Sushil Chandra Sarkar v. Chayed Ali — 1994 DIGILAW 106 (GAU)

This application under section 115 of the Code of Civil Procedure is directed against the judgment of learned Munsiff, Sonamura dated 26.3.87 whereby learned Munsiff dismissed the suit of the plaintiff who is petitioner before me. 2. The brief facts of the case are that on 31.5.85 the petitioner herein filed Title SuitNo.21 of 1985 against the respondents for restoration of the possession of land measuring 7 kanis 16 gandas and 1 kara (hereinafter referred to as 'suit land' which is more particularly described in the schedule attached to the plaint). It was pleaded that the suit land originally belonged to Eaqub Ali, Mainul Hossen, Altab Ali and Abdul Karim who exchanged the suit property with the property of the father of petitioner in East Pakisthan (now Bangladesh). To effectuate the exchange the aforesaid owners executed a Power of Attorney in favour of Nibaran Chandra Sarkar (the father of the petitioner) who by virtue of that Power of Attorney executed a deed of sale transferring the suit land in favour of the petitioner who was at that time a minor. It was further pleaded that the petitioner's father got possession of the land and he was also exercising possession over the suit land. But during survey settlement operation, the suit land was recorded as khas land and thereafter this suit land was allotted by the Government in favour of the defendants-respondents. The father of the petitioner, therefore, filed Title SuitNo.33 of 1980 as natural guardian of the petitioner for declaration of title and perpetual injunction. The suit was, however, dismissed by the trial Court. But although the suit was dismissed, the trial Court made a finding that the plaintiff was in possession of the suit land. Since the trial Court made a finding that the plaintiff was in possession of the suit land, no appeal/revision was preferred against that judgment. 3. But it was alleged that on 2.8.85 the defendants/respondents trespassed into the suit land, ploughed it and thus dispossessed the plaintiff forcibly. The petitioner, therefore, filed the Title Suit No.21 of 1985 under section 6 of the Specific Relief Act for restoration of possession of the suit land. This suit was resisted by the defendants-respondents and upon the pleadings, learned Munsiff framed the following issues for determination of the suit. 1. Whether the plaintiff was in possession over the suit property ? 2. This suit was resisted by the defendants-respondents and upon the pleadings, learned Munsiff framed the following issues for determination of the suit. 1. Whether the plaintiff was in possession over the suit property ? 2. Whether the defendant dispossessed the plaintiff therefrom ? 3. Whether the plaintiff is entitled to get the decree as prayed for ? 4. Both the parties adduced evidence but learned Munsiff held that non-production of Power of Attorney gave rise to an adverse presumption under section 114 (g) of the Evidence Act. With this finding, learned trial Court dismissed the suit on contest. Hence this revision. The finding of learned Munsiff relevant for the purpose may be extracted as follows : “ Since the basis of the possession of the plaintiff was the deed of power of attorney it ought to have been relied on evidence but the plaintiff for reason best known to him has withheld the same. The non-production of such a material document gives rise to an adverse presumption under section i 14 (g) of the Evidence Act. So, from the oral evidence and the exhibit a presumption of possession can be drawn as I find a long standing claim of possession of the plaintiff but no inference could be taken on presumption. The plaintiffs suit is thus liable to be failed.” 5. It would be apparent from the finding of learned Munsiff quoted above that learned Munsiff held that if the Power of Attorney could bt produced it would be unfavourable to the plaintiff-petitioner and hence he dismissed the suit. But I am really at a loss to understand how a Power of Attorney in a case of in is nature can be considered to be a sufficient proof indicating possession. The case of the plaintiff-petitioner, as stated above, was that he got the suit land by way of exchange and to effectuate that exchange the owner executed a Power of Attorney in favour of the petitioner's father to enable the latter to execute necessary deed of sale for transferring the suit land and accordingly the father of the petitioner on the strength of that Power of Attorney executed the sale deed transferring the suit land in favour of the petitioner. 6. It is argued by Mr. 6. It is argued by Mr. AK Bhowmik, the learned senior counsel appearing on behalf of the petitioner that in the former suit, namely, Title Suit No. 33 of 1980 the petitioner submitted the Power of Attorney as well as the deed of sale and learned Munsiff also made the finding that the petitioner was in possession of the suit land. The records of Title SuitNo.33 of 1980, namely the certified copies of the deposition of PWs show that the Power of Attorney and the need of sale were produced and those were marked as Ext. 3 and Ext.2 respectively and In that suit learned Munsiff by this judgment dated 18.3.85 held that the petitioner was in possession of the suit land. In the present case the petitioner exhibited the judgment of Title Suit No.33 of 1980 and it was marked as Ext. 1. The plaintiff-petitioner also adduced oral evidence but it does not appear from the impunged judgment that learned Munsiff discussed the oral evidence at all. He dismissed the suit mainly on the ground that the petitioner did not produce the Power of Attorney and as such the presumption goes against him. 7. But on examination of the record I find that the petitioner was never called upon to produce the Power of Attorney and it is virtually not disputed that the petitioner got the land by way of exchange. The case of the defendants-respondents was that the suit land was allotted to them by the Government. But on scrutiny of the entire records I do not find any proof to show that the possession of the suit land was actually handed over to the defendants-respondents by the Government. Illustration (g) of section 114 of the Evidence Act is merely an illustration of the principle embodied in the section. It is based on the maxim 'omnia praesumuntur contra spoliatorem'. If a man wrongfully withhold evidence the Court can draw every presumption to his disadvantage, consistent with the facts admitted or proved. In the instant case it is quite clear from the evidence on record that the petitioner filed the Power of Attorney in question as well as the deed of sale in respect of the suit land in his former suit, namely, Title Suit No.33 of 1980. In the instant case it is quite clear from the evidence on record that the petitioner filed the Power of Attorney in question as well as the deed of sale in respect of the suit land in his former suit, namely, Title Suit No.33 of 1980. Therefore, the question is whether an adverse presumption can be made against the petitioner for non-submission of the Power of Attorney in the present suit. I have already stated above that a Power of Attorney cannot be considered to be a sufficient proof to indicate possession. It is not the best evidence to make a finding about the possession. In the circumstances no adverse inference can be drawn against the petitioner for non-production of the Power of Attorney such a finding of learned Munsiff is, therefore, erroneous. 8. The instant suit was filed under section 6 of the Specific Relief Act for recovery of possession. It is an admitted fact that the defendants-respondents claimed title to the suit land by virtue of the order of allotment. On examination of the evidence adduced by the parties, I find that both the parties adduced some documentary evidence in addition to their oral evidence. But learned Munsiff did not make any finding as to the oral evidence adduced by the petitioner and he did not all discuss the evidence that was produced on behalf of the defendants-respondents. The learned Munsiff held an adverse inference, as stated above, simply because the petitioner did not submit the Power of Attorney. It has already been stated above that it is an admitted fact that the defendants-respondents were not at the original owners of the suit land. Their case was that they got the suit land by way of allotment from the Government. But there is no cogent evidence to show that the Government also handed over physical possession of the suit land in favour of the defendants-respondents. 9. To recover possession it is not now sufficient to show that the plaintiff has no older seisin than the defendant; it is necessary to show that he or his predecessors-in title have been in possession for the full period required by the statute of limitation and that the right to get possession is not barred by that statute. The owner, on the other hand, can assert his rights by entry or action of ejectment against all possessors. The owner, on the other hand, can assert his rights by entry or action of ejectment against all possessors. He, however, loses his right of entry or action, as well as his title to the properly, if another is in possession of it without acknowledging his title and in assertion of an independent title for the period fixed by the statute of limitation. While thus seisin or possession has important legal consequences, it is not now identified with ownership. 10. In its normal manifestation ownership is united with possession. The owners may by voluntary act part with his right to possession or suffer a forcible ouster at the hands of a trespasser. The possessor in such cases is not the owner and in mature system of jurisprudence, the law of possession is distinct and separate from the law of ownership. The right of possession as such receives protection from the law. Under section 6 of the Indian Specific Relief Act, 1963, a person dispossessed from immovable property can sue for restoration of possession. If he brings the suit within 6 months from the date of dispossession he can succeed on mere proof of his prior possession. The defendant cannot resist the suit by setting up a title in himself. The question of ownership or title to the property is irrelevant in such a suit. Even if the defendant has a better title, he must first surrender possession to the plaintiff and then bring his own suit based upon title. This proprietary remedy of the defendant is thus distinct from the possessory remedy afforded to the plaintiff. 11. In the instant case it would be quite apparent from the facts I have discussed above that the defendants-respondents never claimed that they were the original owners of the land in suit. Their case is that this land was allotted to them by the Government. On the other hand the case of the petitioner was that the suit land originally belonged to one Eaquab Ali & others from whom the petitioner got the suit land by way of exchange and that necessary sale deed was also executed in his favour by his father, the attorney of those original owners in respect of the suit land. On the other hand the case of the petitioner was that the suit land originally belonged to one Eaquab Ali & others from whom the petitioner got the suit land by way of exchange and that necessary sale deed was also executed in his favour by his father, the attorney of those original owners in respect of the suit land. But although learned Munsiff stated in his judgment that the PWs deposed such and such but he did not make any finding as to whether their evidence in respect of the question of possession was acceptable or not. Learned Munsiff found fault with the petitioner as the petitioner did not submit the Power of Attorney I have already stated above that the petitioner actually submitted the Power of Attorney and the sale deed in the former suit and those were marked as Ext. 1 and Ext.2 respectively. In the present case the petitioner 'was never called upon to produce those documents. 12. For the reasons stated above, I hold that learned Munsiff exercised his jurisdiction illegally and with material irregularity. The judgment of trial Court is accordingly set aside and the suit is remanded to the trial Court with a direction to re-admit the suit in its original number in the register of civil suits and proceed to determine the suit and the evidence recorded during the original trial shall, subject to all exception, be evidence during the trial after remand. Both the parties be allowed to adduce further evidence. 13. Under the circumstances parties are left to bear their own cost.