GAUHATI HIGH COURT ISSUES ORDER ON MRIGEN DAS V/S KUMUD CHANDRA DAS

GUWAHATI, India, April 1 -- Gauhati High Court issued the following order on Feb. 27:

1. Heard Mr. S. Das, learned counsel for the appellant. Also heard Mr. S. Barooah, learned counsel for the respondent.

2. This is an appeal preferred under Section 100 of the Code of Civil Procedure, 1908 against the judgment dated 09.09.2010, passed by the learned Civil Judge No.3, Kamrup at Guwahati in Title Appeal No. 68/2008, whereby the judgment and decree dated 18.08.2008, passed by the learned Munsiff No. 1, Guwahati in Title Suit No. 303/2004, decreeing the suit of the plaintiff/respondent 6 was upheld.

3. This Court, after hearing the learned counsel for the appellants, admitted this appeal on the following substantial questions of law:- "Whether the learned courts below are justified in decreeing the suit of the plaintiff for specific performance of the contract on the basis of Ext.1 agreement without the prove of the alleged signature of the defendant in the said agreement, when the defendant denied execution of such agreement?"

4. Mr. Das, the learned counsel for the appellant submitted that that the learned Trial Court as well as the learned Appellate Court did not consider the fact that there is no prove of the document, which was alleged to have been executed by the defendant/appellant. In spite of denial of signature, the plaintiff/respondent did not take any step to prove the signature of the defendant/appellant in the deed of agreement for sale. Further, it is submitted that the document which was exhibited, was the certified copy and it was also not proved as required under the Indian Evidence Act. In spite of refusal of the signature, the learned Trial Court as well as the learned Appellate Court had considered that the agreement for sale was duly proved by the plaintiff/respondent. Mr. Das, the learned counsel for the appellant further raised the issue that the agreement for sale in respect of the suit land cannot be executed by the defendant/appellant, which was already in the possession of one Madhu Ram Boro, with the knowledge of the plaintiff/respondent. But in spite of the plea that said Madhu Ram Boro is in possession of the suit land, the learned Courts below did not give any finding to that regard. Mr. Das further submitted that the suit land comprising of land measuring 1 katha 3 lecha, out of 3 katha 10 lecha, covered by Dag No.811 and K.P. Patta No.316 of village Niz Hajo, Mouza Hajo of Kamrup District. But the defendant/appellant has brothers and sisters whose names are mentioned in the written statement filed by the respondent and hence, out of 3 katha 10 lecha land, the plaintiff/appellant cannot execute a sale agreement for 1 katha 3 lecha, over which he had no possession or he cannot claim 1 katha 3 lecha out of 3 katha 10 lecha of the entire land.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=LfKgAEL6K8Sqqfv6TysK%2BEHP%2Fwji06VaUwL%2Bn7Q7abzVbtfpmPNHXPxlGqZIci5T&caseno=RSA/61/2012&cCode=1&cino=GAHC010004252012&state_code=6&appFlag=)

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