Page | 1

HIGH COURT FORM NO. (J) 2

HEADING OF JUDGMENT IN ORIGINAL SUIT

DISTRICT: CACHAR

IN THE COURT OF MUNSIFF NO.1, CACHAR AT

Present: K. Goswami, AJS

Thursday, the 31st day of October, 2019

Title Suit No. 561 of 2006

Sri Bibeka Nanda Nath alias Babu Nath S/O. Late Brojo Mohan Nath R/o Vill- Kazidahar Part-III, Pargona Banraj, P.O Narsingpur-788115 P.S- Sonai, Dist. Cachar, . ……….Plaintiff

-Versus-

On the death of Nirode Mohan Nath alias Bolo Nath, s/o Late Jay Mohan Nath, his legal representatives are:

1(1) Sri Bapan Nath

1(2) Sri Suben Nath

1(3) Sri Saju Nath

All are the sons of Late Nirode Mohan Nath.

1(4) Smt. Sipi Rani Nath

1(5) Smt. Suma Rani Nath

1(6) Smt. Jhuma Rani Nath

1(7) Jhumi Rani Nath

Title Suit No.561 of 2006

Page | 2

All are the daughters of Late Nirode Mohan Nath.

1(8) Smt. Swapna Rani Nath

W/o Late Nirode Mohan Nath

All are the residents of village Clever house (Nutan Bazar)

Pargana - Chatlahaor, P.O-Narsingpur-788115

P.S- Dholai, Dist. Cachar, Assam

Alternative address: Village-Kazidahar Pt.III,

Ph. Banraj, P.O. Narsingpur-78815,

P.S- Sonai, Dist-Cachar, Assam. …………..Principal Defendants

2. Sri Makhon Lal Nath

S/o Late Rajendra Chandra Nath alias Late Rajendra Lal Nath

Village- Kazidahar Part-III,

Pargana - Banraj, P.O- Narsingpur-788115,

P.S. Sonai, Dist. Cachar, Assam.

3. Sri Mrinal Kanti Nath alias Sri Mukta Nath

S/o Late Mano Mohan Nath alias Late Mani Nath,

Village Salgangapar, Ph. Chatlahaor,

P.O. Narsingpur-788115,

P.S-Dholai, Dist-Cachar, Assam

………… Proforma Defendants

This suit coming on for final hearing on 28-08-2019 and 19-09-2019 in the presence of –

For the plaintiff: - Learned Counsel Mr. Dipak Chakravarty

Learned Counsel Mr. Suddhasatta Choudhury

Title Suit No.561 of 2006

Page | 3

For the defendants: - Learned Senior Counsel Mr. A.K. Paul Choudhury

Learned Counsel Mr. M.K.Bhattacharjee

and having stood for consideration to this day, the Court delivered the following judgment:-

J U D G M E N T

1. This is a suit for declaration of forgery of two registered instruments, cancellation of the said registered instruments and permanent injunction.

The plaintiff’s case:

2. The brief facts of the plaintiff’s case as set forth in the plaint may be portrayed as thus:

The plaintiff’s grandfather Late Jay Mohan Nath was the absolute owner in possession of the schedule-I land described in the plaint which was also admitted by all the parties. Jay Mohan Nath out of natural love and affection donated the schedule-I land to the plaintiff on 10-10-1969 by a registered deed of gift which was equally admitted by all the parties. The plaintiff was a minor at the date of said gift and his mother accepted the same in his favour. A similar gift was made of the land mentioned in the schedule-II of the plaint by Jay Mohan Nath to his another grandson Sri Mrinal Kanti Nath, the proforma defendant No.3 on that very date i.e. on 10.10.1969 by a registered deed of gift which had also been admitted by all the concerned parties. The proforma defendant No.3 was also a minor and his mother accepted the same in his favour. The factum of minority of the plaintiff and the proforma defendant No.3 was not mentioned in the respective gift deeds. It has been contended that since the time of the said two gifts, the lands of the schedule-I and II were completely separated not only from the other properties of Jay Mohan Nath but also in between the two schedules themselves by metes and bounds and by putting ails etc. amicably. Upon attaining majority, the plaintiff and the proforma defendant No.3 possessed their respective plots of lands peacefully for considerable period of time. The plaintiff used to pay land revenue through his grandfather Jay Mohan Nath and after his demise through his granduncle Labanya Nath.

Title Suit No.561 of 2006

Page | 4

3. It has been alleged that on 06-02-1995 the original principal defendant conspired with the proforma-defendant No.2 to put a bamboo fencing around the land of the schedule-III below with 5/6 labourers to dispossess the plaintiff. The plaintiff raised objections. The original principal defendant and the proforma defendant No.2 could not succeed because of the intervention of the plaintiff’s granduncle Labanya Nath who was a common relative of both the parties. He asked the principal defendant as to why he was trying to put fencing over the lands of the plaintiff to which the principal defendant replied that he had purchased the said land from the plaintiff but he could not show any documents then. The plaintiff denied that he ever sold any land to the principal defendant. Having been suspicious of commission of forgery, the plaintiff made an enquiry at the Sub-Registrar’s Office, but he could not trace out any documents as details were not disclosed by the principal defendant. As the threats to the plaintiff continued, he was compelled to submit a petition under Section 144 of the CrPC dated 18-02-1996 before the learned Additional District Magistrate, Cachar, Silchar who directed the Officer-in-Charge, Sonai P.S. to enquire and submit a detailed report. The plaintiff alleged that the principal defendant colluded with the police, and as a result no report was submitted and the petition was rendered untraceable. In the mean time, the plaintiff cultivated and grew ‘Sail’ paddy without any obstructions from the principal defendant, but when it was ripening in the 1st part of November, 1995, the principal defendant again conspired to cut it off for which the plaintiff was again compelled to submit a petition under Sections 144/145 CrPC dated 9-11-1995 before the learned Additional District Magistrate who was again directed the police to submit a report. And this time, though the Police submitted a Report dated 17-11-1995 which was received by the P.I. office vide No.P.O. 509/95 but thence the principal defendant managed its suppression at the Magistracy Branch of the Collectorate. Being unable to locate the Police Report dated 17.11.1995, for the subsistence of the apprehension of the imminent breach of the public peace and tranquility in the locality, the plaintiff was again compelled to submit a fresh petition under Sections 144/145 CrPC dated 25-03-1996 before the learned Additional District Magistrate. And simultaneously, being fed up with the police, the plaintiff lodged a complaint against the police before the learned Deputy Commissioner on 24-05-1996. Thereafter, the plaintiff having located the police Title Suit No.561 of 2006

Page | 5

reports swore an affidavit in support of his petition before Sri A.N.B. Singha- the learned Executive Magistrate to attach the disputed land. But the learned Magistrate though drew up a proceeding under Section 145 CrPC on 28-05-1996, but did not pass an order of attachment and asked the Officer-in-Charge of the concerned P.S. to make an enquiry and report on the petition filed by the 1st party as the earlier report submitted was six and half months old and fixed 15-06-1996 for the same and for written statement by both the parties. On the date fixed i.e. on 15-06-1996, the learned Magistrate discovered that the police again played a hide and seek game by forwarding a report dated 03.06.1996 praying for a proceeding under Section 144/145 CrPC, but did not forward any report as per the order dated 28-05-1996. The learned Magistrate though issued a reminder by the order dated 16-06-1996 to the Officer-in-Charge, Sonai P.S., but the police submitted a false report seeing which the learned Magistrate got misled and thus rejected the prayer for attachment without hearing the 1st party-plaintiff on 19-07-1996. The plaintiff submitted his written statement on 15-06-1996 and the 2nd party thereof filed their written statement on 06-09-1996.

4. During cross-examination on 15-10-1996, the 1st party/plaintiff herein was confronted with suggestions of the alleged purchases by two documents by the original principal defendant dated 22-06-1976 and 31-03-1977 from him which was denied by him as the same must be by forgery and impersonations as the plaintiff never sold any land to the principal defendant or anybody else. As such, the plaintiff in due course of time prayed to the Deputy Commissioner for appropriate action and on 19.07.1996 he applied for certified true copies of the alleged sale deeds which he received on 31-12-1996 and found that though the 1st one was dated 22-06-1976 but the 2nd one was dated 11.03.1977 and not 31.03.1977 as mentioned in the written statement. In the meantime, the case having been transferred to another learned Magistrate Sri. M.C. Chakraborty, though the 1st party examined himself on 15-10-1996 as aforesaid and also produced other witnesses on that date and on other dates but on this or that count the learned Magistrate did not record their testimony. Even dates were not posted or not timely posted in the Court- Diary for which as it appeared later that the case proceeded ex-parte. On what date the 2nd party or

Title Suit No.561 of 2006

Page | 6

its witnesses were examined was not known to the 1st party or to his then learned Counsel or to his clerk for which the 2nd party or its witnesses could not be cross-examined. It appeared that the said case was heard ex-parte in ignorance of the date of hearing by the 1st party, caused by the fraud and collusion practiced by the 2nd party. And ultimately on 28-02-1997 the learned Magistrate wrongly declared possession of the disputed land in favour of the 2nd party/original principal defendant No.1 and proforma defendant No.2 herein, thus, causing an utter failure of justice. The impugned order of the learned Magistrate was illegal on the face of the record since as per the written statement of the 2nd party, the 2nd party had claimed possession of the land mentioned in the written statement in favour of Nirode Mohan Nath alone i.e. the principal defendant alone, but the learned Magistrate declared possession in favour of both the members of the 2nd Party i.e. Nirode Mohan Nath as well as Sri Makan Lal Nath, the proforma defendant No.2. Further, though the principal defendant had claimed only 1 Bigha 11 Kathas 3 Chataks 10 Gondas of land in para No. 13 of the written statement, i.e. the land of the schedule-VI only of the plaint, but the learned Magistrate without proper perusal of the said written statement declared possession of the whole proceeding land i.e. 3 Bighas 10 Kathas i.e. the land of the schedule-III of this plaint. The impugned order had been full of illegalities and irregularities. The learned Magistrate ought not to have declared possession in favour of the 2nd Party, but ought to have done so in favour of the 1st party. The plaintiff did not prefer any criminal revision against the said order.

5. The plaintiff further averred that he had filed a criminal case before the learned Chief Judicial Magistrate (for short “CJM), Cachar, at Silchar on 17-04-1997 which was numbered as 164C/97 and was forwarded to the Officer-in-Charge of Sonai P.S. to register a Case and investigation. For about two months, the plaintiff in spite of due efforts could not know the fate of his case from the Sonai P.S. which having been gained over by the principal defendant sat tight over the same. Hence, the plaintiff submitted a fresh case for private prosecution which was lodged on 27-06-1997 before the learned CJM Cachar, at Silchar who after registering it as 1363 C/97 transferred the same to the learned Munsiff- Magistrate No.4) at Silchar, who in turn called for a report from the Officer-in-Charge of

Title Suit No.561 of 2006

Page | 7

Sonai P.S. concerning the earlier F.I.R over the same subject matter. Thereupon a report dated 28-71997 came from the Sonai P.S. informing the learned Munsiff-Magistrate No.4 that “ a case vide Sonai P.S. No.140/97 U/S. 468/420 I.P.C. has been registered” and that-“ the investigation is in progress”. The report was silent as to when the case was registered and as to the stage of Investigation. However, as the police case was located, the learned Munsiff-Magistrate vide Order dated. 31-07-1997 disposed of the Complaint Case. Subsequently, it was learnt that the Sonai P.S. transferred the original F.I.R to the Officer- in-Charge of the Dholai P.S as the place of occurrence i.e. the Palonghat Sub-Registrar’s Office falls under the Dholai P.S. The Dholai P.S. appeared to have registered the said F.I.R as the Dholai P.S. Case No.225/97 which in turn appeared to have been numbered as G.R. Case No.2556G/97 U/S. 468/420 I.P.C. The Dholai P.S. entrusted the investigation to the In-Charge, Palonghat Police Out-Post who seized the two alleged forged deeds as described in the schedule-VII & VIII of the plaint and also the thumb impression register (Tip Bohi) from the Custodian, Sub-Registrar’s Office; issued two notices to the plaintiff for being taken to the Court for specimen signatures, etc. The plaintiff’s specimen signatures, etc. were taken on 27-01-1998 in the Court of Sri B.K.Sen, the then Judicial Magistrate of the First Class, at Silchar by the investigating officer Sri Prakash Singh in the Courtroom (Ejlash) but not in presence of the learned Magistrate who remained in the Chamber and that though the plaintiff had engaged his advocates who both appeared before the learned Magistrate but the learned Magistrate in his wisdom did not accept the Vakalatnama and the petition submitted by them on behalf of the plaintiff, nor took their signatures on the specimen four sheets for the purpose of identification in spite of the fact that the plaintiff’s learned advocate was already on record by a duly constituted Vakalatnama furnished with the complaint petition treated as F.I.R. Out of the four sheets, the two were cartridges (13’) & the other two were white sheets (Thav Kagaz). On each of the four sheets, four signatures in a row to the left-half of the sheet from top to bottom were taken and four L.T.Is., likewise were taken to the right-half of each of the sheet. It has been alleged by the plaintiff that the envelope containing the specimen signatures had already been gummed and materials to be sent had already been wrapped in the cloth both in his absence and not within the sight of the learned Magistrate and in absence of the learned Advocates of the Title Suit No.561 of 2006

Page | 8

plaintiff. It was not known if the signatures of the learned Magistrate were obtained on the parcel which was sent for forensic examination; whether by Post or otherwise. It was presumed that the two forged documents and the T.I. register must have been sealed but the plaintiff did not know as to how many out of the four specimen sheets were enclosed and if the same were replaced by the investigating officer. The investigating officer had been inimical with the plaintiff as he had previously complained to the Superintendent of Police, Cachar, for some illegal conduct of the investigating officer. The investigating officer knew that constable Kumud Ranjan Nath who accompanied him had been an interested person being a cousin brother of the accused Nirode Mohan Nath. In the two forged deeds, the purchaser, the scribe, the attesting witnesses, the identifier and the alleged vendor were the same. However, at the time of launching of the criminal prosecution, the plaintiff could know that the scribe was already dead. The impersonated vendor could not be discovered by the plaintiff for which the plaintiff named as accused only three persons i.e. the alleged vendee Nirode Mohan Nath (original principal defendant), the attesting witness- cum-identifier Makhon Lal Nath (the proforma defendant No.2) and the another attesting witness Lal Bihari Goala. However, at the time of the institution of this suit it became known that Lal Bihari Goala had also died.

6. The plaintiff further averred that in the gift deed favouring the plaintiff (vide- schedule-I) and also in the gift deed favouring the proforma defendant No.3 (vide- schedule-II) the 2nd R.S. Dag No. 102 was mentioned as if appertaining to the concerned 2nd R.S. Patta No. 55 though as discovered later on after obtaining the certified copies of the alleged forged documents that those were found to have been appertaining to the concerned 2nd R.S. Patta No. 54. As to how this mistake occurred in the two gift deeds could not be ascertained but it appeared that the principal defendant had come to the knowledge of this mistake before alleged fabrication of the two forged deeds of 1976 and 1977 (schedule-VII & VIII) and ipso facto before his 1st purchase in 1984 from the proforma defendant No.3 but as to why it was not corrected in 1984 was known to the principal defendant himself. However, it seemed to have been corrected in his 2nd purchase in 1995 from the proforma defendant No.3. Anyway the said dag was not involved in Section 145 CrPC proceeding land

Title Suit No.561 of 2006

Page | 9

(schedule-III). The said mistake is not of any effective consequence under the facts and circumstances of the case. The principal defendant No.1 and also the proforma defendants are estopped from denying this fact which can be overlooked as a slip of pen due to slip of sight and otherwise a mistake of no consequence. The plaintiff furthermore averred that as the principal defendant No.1 derived no title by the alleged two forged deeds, he remained the lawful owner of his extent of title in the concerned Dag No. 102 appertaining to the concerned 2nd R.S. Patta No.54. The final order passed as aforesaid in Section 145/146 CrPC proceeding based on the aforesaid alleged two forged deeds and the alleged false claims by the original principal defendant had clouded the title of the plaintiff and hence this suit. The plaintiff accordingly filed this suit seeking the following reliefs:

i. Declaration of the forgery of the registered instruments mentioned in the schedule-VII & VIII of the plaint.

ii. For delivery up and cancellation of the said registered instruments.

iii. Declaration that the Final Order dated 28-02-1997 passed in Section 145/146 CrPC proceeding over the schedule-III land of the plaint obtained by the principal defendant by fraud and collusion for which the same is null and void and inoperative.

iv. Permanent injunction against the principal defendant, his servants, agents and workmen and/or persons claiming through him from entering into any lands of the schedules-III, IV and V appertaining to the schedule-I and from disturbing the possession of the plaintiff over the said lands in any manner whatsoever,

v. Any other relief/reliefs including compensatory costs to which the plaintiff is found entitled to.

Title Suit No.561 of 2006

Page | 10

The defendants’ version:

7. Upon issuance of summons, the original principal defendant Nirode Mohan Nath appeared and resisted the suit by submitting a written statement. The proforma defendant Nos.2 and 3 did not appear, and, hence, the suit proceeded ex-parte against them. The principal defendant contended in his written statement that there was no cause of action for filing this suit against him. According to him, the suit was barred by limitation. He also contended that the suit was not maintainable without prayers for declaration of the plaintiff’s title over the suit land and delivery of khas possession. The principal defendant further contended that the suit for mere declaration is barred under the provisions of Section 34 of the Specific Relief Act. He furthermore contended that the prayer No. (iii) of the plaint is beyond the jurisdiction of the Civil Court. According to the principal defendant, the present suit is bad for non-joinder and mis-joinder of parties.

8. The principal defendant specifically pleaded that the plaintiff being the owner of land admeasuring 1 bigha 11 kathas 3 chattaks 10 gondas of land appertaining to 2nd R.S. Patta No.54, Dag No. 102 and Patta No. 55, Dag Nos. 106/114 of Mouza- Kajidahar Part-III, Porgona- Bonraj proposed to sell the said land to him. The answering defendant being the own uncle of the plaintiff agreed to purchase the said land and accordingly due to shortage of fund he first purchased 12 kathas 2 chattaks 10 gondas of land of aforesaid pattas and dags on 22-06-1976 with clear verbal agreement between both the parties that he would purchase the remaining land measuring 19 kathas 1 chattak of the aforesaid pattas and dags within one year. In the light of aforesaid agreement, the plaintiff sold 12 kathas 2 chattaks 10 gondas of land of the aforesaid pattas and dags on 22-06-1976 by executing and registering the sale deed No.1892 dated 22-06-1976 of Palonghat Sub-Registry Office to answering defendant No.1 on receipt of consideration money and handed over physical possession of the sold land to him. Thereafter, the plaintiff sold 19 kathas 1 chattak of land of aforesaid pattas and dags within the specific boundaries to the original principal defendant by executing a sale deed which was registered on 31-03-1977 of Palonghat Sub- Registry Office on receipt of consideration money and the plaintiff also handed over the physical possession of said sold land to the answering main defendant No.1. The principal Title Suit No.561 of 2006

Page | 11

defendant since his aforesaid purchase by the two registered deeds from the plaintiff has been possessing the aforesaid land measuring 1 bigha 11 kathas 3 chattaks 10 gondas described in the schedule Nos. IV and V of the plaint within specific boundaries. Just after purchase, he put bamboo fencing around the boundaries of the aforesaid land and also planted and grew banana trees and betel-nut trees on the side of the boundaries and also cultivated paddy. In the year 1996, the principal defendant constructed pucca boundary wall on the eastern, western and southern sides of the aforesaid land and there was one boundary Nalla and bamboo fencing of the said defendant on the northern boundary of the aforesaid land. The principal defendant has been in possession of the aforesaid land described in the schedule Nos. IV and V of the plaint as of his own maliki right since his purchase from the plaintiff. His name has been duly mutated in the concerned Jamabandi and he has been paying the land revenue regularly to the Government in respect of his said purchased land and other land. The plaintiff has no right, title and interest and also possession over the said land described in the schedule Nos. IV and V of the plaint. The principal defendant further pleaded that the sale deeds described in the schedule Nos.VII and VIII executed by the plaintiff in his favour were genuine and those deeds were executed by the plaintiff himself.

9. It has been further averred by the principal defendant that the gift deed was executed by Joy Mohan Nath, the father of the principal defendant in his favour as described in the schedule-IX of the plaint and he is in possession of the said land as described in the said gift deed as of his own right. The learned Executive Magistrate after taking evidence and hearing of both the parties rightly decided the Case No. 116M/96 under Section 145 CrPC and declared possession of the disputed land in favour of the 2nd party members. The main defendant alleged that the plaintiff in order to grab his land and to cause harassment to him with ulterior motive had cooked up a false story and falsely denied the execution of the sale deeds executed by him in his (principal defendant’s) favour and instituted this false and vexatious suit against him. And, therefore, the principal defendant was entitled to get compensation of Rs.5000/- from the plaintiff under Section 35(A) of the Civil Procedure

Title Suit No.561 of 2006

Page | 12

Code. It is accordingly prayed that the suit of the plaintiff may be dismissed with compensatory cost.

Issues in the suit:

10. On the basis of the antipodal pleadings of the parties as aforestated, as many as 09 (nine) issues were framed by my learned predecessor-in-office which are as follows:

i. Whether there is any cause of action for filing the suit?

ii. Whether the suit is barred by limitation?

iii. Whether the suit is barred by estoppel, waiver and acquiescence?

iv. Whether the suit is maintainable in the present form and manner and particularly under Section 34 of the Specific Relief Act?

v. Whether the Court has jurisdiction to grant relief as prayed for

vi. Whether the suit is bad for non-joinder and misjoinder of necessary parties? vii. Whether the plaintiff is entitled to the reliefs claimed without there being any prayer for declaration of his right, title and interest over the suit land? viii. Whether the sale deeds dated 22-06-1976 and 31-03-1977 are forged as claimed by the plaintiff and whether the defendant No.1 acquired possession, right, title and interest over the suit land by virtue of these deeds?

ix. Whether the plaintiff is entitled to the reliefs claimed?

11. During trial, the plaintiff examined two (02) witnesses and exhibited as many as twenty-one (21) documents. On the other hand, the contesting present principal defendants also examined two (02) witnesses and exhibited as many as six (06) documents

DISCUSSIONS, DECISIONS AND REASONS THEREOF

Title Suit No.561 of 2006

Page | 13

12. I have heard the arguments advanced by the learned counsels for both the parties at length. I have also minutely perused the written arguments submitted by the parties. I have also carefully examined the pleadings of the parties and the evidence on record. Having so heard and examined, I shall now discuss and decide the issues as aforesaid accordingly.

Issue No.(ii):

13. For convenience, I shall discuss and decide the issue No. (ii) prior to the issue No.(i). The issue No. (ii) stemmed from the contention of the principal defendant that the present suit was barred by limitation. The plaintiff inter-alia sought a declaration of forgery of the registered instruments mentioned in the schedule-VII & VIII of the plaint i.e. the sale deeds dated 22-06-1976 and 31-03-1977. He also sought cancellation of the aforesaid sale deeds. In my considered opinion, these two reliefs are the principal reliefs sought by the plaintiff in this suit. Now, a suit relating to declaration of forgery of a registered instrument is governed by Article 56 of the Limitation Act, 1963 which provides a period of 3 years to institute such a suit. The period of limitation under Article 56 commences from the time when the registration becomes known to the plaintiff. Now, the plaintiff stated in his pleadings that he received the certified true copies of the alleged registered sale deeds on 31-12-1996. As such, the period of limitation shall be computed from 31-12-1996 on which date the registration of the impugned sale deeds became known to the plaintiff. The present suit was instituted on 09-06-1998. It is therefore clear that the instant suit was filed well within time.

14. Regarding the relief of cancellation of the aforementioned sale deeds, it shall be governed by Article 59 of the Limitation Act which stipulates a period of 3 years to institute such a suit. The period of limitation begins to run from the time when the facts entitling the plaintiff to have the instrument cancelled first become known to the plaintiff. The plaintiff stated in his pleadings that during his cross-examination before the Executive Magistrate on 15-10-1996, he was confronted with suggestions about the alleged purchases by the original principal defendant by two documents dated 22-06-1976 and 31-03-1977 from him

Title Suit No.561 of 2006

Page | 14

which was denied by him as the same must be by forgery and impersonations as he never sold any land to the principal defendant or anybody else. Thus, the plaintiff first acquired knowledge of the impugned sale deeds on 15-10-1996 and the instant suit was filed on 09- 06-1998. In the result, it is evident that the present suit was not barred by limitation. This issue is accordingly decided in the negative and in favour of the plaintiff.

Issue No.(iii):

15. The original principal defendant generally pleaded that the suit was barred by estoppel, waiver and acquiescence. However, the said defendant did not plead any facts to buttress his contention. As such, I hold that the suit was not barred by estoppel, waiver and acquiescence. This issue is accordingly decided in the negative and in favour of the plaintiff.

Issue Nos.(iv) and (vii):

16. As these two issues are correlated, I intend to discuss and decide them together. The said issues emanated from the specific pleas of the principal defendant taken in his written statement that the present suit is not maintainable without prayers for declaration of the plaintiff’s title over the suit land and delivery of khas possession and that the suit for mere declaration is barred under the provisions of Section 34 of the Specific Relief Act.

17. In his written arguments, the learned counsel for the present principal defendants urged that the plaintiff as PW-1 admitted in his cross-examination that “he was dispossessed from the suit land in the year 1997 before he filed the suit in the year 1998. He further urged that it was an established principle of law that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of these properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable. The learned counsel in support of his argument relied on Ram Saran v. Ganga Devi, AIR 1972 SC 2685, where the Hon’ble Supreme Court in para 4 of the judgment held as follows:

“4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding courts, Gange Devi is in possession of some Title Suit No.561 of 2006

Page | 15

of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.”

18. Per contra, the learned counsel for the plaintiff in his written arguments submitted that the suit was maintainable. I have duly considered the submissions of the learned counsels appearing on behalf of both the parties.

19. In order to appreciate the argument put forth on behalf of the principal defendants, it is necessary to examine the provisions of Section 34 of the Specific Relief Act, 1963 which correspond to Section 42 of the Specific Relief Act, 1877. Section 34 reads as thus:

34. Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.

20. In the present case, the plaintiff did not pray for declaration of his title to the suit land. Nor did he pray for recovery of possession of the suit land. Rather, he prayed for declaration of forgery of the registered sale deeds dated 22-06-1976 and 31-03-1977 and a declaration that the Final Order dated 28-02-1997 passed in Section 145/146 CrPC proceeding over the schedule-III land of the plaint obtained by the principal defendant by fraud and collusion for which the same is null and void and inoperative. He further prayed for cancellation of the impugned registered sale deeds dated 22-06-1976 and 11-03-1977 on the ground of forgery. The plaintiff also sought permanent injunction against the principal defendants. It may be worthwhile to point out that the plaintiff stated in para 29 of the plaint that the claims made by the principal defendant based on the alleged two forged sale deeds and the final order in the Section 145/146 CrPC proceeding had clouded Title Suit No.561 of 2006

Page | 16

his title. A careful perusal of the Ext.12 i.e. certified copy of the written statement filed by the 2nd party/principal defendant and proforma defendant No.2 herein in the said proceeding under Section 145/146 CrPC reveals that the principal defendant seriously disputed the title of the plaintiff over the suit land in para 11 thereof. Even in the written statement filed in this suit, the principal defendant clearly disputed the title of the plaintiff. Moreover, the plaintiff as PW-1 clearly admitted in his cross-examination that he was dispossessed from the suit land in the year 1997 before he filed this suit in the year 1998. It is thus clear that the plaintiff is not in possession of the suit land.

21. On the above context, I may profitably refer to the case of Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, where the Hon’ble Supreme Court opined that “ a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property.”

22. In Anathula Sudhakar (supra), the Hon’ble Apex Court in para 13.3 of the judgment further opined that “where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.”

23. A cloud on the title of the plaintiff over the suit land is palpable from the pleadings on record. The averments in the plaint clearly show that there is a serious title dispute between the plaintiff and the principal defendant. The plaintiff himself stated in para 29 of the plaint that his title was clouded. The principal defendant strongly disputed the title of the plaintiff over the said land and claimed his own title and possession over the said land by virtue of purchase of the said land by two registered deeds from the plaintiff. Therefore, in view of the law laid down in Anathula Sudhakar (supra), I am of the considered opinion that a prayer for declaration of the plaintiff’s title to the suit land was necessary. In addition, the plaintiff ought to have prayed for recovery of possession of the suit land from

Title Suit No.561 of 2006

Page | 17

the principal defendant which in my view would be a further relief within the meaning of the proviso to Section 34 of the Specific Relief Act. Moreover, where the plaintiff admittedly is not in possession of the suit land and he does not seek recovery of possession thereof, permanent injunction cannot be granted. It may not be out of place to point out that as per the mandate of Order 2 Rule 2 of the Code of Civil Procedure, 1908 (for short “CPC”), the plaintiff is required to include the whole of the claim which he is entitled to make in respect of the cause of action. It seems that the plaintiff did not bring the present suit in consonance with the mandate of Order 2 Rule 2 of the CPC.

24. In view of my above discussions, I am of the firm opinion that the present suit is not maintainable in the absence of a prayer for declaration of the plaintiff’s title over the suit land and a prayer from recovery of possession thereof. In such circumstances, both the aforesaid issues i.e. issue Nos. (iv) and (vii) are answered in the negative and against the plaintiff.

Issue Nos.(v):

25. The principal defendant contended that the prayer No. (iii) of the plaint was beyond the jurisdiction of the Civil Court. The plaintiff inter alia prayed for a declaration that the Final Order dated 28-02-1997 passed in Section 145/146 CrPC proceeding over the schedule-III land of the plaint obtained by the principal defendant by fraud and collusion for which the same is null and void and inoperative. Learned Counsel for the principal defendants would argue that a Civil Court has no jurisdiction to declare the final order passed in the Section 145/146 CrPC proceeding by the learned Executive Magistrate void as the aggrieved has the option to challenge the said order in the Hon’ble High Court or before the Hon’ble Sessions Court. He pointed out that the plaintiff did not challenge the impugned order and it attained finality and now it cannot challenged in this suit. As such, the prayer No.(iii) of the plaint is liable to be rejected.

26. I have thoughtfully considered the above submission and I have found sufficient force in it. The impugned final order passed by the learned Executive Magistrate in Section 145/146 CrPC proceeding ought to have been challenged by the plaintiff before the Hon’ble Title Suit No.561 of 2006

Page | 18

High Court or the Hon’ble Sessions Court in revision. The plaintiff admittedly did not prefer any revision against the said order and as such it attained finality. Civil Court lacks jurisdiction to declare the aforesaid order void as prayed by the plaintiff. Hence, the said relief cannot be granted by this Court. But, in respect of the other reliefs, the Civil Court’s jurisdiction to try this suit was not ousted. This issue is answered accordingly.

Issue Nos.(vi):

27. This issue emerged out of the contention of the principal defendant that the present suit is bad for non-joinder and mis-joinder of parties. The said defendant however did not mention the name of the necessary parties in the written statement. It is well settled that in order to be a necessary party, there should be a right to some relief against such party with regard to the dispute involved in the suit or that no effective decree can be passed in the absence of such party (vide Kasturi v.Iyyamperumal, AIR 2005 SC 2813). A bare perusal of the plaint reveals that the plaintiff sought relief only against the principal defendant; therefore, the principal defendant was the sole necessary party in this suit. As regards the other contention of the defendant that the suit is bad for mis-joinder of parties, Order 1 Rule 9 of the CPC clearly lays down that a suit shall not be defeated by reason of the mis-joinder of parties. Thus, both the above contentions are bereft of any merit. In the result, this issue is decided in the negative and in favour of the plaintiff.

Issue Nos.(viii):

28. This issue is the kernel of the controversy between the parties. The plaintiff specifically pleaded that the registered sale deed bearing No.4892 dated 22-06-1976 and the registered sale deed bearing No.1387 dated 11-03-1977 allegedly executed by him in favour of the original principal defendant were forged. These two impugned sale deeds are described in the schedule-VII and VIII of the plaint. In view of his specific pleadings, the onus to prove forgery lies on the plaintiff.

29. The plaintiff examined himself as the PW-1 in this suit. In his examination-in-chief, the PW-1 recapitulated the averments in the plaint and exhibited as many as 21 (twenty one)

Title Suit No.561 of 2006

Page | 19

documents including the certified copies of the aforestated impugned sale deeds. The PW-1 exhibited the certified copies of the impugned sale deeds bearing Nos.4892 and 1387 dated 22-06-1976 and 11-03-1977 respectively as the Ext.14 and Ext.15. Admittedly, the originals of the said sale deeds were seized by the police during investigation of the criminal case filed by the plaintiff. But, the plaintiff did not call for the original sale deeds, which he alleges to be forged, from the custody of the police in order to exhibit them as evidence. In the absence of the original sale deeds, it is not possible for this Court to assess the plea of forgery taken by the plaintiff. When the original sale deeds, whose validity has been challenged herein on the ground of forgery, are not produced in evidence by the plaintiff/PW-1, I am not inclined to examine the other documents exhibited by him which are not relevant to the issue in hand. Forgery is a species of fraud. Therefore, even in a civil suit, forgery or fraud must be proved beyond reasonable doubt. I find support for this view from the case of Union of v. Chaturbhai M. Patel & Co., (1976) 1 SCC 747. In this case their Lordships of the Hon’ble Supreme Court held that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. However, in the present case, the plaintiff failed to adduce any reliable and cogent evidence to prove that the impugned sale deeds as described in the schedule-VII and VIII of the plaint are spurious documents. The plaintiff did not obtain any opinion of handwriting expert on the said questioned sale deeds. Nor did he examine any of the attesting witnesses of the said deeds as witness in this suit. Mere denial of execution of the said deeds by the PW-1 is not sufficient. The PW-1 admitted during his cross-examination that the police submitted FR i.e. final report/closure report in G.R. Case No.2556/97 which was filed by him and vide order dated 16-04-2006, the FR was accepted by the Court with notice to him. He stated that he did not file any revision against the FR. I have also assessed the evidence of the PW-2. The PW-2 is not an attesting witness of the said deeds. His evidence does not establish that the sale deeds dated 22-06- 1976 and 11-03-1977 are forged.

30. It may be noted that the impugned registered sale deeds i.e. the originals of the Ext.14 and Ext.15 were executed and registered in the year 1976 and 1977 respectively and the

Title Suit No.561 of 2006

Page | 20

present suit was filed in the year 1998. In Paresh Hazarika v. Puthimai Das, 2015 SCC OnLine Gau 167 : (2015) 3 Gau LR 586 , the Hon’ble Gauhati High Court held that a registered document carries with it a presumption that it was validly executed. There is also a presumption that the transaction was a genuine one. It is for the parties questioning the genuineness of the transaction to show that in law the transaction was not valid or that the execution was done through impersonation. In the case in hand, the plaintiff has not been able to rebut the aforesaid presumption. The evidence adduced by the plaintiff is grossly insufficient to establish that the registered sale deeds Nos.4892 dated 22-06-1976 and 1387 dated 11-03-1977 (date of registration is 31-03-1977) are the products of forgery.

31. Adverting now to the evidence of the principal defendants. The present principal defendant No. 1(4) examined herself as the DW-1 and exhibited a few documents. The DW-1 exhibited the seizure list prepared in the Dholai P.S. Case No.225/97 under Section 468/420 of the IPC as the Ext.A (proved in original). From the Ext.A it is evident that the police seized the original registered sale deed No.4892 dated 22-06-1976 and the original registered sale deed No.1387 dated 31-03-1977 from the custody of the principal defendant. The DW-1 deposed that the police sent the original sale deeds to the Director, FSL, Guwahati. Her father called the said original deeds through Court from the CJM Office. But the said deeds were not available. The DW-1 produced the photocopies of the aforesaid sale deeds in her evidence as Annexure-B and Annexure-A respectively. She however did not mark them as exhibits as secondary evidence. Be that as it may, the DW-1 also exhibited the certified copy of the opinion of the handwriting expert, FSL, Guwahati dated 24-02-1999 submitted in connection with Dholai P.S. Case No.225/97 i.e. the GR Case No.2556 of 1997 as the Ext.E. A close scrutiny of the Ext.E shows that according to the handwriting expert “the person who wrote the blue enclosed signatures stamped and marked S1 to S4 and A1 and A2 also wrote the red enclosed signatures similarly stamped and marked Q1 to Q8.” The DW-1 further exhibited the closure report/final report submitted in the Dholai P.S. Case No.225/97 i.e. GR Case No.2556 of 1997 as the Ext.F. In the Ext.F the police clearly mentioned that as per the FSL Report the specimen signatures of the complainant/plaintiff herein tally with the questioned signatures in the land deeds.

Title Suit No.561 of 2006

Page | 21

Accordingly, the police submitted a closure report or final report by terming the case as civil dispute.

32. It is noteworthy that the burden to prove forgery on the impugned sale deeds lies on the plaintiff. But, as discussed above, the plaintiff failed to discharge this burden. The principal defendants are not required to prove that the impugned sale deeds are genuine. The said registered sale deeds shall be presumed to be genuine as laid down in Paresh Hazarika (supra).

33. In view of the foregoing discussions, I am clearly of the opinion that the sale deeds dated 22-06-1976 and 11-03-1977 (31-03-1977 is the date of registration) as described in the schedule-VII and VIII of the plaint are not forged as claimed by the plaintiff. As such, it is clear that the original principal defendant acquired right, title, interest and possession over the suit land by virtue of these deeds. This issue is decided accordingly against the plaintiff.

Issue No.(i):

34. The expression ‘cause of action’ consists of a bundle of material facts which give rise to a right in favour of the plaintiff and it also consists of the circumstances forming the infraction of the said right. In other words, cause of action means every fact which, if traversed, it would be necessary for the plaintiff to prove to obtain relief from the Court. In the case in hand, the plaintiff has failed to lead any cogent evidence to prove his cause of action as alleged in the plaint. He could not prove that the registered sale deeds dated 22- 06-1976 and 11-03-1977 (31-03-1977 is the date of registration) as described in the schedule-VII and VIII of the plaint are forged. That being the position, I have no hesitation in holding that the plaintiff does not have any cause of action for instituting this suit. This issue stands answered in the negative and against the plaintiff.

Title Suit No.561 of 2006

Page | 22

Issue No.(ix):

35. In the light of my findings and decisions on the preceding issues, I am of the considered view that the plaintiff is not entitled to any relief in this suit. This issue stands answered in the negative and against the plaintiff.

O R D E R

36. As a result, the plaintiff’s suit fails and it is dismissed on contest with cost.

37. Draw up a decree accordingly.

38. The suit stands disposed of on contest.

Given under my hand and seal of this Court on this the 31st day of October, 2019, at Silchar.

Typed & corrected by me:- K. Goswami, AJS

Munsiff No.1, Cachar, Silchar

Title Suit No.561 of 2006

Page | 23

A P P E N D I X

Plaintiff’s Witnesses

PW-1: Bibekananda Nath

PW-2: Alauddin Laskar

Defendants’ Witnesses

DW-1: Sipi Nath

DW-2: Suresh Chandra Nath

Plaintiffs’ Documents

Ext.1: The Certified Copy of Jamabandi of RS. Patta No. 110 of Mouza Kajidahar Part-3

Ext.2: The Certified Copy of Jamabandi of R.S. Patta No.113 of Kajidahar Part-3

Ext.3: The Certified Copy of 2nd R.S. Patta No. 53 of Kajidahar part-3, Ph-Bonraj

Ext.4: The Certified Copy of Jamabandi of 2nd R.S. Patta No. 54 of Kajidahar Part-3 Ph. Bonraj

Ext.5: The Certified Copy of Jamabandi of 2nd R.S. Patta No.55 of Kajidahar Part-3

Ext.6: The Certified Copy of Jamabandi of 2nd R.S. Patta No.57 of Kajidahar Part-3 Ph. Bonraj

Ext.7: The Certified Copy of Jamabandi of 2nd R.S. Patta No. 55 of Kajidahar Part-3

Ext. 8: The Certified Copy of the Registered deed of Gift in the plaintiff’s name.

Ext.9: The Certified Copy of Registered deed of Gift in favour of proforma defendant No.3.

Ext. 10: The Revenue Challan for the Bengali year 1402.

Ext.11: Authenticated copy of the order dated 28.05.1996. passed by the Executive Magistrate in M.R. Case No. 116/1996.

Ext. 12: The Certified Copy of the written statement of the 2nd party filed in M.R. Case NO. 116M of 1996.

Ext. 13. The Revenue challan for the Bengali year 1303.

Title Suit No.561 of 2006

Page | 24

Ext. 14. The Certified Copy of the Registered Deed No.4892 dated 22.06.1976.

Ext. 15: The Certified Copy of the Registered Deed No. 1387 dated 11.03.1977.

Ext. 16: The Certified Copy of the Final Order dated 28.02.1997 passed by the Executive Magistrate in M.R. case No. 116 of 1996.

Ext. 17: The Certified copy of the Registered Deed No. 695 dated 07.05.1995

Ext. 18: The Certified Copy of the Registered Deed No. 4835 dated 29.06.1984

Ext. 19: The Revenue Challan for the Bengali year 1404.

Ext. 20: The Certified Copy of the Order dated 31.07.1997 passed by the Judicial Magistrate, Silchar with the Certified Copy of the Police report in case No. 1963 C of 1997.

Ext. 21: The Certified Copy of the FIR of the Dholai P.S. Case No. 225 of 1997.

Defendants’ Documents

Ext. A: The Seizure list of the Dholai P.S. Case No. 225 of 1997 (proved in original).

Ext. B: The Order dated 26.05.2001 passed by the Hon’ble Civil Judge Sr. Division, Silchar in T.S. 36/1998.

Ext. C: The Certified copy of the amendment petition vide No. 1012/9 dated 18.03.2000 in case No. T.S 36 of 1998 of the Court of the Hon’ble Civil Judge Sr. Division, Silchar

Ext. D: The Certified copy of order dated 16.03.2006 passed by Addl. CJM, Cachar, Silchar in G.R. Case No. 2556 of 1997.

Ext. E: The Certified Copy of the opinion dated 24.02.1999 of Senior Scientific Officer, FSL, Guwahati.

Ext. F: The Certified copy of Final Report dated 31.08.2004 submitted by the Police in GR. Case No. 2556/1997 i.e. the Dholai P.S. Case No. 225 of 1997.

Typed by me:- K. Goswami, AJS

Munsiff No.1, Cachar, Silchar

Title Suit No.561 of 2006