suit land with the allegation that they have been in possession of the land in suit which was held by his father originally on annual patta and later on it converted to be land on periodic patta in the year 1985 and after his father's death he got his name mutated over the land as heir on 11.5.1985. He did not transfer the land to the defendant in any way but the defendant with the help of Lat Mandal got his name mutated in the chitha on 6.2.86. he filed objection against that mutation order and accordingly the name of defendant was cancelled and mutation of his name was revived again. Thereafter, the defendant filed a petition under Section 144 Cr.P.C. on 07.2.1990 and on which the concerned Court passed order on 17.2.1990 restraining the plaintiff from entering the suit land. The plaintiff never executed sale deed dt. 20.3.80 in favour of the defendant as such the defendant has no right, title and interest over the suit land however the defendant claimed that he had purchased the suit land from the plaintiff by registered sale deed dated 20.3.80 and filed the case under Section 144 Cr.P.C. and thereafter threatened the plaintiff to disposes from the suit land. Hence the suit. The defendant-appellant filed written statement and pleaded inter alia, that he purchased the suit land from plaintiff on 20.3.80 by means of registered sale deed and since then he was in possession of the suit and on which he got his name mutated in the revenue records which was lateron cancelled on the application filed by the plaintiff. He thereafter filed the application under Section 144 Cr.P.C. in the Court of Executive Magistrate upon which the said Executive Magistrate passed order for restraining plaintiff from entering the land.

(2.) Though as per the pleadings of the parties many questions arises. The main question however which fell for decision was whether the plaintiff had sold the suit land to the defendant by registered sale deed dated 20.3.80. In support of his claim of purchasing the suit land defendant set up the registered sale deed allegedly executed in his favour by the plaintiff. The execution of the sale deed in favour of defendant was denied by the plaintiff. It was therefore necessary, as required under Section 67 of the Evidence Act, for the plaintiff to prove the execution of the sale deed and signatures appearing on the registered sale deed. Admittedly the defendant did not adduce any evidence to prove execution of the sale deed dated 20.3.80 by the plaintiff nor evidence was adduced by him to prove the signature of the plaintiff on the said sale deed. In the circumstances, the Trial Court as also the appellate Court below decreed the suit. Hence the present second appeal.

(3.) Mr G.P. Bhowmik, learned counsel for the appellant has contended that though no independent witness was examined by the defendant to prove execution of the sale deed dated 20.3.80 by the plaintiff or for proving the signature of the plaintiff upon the said sale deed, he however contended that since the defendant examined himself and had supported his version by stating that the sale deed was executed in his presence by the plaintiff who had signed on the sale deed, it was sufficient compliance of the requirement of Section 67. He further argued that D.W.2 had also stated in his deposition that he had put his thumb impression on the sale deed and has seen the payment of the sale consideration by the defendant to the plaintiff who too also according to Mr Bhowmik, proved execution of the sale deed in question by the plaintiff in his (detendant's) favour.