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2007 DIGILAW 2922 (ALL)

RAMJI PANDEY v. RAMESHWAR MALI

2007-12-05

TARUN AGARWALA

body2007
JUDGMENT Hon’ble Tarun Agarwala, J.—Both the plaintiff and the defendants are claiming to be the owner and in possession of the house marked by the letters A, B, C, D in plot No. 541. For facility, Rameshwar who had filed suit No. 282 of 1967 will, hereinafter be referred as the plaintiff and Ramji Pandey who had filed suit No. 30 of 1968 would be referred hereinafter as the defendant. 2. The plaintiff Rameshwar filed a suit for permanent injunction alleging that he is the owner of the house marked by the letters A, B, C, D vide a registered sale-deed dated 7.2.1956 purchased from Rama Misra and is in possession since then. The plaintiff alleged that the mud walls shown by letters AB and AE, as indicated in the plaint map, had deteriorated and that the defendants were interfering in the plaintiffs right in the reconstruction of the said wall. The plaintiff alleged that the defendants had nothing to do with the said house and the land. Consequently, the suit for permanent injunction was filed restraining the defendants from interfering with the plaintiffs right in replacing the walls marked by letters AB and AE as shown in the plaint map. 3. The defendant, Ramji Pandey also filed a suit No. 30 of 1968, for a permanent injunction, alleging that the house in question does not belong to Rameshwar Mali or to Rama Misra nor had they built any wall or part of the house and that a major portion of the house fell in plot No. 541 which belonged to Bachan Mali who was the original owner and upon his death, the said house came into the share of his widow and his son Kishan Mali who, in turn, sold it to the defendant Ramji Pandey, vide a registered sale-deed dated 22.11.1967 and, since then, he is in possession. The said defendant in his suit prayed that Rameshwar Mali should be restrained from interfering with his possession over the house in question and further prayed, in the alternative, that in the event he is not found to be in possession, in that case, possession be granted to him by the Court. 4. The said defendant in his suit prayed that Rameshwar Mali should be restrained from interfering with his possession over the house in question and further prayed, in the alternative, that in the event he is not found to be in possession, in that case, possession be granted to him by the Court. 4. On the basis of the pleadings, various issues were framed and upon the evidence being recorded and after considering the material evidence on record, the trial Court dismissed the suit of Rameshwar Mali, namely, Suit No. 282 of 1967 and decreed the suit No. 30 of 1968 filed by Ramji Pandey. The trial Court held that on the basis of the Commissioner’s report, the walls denoted by letters AB and AE fell in plot No. 540 which belonged to Ramji Pandey. Further, the Khasra, exhibit A-1 also indicated that Bachan Mali was the owner of plot No. 541 and Ramji was the owner of plot No. 540 and consequently held that the house belonged to Bachan Mali and upon his death was inherited by his widow and his son Kishan Mali who in turn sold it to Ramji Pandey. The trial Court disbelieved the version of the plaintiff Rameshwar Mali and held that the surrender deed dated 29.7.1948 executed by Kishan Mali, being unstamped, was not a reliable document and that the said document could easily be manufactured. Further, the sale-deed dated 18th March, 1950 executed by Bhoj Raj Misra in favour of Rama Misra being an unregistered document which could not be relied upon and that the said document could also be manufactured and, on these two counts, the plaintiff’s case was thrown out. 5. The plaintiff, Rameshwar Mali, filed two appeals which were allowed by the lower appellate Court and the judgment of the trial Court was set aside and suit No. 282 of 1967 of Rameshwar Mali, the plaintiff, was decreed and a permanent injunction was issued restraining Ramji Pandey from interfering with the plaintiff’s right in replacing the walls AB and AE as shown in the plaint map. The appellate Court, after considering the matter and after reappraising the evidence, held that the Commissioner’s report was not correct and that the surrender deed executed by Kishan Mali in favour of Bhoj Raj as well as the sale-deed dated 18.3.1950 executed by Bhoj Raj in favour of Rama Mishra were genuine documents and was liable to be relied upon and was admissible in evidence. The appellate Court found that Bachan Mali was only an occupant of the house in question and that Kishan Mali had surrendered his occupancy right while issuing the surrender deed. The appellate Court fortified its finding on the strength of the endorsement made by Kishan Mali as an attesting witness in the sale-deed dated 18.3.1950 which was executed by Bhojraj in favour of Rama Mishra and concluded that, if Kishan Mali, was the owner of the house in question, he would not have placed his signatures in the sale-deed in respect of the same house, as an attesting witness. The lower appellate Court further concluded that the sale-deed of 1956 executed by Rama Misra in favour of the plaintiff, Rameshwar Mali, was a genuine document and, since then, the plaintiff was in possession of the house which was fortified by a further finding that Rameshwar Mali, the plaintiff, had applied for reconstruction of the house before the Town Area Committee in which permission was granted by the Chairman, by an order dated 20.7.1957. In view of the finding that the sale-deed in favour of the plaintiff appeared to be genuine and that the plaintiff had been in possession continuously, the suit of the plaintiff, Rameshwar Mali was decreed and the suit of the defendant was dismissed. 6. Aggrieved, the defendant, Ramji Pandey has filed two appeals before this Hon’ble Court which have been clubbed together and are being heard and decided together. 7. Heard Sri A.K. Shukla, the learned Counsel for the appellant and Sri P.K. Mishra and Sri D.N. Gupta, the learned Counsel for the opposite parties. 8. The learned Counsel for the appellant submitted at the outset that Kishan Mali in his statement had categorically denied the execution of the surrender deed which had not been considered by the lower appellate Court. 8. The learned Counsel for the appellant submitted at the outset that Kishan Mali in his statement had categorically denied the execution of the surrender deed which had not been considered by the lower appellate Court. Further, Bachan Mali was recorded as a tenure holder in the revenue records in the Khasra of 1938 which fact was considered by the trial Court, but for the reasons best known, was not considered by the lower appellate Court. These two crucial facts, having not been considered by the lower appellate Court has resulted in the reversal of the judgment by the lower appellate Court. Further, the finding of the lower appellate Court that the Commissioner’s report was not correct was based on surmises and conjectures and was not based on a proper appreciation of the evidence that was brought on the record. The learned Counsel further submitted that the Commissioner’s report was confirmed by the trial Court but was reversed and set aside by the lower appellate Court on the finding that there was an intrinsic defect, but such intrinsic defect had not been specified by the lower appellate Court. Further, the reasons for accepting the report of Sri H.N. Pandey had not been disclosed by the lower appellate Court. The learned Counsel submitted that once the Commissioner’s report was rejected, it became imperative for the Court to issue a survey commission in order to locate the house in question. In support of his submissions, the learned Counsel placed reliance upon a judgment of the Supreme Court in Surjit Kaur v. Naurata Singh and another, 2000(7)SCC 379. The learned Counsel further submitted that the surrender deed, by itself, did not confer the title upon the opposite party since the document was not registered. Further, in the absence of registration, the said document could not be read in evidence. In support of his submission, the learned Counsel placed reliance upon a decision of this Court in Jagdamba Prasad Pandey and another v. Deputy Director of Consolidation and others, 1982 ACJ 126 and another decision of the Kolkata High Court in Makhan Lal Laha and another v. Nagendra Nath Adhicary, AIR 1933 Cal 467. In support of his submission, the learned Counsel placed reliance upon a decision of this Court in Jagdamba Prasad Pandey and another v. Deputy Director of Consolidation and others, 1982 ACJ 126 and another decision of the Kolkata High Court in Makhan Lal Laha and another v. Nagendra Nath Adhicary, AIR 1933 Cal 467. The learned Counsel for the appellant further submitted that the mere fact that, Kishan Mali had signed the sale-deed as an attesting witness did not mean that he knew the contents of the said documents by which the house in question was transferred by Bhoj Raj to Rama Misra. The attesting witness was not required to know the contents of the documents and, as per Section 3 of the Transfer of Property Act, the witness was only required to affirm the attestation made by him on the document. In support of his submission, the learned Counsel placed reliance upon a decision in Rajammal alias Sundarammal and others v. Sabhapathi Pillai and another, AIR (32)1945 PC 82. The learned Counsel ultimately submitted that the lower appellate Court had misappreciated the evidence and therefore the second appellate Court was within its power and jurisdiction to reverse the findings given by the lower appellate Court. In support of his submission, the learned Counsel placed reliance upon a decision of the Supreme Court in Smt. Mehrunnisa and others v. Smt. Visham Kumari and another, JT 1997(9) SC 616 and another decision reported in Yadarao Dajiba Shrawane (dead) by LRs v. Nanilal Harakchand Shah (dead) and others, JT 2002 (5) SC 579. In the end, the learned Counsel submitted that the findings given by the trial Court had not been specifically reversed by the lower appellate Court and, for this reason, the judgment of the lower appellate Court stood vitiated. In support of his submission, the learned Counsel placed reliance upon a decision of the Supreme Court in State of Orissa v. Janmejoy Dinda, AIR 1998 SC 1606 . 9. On the other hand, the learned Counsel for the plaintiff-opposite party submitted that the trial Court had cursorily considered the evidence whereas the lower appellate Court had considered the evidence in detail and after appreciating the evidence, had recorded its finding and had reversed the judgment of the trial Court on each and every aspect of the matter. 9. On the other hand, the learned Counsel for the plaintiff-opposite party submitted that the trial Court had cursorily considered the evidence whereas the lower appellate Court had considered the evidence in detail and after appreciating the evidence, had recorded its finding and had reversed the judgment of the trial Court on each and every aspect of the matter. The learned Counsel submitted that the sale-deed of 1950 was rejected by the trial Court on the ground that it was an unregistered document since it transferred an immovable property, whereas, on a closer scrutiny, it would reveal that the requirement of registration was not required in view of the fact that the value of the property shown in the sale-deed was only Rs. 60, i.e., below Rs. 100/- and therefore, was not required to be registered in view of the provisions of Section 54 of the Transfer of Property Act, as existed prior to 1.1.1977. The learned Counsel further submitted that a mere entry in the revenue record would not mean that the person was the owner of that property. The evidence produced was considered by the lower appellate Court and it was found that Bachan Mali was only a licensee in the house in question which was duly surrendered by his wife and son and consequently, the said document which only surrendered the occupancy right was not required to be registered under Section 17 of the Indian Registration Act. The learned Counsel for the plaintiff-opposite party further submitted that the plaintiff was in continuous possession since 1956, i.e., from the date when the sale-deed dated 7.2.1956 was executed in his favour which fact was found to be true by the lower appellate Court. On the other hand, the appellant was only claiming possession from the date of the execution of the sale-deed dated 22.11.1967. The learned Counsel, in the end, submitted, that the suit instituted by the plaintiff was filed as a counter blast to the suit filed by the plaintiff-appellant. The plaintiff, Rameshwar Mali, had instituted the suit on 13.9.1967. The suit filed by Ramji Pandey was filed in the year 1968 claiming his possession and title on the basis of the sale-deed dated 22.11.1967. This sale-deed was executed after the institution of the suit filed by Rameshwar Mali. The plaintiff, Rameshwar Mali, had instituted the suit on 13.9.1967. The suit filed by Ramji Pandey was filed in the year 1968 claiming his possession and title on the basis of the sale-deed dated 22.11.1967. This sale-deed was executed after the institution of the suit filed by Rameshwar Mali. Further, the sale-deed of the appellant indicates the execution of an agreement to sell at an early point of time which evidence had not been filed nor proved either before the trial Court or before the lower appellate Court. Consequently, the sale-deed of the appellant was only a sham and fictitious document in order to frustrate the suit of the plaintiff. On the other hand, the sale-deed of 1956, which is a registered document, was proved by the widow of Rama Misra, the executant of the document. The learned Counsel consequently submitted that the judgment of the lower appellate Court, being based on sound reasons and the evidence that was brought on record, consequently, did not require any interference in a second appeal and that the appeal was liable to be dismissed. 10. Upon considering the submission of the learned Counsel for the parties and upon perusing the record, this Court is of the opinion that the appeal is liable to be dismissed. Even though the trial Court had considered the entry in the Khasra and the appellate Court had not considered this entry, in my opinion, non-consideration of this entry would not vitiate the findings given by the lower appellate Court on the question of title of Bachan Mali and thereafter Kishan Mali vis-a-vis the ownership of Bhoj Raj on the property in question. 11. I have perused the judgment as well as the evidence and I find that the order of the trial Court had been cursorily passed without considering the material evidence on record. On the other hand, the lower appellate Court had given its finding after considering the evidence on record on each and every aspect of the matter. Detail reasons has been given by the lower appellate Court after considering the documents on record in holding that Bachan Mali had only an occupancy right and was not the owner of the house in question. Consequently, non-consideration of the revenue entry becomes immaterial and, in any case, does not vitiate the findings given by the lower appellate Court. Detail reasons has been given by the lower appellate Court after considering the documents on record in holding that Bachan Mali had only an occupancy right and was not the owner of the house in question. Consequently, non-consideration of the revenue entry becomes immaterial and, in any case, does not vitiate the findings given by the lower appellate Court. In my opinion, the findings given by the lower appellate Court is neither perverse nor is based on irrelevant consideration. This Court does not find any reason to differ with the findings and the reasonings given by the lower appellate Court. 12. Even though the executant of the surrender deed has denied the execution of the document, the Court below has disbelieved the statement of the said witness. The lower appellate Court had perused the signatures appended by Kishan Mali on the surrender deed, on the sale-deed of 1956 in which he appended his signatures as an attesting witness as well as the admitted signature of Kishan Mali in the sale-deed of 1967. The lower appellate Court, on a perusal of these signatures on these documents, found that all the said signatures had been signed by Kishan Mali. Further, the lower appellate Court found that the signatures in the sale-deed of 1950 was not denied by Kishan Mali. A submission was made by the learned Counsel for the appellant that the Court should not have given this finding on its own without calling for an experts opinion since the Court was not an expert on this issue. In my opinion, the submission of the learned Counsel for the appellant is bereft of merit. It is the Court alone which has the power to judge as to whether the signature is that of the person or not. No external aid is required if, on the face of the document, is apparent that the signatures had been appended by the same person. It is only where a doubt is created that the Court can take the help of an expert by taking recourse to the Evidence Act, but, if the Court finds on a bare perusal of the document that the signatures are that of the same person, in that event, it is not necessary for the Court to call for an expert opinion. This Court has also perused the signatures in the three documents, namely, the surrender deed, the sale-deed of 1950 and the sale-deed of 1967 and even this Court finds that the flow in the handwriting is virtually the same, further, Kishan Mali himself had not denied his signatures on the sale-deed of 1950 in which he appended his signatures as a marginal witness. Consequently, this Court is not inclined to disturb the findings given by the lower appellate Court. 13. No doubt, a marginal witness is not required to know the contents of the documents and is only required to prove the attestation as per the provision of Section 3 of the Transfer of Property Act but, it has nowhere come on record that Kishan Mali was an illiterate rustic person or that he was not aware of the contents of the document. Kishan Mali had only denied the execution of the document, namely, the surrender deed but had not denied the other documents. The signing of the sale-deed as a witness leads to an irresistible conclusion that Kishan Mali had no right on the property in question and that Bhoj Raj was the original owner of the house in question. The lower appellate Court has dwelt this matter at length and came to the conclusion that Bhoj Raj was the original owner and that Bachan Mali was only an occupant and, upon his death, his widow and Kishan Mali had executed the surrender deed of 1948. Since the surrender deed only mentions the surrender of occupancy right, consequently, this Court is of the opinion that the registration was not required under Section 17(1)(b) of the Registration Act. Since the said document does not confer any title, the judgment relied upon by the learned Counsel for the appellant, consequently, looses its significance. 14. Much emphasis has been laid on the Commissioner’s report and the reversal of this report by the lower appellate Court. I have perused the judgment and I have find that the lower appellate Court has considered the matter in detail and arrived at a conclusion in holding that the Commissioner’s report of Sri R.K. Upadhya was incorrect and that the report of Sri H.N. Pandey appeared to be correct. Since the Commissioner’s report was accepted, there was no need for the Court below to issue a survey again. Since the Commissioner’s report was accepted, there was no need for the Court below to issue a survey again. On the other hand, the submission of the learned Counsel for the appellant that the view taken by the lower appellate Court was incorrect and the finding of the trial Court ought to have been taken into consideration is bereft of merit. This Court, in a second appellate jurisdiction cannot reverse the finding of the lower appellate Court on this issue. If two views are possible, the second appellate Court is bound to accept the view given by the lower appellate Court unless it is proved to be a perverse finding. In Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar, 1998(6) SCC 423 the Supreme Court stated : “At the outset, we would like to point out that the findings on facts by the lower appellate Court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position, we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the lower appellate Court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100, CPC, cannot reverse the findings of the lower appellate Court on facts merely on the ground that on the facts found by the lower appellate Court another view was possible.” 15. Similar view was given by the Supreme Court Hamida and others v. Md. Khalil, AIR 2001 SC 2282 . In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, 1999 (3) SCC 722 , the Supreme Court held : “It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. Khalil, AIR 2001 SC 2282 . In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, 1999 (3) SCC 722 , the Supreme Court held : “It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 16. In my view the findings recorded by the first appellate authority is neither perverse nor is based on inadmissible evidence and therefore, it is neither possible nor permissible for this Court to take a different view especially in the absence of any substantial question of law arising for consideration. In view of the aforesaid, in the absence of any substantial question of law, these appeals lacks merit and are dismissed. In the circumstances of the case parties shall bear their own cost. ————