Amarendra Kumar Das and Ors. v. Ireshlal Das — 1996 DIGILAW 213 (GAU)

JUDGMENT AND ORDER (Oral) This is the defendants-appellants' second appeal under section 100 of the Code of Civil Procedure from the judgment .and decree dated 22.8.1989 and 28.8.1989 respectively passed by the learned Additional District Judge, Dharmanagar, North Tripura District, in Title Appeal No. 10 of 1988 thereby affirming the judgment and decree of the learned Munsiff, North Tripura, Dharmanagar, passed in Title Suit No. 13 of 1984. 2. The facts of the case in a short compass are as follows: Shri Ireshlal Das as the plaintiff filed a suit as against the defendants, the appellants herein, for a decree of permanent injunction restraining the defendants-appellants from disturbing the peaceful possession of the plaintiff-respondent over the suit land. According to the plaintiff-respondent, he purchased the suit land from the defendant-appellant No. 1, Shri Amarendra Kumar Das by a registered deed of sale dated 26.12.1980 AD and since then he has been possessing the suit land. The defendant-appellant Nos.2 and 3 are the sons of the defendant-appellant No.l and the defendant-appellant No.4 is the wife of the defendant-appellant No.l. The further case of the plaintiff-respondent is that on 3.6.1984 AD at about 8 O'clock in the morning when the plaintiff-respondent along with his people were cultivating inside the suit land, the defendants-appellant Nos. 1, 2 and 3 came there with lathi etc and threatened the plaintiff-respondent that he should leave the suit land immediately and he should never come again to the suit land otherwise the defendants-appellants will kill the plaintiff-respondent. And according to the plaintiff-respondent, the defendants-appellants threatened him saying that they will by force dispossess the plaintiff-respondent and if the plaintiff-respondent does not pay any heed to their threat then they will kill the plaintiff-respondent and bury him in the suit land. Hearing their voice the adjacent people came there for saving the life of the plaintiff-respondent and his people and then and there the defendants-appellants left the place by threatening the plaintiff-respondent that they will dispossess him by force from the suit land. Hence, the suit 3. The defendants-appellants contested the suit by filing written statement and contended, inter alia, that the suit land was not sold actually, but it was mortgaged to the plaintiff-respondent as the defendant-appellant No.1 was in need of money for the marriage of his daughter. Hence, the suit 3. The defendants-appellants contested the suit by filing written statement and contended, inter alia, that the suit land was not sold actually, but it was mortgaged to the plaintiff-respondent as the defendant-appellant No.1 was in need of money for the marriage of his daughter. According to the defendants-appellants, the plaintiff-respondent is the cousin brother of the defendant-appellant No. 1 and as such the suit land was given hi mortgage by a sale deed in good faith and belief. It is also the case of the defendants-appellants that a verbal agreement was there amongst the parties to the extent that the defendant-appellant No. 1 will possess the suit land and cultivate it and in lieu of his money, the defendant-appellant No. 1 will give four 'Pali' paddy per Kani per year to the plaintiff-respondent and if the mortgaged money is returned within the stipulated period, then the suit land will be returned to the defendant-appellant No. 1. 4. On the basis of the pleadings of both the parties, the learned trial Court framed as many as six issues for just determination of the real points in controversy between the parties of the case. Those issues are quoted below: (i) Whether this suit is maintainable in its present form ? (ii) Whether the plaintiff has any cause of action in the suit ? (iii) Whether the plaintiff has right, title, interest and possession over the suit land? (iv) Whether the plaintiff was in possession at the time of institution of the suit ? (v) Whether the plaintiff is entitled to get the decree as prayed for ? (vi) What relief/reliefs the plaintiffs are entitled to get ? 5. After hearing the parties, the learned trial Court decreed the suit and held that the plaintiff-respondent is the owner and the possessor of the suit land ordered that the defendant-appellant Nos. 1,2 and 3 are restrained to disturb the peaceful possession of the plaintiff-respondent over the suit land. 6. Being dissatisfied with the judgment and decree passed by the learned trial Court in Title Suit No. 13 of 1984, the defendants-appellants preferred an appeal under Title Appeal No. 10 of 1988 in the Court of the learned Additional District Judge, Dharmanagar, North Tripura District. The learned first appellate Court after hearing the parties affirmed the judgment and decree of the learned trial Court under the impugned judgment and decree. The learned first appellate Court after hearing the parties affirmed the judgment and decree of the learned trial Court under the impugned judgment and decree. Being aggrieved by-the impugned judgment and decree, passed by the learned Additional District Judge, Dharmanagar in Title Appeal No. 10 of 1988 the defendants-appellants preferred this second appeal. 7. Mr. AM Lodh, the learned senior counsel for the defendants-appellants submits that the learned first appellate Court decided and gave a finding to the effect that the plaintiff-respondent is the owner and the possessor of the suit land without framing a specific issue of it. It is also submitted by Mr. Lodh that there is no specific issue as to whether the said transaction between the plaintiff-respondent and the defendant-appellant No. 1 is a sale or a mortgage. Mr. Lodh went on to contend that the important evidence of PW 3, which support the case of the defendants-appellants, were not at all examined or considered by the learned trial Court as well as by the learned first appellate Court while passingi the impugned judgments and decrees. Relying upon the evidence of PW 3, Mr. Lodh submitted that there was a meeting for settlement of dispute between the parties, whereby the plaintiff-respondent demanding the suit land, and the defendant-appellant No. 1 urging that he will give the paddy as agreed. It is also submitted by Mr. Lodh that the possession of the suit land was not delivered or given to the plaintiff-respondent by the defendant-appellant No. 1, though he sold the suit land to the plaintiff-respondent. This fact is supported by the evidence of PW 3 and this important aspect was not at all considered by the learned first appellate Court and as such the finding of the learned first appellate Court is perverse and the same is liable to be set aside, Mr. Lodh contended. 8. In reply Mr. S. Chakraborty, the learned counsel for the plaintiff-respondent submitted that from the evidence of PW 3, it is established that the defendant-appellant No. 1 did not plough the suit land and the plaintiff-respondent always ploughed the suit land. Mr. Chakraborty further contended that from the evidence of PW 3, it is also established that there were land measuring 76 Satak but no cultivation was done there. Mr. Chakraborty further contended that from the evidence of PW 3, it is also established that there were land measuring 76 Satak but no cultivation was done there. The evidence of PW 3 established only the fact that the plaintiff-respondent demanded the suit land, but the defendant- appellant No. 1 urged that he will give the paddy as agreed, Mr. Chakraborty contended. 9. A counter reply has been advanced by Mr. Lodh, the learned senior counsel for the defendants-appellants at this stage that a meeting was held in which the plaintiff-respondent demanded the possession of the suit land and as such this prima facie shows that the plaintiff-respondent was never in possession of the suit land. 10. On the other hand, Mr. Chakraborty, the learned counsel for the plaintiff-respondent submitted that the learned trial Court examined the material evidence on record and gave a finding for possession of the suit land by holding that the DW 2 did not depose that the defendant-appellant No.1 is possessing the suit land and there is also no evidence for establishing the factum of possession of the suit land by the defendants-appellants. From the evidence of PWs 1,2,3 and 4 the learned trial Court as well as the learned first appellate Court found that the plaintiff-respondent is possessing the suit land since the purchase of the suit land by him from the defendant-appellant No. 1 11. Now, this Court is to examine as to whether the learned first appellate Court passed the impugned judgment and decree illegally or with material irregularity or not and whether the issue as framed in the suit were maintainable in view of the prayer made in the plaint. 12. It is well settled that the findings without proper pleadings and necessary issues are not binding on the parties to suit. This principle of law finds its place in a case between Mohammad Mustafa vs. Sri Abu Bakar & others reported in AIR 1971 SC 361 . It is also established principle of law that the finding which is not based on pleading or evidence, is not justified and should be declared as illegal. This principle of law finds its place in a landmark judgment of the Apex Court, rendered hi a case between Deoki Nandan vs. Murlidhar & others, reported in AIR 1957 SC 133 . 13. This principle of law finds its place in a landmark judgment of the Apex Court, rendered hi a case between Deoki Nandan vs. Murlidhar & others, reported in AIR 1957 SC 133 . 13. Now, coming to the case in hand, there is a pleading as well as the evidence on record of both the parties that "the defendant No. 1 sold the suit land to the plaintiff as per pleadings of the plaintiff' and whereas 'the said transaction' is not a sale deed, but a mortgage deed and that there was an agreement (verbal) between the parties that the defendant-appellant No. 1 shall resume the land as per pleadings of the defendants in the instant case. Both the parties led extensive evidence on the basis of the then pleadings and as such in my considered view, the findings of both the learned Courts below with regard to the matter relating to the factum of either sale or mortgage could be arrived by the learned Courts below without framing a specific issue in this regard. I hereby made this observation relying upon the decision of the Apex Court rendered in Deoki Nandan vs. Murlidhar & other (supra). Therefore, the contention of Mr. Lodh on this aspect has no force. 14. The next point to be considered is as to whether the suit for a decree of permanent injunction restraining the present defendants-appellants from entering into the suit land is maintainable or not hi view of the fact that the plaintiff-respondent did not make any relief for declaration of title hi the suit. It is well settled by the Apex Court in a Corporation of the City of Bangalore vs. M. Papaiah & another, reported in AIR 1989 SC 1809 that though the relief of declaration of title not specifically mentioned in relief portion of the plaint, the suit for decree of perpetual injunction restraining the defendants from interfering with the possession of the plaintiff could not be dismissed on that ground, Therefore, cannot agree with the submission of Mr. Lodh on this point of law, 15. Lodh on this point of law, 15. Now, according to the defendants-appellants there was a verbal agreement that the defendant-appellant No. 1 will possess the suit land and cultivate the same and in lieu of his money, he will give four 'Pali' of paddy per Kani per year to the plaintiff-respondent and if the mortgaged money is returned within the stipulated period then the suit land will be returned to the defendants-appellants. This is a specific pleadings of the defendants-appellants. But nowwhere in the pleadings of the defendants-appellants, it is found that within what period the defendant-appellant No. 1 will return the mortgaged money to the plaintiff-respondent Moreover, there is no evidence on record for establishing the fact that the defendant-appellant No. 1 had always been ready and willing to resume the mortgaged property and to perform such terms of the said verbal agreement which are to be performed by him. So, I am of the view that such specific performance of an agreement, which is also verbal cannot be enforced in favour of the defendant-appellant No. 1 in view of the provisions of law laid down under section 16 of the Specific Relief Act, 1963. 16. Now, the point for determination which has been placed by Mr. Lodh before this Court is whether the findings of the learned first appellate Court with regard to the possession of the suit land is perverse despite the existence of the admission of the PW 3 with regard to the possession of the suit land by the defendant-appellant No. 1. From the evidence of PW 3, it is found that a meeting was held and in the said meeting the plaintiff-respondent demanded the possession of the land, but the defendant-appellant No.1 claimed that he will give paddy as agreed between themselves. 17. Now, another question arises whether this Court has jurisdication to re-apprise or re-appreciate the evidence by exercising its power under section 100 CPC for interfering with the concurrent finding of facts of both the learned courts below in this case. From the records, it has been revealed that there is a concurrent findings with regards to the possession of the suit land in favour of the possession of the suit land in favour of the plaintiff-respondent. 18. From the records, it has been revealed that there is a concurrent findings with regards to the possession of the suit land in favour of the possession of the suit land in favour of the plaintiff-respondent. 18. It is well settled that the High Court is not empowered to interfere with a finding of facts in second appeal on the ground of its being erroneous unless there is substantial error or defect in the procedure prescribed by law; which may have produced error or defect in the decision of the case upon merits. In a case between Deity Pattabhiramaswamy v.s. Hanymayya & others reported in AIR 1959 SC 57 , the Apex Cpurt held that the learned Judge of the High Court had no jurisdiction to intefere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. Similarly, in the instant case, the learned first appellate Court gave the findings, with regard to the possession of the suit land in favour of the plaintiff-respondent by appreciating the relevant evidence on record. 19. In view of the above position, I can not interefere with the said finding of the facts of the both learned Court below as there is no substantial error or defect in the procedure prescribed by law in the impugned judgment and decree. 20. For the reasons stated above, no case has been made out by the defendants-appellants to justify the interference of the concurrent findings of facts of both the learned Courts below. In the result, this second appeal has no merit and the same stands dismissed. No costs.