HIGH COURT OF CHHATTISGARH AT B1LASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Second Appeal No.64 of 2003 Bisun Uraon (Dead) through Legal Representatives Hana and others versus Shikari Kanwar 1 JUDGMENT Postfor 11-11-2008 Sd/- abeb Des Jud&e ,hmu .•!f!asw!?-^. ^' ^-S^-^G^. "<S HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip RaosahebDeshmukh, J. Appellants Defendants Reseojident Plaintiff Second Appeal No.64 of 2003 1. Bisun Uraon, S/o late Kallu Uraon, aged about 55 years, occupation agriculture (Dead) Thrpygh J-egal Representatiyes: 1(a) Hana, widow of late Bisun, aged about 65 years, 1(b) Dhadhu, s/o late Bisun, aged about 45 years, 1(c) Munjan, s/o Late Bisun, aged about 39 years, 1(d) Bahadur, s/o Late Bisun, aged about 35 years, All being cultivators, are resident of village Udari, Tahsil Lundra, Distt. Ambikapur (C.G.) 2. Lal Uraon, S/o Late Kaltu Uraon, aged about 60 years, occupation agriculture 3. Sundar, S/o late Kallu Uraon, aged about 50 years, occupation agriculture 4. Sukhdew, S/o Kishun Uraon, aged about 40 years, occupation agriculture 5. Kewal Sai, S/o Kishun Uraon, aged about 35 years, occupation agriculture 6. Ram Vilas, S/o Banshu Uraon, aged about 33 years, occupation agriculture All are R/o Village Udari, Tahsil Lundra, Distt. Surguja (C.G.) versus Shikari Kanwar, S/o late Dhangaru Kanwar, aged about 68 years, occupation agriculture, R/o Village Udari, Tahsil Lundra, Distt. Surguja (C.G.) Appeal underSection 100 ofthe Code ofCivil Procedure, 1908 0 °) Present: Shri A.K.Shukla, counsel fdrthe appellants. Shri S.K.Mehta with Shri N.K.Mehta, counsel for the respondent. l^S^fes^S StiNs: JUDGMENT (Delivered on this II day of November, 2008) The appellants/defendants are aggrieved by the judgment and decree dated 23-11-2002 passed by the llnd Additional District Judge, Ambikapur in Civil Appeal N0.79-A/2002 reversing the judgment and decree dated 24-12-1999 in Civil Suit No.193-A/1998 by the Civil Judge Class-11, Ambikapurwherebythesuitwasdismissed. (2) The appeal was heard on the following substantial question of law: "Whether the lower appellate Court was justified in reversing the judgment and decree passed by the trial Court on the ground that execution of sale deed Ex.D-1 was not proved?" ffSSS^W-SS^-' (3) Admittedly, the respondent/plaintiff Shikari is the son of Dhangaru and the appellants/defendants herein are the legal representatives of Kallu Uraon. Kallu had initiated proceedings before the Naib-Tahsildar in the year 1995 for mutation over the land Khasra No. 1979 area 1.27 acres (0.514 hectares) situated in Village Udari, Tahsil Lundra, District Surguja (henceforth 'the suit land'). In those proceedings name of Kallu was mutated over the suit land by order dated 28-2-1996 passed by the Naib- Tahsildar, Lundra. (4) Brief facts are that a suit for a declaration that sale-deed dated 7-2-1957 pertaining to the suit land by Dhangaru in favour of Kallu was void having been obtained due to forgery and by playing fraud was ,i.^.---*---'-^i;-Ks,. •'f"^-ys:r~:!?~^ ^i. •p a> ,,.'-,r^ "^ ll ^ i I.OJ' '•^'QS.E Go instituted on 9-4-1996 by his son Shikari against Kallu. A declaration that t Shikari was the sole owner of the suit land and a permanent injunction to restrain Kallu from interfering with his peaceful possession over the suit land was also sought. It was further prayed that the mutation of the suit land in favour of Kallu by the Naib-Tahsildar Lundra be declared illegal. It was averred by the plaintiff Shikari that his late father Dhangaru was an illiterate person and could not sign. During his lifetime Dhangaru and after his death Shikari was in possession of the suit land. In the year 1995, on receipt of a notice from the Court of Tahsildar Lundra, the plaintiff learnt for the first time that Kallu had moved an application before the Tahsildar for mutation of his name over the suit land on the basis of a sale-deed dated 7-2-1957 said to have been executed by Dhangaru in favour of Kallu. It was specifically pleaded that the sale-deed dated 7-2-1957 was a forged document fraudulently prepared by Kallu. There was no explanation why after execution of the said document on 7-2-1957 the application for mutation was filed after almost four decades in the year 1995. It was further pleaded that Dhangaru and after his death the plaintiff was always in possession ofthe suit land. (5) During the pendency of the suit, the defendant Kallu died and his legal representatives Bisun, Lal, Sunder, Sukhdeo, Kevalsai and Ramvilas were brought on record. During pendency of the second appeal, Bisun also died and his legal representatives have been brought on record. (6) The appellants/defendants averred that Dhangaru had, on 7-2-1957 sold the suit land to Kallu for a consideration of Rs.50/- by a registered sale-deed and had delivered possession thereof. Thus.after execution of ^ ^ V ;" |^ij».tSt lt>swfe<la8ai*i.-' the sale deed, during his lifetime Dhangaru and after his death even the t plaintiff were never in possession. (7) On the basis of the fact that the sale deed Ex.D-1 dated 7-2-195^ being a document more than 30 years old, the trial Court drew a presumption of execution of the said document by Dhangaru in favour of Kallu. It further held that the plaintiff had failed to prove that he was in possession of the suit land. On the other hand, it recorded a finding that possession of defendant Bisun, i.e., one of the legal representatives of Kallu on the house situated on the suit land was proved. It was further held that the plaintiff had failed to prove that the sale-deed dated 7-2-1957 was a forged document. On these findings, it dismissed the suit. (8) Being aggrieved, the plaintiff Shikari preferred First Appeal (Civil Appeal No. 79-A/2002) before the llnd Additional District Judge, Ambikapur. The lower appellate Court reversed the decree passed by the trial court and granted the reliefs prayed for by the plaintiff on the ground that the document dated 7-2-1957 was a highly suspicious document as it did not surface for a period of about 39 years, that land revenue on the suit land was never paid for 39 years by Kallu and also the fact that for 39 years Kallu did not take steps to get the suit land mutated in his name. It was further held that prior to mutation of the suit land in the name of Kallu, the plaintiff was in possession of the suit land. The defendant Kallu did not examine one of the surviving attesting witnesses of the sale deed dated 7-2-1957. On these premises, the lower appellate Court reversed the judgment and decree passed by the trial Court and by the impugned judgment and decree granted a declaration that the plaintiff was the owner of the suit land, that the sale deed dated 7-2-1957 was ineffective and void ^ teiRNISB*1^^'' and issued a permanent injunction against the defendants restraining t them from interfering with the peaceful possession of the plaintiff over the suit land. (9) Submissions of Shri A.K.Shukla, learned counsel for the appellants and Shri S.K.Mehta, learned counsel for the respondent were heard at length. Record is perused. (10) The sale-deed dated 7-2-1957 is a registered document and was more than 30 years old on the date of its production before the trial Court. It was produced by Lal, D.W.1 who is the legal representative of the deceased defendant Kallu. Section 90 of the Indian Evidence Act, 1872 reads asunder: "90. Presumption as to documents thirty years old.— Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.— Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to section 81" ^J^— :"T^ ^i 1 "at1J k^a^/ |,gSI»;PEE !?ssiBI-Nt11-"'- A rebuttable presumption thus arises under Section 90 of the Indian ^ Evidence Act, 1872 of the execution of the sale-deed by Dhangaru in favour of Kallu on 7-2-1957. Therefore, the initial burden of proving that the sale-deed dated 7-2-1957 was a forged document, got executed by playing fraud by Kallu was on the plaintiff. It was specifically averred by the plaintiff in the plaint that Dhangaru was an illiterate villager who could not even sign any document. This averment was denied in paragraph 4 of the written statement. The sale-deed Ex. D-1 bore the signature purporting to be of Dhangaru. The plaintiff Shikari besides examining himself adduced the evidence of Noharsai P.W.-2 and Ramjatan, P.W.-3 who stated on oath that Dhangaru was an illiterate person and used to only affix his thumb impression. No question was asked in cross-examination to these witnesses on this point. Shikari, P.W.-1 also testified on oath that / Dhangaru was an illiterate person who could not sign and could only affix his thumb impression on any document. In cross-examination, this has also not been rebutted. Thus, by the above unrebutted testimony, the plaintiff had discharged the initial burden on him and established that Dhangaru being illiterate did not know how to sign any document and used to affix only his thumb impression on any document. The presumption of the execution of Ex.D-1 by Dhangaru thus stood rebutted. In terms of Section 101 of the Indian Evidence Act, 1872 the initial onus which was on the plaintiff to prove that the sale-deed dated 7-2-1957 was a forged document obtained by fraud was thus discharged. The onus, therefore, shifted to the defendants to prove execution of sale-deed dated 7-2-1957 by Dhangaru by examining either Kallu, the purchaser or one of the surviving attesting witnesses. It was admitted by Shikari, P.W.-1 that Parasram, one ofthe attesting witnesses ofthe sale-deed dated 7-2-1957 ^t!^^^!^'^-1^" 7 was alive. Therefore, the defendants ought to have examined Parasram ^ regarding execution of the sale-deed dated 7-2-1957 by Dhangaru. Even Kallu, the defendant did not enter the witness box during his lifetime to prove the execution of sale-deed Ex.D-1 by Dhangaru. (11) Lal, D.W.-1 admitted in paragraph 11 that during his lifetime Dhangaru and after his death Shikari alone were paying the Malgujari over the suit land. He also admitted that before mutation of name of Kallu, the suit land was recorded in the name of Dhangaru and after his death in the name of Shikari. No documentary evidence was adduced by the defendants to show that at any point of time prior to mutation, possession of Kallu was recorded in the revenue records over the suit land. On the other hand, he admitted in paragraph 11 that Kallu had never taken any steps for getting his possession over the suit land recorded in the revenue records. The lower appellate Court thus rightly concluded that the document Ex.D-1 was a highly suspicious document because it did not surface for almost 39 years after its execution. In this view of the matter, 1 am of the considered opinion that the plaintiff had satisfactorily discharged the initial burden to prove that the sale deed dated 7-2-1957 was a forged document executed by playing a fraud by Kallu. The testimony of Shikari, P.W.1, Noharsai, P.W.2 and Ramjatan, P.W.3 that during his lifetime Dhangaru and after his death Shikari were in possession of the suit land has also not been rebutted in cross-examination. The admission by Lal, D.W.1 in paragraph 11 further lends support to the above testimony of the witnesses for the plaintiff. The lower appellate Court had thus rightly recorded a finding on the basis of the conduct of the defendant Kallu that the document was a highly suspicious document. :^ ^ "•*lm^^ 8 (12) Having thus considered the submissions of the learned counsel for ^ the parties and perused the record and for the reasons aforesaid, 1 am of the considered opinion that the lower appellate Cpurt was fully justified in reversing the judgment and decree passed by the trial Court on the ground that execution of sale-deed Ex. D.1 dated 7-2-1957 by Dhangaru was not proved. Substantial question of law is accordingly answered in affirmative. (13) In the result, there is no merit in this appeal, which is accordingly dismissed. Parties shall bear their own costs. _. —__— Sd/- DUip Raosaheb Deshmukh Judge ^^ Gop£