RSA 167/2000 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY Judgment and order (CAV) This appeal by the defendants is directed against the ju dgment and decree dated 23-06-2000 passed by the learned Civil Judge (Sr. Divisi on), Darrang at Mangaldoi in Title Appeal No.12/1998 allowing the appeal by decr eeing the suit of the plaintiffs/respondents and by setting aside the judgment a nd decree dated 12-05-1998 passed by the learned Civil Judge (Jr. Division), No. 1, Darrang at Mangaldoi in Title Suit No.23/1996, whereby and whereunder the pla intiffs’ suit was dismissed. 2. The plaintiffs/respondents instituted Title Suit No.23/1 996 in the Court of the learned Civil Judge (JR. Division), No.1 (now Munsiff), Mangaldoi for declaration of right, title and interest over the land measuring 2 Bighas 4 Kathas 3‰ Lechas described in Schedule Ka(2), which is half of the lan d measu7ring 5 Bighas 3 Kathas 7 Lechas pertaining to Dag No.293 of Kheras Perio dic Patta No.135 of village Satkholi under Sipajhar Mouza described in Schedule- Ka and land measuring 2 Kathas ‰ Lecha described in Schedule-Kha(2), which is ha lf of the land measuring 4 Kathas 1 Lecha pertaining to Dag No.500 of Kheras Per iodic Patta No.140 of village Satkholi, Muoza Sipajhar; for declaration that the registered deed of sale No.1074 dated 18-04-1996 purportedly executed by the pl aintiffs/respondent Nos.1 and 2 in favour of the defendants/appellant Nos.1 and 2 transferring 2 Bighas 2 Kathas 8 Lechas of land in Dag No.293 of Kheras Period ic Patta No.135 and 1 Katha 12 Lechas in Dag No.500 of Kheras Periodic Patta No. 140 of village- Satkholi under Sipajhar Mouza totaling 2 Bighas 4 Kathas, as fra udulent and for cancellation and also for partition, alleging inter alia that th e entire land described in Schedules-Ka and Kha measuring 5 Bighas 3 Kathas 7 Le chas and 4 Bighas 1 lecha, respectively, originally belong to the grand-father o f the plaintiff Nos.1 and 2, Bhoboka Sheikh and after his death their sons Sahar Ali and Mucha Sheikh, being the only heirs inherited the said property in equal shares. It has further been pleaded in the plaint that Sahar Ali left behind 2 (two) sons, namely Naimuddin and Saukat (defendant No.1) and after the death of Naimuddin, the portion of the land over which he acquired title by right of inh eritance devolved on the defendant Nos.3 to 6. The further case of the plaintif fs in the plaint is that after the death of Mucha Sheikh, the second son of Bhob oka Sheikh, the plaintiff Nos.1 and 2 inherited his share of property. Accordin g to the plaintiffs, they being the heirs of Mucha Sheikh, who inherited half of the property left behind by Bhoboka Sheikh, are entitled to half share on the l and described in Schedules Ka and Kha to the plaint. The further case of the pl aintiffs is that the plaintiffs’ names were mutated alongwith the names of other heirs of Bhoboka Sheikh in the revenue records and the plaintiffs and the defen dant Nos.1 and 3 to 6 are jointly possessing the land, which they got by the rig ht of inheritance, but the defendant Nos.1 and 3 to 6 though with the understand ing of giving the share of the crop was allowed to occupy the land with further condition that whenever the plaintiffs demand the possession they will vacate it , they refused to vacate the land belonging to the plaintiff Nos.1 and 2 and in the guise of execution of a deed for handing over the possession, the defendant Nos.1 and 2 took the plaintiff No.1 to Mangaldoi on 18-04-1996 and obtained her thumb impression on a sheet of paper wherein the mother of the defendant No.2 pu t her thumb impression on behalf of the defendant No.2. According to the plaint iff No.1, she was given the impression that by that document the possession of t he property belonging to the plaintiff Nos.1 and 2 will be handed over and thoug h they demanded the possession, they have been told that their share has been so ld in favour of the defendant Nos.1 and 2 on 18-04-1996. The plaintiffs have st ated in the plaint that they never sold the land as shown to have been sold by t he registered deed dated 18-04-1996. 3. The defendant Nos.1, 2, 7, 8 and 9 contested the suit by filing joint written statement. The defendant Nos.3 to 6 have also filed the j oint written statement, however, supporting the case of the plaintiffs. In the j oint written statement filed by the contesting defendant Nos.1, 2, 7, 8 and 9 (t he appellants in the present appeal) while admitting that the Schedule-Ka land o riginally belonged to the grand-father of the defendant No.1 and the plaintiff N os.1 and 2 and the land described in Schedule-Ka(2) and Kha(2) have been inherit ed by the plaintiffs, after the death of their father Mucha Sheikh, who was the son of Bhoboka Sheik, the said land was under the care of the defendant Nos.1 an d 2, which was, however, subsequently transferred by the plaintiff Nos.1 and 2 i n their favour by a registered deed of sale. 4. On the basis of the pleadings of the parties, the follow ing issues were framed by the learned Trial Court for consideration and decision :- (1) Whether there is cause of action for the Suit? (2) Whether the Suit is barred by limitation? (3) Whether the Plaintiffs have got right, title and int erest over the suit land? (4) Whether the registered sale deed No. 1074 dated 18.4 .96 was obtained by principal defendant by practising fraud and therefore, liab le to be cancelled? (5) Whether the Plaintiffs are entitled for the relief p rayed? (6) To what/other relief, reliefs, the parties are entit led? 5. While the plaintiffs have examined 4 (four) witnesses, w hich includes the plaintiff No.1 as PW-3 and proved 4 (four) documents, which in cludes the disputed registered deed of sale No.1074 dated 18-04-1996, the defend ants have examined 5 (five) witnesses, which includes the defendant Nos.1 and 2 and proved the disputed sale deed dated 18-04-1996 as Exhibit-Ka. 6. The learned Trial Court, upon appreciation of the eviden ces on record vide judgment and decree dated 12-05-1998 dismissed the suit of th e plaintiffs by deciding the issue No.4, which relates to the question as to whe ther the alleged sale deed was obtained by practicing fraud and, therefore, liab le to be cancelled, in the negative and against the plaintiff and consequently b y holding that after such sale, the right of the plaintiff Nos.1 and 2 in respec t of the land comprised in Schedule-Ka(2) and Kha(2) has extinguished. 7. Being aggrieved, the plaintiffs filed Title Appeal No.12 /1998 in the Court of the learned Civil Judge, Sr. Division, No.1 (now Civil Jud ge), Mangaldoi. The learned First Appellate Court, upon hearing the learned cou nsel for the parties and upon perusal of the evidences on record decreed the sui t of the plaintiffs by holding that the sale deed dated 18-04-1996 (Exhibit)-3, which has also been proved as Exhibit-Ka was fraudulent and execution of the sai d deed could not be proved by the contesting defendants and has also declared th e right, title and interest of the plaintiffs over the land comprised in Schedul e-Ka(2) and Kha(2) by decreeing the suit of the plaintiffs. Hence the present a ppeal. 8. While admitting the appeal vide order dated 27-11-2000, the following substantial questions of law were framed:- i) Whether the learned Civil Judge (Sr. Division) D arrang, Mangaldoi misconceived the law relating to the mode of proof of a docume nt and held wrongly that the contents of a sale deed can be proved by examining the attesting witnesses only and no other way ignoring the provision of Section 67 of the Indian Evidence Act? ii) Whether the learned Civil Judge (Sr. Division), Darrang, Mangaldoi committed serious illegality by holding that the sale deed wa s to be proved by examining an attesting witness under Section 68 of the Indian Evidence Act only? iii) Whether the learned Civil Judge (Sr. Division), Darrang, Mangaldoi having misconceived the law relating to the proof of sale dee d did not take into consideration evidence of the writer and other witness exami ned by the defendants/appellants in support of the facts that a registered sale deed was duly executed by the plaintiffs/Respondents in favour of Defendants/App ellants No.1 and 2? iv) Whether the learned lower appellate court commit ted serious error in law in deciding that the sale deed was fraudulently execute d on materials adduced by the Plaintiffs/Respondents in evidence but which were not pleaded in the plaint? 9. I have heard Mr. N. Chakraborty, the learned counsel for the appellants and Mr. H.K. Deka, the learned Sr. Counsel appearing on behalf o f the respondent Nos.1 to 4. None appears for the proforma respondents/defendan t Nos.5 to 11. 10. The learned counsel for the appellants with reference to the first and the second substantial questions of law, as formulated vide order dated 27-11-2000, has submitted that the learned First Appellate Court has allo wed the appeal by setting aside the judgment and decree passed by the learned Tr ial Court on misconception of law as the said Court has decreed the suit of the plaintiffs on the ground that the defendants could not prove the sale deed (Exhi bit-3/Ka) executed by the plaintiff Nos.1 and 2 in favour of the defendant Nos.1 and 2 by examining the attesting witnesses as required under Section 68 of the Evidence Act, though the deed being a sale deed, the provisions of Section 68 of the said Act is not applicable and when the defendants could prove the due exec ution of such sale deed as required under Section 67 of the said Act, the learne d lower Appellate Court ought not to have set aside the judgment and decree pass ed by the learned Trial Court. 11. Relating to the third substantial question of law, it ha s been submitted by the learned counsel for the appellants that the defendants b y adducing evidence of the scribe and other witnesses to the said sale deed coul d prove due execution of such deed by the plaintiff Nos.1 and 2 and thereby disc harged their burden of proving as required under Section 67 of the Indian Eviden ce Act, 1872 and hence the learned lower Appellate Court ought to have held that though the plaintiff Nos.1 and 2 originally had the title over the land describ ed in Schedule-Ka(2) and Kha(2) of the plaint, the title in respect of the said land stands transferred because of the said sale deed (Exhibit-3/Ka). It has fu rther been submitted that due execution of the sale deed (Exhibit-3/Ka) is to be presumed under the provisions of the Registration Act, 1908, the same having be en duly registered and the endorsement relating to execution of such deed by the plaintiff Nos.1 and 2 having been duly recorded by the registering authority. 12. The learned counsel for the appellants relating to the f ourth substantial question of law has submitted that the allegation of fraud in execution of the deed having been pleaded by the plaintiffs, the burden lies on them to prove that the sale deed was fraudulently executed, which the plaintiffs have miserably failed and as such, the learned lower Appellate Court ought not to have decreed the suit of the plaintiffs. 13. Mr. Deka, the learned Sr. Counsel appearing for the resp ondents/plaintiffs, on the other hand, supporting the judgment and decree passed by the learned lower Appellate Court, has submitted that though presumption can be drawn in respect of due execution of a document when the same is registered under the provisions of the Registration Act, 1908, in view of Section 58 of the said Act, such presumption is rebutable. According to the learned counsel, the presumption and the registration does not dispensed with the necessity of provi ng the execution when the execution of such document is denied. According to th e learned Sr. Counsel, the plaintiffs denied due execution of the sale deed (Exh ibit-3/Ka) and hence the defendants, in view of Section 67 of the Evidence Act, are bound to prove the due execution of the same by proving the thumb impression s of plaintiff Nos.1 and 2 in such document, which they have failed to do. Acco rding to the learned Sr. Counsel, the DW-5, Azizur Rahman, who is the scribe of the said sale deed and who allegedly taken thumb impressions of plaintiff Nos.1 and 2 in such deed, during cross-examination has stated that he does not know th e plaintiff Nos.1 and 2 personally and as such, the thumb impression of the plai ntiff Nos.1 and 2 in the said document could not be proved by the defendants. N o steps have also been taken by the defendants to send the said thumb impression s for examination by the hand writing expert so as to prove that the thumb impre ssions appeared in such document are of the plaintiff Nos.1 and 2, submits that learned counsel, though the burden lies on the defendant Nos.1 and 2 to prove th e due execution of such document. It has further been submitted by the learned Sr. Counsel that it is also evident from the materials available on record that no consideration money has been paid. The learned Sr. Counsel, therefore, submi ts that the appeal filed by the appellants deserves to be dismissed. 14. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record including th e judgment and decree passed by the learned Courts below. 15. It is evident from the pleadings of the parties and evid ences adduced, as well as the judgments and decrees passed by the learned Courts below that there is no dispute relating to the fact that the land described in Schedule-Ka and Kha to the plaint originally belonging to Bhoboka Sheikh and aft er his death the same was inherited by his 2 (two) sons, namely Sahar and Mucha in equal proportion. It is also not in dispute that the plaintiff Nos.1 and 2 i nherited the property fell into the share of Mucha, one of the sons of Bhoboka S heikh and the defendant Nos.1 and 3 to 6 inherited the land fell into the share of sahar, the defendant No.1 being the son of Sahar and defendant Nos.3 to 6 bei ng the sons of Naimuddin, who was another son Sahar. The defendants have also n ot disputed and rather admitted that the plaintiff Nos.1 and 2 have acquired tit le in respect of the land measuring 2 Bighas 4 Kathas 3‰ Lechas described in Sch edule Ka(2) and 2 Kathas and ‰ Lechas by described in Schedule Kha(2) totaling 3 Bighas 1 Katha 4 Lechas by right of inheritance, after the death of their fathe r Mucha Sheikh, who was one of the sons of Bhoboka Sheikh. The case of the cont esting defendants is that though the plaintiff Nos.1 and 2 acquires the title in respect of the Schedule Ka(2) and Kha(2) land, their title extinguished as they have transferred the said land by a registered deed of sale dated 18-04-1996 (E xhibit-3/Ka). The title of the plaintiff No.2 in respect of Schedule Ka(2) and Kha(2), prior to the alleged sale deed dated 18-04-1996, therefore, is not in di spute. 16. The questions, which require determination in the presen t appeal, therefore, are whether the defendant Nos.1 and 2 could prove the due e xecution of the sale deed (Exhibit-3/Ka) and whether the said sale deed was frau dulently obtained. 17. The learned First Appellate Court though has held that t he sale deed (Exhibit-3/Ka) was fraudulently obtained, it, however, has wrongly applied the provision of Section 68 of the Evidence Act, in holding that since n one of the attesting witness to the deed has been examined to prove the due exec ution, the defendants failed to prove the execution of such deed. The learned l ower Appellate Court, however, at the same time has held that the defendant Nos. 1 and 2 have failed to discharge the burden on proving the due execution of such sale deed. 18. Exhibit-3/Ka being deed of sale, the same is not require d to be attested by any attesting witness under the law. Hence, Section 68 of t he Evidence Act cannot be applied in the mater of proof of execution of the sale deed, as the said document is not required by law to be attested. 19. In the case in hand, the plaintiff Nos.1 and 2 having de nied the execution of the sale deed (Exhibit-3/Ka), the burden lies on the conte sting defendants to prove that such sale deed was signed or the plaintiff Nos.1 and 2 put their thumb impressions on such document, in view of Section 67 of the Evidence Act. Though presumption about due execution of a deed registered unde r the provisions of Registration Act, 1908 is to be drawn, such presumption is a lways rebutable. The registration of the document or the issuance of the certif icate of the registration under the provisions of the Registration Act, 1908, do es not dispense with the necessity of proof of execution when the same is denied , though the endorsement of the registering authority may furnish some evidence about such execution but the same is not conclusive and can always be rebutted. 20. It appears from the pleadings of the plaintiffs in the p laint as well as the evidences adduced in support of such pleading that the exec ution of the sale deed (Exhibit-3/Ka) has been denied though the said document h as been registered under the provisions of the Registration Act and an endorseme nt has been made by the registering authority to that effect. Section 67 of the Evidence Act puts the burden on the defendant Nos.1 and 2, who assert such exec ution by the plaintiff Nos.1 and 2, to prove their thumb impressions on such doc uments. The defendant Nos.1 and 2 in order to prove such thumb impressions have examined the scribe of the sale deed, namely the DW-5, who though in chief has stated that he took the thumb impressions of the plaintiff Nos.1 and 2 in the do cument, during cross-examination he has stated that he does not know the plainti ff Nos.1 and 2 personally. The DW-5, the scribe, therefore, could not prove tha t the thumb impressions which were taken by him in the said document are of the plaintiff Nos.1 and 2. It is also on evidence that the plaintiff No.2 did not g o to Mangaldoi on 18-04-1996 and the mother of the defendant No.2 put the thumb impression on behalf of the plaintiff No.2. That being the position, the thumb impression of the plaintiff No.2 could not be proved by the contesting defendant s. Admittedly the land has not bee partitioned between the plaintiff Nos.1 and 2 and hence, even if the plaintiff No.1’s thumb impression in the said document is taken as proved, the land being unpartitioned, both the plaintiff Nos.1 and 2 having joint interest over the land, no title can be passed on the defendant No s.1 and 2 on the basis of the said sale deed being Exhibit-3/Ka, the defendant N os.1 and 2 having failed to prove the thumb impression of both the plaintiffs. The question whether the sale deed was fraudulently obtained, in view of the abo ve, need not be gone into. 21. In view of the aforesaid discussion, I am of the view th at the decree passed by the learned First Appellate Court needs no interference in second appeal, for the reasons recorded above. 22. The appeal, therefore, is dismissed being devoid of meri t. Keeping in view of the facts and circumstances of this case, the parties are directed to bear their own cost in the present appeal.