BULAKIDAS HARDAS MAHESARI Vs. SK. CHOTU PAIKAN

JUDGEMENT

(1.) . 1. This is plaintiff's appeal from the reversing judgment of the Second Additional District Judge, Nagur, in Civil Appeal No. 20A of 1939, delivered on 28th March 1939. The dispute relates to a strip of land marked by letters K P N M in the map attached to the decree. The disputed land lies between the plots owned by the parties. Originally the land which was No. 439 belonged to Raje Raghojirao. A part of it which lies to the north was sold by him to the Model Mills. To the south of that plot lies the road No. 439/2 which vests in the Municipal Committee. The plot No. 439/3 lies to the south of that road. It was acquired by the plaintiff from Raje Bahadur under a sale-deed dated 2nd March 1921. The defendant's plot is No. 439/4 which lies to the south of the plaintiff's plot. It was acquired on 23rd January 1927 from Raje Raghojirao by Motichand and others from whom the defendant acquired it by purchase on 19th January 1936. The plaintiff's plot measures Order 54 and that of the defendant Order 56 according to their respective sale deeds. The case of the plaintiff was that the southern boundary of his plot was along the line shown by letters MN in the Commissioner's map, and that in March 1934 the defendant had encroached upon the site in dispute by removing some stone marks and that he erected huts there. The main issue in the case was whether the site in dispute formed part of the plaintiff's plot or the defendant's plot. Both parties filed their respective maps and examined witnesses to show that the disputed land formed part of their respective plots. The plaintiff succeeded in the Court of first instance but failed in the lower appellate Court. That Court negatived the plaintiff's title on the ground that the plaintiff had failed to prove either his sale deed or adverse possession. It also rejected the testimony of the surveyor who had prepared the plan of the plaintiff's plot. The first point for determination is whether the plaintiff's sale-deed dated 2nd March 1921 was rightly rejected in the lower appellate Court as inadmissible on the ground that its execution was not proved. The point is really of technical importance since the sale-deed does not contain any detailed description of the plot comprised in it and is therefore altogether worthless so far as the point in controversy is concerned. Out of deference for the learned Counsel for the appellant, who has addressed an elaborate argument, I have to consider whether the evidence produced by the plaintiff to prove the sale-deed is sufficient.

(2.) BALAJI (P.W. 1) is a solitary witness who identifies the hand-writing of Shambhaji, the petition-writer, who scribed the plaintiff's sale-deed. Manifestly this evidence cannot prove the genuineness of the document. Even a forged document has to be scribed by somebody. It is therefore clear that mere proof of the fact that certain document was scribed by certain person can hardly go to prove that the document was executed by the person whose name appears in it as an executant. It is however argued on the authority in Gangamoyi Debi v. Troiluckhya Nath (06) 33 Cal. 537, Ihtisham Ali v. Jamna Prasad A.I.R. 1922 P.C. 56 and Mt. Lahini v. Bala A.I.R. 1922 Nag. 227, and other cases that the registration of the document must be regarded, as sufficient to prove the execution of the document. I do not see my way to accede to the argument for the obvious reason that the cases relied on do not lend countenance to it. In Gangamoyi Debi v. Troiluckhya Nath (06) 33 Cal. 537 there was one Lakhi Nath Muzumdar who affirmed in the witness-box that he had seen Brojo Nath Chowdhry makinghis signature on the document. Similarly, in Mt. Lahini v. Bala A.I.R. 1922 Nag. 227, there were two witnesses who swore that they had seen the deed signed. In Mt. Lahini v. Bala A.I.R. 1922 Nag. 227 the identification was in the hand-writing of a deceased scribe who had noted that the mark appearing in the document was that of the executant. That was an indirect proof of the execution of the document. The case in Ponnswami Goundan v. Kalyanasundara Ayyar A.I.R. 1934 Mab. 365 was One in which the signature of a deceased attesting witness was accepted as sufficient proof of the execution of the document by its alleged executant. That was because an attesting witness is presumed to have witnessed the execution of the document. There is no doubt a case reported in Piara v. Fattu A.I.R. 1929 Lah. 711 to show that there was no witness to .prove directly or indirectly the execution of the document and the question was whether the certificate of registration was admissible. The learned Judge who decided the case held on the authority of the observations made by the Judicial Committee in Gangamoyi Debi v. Troiluckhya Nath (06) 33 Cal. 537 that the certificate of registration was relevant and admissible to prove the execution. The learned Judge, however, observed whether the certificate of registration itself is sufficient to establish execution or not would depend on the circumstances of each case.

(3.) THE point for determination in this case is not whether the plaintiff had title to the plot of which he is in actual possession and about which there is no dispute but whether the site in dispute formed part of the plot which he had acquired from Raje Bahadur. On that issue the sale deed throws no light and it is for this purpose that the plaintiff relied on, adverse possession. The lower appellate Court did not care to discuss the evidence bearing on the point of ad verse possession. That was because there is in reality no evidence on the point. The plaintiff himself refrained from going into the witness-box and the witnesses that he examined do not make any substantial contribution. Lala Mian (P.W. 2) says that at the request of the plaintiff he had fixed the wooden posts to enclose the plaintiff's plot and that as the people of the locality removed them he fixed stones the next year. He does not make it clear in what year he had put the wooden posts or stones. He did not take the measurements of the plot himself and he could not give the width of the land covered by the road. He did not particularly mark the stones to see whether they were existing or not after he had once fixed them. He could not give the measurements of the plaintiff's land. Govinda (P.W. 3) speaks of the plot having been demarcated by stones and the defendant having removed a corner stone 12 months before the date he deposed about it. But he is unable to say whether by removing the stone the plaintiff lost any portion of his land. Budhu (P.W. 4) only speaks of haying seen boundary stones two years before his deposition and he does not know anything about the plaintiff's possession for 12 years. Gopal (P.W. 5) also came on the scene only 1&farac12; years before his deposition. P.W. 6 and. P.W. 7 are surveyors who say nothing about the plaintiff's possession. There is thus no evidence of adverse possession on the part of the plaintiff.