PHUPNARAYAN SINGH Vs. PILOO MURA

JUDGEMENT

(1.) THIS appeal is by the defendant The plaintiff brought a suit being Title suit No. 47/85. The brief facts is that the land measuring 22 Bighas 1 katha 12 lechas invarious Dags of the new periodic patta No.41 of Dhengia Gaon,Mouza Bogdung was originally owned and possessed by Turu Mura, father of the plaintiff and he occupied the same. After the death of Turu Mura, the plaintiff and two brother inherited the property of Turu Mura and occupied the land acconding to their share. On 30.4.85 the plaintiff received a notice from the Sub Deputy Collector, Tinsukia inviting objection against and application filed by the defendants for mutation of his name in respect of one bigha of land stated to have been purchased by the defendant On receipt of this notice from the revenue court, the plaintiff made an enquiry and could come to know that on 12.3.84, the defendant got a deed of sale executed and registered in the Tinsukia Sub Registry. But the plaintiff neither executed nor registered any deed of sale in favour of the defendant or any body else. It is the further case of the plaintiff that he did not receiive any consideration money. As such the suit for declaration of the plaintiff and deed of sale as false and fictitious. There were rather other suspicious circumstances pointed out by the plaintiff with regard to the execution of the deed. The defendant filed a written statement in addition to usual pleas the main plea was that the Deed was duly executed by the plaintiff on receipt of consideration and as such, the suit of the plaintiff is to be dismissed. The learned Munsiff dismissed the suit holding that the Deed was duly executed. There was an appeal being title appeal No. 7/87 before the learned Assistant District Judge, Tinsukia and the learned Asstt. District Judge, on consideration of the materials on record came to the finding that the deed in question is false and fictitious. It was found by the learned Asstt. District Judge that execution of the deed was not established by the defendant. THIS finding of the lower appellate court regarding false and fictitious nature of deed is a finding of fact being based on appreciation of evidence and it being a finding of fact it cannot be interfered with by the High Court in exercise of Second appellate jurisdiction. A sale deed does not require attestation and therefore, it cannot be questioned on the ground of non examination of any attesting witness. But in spite of it, when a deed is challenged as false and fictitious, the execution of the deed must be proved as required under Section 67 of the Evidence Act. Section 67 of the evidence Act provides for proof of signature and hand writing of person alleging to have signed and/or written document to be proved. A thumb impression is also been held to be signature within Section 67. In AIR 1950 SC 265 (Commission of Agricultural IncomeTax, West Bengal - Vs- Keshab Chandra Mandal), the Supreme Court pointed out that a thumb impression does not come with the definition of signature given in the General Clauses Act, but at the same time, me Supreme Court pointed out that when the question of identification of the thumb impression comes in that must be identified and it is to be established on the basis of evidence who saw the person putting thumb impression or the evidence of the person who endorsed it. That was not established in this particular case. So, without deciding whether the thumb impression comes within the purview of Section 67 of Evidence Act, by following the decision of the Apex Court it must be held mat in mis particular case, thumb impression of the plaintiff being not identified and/or proved in the so called Deed of sale, execution of the Sale deed must be deemed to be not proved and the finding arrived at by the lower appellate court is found to be correct and proper finding.

(2.) ACCORDINGLY, there is no merit in this Second Appeal and the same is dismissed. Heard Mr. G. N. Sahewalla learned Advocate for the appellant and Mr. Debasis Baruah as Amicus Curiae. As no body appeared for the respondent, I requested Mr. Baruah to assist me and accordingly he has rendered assistance to me. I am grateful to him.