RSA 118/2000 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the plaintiff, on whose death, during pendency of the appeal, the present appellants being the heirs and on whom right to sue sur vives, were brought on record, is directed against the judgment and decree dated 18th January, 2000 passed by the learned Civil Judge (Sr. Division), Lakhimpur at North Lakhimpur in Title Appeal No.5/1996, whereby and whereunder the appeal preferred by the defendant Nos.1 and 2 in Title Suit No.49/1985, has been allowe d by setting aside the judgment and decree dated 7th June, 1996 passed by the le arned Civil Judge (Jr. Division), Lakhimpur at North Lakhimpur in Title Suit No. 49/1985. By the said judgment, the trial Court had decreed the suit declaring t he right, title and interest in respect of 3 Bighas 1 Katha 17 2/3rd Lechas and that of the defendant Nos.1 and 2 in respect of the remaining land of 10th Bigha s 0 Katha 13 Lechas and declared the joint possession. [2] During pendency of the title appeal, the defendant No.1 died and in his place the names of his legal heirs have been substituted as the right to sue survives on them. The legal heirs of the plaintiff/ appellant were also br ought on record, during pendency of the present appeal, as he died and the right to sue survived on them. [3] The plaintiff, Murad Imam, instituted Title Suit No.49/1985 in t he Court of the learned Civil Judge (Jr. Division) No.1, Lakhimpur at North Lakh impur praying for a decree declaring right, title and interest in respect of the land measuring 4 Bighas 13 Lechas, out of the total land of 10 Bighas 13 Lechas , morefully described in schedule to the plaint and also for cancellation of the sale deeds dated 9th April, 1966 (Exhibit-2); 29th June, 1966 (Exhibit-7/Ka) an d 25th September, 1967 (Exhibit-8/Kha), apart from a decree for compensation of Rs.1800/-, contending inter alia that though on 15th October, 1959 the plaintiff purchased the land measuring 10 Bighas 13 Lechas from Kasem Ali vide Exhibit-1 sale deed for a consideration amount of Rs.1,999/-, when the plaintiff came to k now that 2(two) of his brothers are also pattadars, he executed a deed on 9th Ap ril, 1966 relinquishing his right in respect of the land measuring 6 Bighas in f avour of the other 2(two) brothers, namely, Jamiruddin and Didaruddin and retain ing the land measuring 4 Bighas 13 Lechas out of 10 Bighas 13 Lechas, possession of which was handed over to him by Kasem Ali. It has also been pleaded that whi le the plaintiff was possessing the said land by himself as well as through the tenants, taking advantage of his absence from 1982 to 1985, the defendant Nos.1 and 2 have dispossessed the plaintiff from the entire suit land. It has also be en pleaded that subsequently on enquiry he came to know that all the 3(three) br others, namely, Kasem, Didaruddin and Jamiruddin on 9th April, 1966 (Exhibit-2) transferred 6 Bighas of land to the defendant Nos.1 and 2, apart from executing other 2(two) sale deeds, one by Didaruddin and Jamiruddin on 29th June, 1966 (Ex hibit-7/Ka) transferring 2 Bighas 3 Kathas 14‰ Lechas in favour of the defendant Nos.2 and the other dated 25th September, 1967 (Ehxibit-8/Kha) executed by Kase m Ali in favour of the defendant No.1 transferring 1 Bigha 1 Katha 19 Lechas, th ereby transferring the entire land measuring 10 Bighas 13 Lechas in favour of th e defendant Nos.1 and 2, though Kasem Ali cannot transfer the land measuring 4 B ighas 13 Lechas in view of the sale deed dated 15th October, 1959 (Exhibit-1). [4] The suit of the plaintiff has been contested only by the defenda nt Nos.1 and 2 by filing joint written statement. Since the other defendants ha ve not contested the suit, the suit proceeded ex-parte against them. The defend ant Nos.1 and 2 in the written statement has pleaded that there is no cause of a ction for filing the suit; that the suit is bared by limitation and that though Kasem Ali has executed the sale deed dated 15th October, 1959 (Exhibit-1), he be ing one of the co-sharer could not have sold the entire land. It has also been pleaded that no title can be passed on the plaintiff even in respect of the shar e of Kasem Ali, one of the co-sharer, by virtue of the sale deed dated 15th Octo ber, 1959 (Exhibit-1) as the entire consideration amount has not been paid. The defendants have also pleaded in the written statement that the document purport edly executed by Kasem Ali on 14th November, 1959 (Exhibit-9) acknowledging rece ipt of the balance consideration amount for the aforesaid sale deed dated 15th O ctober, 1959 is forged and fabricated. The further pleaded case of the defendan ts is that Kasem Ali, Jamiruddin and Didaruddin, the 3(three) brothers, who are the co-pattadars, sold 6 Bighas of land to the defendant Nos.1 and 2 vide sale d eed dated 9th April, 1966; Jamiruddin and Didaruddin on 29th June, 1966 sold 2 B ighas 3 Katha 14‰ Lechas of land in favour of the defendant No.1 and Kasem Ali o n 25th September, 1967 sold 1 Bigha 1 Katha 19 Lechas of land to the defendant N o.1 and by virtue of such sale, the defendant Nos.1 and 2 became the owner in re spect of the entire land measuring 10 Bighas 13‰ Lechas. [5] Based on the pleadings of the parties, the trial Court famed the following issues for determination:- 1. Whether there is any cause of action for the suit? 2. Whether the suit is in proper form? 3. Whether the suit is barred by limitation? 4. Whether the plaintiff was dispossessed in 1982? 5. Whether the plaintiff is entitled to compensation amounting to Rs.600/- P.A. 6. Whether the plaintiff has right, title and interest over the suit land? 7. Whether the parties are joint pattadar as such who are entitled to how much land? 8. To what relief the parties are entitled? [6] The plaintiff in order to prove his case has examined 7 (seven) witnesses including himself, apart from proving 9 (nine) documents being Exhibit s-1 to 9. The defendants have also examined 4 (four) witnesses in support of th eir case and proved 5 (five) documents, which were marked as Exhibits-Ka to Unga . [7] The trial Court upon appreciation of the evidence on record has partly decreed the suit of the plaintiff declaring his right, title and interest in respect of 3 Bighas 1 Katha 17 2/3rd Lechas, out of 10 Bighas 13 Lechas and that of the defendant Nos.1 and 2 in respect of the remaining land and has also decreed the joint possession of the plaintiff in respect of the said 3 Bighas 1 Katha 17 2/3rd Lechas, by holding that the right, title and interest of Kasem Al i in respect of 1/3rd of total land of 10 Bighas 13 Lechas has been transferred in favour of the plaintiff by virtue of the sale deed dated 15th October, 1959 ( Exhibit-1). [8] Being aggrieved, the defendant Nos.1 and 2 preferred the aforesaid fi rst appeal before the first Appellate Court, which has been allowed vide judgmen t and decree dated 18th January, 2000 by setting aside the judgment and decree p assed by the trial Court, by holding that the title in respect of Kasem Ali’s sh are did not passed on the plaintiff by virtue of the sale deed dated 15th Octobe r, 1959 (Exhibit-1) as the plaintiff could not prove that the remaining unpaid c onsideration amount of Rs.1000/- has been paid to the vendor, namely, Kasem Ali. The First Appellate Court while holding so has also held that the plaintiff co uld not discharge his burden to prove that Exhibit-9, money receipt dated 14th N ovember, 1959, allegedly executed by Kasem Ali is not forged and fabricated. Th e first appellate Court has also held that the suit of the plaintiff is barred b y time, having not instituted within 12(twelve) years from the date of execution of the sale deed dated 15th October, 1959, as the plaintiff could not prove han ding over possession and subsequent dispossession thereof. Hence, the present appeal. [9] The appeal was admitted for hearing on 16th February, 2001 on th e following 2(two) substantial questions of law:- 1. Whether Ext.1 the document of title of the plaintiff was wrongly interpreted by the lower appellate court? 2. Whether the learned Civil Judge (Sr. Division) was right in holding that the plaintiff’s suit was not being filed within 12 years from the date of the sale ( 13.10.1959) was barred by limitation? [10] I have heard Mr. P.K. Kalita, learned counsel for the appellants and Mr. B. Banerjee, learned counsel appearing for the respondent No.9. None a ppears for the other respondents. [11] Referring to the judgment passed by the First Appellate Court, i t has been submitted by Mr. Kalita, learned counsel for the appellants, that sin ce the defendants in their written statement have pleaded that Exhibit-9 money r eceipt dated 14th November, 1959 is forged and fabricated, the burden lies on th em to prove the same and hence, the First Appellate Court has committed error of law in holding that the burden lies on the plaintiff to prove that the said Exh ibit-9 money receipt is not forged and fabricated. It has also been submitted t hat since the sale , as defined in Section 54 of the Transfer of Property Act, is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised, even if the entire consideration amount has not been paid by the plaintiff to Kasem Ali, the vendor, the title, in so far as it relates to t he share of Kasem Ali has been transferred in favour of the plaintiff by virtue of Exhibit-1 sale deed dated 15th October, 1959 and hence, Kasem Ali cannot tran sfer his right, title and interest in respect of his share to the defendant Nos. 1 and 2 vide subsequent sale deeds executed on 9th April, 1966 and 25th Septembe r, 1967, i.e. Exhibit-2 and Exhibit-8/Kha. The learned counsel referring to the judgments and decrees passed by the learned Courts below has also submitted that as the plaintiff could prove, by adducing oral as well as documentary evidence, including Exhibits-5 and 6 rent agreements, that the possession of the suit pro perty was handed over by Kasem Ali in his favour on execution of the sale deed, who was subsequently dispossessed during the period from 1982 to 1985 when he wa s away in Bihar, the first appellate Court ought not to have held that the suit of the plaintiff is barred by time having not filed within 12(twelve) years from the date of execution of the sale deed dated 15th October, 1959, more so when t he plaintiff could prove his dispossession by the defendant Nos.1 and 2 between 1982 to 1985. The learned counsel, therefore, has submitted that the trial Court has rightly decreed the suit of the plaintiff in so far as it relates to 3 Bigh as 1 Katha 17 2/3rd Lechas of land and declared joint possession with the defend ant Nos.1 and 2, which ought not to have been disturbed by the first Appellate C ourt, as has been done in the instant case. [12] Mr. Banerjee, learned counsel appearing for the respondent No.9/ defendant No.2, on the other hand, supporting the judgment and decree passed by the first appellate Court has submitted that since Kasem Ali was not the sole ow ner of the land measuring 10 Bighas 13 Lechas, no right, title and interest by v irtue of the sale deed dated 15th October, 1959 (Exhibit-1), can be transferred in favour of the plaintiff, not even in respect of the share of Kasem Ali. It h as also been submitted that since the plaintiff has executed a document on 19th October, 1959 (Exhibit-Gha) with the stipulation that unless he pays the remaini ng consideration amount of Rs.1,000/-, he will not take possession of the suit p roperty and would not mutate his name in the revenue records, the burden lies on the plaintiff to prove the payment of the unpaid amount, which the plaintiff ha s failed to do. It has also been submitted that the defendants, on the other ha nd, could prove that the Exhibit-9 receipt dated 14th November, 1959 is fabricat ed and forged document. It has further been submitted that the first appellate Court has rightly held that the burden lies on the plaintiff to prove that the E xhibit-9 money receipt dated 14th November, 1959 is not forged and fabricated. The learned counsel further submits that as the plaintiff could not prove handin g over of possession and subsequent dispossession as alleged, the first Appellat e Court has rightly dismissed the suit of the plaintiff by holding that the same is barred by time, having not instituted within 12(twelve) years from the date of execution of the sale deed dated 15th October, 1959 (Exhibit-1). The learned counsel, therefore, submits that the second appeal deserves to be dismissed. [13] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the judgments and decrees passed by the learned Courts below. Since it is a judgment of reversal, I have also peru sed the evidence, both oral and documentary. [14] There is no dispute that the land measuring 10 Bighas 13 Lechas was originally belonged to Karim Musalman, on whose death the said land devolved on his 3(three) sons, namely, Kasem, Jamiruddin and Didaruddin. It is also not in dispute that Kasem Ali alone had executed a sale deed dated 15th October, 19 59 (Exhibit-1) in favour of the plaintiff transferring the entire land measuring 10 Bighas 13 Lechas for a consideration amount of Rs.1999/-, though he alone ca nnot transfer the entire land. The said sale deed was a registered instrument. It is also an admitted fact that the plaintiff executed a document on 19th Octo ber, 1959 (Exhibit-Gha) stipulating that he will not possess the said property u nless he pays the remaining consideration amount of Rs.1000/- and would also not mutate his name on the revenue records. Execution of 3(three) sale deeds being dated 9th April, 1966 (Exhibit-2) by Kasem Ali, Jamiruddin and Didaruddin trans ferring 6 Bighas of land to defendant Nos.1 and 2; dated 29th June 1966 (Exhibit -7/Ka) executed by Jamiruddin and Didaruddin transferring 2 Bighas 3 Kathas 14‰ Lechas in favour of the defendant No.2 and dated 25th September, 1967 (Exhibit-8 /Kha) executed by Kasem Ali in favour of the defendant No.1 transferring 1 Bigha 1 Katha 19 2/3rd Lechas are also not in dispute. [15] The plaintiff claimed the right, title and interest in respect o f 4 Bighas 13 Lechas of land claiming to be the share of Kasem Ali, by virtue of the sale deed dated 15th October, 1959 (Exhibit-1). On the other hand, the def endant Nos.1 and 2 have claimed that by virtue of the sale deeds dated 9th April , 1966; 29th June, 1966 and 25th September, 1967, the entire land measuring 10 B ighas 13 Lechase have been transferred by the 3(three) brothers in their favour and as such, they have acquired right, title and interest in respect of entire l and measuring 10 Bighas 13 Lechas, which includes 4 Bighas 13 Lechas of land cla imed by the plaintiff. [16] As discussed above, the land measuring 10 Bighas 13 Lechas was i nherited by 3(three) brothers, namely, Kasem, Jamiruddin, Didaruddin and hence, Kasem cannot transfer the land which fell in the share of Jamiruddin and Didarau ddin, as has been done vide sale deed dated 15th October, 1959, transferring 10 Bighas 13 Lechas of land in favour of the plaintiff. The said sale, however, wo uld not altogether be void and would be operative so far as Kasem’s share is con cerned, i.e. 1/3rd of 10 Bighas 13 Lechas. [17] The defendants, as noticed above, have claimed that the entire c onsideration amount has not been paid to Kasem Ali by the plaintiff and hence, t he title in respect of the share of Kasem Ali also cannot be passed on to the pl aintiff. It has also been contended that Exhibit-9, money receipt dated 14th No vember, 1959 is forged and fabricated. Since the defendants have raised the ple a that Exhibit-9, money receipt, is forged and fabricated, the burden lies on th e defendants to prove that the said document is forged and fabricated. The firs t appellate Court has wrongly shifted the burden on the plaintiff to prove that the said document is forged and fabricated though the plaintiff has proved the s aid document as well as the signature of Kasem Ali in the said document. The de fendants could not prove, by adducing any cogent and reliable evidence, that the Exhibit-9 money receipt is forged and fabricated. In any case, since sale is defined in Section 54 of the Transfer of Property Act, 1882 as a transfer of ow nership in exchange for a price paid or promised or part-paid and part-promised and such sale was for a consideration amount of Rs.1999/- and is a registered in strument, in any case the title has passed on to the plaintiff in respect of the share of Kasem Ali by virtue of the said sale deed dated 15th October, 1959, ev en if part of the consideration amount has not been paid. The plaintiff could al so prove that he was dispossessed in the year 1982 after being put to possession by Kasem Ali. The plaintiff also could prove his earlier possession through th e tenants by proving Exhibis-5 and 6 tenancy agreements. The First Appellate Co urt, therefore, was not justified in holding that the suit of the plaintiff is b arred by time, as he has instituted the suit within 3(three) years of dispossess ion. [18] In view of the aforesaid discussion, the judgment and decree pas sed by the first appellate Court is set aside. The judgment and decree passed b y the trial Court is restored. Consequently the right, title and interest of th e plaintiff in respect of 3 Bighas 1 Katha 17 2/3rd Lechas out of 10 Bighas 13 L echas of land has been decreed and that of the defendant Nos.1 and 2 in respect of the remaining land, with joint possession with the defendant Nos.1 and 2. [19] The appeal stands accordingly allowed. The parties are directed to bear their own cost. [20] The Registry is directed to send down the records forthwith.