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2003 DIGILAW 523 (CAL)

NIRMAL MISTRY v. BENOY KRISHNA HOME ROY

2003-10-29

PRANAB KUMAR CHATTOPADHYAY

body2003
PRANAB KUMAR CHATTOPADHYAYA, J. ( 1 ) THIS second appeal is directed against the judgment and decree dated July 19, 1999 and July 22, 1999 respectively passed by the learned Additional District Judge, 3rd Court at Alipore, 24-Parganas (South) in Title Appeal No. 439 of 1990 reversing the judgment and decree dated 14th September, 1990 and 3rd November, 1990 respectively passed by the learned Assistant District Judge, 4th Court at Alipore, 24-Parganas (South) in Title Suit No. 119 of 1989. ( 2 ) THE plaintiff/respondent filed the suit being Title Suit No. 119 of 1989 before the learned Assistant District Judge, 4th Court at Alipore, 24-Parganas (South) for declaration, recovery of possession and mandatory injunction against the defendants. ( 3 ) THE plaintiff/respondent stated in the plaint filed in connection. with the aforesaid title suit that the suit property was purchased by the plaintiff from one, Smt. Reba Bhowmik by a registered Deed of Conveyance dated 20th january, 1970. According to the plaintiff, the suit land was/is a vacant land and the plaintiff is in possession thereof since his purchase. ( 4 ) IT has been stated by the plaintiff that being a businessman he resides far away from the suit property and taking advantage thereof, the defendants trespassed into a part or portion of the suit property in January, 1979. The said trespassed portion of the suit land has been described in Schedule 'b' to the plaint. ( 5 ) THE plaintiff described the defendants as rank trespassers and contended that the said defendants had no manner of right, title and interest in the suit property and furthermore the said defendants were also never permitted to occupy any portion of the suit property. It has been stated by the plaintiff that the defendants refused to vacate the suit property inspite of request and therefore, the plaintiff instituted the aforesaid title suit for declaration, recovery of possession of the portion of the suit property marked 'b' after evicting the defendants therefrom and also for recovery of possession of other portion of the suit property marked 'a' if the plaintiff is found out of possession of that portion too. ( 6 ) THE plaintiff further prayed for a decree for permanent injunction restraining the defendants from encroaching or taking possession of the portion of the suit property marked 'a'. ( 6 ) THE plaintiff further prayed for a decree for permanent injunction restraining the defendants from encroaching or taking possession of the portion of the suit property marked 'a'. The defendants on the contrary denied all the claims and allegations made by the plaintiff and contested the suit by filing a joint written statement. ( 7 ) THE defendants specifically denied the right, title and interest of the plaintiff in the suit property. It has been contended by the defendants that on 15th August, 1955, defendant No. 1 forcibly occupied the entire suit property and on the next date of occupation i. e. on 16th August, 1955, an agent of Jadavpur estate Private Limited along with some employees tried to enter into the suit land but the defendant No. 1 with the assistance of his other refugee friends resisted them and drove them out from the suit property and thereafter none came forward to oust the defendants from the suit property either forcibly or by initiating any legal proceeding. ( 8 ) THE defendants have specifically asserted that they are in exclusive possession of the suit property adversely, openly, continuously and with the knowledge of all for more than 12 years and thereby acquired a good marketable title therein. The defendants have further contended that Reba Bhowmick, from whom the plaintiff alleged to have purchased the suit property, had no right, title and interest over the suit property and she was not in possession of the said suit property and as such according to the defendants, delivery of possession to the plaintiff by the vendor is nothing but a falsehood. The defendants therefore, prayed for dismissal of the suit. ( 9 ) THE learned Assistant District Judge dismissed the suit on contest. The plaintiff being aggrieved by the aforesaid judgment and decree passed by the learned Assistant District Judge, 4th Court, Alipore preferred an appeal before the learned Additional District Judge, 3rd Court, Alipore, and the said appeal was numbered as Title Appeal No. 439 of 1990. ( 10 ) THE learned Additional District Judge, 3rd Court, Alipore, however, allowed the aforesaid title appeal on contest and set aside the judgment and decree passed by the learned Assistant District Judge, 4th Court, Alipore in connection with the Title Suit No. 119 of 1989. ( 10 ) THE learned Additional District Judge, 3rd Court, Alipore, however, allowed the aforesaid title appeal on contest and set aside the judgment and decree passed by the learned Assistant District Judge, 4th Court, Alipore in connection with the Title Suit No. 119 of 1989. ( 11 ) BEING aggrieved by and dissatisfied with the aforesaid judgment and decree passed by the learned Additional District Judge, 3rd Court, Alipore in the said Title Appeal No. 439 of 1990, the defendants/appellants filed the instant appeal which was admitted by a Division Bench of this Hon'ble Court. ( 12 ) AT the time of admission of this appeal, following substantial questions of law have been formulated by the Division Bench of this Court for the purpose of deciding the instant second appeal: 1) Whether the finding of the First Appellate Court that the property was trespassed by the respondent No. 1 after it was purchased by the plaintiff is perverse? 2) Is the suit barred by limitation? ( 13 ) THE defendants/appellants claimed that they have acquired title over the suit property by way of adverse possession. Mr. Jyotirmoy Bhattacharjee, learned Counsel of the appellants submitted before this Court that the plaintiff in his evidence before the Trial Court could not furnish the names of the masons and other labourers who constructed the boundary wall in the suit property. Referring to the evidences of the plaintiff, who examined himself as P. W. I, the learned Counsel of the defendants/appellants submitted that the plaintiff could not even disclose the names of his neighbours which according to the learned counsel of the defendants is abnormal and unnatural and also not expected from anyone who was in possession of the property at any point of time. The learned Counsel of the defendants/appellants also urged before this Court that the plaintiff could not even prove the title of Reba Bhowmick, the vendor through whom the said plaintiff has been claiming his title over the suit property. ( 14 ) MR. Bhattacharjee further submitted that the suit filed by the plaintiff for eviction of the defendants from the suit property is based on title and therefore, the plaintiff must prove his title in the suit property in order to get a decree for recovery of khas possession after evicting the defendants therefrom. ( 14 ) MR. Bhattacharjee further submitted that the suit filed by the plaintiff for eviction of the defendants from the suit property is based on title and therefore, the plaintiff must prove his title in the suit property in order to get a decree for recovery of khas possession after evicting the defendants therefrom. ( 15 ) THE learned Counsel of the defendants/appellants also referred to the depositions of the P. W. 3, Tarun Ranjan Das, who is a witness to the sale deed. The said witness who claimed himself a resident of the locality since 1947 stated in his deposition that he had no occasion to see any act about possession of the suit property by Reba Bhowmick, the vendor from whom the plaintiff purchased the suit property. ( 16 ) REFERRING to various evidence adduced by the plaintiff, learned Counsel of the defendants submitted that the plaintiff himself never saw the suit land as he could not mention even the names of his neighbours and he also admitted in his cross-examination that he has no idea about the position of the suit property. The learned Counsel of the defendants/appellants also submitted that the evidence of P. W. 2 and P. W. 3. should not be relied upon in view of the various inconsistencies. ( 17 ) IN any event, the learned Judge of the Trial Court after considering the oral and documentary evidences adduced by the respective parties came to a positive finding that the defendants are in possession of the suit property since 1955. The learned Judge of the Trial Court also found that the title of Reba bhowmick over the suit property was lost. The learned Judge of the Trial Court also drew adverse inference due to non-examination of three vital witnesses by the plaintiff, namely, Bibhuti Roy Chowdhury, Reba Bhowmick, the vendor and Dhiren Bhowmick, the husband of the vendor. ( 18 ) MR. Bhattacharjee, learned Counsel of the defendants/appellants also submitted that due to non-examination of the aforesaid vital witnesses by the plaintiff, learned Judge of the Trial Court was justified in drawing adverse inference in view of the provision of section 114 (g) of the Indian Evidence Act, 1872. ( 19 ) MR. ( 18 ) MR. Bhattacharjee, learned Counsel of the defendants/appellants also submitted that due to non-examination of the aforesaid vital witnesses by the plaintiff, learned Judge of the Trial Court was justified in drawing adverse inference in view of the provision of section 114 (g) of the Indian Evidence Act, 1872. ( 19 ) MR. Bhattacharjee referred to and relied upon the following decisions in support of his aforesaid contentions: 1) AIR 1968 SC 1313 (Bashira vs. State of U. P.) 2) AIR 1974 SC 1957 (Virendra Kr. Saklecha vs. Jagjiwan and Ors.)paragraph 15. 3) AIR 1983 Mad. 169 (H. G. Krishan Reddy and Co, vs. M. M. Thimmiah and Anr.) Paragraphs 29 and 31. 4) AIR 1967 Cal. 75 [kishan Rathin vs. Mondal Bros. and Co. . (P) Ltd. and anr. ] Paragraph 13. ( 20 ) THE learned Judge of the Trial Court dismissed the suit filed by the plaintiff on the ground that the plaintiff did not acquire any title over the suit property and also on the ground that the plaintiff was not in possession of the suit property as according to the learned Judge of the Trial Court the suit property was in possession of the defendants since 1955. ( 21 ) CHALLENGING the aforesaid decision of the learned Judge of the Trial court, plaintiff preferred an appeal before the learned Judge of the First appellate Court. ( 22 ) ACCORDING to the defendants/appellants, the learned Judge of the First appellate Court erroneously discarded the credibility of various relevant documents filed by the defendants and wrongly came to a finding that the said documents do not prove the possession of the defendants in the suit property. ( 23 ) MR. Bhattacharjee strongly urged before this Court that the learned judge of the First Appellate Court committed a serious error by erroneously coming to the conclusion regarding non-examination of defendant No. 1 as witness although fact remains that the said defendant No. 1 was examined on commission as D. W. 8. Learned Judge of the First Appellate Court sharply reacted for non-examination of defendant No. 1 and observed that the defendant no. 1 is the best witness to prove the effect of adverse possession but unfortunately the said learned Judge of the First Appellate Court overlooked the fact that the defendant No. 1 was examined on commission. Learned Judge of the First Appellate Court sharply reacted for non-examination of defendant No. 1 and observed that the defendant no. 1 is the best witness to prove the effect of adverse possession but unfortunately the said learned Judge of the First Appellate Court overlooked the fact that the defendant No. 1 was examined on commission. ( 24 ) IT has been submitted by the learned Counsel of the appellants that the judgment of the First Appellate Court suffers from serious infirmity due to non-consideration of the vital piece of evidence of the said defendant No. 1. Mr. Bhattacharjee suggested that the appeal should be remanded for re-hearing before the First Appellate Court so that the learned Judge of the First Appellate court can get an opportunity to consider the evidence adduced by the defendant no. 1 and the disputed question of fact can be decided by the learned Judge of the First Appellate Court after taking into consideration all the evidences adduced by the respective parties including the evidence of the said D. W. 8 which was totally overlooked by the First Appellate Court while deciding the appeal preferred by the plaintiff against the judgment of the learned Assistant district Judge, 4th Court, Alipore. ( 25 ) ALTHOUGH this Court may consider the entire appeal by taking into consideration the effect of evidence of D. W. 8 but the learned Counsel of the appellants referred to a decision of the Hon'ble Supreme Court reported in 2003 (2) SCC 251 (Narayan Prasad Lohia vs. Nikunj Kr. Lohia and Ors.) and particularly paragraphs 7 and 8 and submitted that this Court should not loose the opportunity of considering the views of the Court below on the effect of the evidence of the said D. W. 8 which was undisputedly overlooked by the learned judge of the First Appellate Court. ( 26 ) MR. Subrato Bose, learned Senior Counsel of the plaintiff/respondent submits that the observations of the Trial Court on the evidence of the defendant no. 1 is totally perverse as the defendant No. 1 did not answer in cross-examination and the same has been specifically mentioned in the report of the pleader Commission. ( 27 ) MR. ( 26 ) MR. Subrato Bose, learned Senior Counsel of the plaintiff/respondent submits that the observations of the Trial Court on the evidence of the defendant no. 1 is totally perverse as the defendant No. 1 did not answer in cross-examination and the same has been specifically mentioned in the report of the pleader Commission. ( 27 ) MR. Bose referred to section 33 of the Evidence Act and submitted that the evidence of the defendant No. 1 cannot be admissible as the plaintiff being the adverse party in the proceeding did not get the opportunity to cross-examine the said witness. According to Mr. Bose, provision of section 33 of the Evidence act has made it clear that the cross-examined evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding provided the adverse party had the right and opportunity to cross-examine. ( 28 ) IT has been submitted by the learned Counsel of the plaintiff that the learned Judge of the Trial Court totally omitted to mention in his judgment that the defendant No. 1 did not answer in his cross-examination and as such his evidence has no relevance and the same should be discarded. Admittedly, the defendant No. 1 refused to answer the question put in cross-examination and the Commissioner mentioned the said fact specifically in her report which has been filed before the Court below. ( 29 ) MR. Bose referred to and relied upon the following decisions in support of his contention that the evidence of the defendant No. 1 cannot be taken into consideration under section 33 of the Evidence Act as the plaintiff being the adverse party in the proceeding did not get the opportunity to cross-examine the said defendant No. 1. 1) 30 CWN 254 (Brajaballav Ghosh and Anr. vs. Akhoy Bagdi and Ors. ). 2) AIR 1930 (P. C) 79 (Dal Bahadur Singh and Ors. vs. Bijai Bahadur singh and Ors.)3) AIR 1946 Lahore 275 (Abdul Rahman s/o. Ghola convict vs. Emperor ). 4) AIR 1952 Cal. 218 (Phani Bhusan Ghosh and Anr. vs. Sibakali Basu ). 5) AIR 1928 All. 140 (Narsingh Das vs. Gokul Prasad and Ors.) ( 30 ) MR. ). 2) AIR 1930 (P. C) 79 (Dal Bahadur Singh and Ors. vs. Bijai Bahadur singh and Ors.)3) AIR 1946 Lahore 275 (Abdul Rahman s/o. Ghola convict vs. Emperor ). 4) AIR 1952 Cal. 218 (Phani Bhusan Ghosh and Anr. vs. Sibakali Basu ). 5) AIR 1928 All. 140 (Narsingh Das vs. Gokul Prasad and Ors.) ( 30 ) MR. Bose urged before this Court that the learned Trial Court dealt with the documents filed on behalf of the respective parties in a very casual manner. According to Mr. Bose, learned Judge of the Trial Court never scrutinized the documents properly and also did not assign any reason for placing reliance on the documents filed on behalf of the defendants. ( 31 ) REFERRING to the documents marked as Exhibit 'c' to Exhibit 'h', Mr. Bose submitted that those documents do not prove that the defendants have been living in the suit property since 1955 or the defendants acquired the suit property by way of adverse possession. Learned Counsel of the plaintiff further submitted that the Trial Court totally overlooked the. fact that the defendants never produced any documents of the Calcutta Municipal Corporation in order to show that their names had been recorded as occupiers in the Assessment register of the Corporation. ( 32 ) REFERRING to the other Exhibits, Mr. Bose submitted that the name of the vendor, Reba Bhowmick and also the name of the plaintiff had been duly recorded in the Assessment Register of the Calcutta Municipal Corporation. ( 33 ) THE defendants have claimed the right of adverse possession and thus, the onus lies on them to prove their claim. Mr. Bose, learned Counsel of the plaintiff, submits that the defendants have miserably failed to prove their claim of adverse possession in respect of the suit property since 15th August, 1955. ( 34 ) THE learned Counsel of the appellants although criticised the plaintiff for not producing the vendor, Reba Bhowmick and her husband, Dhiren bhowmick and also Bibhuti Roy Chowdhury, the person who prepared the plan of the suit property, before the Trial Court as witnesses of the plaintiff but according to the learned Counsel of the plaintiff, their evidence is not essential and necessary to prove the claims of the plaintiff in the suit. ( 35 ) IN any event, when the defendants have claimed the right of adverse possession in respect of the suit property, according to Mr. Bose, it was the duty of the defendants to prove their claim by adducing proper evidence and if necessary, the defendants could have called the aforesaid persons as witnesses by issuing summons. ( 36 ) ALTHOUGH the defendants/appellants raised the point of limitation but it has been submitted on behalf of the plaintiff that the provisions of Limitation act have no manner of application in the facts of the present case as the defendants, according to the plaintiff, have failed to establish the said claim of adverse possession at all and since the said defendants failed to establish the exact date of the alleged entry in the suit property, question of invoking the provision of Article 65 of the Limitation Act cannot and does not arise in the facts of the present case. ( 37 ) UNDISPUTEDLY, the question of adverse possession is purely a question of fact and this Court while deciding the second appeal cannot go into the questions of fact. The learned Judge of the First Appellate Court after considering the materials and evidences on record has specifically decided the said issue relating to the claim of adverse possession against the defendants and therefore, this court while deciding the second appeal should not reverse the aforesaid finding of the First Appellate Court on facts. ( 38 ) THE decision of the Supreme Court in the case of Thakur Kishan Singh (Dead) vs. varvind Kumar, reported in 1994 (6) SCC 591 , paragraph 5, has been referred to and relied upon by the learned Counsel of the plaintiff which in my opinion is relevant and very much applicable in the facts of the present case. The relevant portion from the aforesaid decision of the Supreme Court is also quoted hereunder:"5. . . . . . . . . . . . . . . . . . . . . . . APART from it, the Appellate Court has gone into detail and after considering the evidence of record found it as a fact that the possession of the appellant was not adverse. The learned counsel, despite strenuous argument, could not demolish the finding of adverse possession. . . . . . . . . . . . . . . . APART from it, the Appellate Court has gone into detail and after considering the evidence of record found it as a fact that the possession of the appellant was not adverse. The learned counsel, despite strenuous argument, could not demolish the finding of adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not permissible even in second appeal, what to say of the jurisdiction exercised by this Court under Article 136 of the constitution. . . . . . . . . . . . . . . . . . . . . . . . " ( 39 ) IN the present case, the First Appellate Court has admittedly, held that the defendants /appellants have failed to establish the claim of adverse possession in the suit property since 15th August, 1955. The specific observation of the learned Judge of the First Appellate Court is quoted hereunder:"in view of my discussions above, I have come to this conclusion that the respondents have failed to establish the claim of adverse possession in the suit property since 15th August, 1955. " ( 40 ) IN the case of Mattulal vs. Radhe Lal, reported in AIR 1974 SC 1596 , bhagwati, J. observed as hereunder:"10. It is settled law that the High Court in second appeal cannot reappreciate the evidence and interfere with findings of fact reached by the lower Appellate court. The lower Appellate Court is final so far as findings of fact are concerned. . . . . . . . . . . . . . . . . . . . . . . " ( 41 ) IN a recent judgment reported in JT 2001 (5) SC 537 (Pakeerappa Rai and seethamma Hengsu 'd' by LRs. and Ors.), Supreme Court also held as hereunder:"2. . . . . . . . . . . . . . . . . . . . . . . . . BUT the High Court in exercise of power under section 100 CPC cannot interfere with the erroneous finding of fact howsoever the gross error seems to be. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BUT the High Court in exercise of power under section 100 CPC cannot interfere with the erroneous finding of fact howsoever the gross error seems to be. . . . . . . . . . . . . . . . . . . . . . . . . . " ( 42 ) ALTHOUGH the lower Appellate Court overlooked the evidence of the defendant No. 1 adduced before the Pleader Commissioner but the same cannot vitiate his finding in the present case as the plaintiff being the adverse party in the proceeding did not get the opportunity to cross-examine the said defendant No. 1 in violation of the mandatory requirement of section 33 of the Evidence Act. ( 43 ) THE learned Counsel of the appellants however, suggested that the appeal should be remanded back for rehearing before the First Appellate Court but in my view, no purpose would be served as the evidence of the defendant No. 1 cannot be taken into consideration by the First Appellate Court at this stage in view of the fact that the plaintiff did not get the opportunity to cross-examine the said defendant No. 1 earlier and at present, the said defendant No. 1 is dead. ( 44 ) IN any event, considering the various other materials and evidences on record, learned Judge of the First Appellate Court came to the specific finding on fact that the respondent have failed to establish the claim of adverse possession in the suit property and the aforesaid finding of fact arrived at by the lower Appellate Court should be treated as final and conclusive as the lower Appellate Court is the final Court of fact. ( 45 ) HAVING heard the learned Counsel of the respective parties and considering the evidence on record, I am of the opinion that the appellants have failed to establish before this Court that the decision of the lower Appellate court is contrary to law or the said learned Judge has committed any mistake of law or the finding of the said learned Judge is based on no-evidence and/or the finding is such that no reasonable man can reach. ( 46 ) IN the aforesaid circumstances, I am of the opinion that in the instant second appeal this Court should not interfere with the findings of fact arrived at by the learned Judge of the lower Appellate Court which is the final Court of fact. ( 47 ) THEREFORE, I find no irregularity and/or illegality and/or infirmity in the findings of the learned Judge of the First Appellate Court. Furthermore, I am also of the opinion that no substantial question of law is involved in the instant second appeal and as such I find no merit in this second appeal. ( 48 ) THUS, the instant second appeal fails and the same is accordingly, dismissed. ( 49 ) THE impugned judgment and decree of the lower Appellate Court is hereby affirmed. The defendants/appellants shall vacate the suit premises within 31st december, 2003 failing which the plaintiff/respondent will be at liberty to put the decree into execution. ( 50 ) IN the facts and circumstances of the case, there will be, however, no order as to costs ( 51 ) LET the lower Court records be sent down at once. ( 52 ) URGENT xerox certified copy of this judgment may be handed over to the learned Advocates of the respective parties, if applied for. Second appeal fails and dismissed.