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2002 DIGILAW 242 (CAL)

Paritosh Naskar v. Sital Mondal

2002-04-10

NARAYAN CHANDRA SIL

body2002
JUDGMENT The judgment of the Court was as follows:–– The present appeal is directed against the judgment and decree dated 20.5.1993 and 29.5.1993 respectively passed by Sri S. K. Bhadra, learned Assistant District Judge, Alipore 24-Parganas (south) affirming the judgment and decree dated 25.5.1992 passed by Sri S. N. Bandapadhyayay, learned Munsif, 3rd Court, Alipore, 24-Parganas (south) in connection with Title Suit No. 127 of 1983. 2. The suit before the learned lower Court was for declaration of title, eviction of the licensee and damages. The learned trial Judge was pleased to dismiss the suit which was affirmed by the learned Lower Appellate Court. The substantial question of law for the determination in the present appeal is formulated as below :–– "Whether the findings of both the Courts below against the appellant/plaintiff are perverse." 3. The plaint case in brief is that the plaintiff purchased the suit property by two registered deeds and got his name mutated. It is also the case of the plaintiff that after coming into the possession of the suit property he raised structures which includes four rooms. The defendant is the nephew of the plaintiff. The defendant approached the plaintiff for his accommodation and the plaintiff allowed him to stay in one room. Thus, the defendant started living there in the joint mess with the plaintiff. The defendant used to look after the house hold affairs and paid taxes to the Municipality and as such the defendant used to keep all the papers of the Municipality in his custody. Subsequently in 1976 the defendant was allowed to stay in another two rooms. Sometimes in March 1980 differences started cropping up between the parties and as such the plaintiff asked the defendant to vacate the suit premises. But ultimately, the defendant after taking some time did not vacate the suit premises. Thereafter, plaintiff sent a registered notice to the defendant for vacating the suit premises and in reply to that notice the defendant claimed 8 annas share in the suit property. Thereafter, on enquiry the plaintiff came to know that the defendant fraudulently got his name recorded in column No. 23 of the record of rights and so the suit was filed. The defendant contested the suit before the learned trial Judge and denied all the material allegations. Thereafter, on enquiry the plaintiff came to know that the defendant fraudulently got his name recorded in column No. 23 of the record of rights and so the suit was filed. The defendant contested the suit before the learned trial Judge and denied all the material allegations. It was, inter alia, stated by him that in the year 1356 B.S. the plaintiff and the defendant forcibly acquired .0855 acres of land in plot No. 91 and constructed separate dwelling houses thereon with demarcation of the respective possession and since then both the parties have been residing there without interruption under the knowledge of the owner of the property M/s. Calcutta Properties Limited. It is also stated by the defendant that both the parties forcibly acquired a pond measuring .1720 acres in 1365 B.S. and since then both of them have been possessing the same jointly by rearing fish. It is claimed that the defendant has mutated his name in the record of the Municipality in respect of his half share in plot No. 91 Khatian No. 109 and he has been paying municipal taxes thereof. It is also claimed by the defendant that his portion in the suit property has been distinctly shown in the location plan of the municipality and separate premises number was allotted as Z-3/442/A, Naskar Para Lane, P. S. Metiabruz, Calcutta-44. It is the definite case of the defence that the purported deeds dated 21.8.1974 and 1.4.1975 standing in the name of the plaintiff are collusive and fictitious. 4. Mr. Puspendu Bikash Sahoo, learned Advocate appearing with Mr. Nibaran Kumar Das, learned Advocate for the appellant/plaintiff submits before me that the fact of purchase of the suit property and taking possession thereof have all been described in Paragraph-2 of the plaint. It is pointed out by him that the plaintiff is in possession of the suit properties since long before the purchase. Mr. Sahoo has pointed out to me that the plaintiff as P.W.1 stated in his examination-in-chief that he had inherited the suit property although there is absolutely nothing to that effect in the plaint and as such the said evidence of the P.W.1 having no value at all being not supported by the pleading is a matter to be ignored and in this connection he has referred to a number of case laws which I shall discuss at the appropriate point of time. Mr. Mr. Sahoo has then pointed out to me that both the Courts below were obsessed that piece of evidence of P.W.1 that he had inherited the suit properties and this haunting ultimately culminated in dismissal of the suit. Mr. Sahoo has then drawn my attention to the provisions of Sections 8 and 54 of the Transfer of Property Act and tries to impress upon me that the vendor has not come forward to challenge the sale deeds. Mr. Sahoo has then argued before me that the municipal records or the record of rights are not the documents of title. It is also pointed out by him that although the defendant claimed his title by way of adverse possession in the written statement, no evidence has been adduced by him to substantiate his case. 5. Mr. Sabyasachi Bhattacharya, learned Advocate appearing on behalf of the respondent/defendant has drawn my attention to the provisions of Section 9 of the Evidence Act as regards the question of admissibility of evidence and tries to impress upon me that the evidence of the P.W.1 in his examination-in-chief that he had inherited the suit properties is very much relevant for the purpose of determination of the suit but the said claim of the plaintiff as P.W.1 had demolished his case and as the said evidence of the suit without the support of the pleading, defendant eschewed from making any cross-examination on that evidence. Mr. Bhattacharya has argued this point from another angle and submits that if the father of the plaintiff was the owner from whom he had inherited, as the plaintiff claimed in the evidence, his alternative case that he purchased the suit properties from M/s. Calcutta Properties Limited by two deeds falls flat. It is then pointed out by the learned Advocate for the respondent that the case of the plaintiff that he had granted lease in favour of the defendant was not proved before the trial Court by any independent witness. Mr. Bhattacharya then argues before me that the record of rights and mutation papers all stand in the name of the defendant. Mr. Bhattacharya has referred to a number of case laws which I shall take up for discussion later on. 6. Mr. Mr. Bhattacharya then argues before me that the record of rights and mutation papers all stand in the name of the defendant. Mr. Bhattacharya has referred to a number of case laws which I shall take up for discussion later on. 6. Mr. Sahoo, raising the question of non-admissibility of the evidence being not supported by the plaint has referred to the ratio decided in the case of (1) Bhagat Singh & Ors. v. Jaswant Singh, AIR 1966 SC 1861 in which it was, inter alia, held that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. In the said judgment the Hon'ble Apex Court has relied on the ratio decided in the case of (2) Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57,1. Mr. Sahoo has also referred to the ratio decided in the case of (3) P. N. Kothari v. John Braganza, 1999 (4) SCC 403 in which it was, inter alia, held that it is settled law that in the absence of any plea no evidence is admissible. In the said case the learned Single Judge had permitted additional evidence to be filed on the question of title even though there was no plea nor any issue regarding the title. It was held by the Division Bench of the High Court that the learned Single Judge had ignored the provision of Order 41 Rule 27 of the Code of Civil Procedure and the Hon'ble Apex Court held that the Division Bench of the High Court rightly set aside the judgment of the Single Judge. 7. Mr. Sahoo has also referred to the decision of the Hon'ble Apex Court in the case of (4) State of U.P. v. Amar Singh & Ors., 1997 (2) SCC 734 in which it was inter alia held that it is the settled principle of law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alliance as per the stamp Act and registered under the Registration Act. 8. Mr. The title would be derived from an instrument executed by the owner in favour of an alliance as per the stamp Act and registered under the Registration Act. 8. Mr. Sahoo has once again relied on the decision of the Hon'ble Apex Court in the case of P.N. Kothari (supra). In the said case the learned Single Judge of the High Court held that the defendant/appellant had title on the ground that possession followed the title which was set aside by the Division Bench of the High Court. The Hon'ble Supreme Court observed that it is the principle of law that a person who has been in long continuous possession of an immovable property can protect the same by seeking an injunction against any person in the world other than the true owner and it is also well-settled principle of law that even the owner of the property can get back his possession only by restoring to the due process of law. Thus, it was held by the Hon'ble Apex Court that the Division Bench of the High Court in LPA rightly set aside the appellate judgment of the learned Single Judge having restored the trial of the suit partly decreeing the suit. 9. The learned Advocate for the respondent has referred to the ratio decided in the case of (5) Bhubanmohini Dasi & Ors. v. Kumudbala Dasi & Ors., 28 CWN 131 in which the Division Bench of this Court having relied on a number of case laws mentioned at page 138 of that decision held that the litigant who avails himself of the right to press inconsistent cases before the Court and endeavours to establish both the alternatives by contradictory oral testimony, plainly places himself in peril and may find himself entangled in inextricable difficulty; for evidence adduced in support of two absolutely inconsistent cases, which are mutually destructive, can hardly be expected to secure confidence. 10. It appears from the judgment of the trial Court that as many as 5 issues were framed by the trial Court and to my utter dismay although the right, title and interest of the plaintiff was challenged by the defendant in the written statement no issue appears to have been framed on the same. But despite the fact no such issued was framed the right, title and interest of the parties, the learned Munsif while disposing of issue Nos. But despite the fact no such issued was framed the right, title and interest of the parties, the learned Munsif while disposing of issue Nos. 3 and 5 appears to have traversed the question of title of the parties. The learned Munsif appears to have been swayed by the evidence of the plaintiff as P.W.1 that he inherited the property after the death of his father and this fact of inheritance of the property by the plaintiff appears to be self-contradictory inasmuch as it was not mentioned in the plaint itself. The learned Munsif did not place any reliance on the two registered deeds of conveyance being Exhibits-2 & 2(a) standing in the name of the plaintiff. On the other hand, the learned Munsif appears to have placed reliance on the record of rights where the name of the defendant appears and ultimately came to the following conclusion :– "Under such circumstances, the plaintiff has been (sic.) totally failed to prove his title in the 'A' Scheduled property. It can be said at best the plaintiff is in possession in a part of 'A' Scheduled property. So the plaintiff is not entitled to get a decree." 11. The judgment of the Lower Appellate Court moved in the same direction and the learned Judge of the Lower Appellate Court appears to have observed as follows: "Moreover there is no averment in the plaint that Hari Dasi was his father's sister or that she had title and possession over the said land or that his father inherited the said land from that Hari Dasi Beya. The presentation of such evidence which has had no footing in the pleadings cannot be given much reliance." After having arrived very near to the truth, the learned Judge allowed himself to take the course of the trial Court and found discrepancy in the claim of the plaintiff as regards to self-contradictory claims, one by way of inheritance and the other by way of purchase. Ultimately, the learned Judge of the Lower Appellate Court dismissed the appeal and affirmed the Judgment and decree passed by the trial Court. 12. Admittedly, the plaint is conspicuously silent as regards the fact of inheritance of the suit property by the plaintiff. Ultimately, the learned Judge of the Lower Appellate Court dismissed the appeal and affirmed the Judgment and decree passed by the trial Court. 12. Admittedly, the plaint is conspicuously silent as regards the fact of inheritance of the suit property by the plaintiff. Rather it is the positive case of the plaintiff that he purchased the suit property by two registered deeds dated 21.8.74 and 1.4.75 from M/s. Calcutta Properties Limited, But, the plaintiff in his examination-in-chief as P.W.1 stated that the property originally belonged to Hari Dasi Beya and his father inherited the said property and ultimately the suit properties devolved upon him after the death of his father. The plaintiff had also produced a certified copy of the holding register of the municipality and it appears therefrom that holding No. 271, premises No.4, Municipal Block No.Z3 of Naskar Para Road appear to have been recorded in the name of Hari Dasi Beya as thika tenant under the Jamindar Mr. J.C. Glastaun in the remarks column of that document (Ext.1). It is stated that the tenant could not produce any document and dakhila. Thereafter, the P.W.1 stated in his examination-in-chief that he had purchased the suit property from Calcutta Properties Limited by two deeds in the years 1991 and 1992. Here it may be mentioned that those two register deeds (Ext. 2(a) & (2) are of 1974 and 1975 respectively. Obviously, there is no cross-examination by the defence on the point of inheritance as this factum of inheritance does not find any place in the plaint. 13. The ratio decided in the case of B. M. Dasi (supra), as referred to by the learned Advocate for the respondent speaks of the mutual destruction in case of taking any endeavour to establish both the alternatives by contradictory oral testimony for the reason that evidence adduced in support of two absolutely inconsistent cases can hardly be expected to secure confidence (underlined for emphasis). In the instant suit only one positive case of title by way of purchase was taken by the plaintiff but in evidence the plaintiff had introduced an alternative case of inheritance which had no support in the plaint. Thus, the ratio decided in the case of B. N. Dasi does not appear to have any application in the instant case. In the instant suit only one positive case of title by way of purchase was taken by the plaintiff but in evidence the plaintiff had introduced an alternative case of inheritance which had no support in the plaint. Thus, the ratio decided in the case of B. N. Dasi does not appear to have any application in the instant case. Rather I find the ratio decided in the case of P. N. Kothari (supra) as referred to by the learned Advocate for the appellant applicable to the instant case and am inclined to hold that the oral evidence of the plaintiff being stray in nature was required to be discarded altogether by both the Courts below. 14. Both the Courts below appears to have been influenced much and allowed themselves to be swayed by the stray oral evidence of the P.W.1 that he inherited the suit from his father and relied much on the municipal documents as well as the record of rights. Both the Courts below appears to have committed errors in terms of the ratio decided in the case of State of U.P v. Amar Singh (supra). 15. Thus, it is felt worthwhile that the case should be remanded to the trial Court for a fresh finding. 16. The appeal is thus allowed on contest. The judgment and decree passed by both the Courts below are hereby set aside. The case is remanded to the trial Court for a fresh finding on the evidence already on record and to have a proper finding in accordance with law giving proper weightage to the title deeds (Ext.) 2 & 2 (a) and in doing so the trial Court may also explore as to how the vendor of the plaintiff became the owner of the property. The parties are directed to bear their respective costs. A copy of this judgment along with the L.C.A. be sent down to the lower Courts forthwith.