B.P. Saraf, J.@mdashThis second appeal of the Plaintiff is directed against the judgment of the Assistant District Judge No. 2, Cachar at Silchar reversing the judgment of the Munsiff No. 1 by which the suit of the Plaintiff had been decreed.
2. The Appellant, as Plaintiff, instituted a suit for declaration of his title over the suit land for partition and recovery of khas possession. The suit land comprised of a plot of land measuring 1B. 4K. 4 Chataks being a part of the land covered by Dag No. 197 of the Second R.S. Patta No. 11. The case of the Plaintiff was that this and originally belonged to one Mamad Mia, the predecessor of Defendants No. 1, 2 & 3. Mamad Mia sold the said land on 11.7.1956 to Abdul Jabbor Barlaskar and Abdul Rab Barlaskar by registered sale deed who, in turn, transferred the same to one Namar Ali on 253 1973 by registered sale deed. On 11.6.1974 by another registered sale deed Namar Ali sold the same to the Plaintiff.'' So far as possession is concerned, it was the case of the Plaintiff himself that lie did not get the possession as even prior to the sale of the land to the Plaintiff there was a dispute regarding possession between his vendor Namar Ali and the Defendants 1 to 3-sons of the original owner Mamad Mia, which resulted in a proceeding u/s 545 Code of Criminal Procedure in course of which by an order dated 28.9.1973 the possession of Defendants No. 1 to 3 over the suit land was declared. In view of the said order, the Plaintiff, as purchaser from Namar Ali, instituted the suit claiming reliefs as indicated above.
3. Defendants 1 to 3, who were the sons of Mamad Mia-original owner, of the suit land; resisted the suit by filing a joint written statement. The case of these Defendants was that their father Mamad Mia did not sell the suit land on 10.7.1956 to Abdul Jabbor Badaskar and Abdul Rab Barlaskar, nor did he relinquish possession thereof as alleged. They also denied that the Plaintiff or his vendor or any of the earlier vendors ever possessed the suit land. The real state of affairs, according to these Defendants, was as follows. That on 10.7.1956 their father Mamad Mia took a loan of Rs. 200/- from Abdul Jabbor Barlaskar and Abdul Rab Barlaskar by mortgaging to them the suit land. It was agreed between the parties that Mamad Mia would execute a sale deed in their favour in respect of the mortgaged land and in case within 7 years from the date of mortgage Mamad Mia or his heirs paid back the loan then the mortgage would redeem the mortgage by executing a registered deed of reconveyance. It was further agreed between them that Mamad Mia would enjoy possession of the land as (sic) under the mortgagees on condition of paying an annual rent of six months of paddy. It was, therefore, contended that the Plaintiff could not claim any right, title or interest over the suit land on the basis of the alleged purchase from Namar Ali, who himself claimed title with reference to the sale deed dated 10.7.1956 executed by Mamad Mia, which according to the Defendants, was not a sale deed.
4. A number of issues were framed by the learned trial court. The three issues, which are relevant for decision of the contention raised in the present appeal, are issue Nos. 6, 7 and 8, which are reproduced below:
6. Was the sale deed dated 243-1973 executed by Abdul Jabbar Barlaskar and Abdul Rab Barlaskar in favour of Defendant No. 12 Namar Ali Barlaskar was collusive, illegal and without consideration and did Namar Ali Barlaskar get delivered possession on the basis of that sale deed?
7. Is the sale deed dated 14.6.74 executed by Namar Ali Barlaskar in favour of the Plaintiff is collusive, illegal and without consideration and did the Plaintiff get delivery of possession on the basis of that sale deed?
8. Has the Plaintiff any right, title and interest in respect of the suit land?
These three issues were discussed and decided by the Trial Court together. Before the Trial Court the Plaintiff produced a sale deed dated 10.7.1956 in respect of the suit land exeeuted by late Mamad Mia in favour of Abdul Jabbar Barlaskar and Abdul Rab Barlaskar. It is Ext. 3. On perusal of Ext. 3 it appears that it did not bear on it any signature or thumb impression of Mamad Mia, the owner of the land. This fact is not disputed. The undisputed position is that on this sale deed the name of the vendor Mamad Mia was written by one Abdul Quddus who put his signature Bakalatn below the name of the vendor. However, at the time of registration of the said document Mamad Mia put his left thumb impression on back of the document as evidence of registration. In such a factual metrix, it was contended by the Defendants No. 1 to 3 that the sale deed in question, not having been signed by the vendor, was not a valid document and could not confer any title on the alleged purchasers in respect of the land sought to be conveyed thereby. The learned Trial Court observed that the said document had been admitted in evidence without objection and, as such, the same could not be challenged by the Defendants. It also observed that execution of the sale deed on 10.7.1956 by Mamad Mia has also been admitted in the written statement as well as in evidence. The learned Trial court, therefore, held that it was convinced that Mamad Mia had sold the suit land to Abdul Jabbar Barlaskar and Abdul Rab Barlaskar.
5. On appeal, the learned Assistant District Judge reversed the aforesaid finding of the learned Munsiff. It observed that when such a document is neither written under instruction of the executant nor read over to him and the same is signed by somebody else Bakalam the vendor, it cannot be held to be execution of the document by the vendor in the eye of law. In that view of the matter, the learned appellate court held that the Plaintiff could not claim any right, title and possession over the suit land purchased from/Namar Ali, who himself did not have any right or title over the suit land in view of the alleged sale by the orginal owner Mamad Mia to his vendors being invalid and inoperative in the eye of law. Accordingly, the appeal was allowed and the judgment and decree passed by the Trial Court were set aside. The suit of the Plaintiff was dismissed. The Plaintiff has approached this Court by filing this second appeal.
6. The question of law that arises for consideration in this appeal is whether the sale deed dated 10.7.1956 (Ext. 3) is an invalid document, in the absence of proof of execution of the same by the vendor Mamad Mia. Before dealing with this question it will be expedient to deal with the two preliminary objections raised by Mr. A.M. Mazumdar, learned Counsel for the Appellant. The first point raised by the counsel relates to "admission" of the sale by the Defendants and its effect. It is contended that the execution of the sale deed dated 10.7.1956 had been admitted by the Defendants in their written statement and, as such, the said sale deed should have been deemed to have been proved. Reliance is placed in this regard on the provisions of Section 58 of the Evidence Act and Rule 5 of Order 8 of the Code of Civil Procedure, 1908, hereinafter ''the Code of Civil Procedure''. Section 58 of the Evidence Act deals with admission made during the trial and provides that facts admitted need not be proved. It reads:
58. Facts admitted need not be proved.-No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pladings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
From a reading of Section 58 it is clear that this section applies only to cases where the parties agree to admit (sic) facts by any writing or which by any rule of pleading in force at the time are deemed to have been admitted by the parties by their pleadings. The proviso, however, gives power to the court to require the facts to be proved otherwise even though admitted. The rule of pleading in force, refer to the relevant provision of the CPC which is Rule 5 of Order 8. Sub-rule (1) of Rule 5, which is relevant for the present case, reads:
5. Specific denial.-(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the Defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
This rule refers to the allegations of fact in the plaint not specifically denied. This rule in fact provides for admission by implication. It wile however not apply to a case where from a reading of the pleadings of the Defendants as a whole it transpires that the allegations in the plaint had been denied. In fact, the rigour of the aforesaid rule has been sufficiently diluted by the proviso which, like the proviso to Section 58 of the Evidence Act, gives a discretion to the court to require any fact admitted by implication to be proved otherwise than by such admission.
7. From a reading of Rule 5(1) of Order 8 of the CPC and Section 58 of the Evidence Act, it is clear that these two provisions do not contain any inflexible rule of evidence. What is contained therein is a broad proposition to be applied in the light of the facts of each case. This interpretation also gets support from the provisos to the aforesaid provisions which give full discretion to the court to require the facts admitted, directly or by implication, to be proved otherwise than by such admission. In view of the proviso it is open to the court, despite any admission by the Defendant or his failure to deny the allegations in the plaint, to call upon the Plaintiff to prove the allegation. Applying the aforesaid principles to the facts of the instant case, it appears that these provisions have no application. It is not a case where the Defendants have admitted the execution of the sale deed by their father Mamad Mia in favour of the Plaintiff. What they have stated is that the property was mortgaged and not sold. The Defendants in their written statement nowhere admitted the execution of the sale deed (Ext. 3) in question by their father. On the other hand, there was a specific denial that any sale of the suit land had been made by their father as alleged in the plaint, In such a factual situation, it cannot be said that the execution of the sale deed (Ext. 3) had been admitted by the Defendants either u/s 58 of the Evidence Act or Rule 5 of Order 8 of the CPC Besides in view of the proviso authorising the court to require any fact, even if admitted, to be proved otherwise than by admission, the submission of the learned Counsel has no force.
8. The next objection relates to non-framing of specific issue by the courts below. It is contended that no issue had been framed by the court in regard to the validity of the sale deed dated 10.7.1956 (Ext. 3) and, as such, it could not have been decided by the courts below. I have considered the submissions. The facts are that the Plaintiff claimed the right and title over the suit land on the strength of a sale deed dated 14.6.1974 executed in his favour by one Namar Ali. The Defendants No. 1 to 3 claimed title over the suit land as heirs of the original owner, Mamad Mia. The case of the Plaintiff was that Mamad Mia had sold the land to the vendors of his vendor Namar Ali by registered sale deed dated 10.7.1956 and, as such, the Defendants could not claim any right, title or interest in the said land as heirs of Mamad Mia. Thus the claim of the Plaintiff himself was based on the sale deed dated 10.7.1956 (Ext. 3) said to have been executed by Mamad Mia. This document was also produced and exhibited before the court by the Plaintiff. It was a document relied upon by the Plaintiff. The Defendants denied the sale and challenged the said document as invalid and void on the ground that the same had not been executed by Mamad Mia. There was a specific issue whether the Plaintiff had any right, title and. interest in respect of the suit land. To get a decision on the aforesaid issue in his favour, the Plaintiff relied on the sale deed, Ext. 3. As such, there was no necessity of framing a separate issue in regard to the validity of the said document. Admittedly, the parties, went to trial fully knowing their rival case and made all evidence not only in support of their contentions but also in refutation of those of the other. In such a case, as held by the Supreme Court in Nedunuri Kameswaramma v. Sampan Subba Rao AIR 1963 SC 885, it cannot be said that the absence of an issue was fatal to the case, or that there was mistrial which vitiated the proceedings. In this connection, I may also refer to the decision of the Supreme Court in
...in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-rise the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would, not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it....
9. Applying the aforesaid principles to the facts of the present case it is clear that the Plaintiffs, knew well that the existence and/or validity of the sale deed dated 10-7-1956 (Ext. 3) was involved in the trial and also led evidence about it. Under the circumstances he cannot be allowed now to urge that this matter should not have been decided as no specific issue had been framed. The objection of the learned Counsel, therefor, on ground of framing of specific issue cannot be sustained.
10. I now turn to the main question of law that arises for consideration in this case, namely, whether the sale deed dated 10.7.1956 was invalid the same having not been executed by the vendor Mamad Mia. The admitted position in this case is that Ext. 3, the sale deed dated 10.7.1956 did not bear any signature or thumb impression of the vendor, Mamad Mia, though it is purported to be a sale deed executed by him. It contains the name of Mamad Mia bakalam Abdul Quddus. The said deed was registered with the Sub-Registrar the very same day. At the time of registration Mamad Mia appears to have put his thumb impression on the back of the document. This thumb impression is also described as such by Abdul Quddus who has put the name of Mamad Mia below the thumb impression and authenticated by his own signature. There is an endorsement made at the time of registration, presumably by the sub-Registrar, to the following effect:
Execution is admitted by the above Mamad Mia who is identified by Abdul Quddas....
From the aforesaid fact two things emerge. It was Abbul Quddus who was the key person so far as the execution of sale deed is concerned. It is he who put the name of the vendor Mamad Mia on the sale deed on 10-7-1956 Bakalam himself. Mamad Mia did not put even his thumb impression thereon though he was available for the purpose as evident from his presence on the very same day before the Sub-Registrar. Mamad Mia was not known to the Sub-Registrar. He was also identified by Abdul Quddus. The thumb impression on the sale deed put before the Sub-Registrar at the time of registration has also been described as such by Abdul Quddus. There is no mention anywhere as to in what capacity Abdul Quddus had done all that right from writing the name of the owner in the sale deed to describing the thumb impression thereon put at the time of the registration. In fact, from chain of events one gets an impression that everything is not alright-there is something wrong somewhere. It is not understandable why Mamad Mia did not himself execute the sale deed by putting his thumb impression thereon if he could do it before the Sub-Registrar for the purpose of registration. It is also not clear as to under what authority Abdul Quddus wrote the name of Mamad Mia bakalam on the sale deed. All these facts taken together indicate that there might be something wrong in the alleged transaction of sale. It cannot be taken on the face value and cannot be accepted in the absence of unimpeachable evidence to the effect that it was a genuine transaction for consideration and the sale deed in question was executed by Abdul Quddus, with the authority of the vendor. It is well-settled that the execution of a document has to be proved independently. Mere registration of a document is not, by itself, sufficient proof of its execution. Nor registration endorsement a conclusive proof of the fact of execution. Mere proof of admission or execution of registration before the Sub-Registrar, therefore, does not satisfy the requirements of Section 67 of the Evidence Act, which deals with proof of execution.
As observed by this Court in Bhutkani Nath v. Musstt Kamaleswari Nath 1971 ALR 140 A & N execution of a document is not mere signing of it. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put his signature in a document after knowing fully its contents.
Dealing with the nature of evidence needed to prove the execution of a document, it was observed by this Court in Oourembam Heramot Singh v. Laisram Angahal Singh AIR 1979 Gau 68:
The execution or authorship of a document is a question of fact and may be proved like any other fact. The court is not bound to treat the registration endorsement as conclusive proof of fact of execution. ...Mere registration of a document is not, by itself, sufficient proof of its execution. More than a mere admission of a signature is needed to amount to admission of execution of a document.
11. From the aforesaid discussion, it is clear that execution of a document means pitting the signature or thumb impression over it by the executant after it is written out, read over and understood by him. Execution does not mean merely ''signing''. The document may be signed by the executant himself or some one else duly authorised by him in this behalf. If it is executed by some one else on his behalf then that ''some one'' must have "legal authority" to do so. Such authority shall have to be proved to enforce the document against the owner-it cannot be presumed or inferred. In the present case there is nothing to show that Abdul Quddus had any such authority. Nor he has represented himself to be an authorised agent of Mamad Mia. He has simply written the name of Mamad Mia Bakalam himself ''Baktiiam'' literally means "by the pen of". It indicates by whose pen the name of a person is written. It does not denote "authority". It only indicates the name of the writer, and in the absence of any other evidence no more and no further. This expression is not in vogue in legal documents.
12. Applying the aforesaid principles to the facts of the present case, it is clear that Mamad Mia did not put his signature or thumb impression on the sale deed. There is nothing to show that Abdul Quddus was his agent and he had been authorised to execute the sale deed in question. Before the Sub-Registrar, Mamad Mia put his thumb impression on the back of the document which can only signify his presence at the time of registration. The registration was done on the very same day the document is purported to be executed. The deed was signed by the executant Abdul Quddus Bakalam. The, very same Abdul Quddus identified Mamad Mia before the Sub-Registrar. He is the person who described the thumb impression on the back of the sale deed as that of Mamad Mia by putting his name below it. He was, however, not examined. Nor was the writer of the deed examined. Under the circumstances, in my opinion, the sale deed dated 10.7.1956 (Ext. 3) cannot be accepted as a valid deed of sale to confer any title on the purchaser. This view also gets full support from the decision of this Court in Bhutkani Nath (supra), where also on the sale deed neither there was the signature nor the thumb impression of the vendor. It was also a case where the name of the vendor has been written by some one else Bikalam. The authority of such person to do so was not established. It was held that the sale deed had not been duly executed by the vendor.
13. In view of the aforesaid discussion, I am of the opinion that the learned appellate court was justified in coming to a conclusion that no title passed to the vendors of Namar Ali who sold the suit land to the Plaintiff on the strength of the sale deed dated 10-7-1956. In that view of the matter the finding of the first appellate court and the judgment and decree passed by it are affirmed.
14. In the result this second appeal is dismissed. The parties, are left to bear their own costs.
