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2007 DIGILAW 62 (CAL)

DWIJENDRA LAL ROY v. DIPTA RANI CHOWDHURY

2007-02-06

KALIDAS MUKHERJEE

body2007
( 1 ) THIS appeal is directed against the judgment and decree passed by sri M. K. Chowdhury, the Additional District Judge, 3rd Court, Howrah in title Appeal No. 118 of 2001 reversing thereby the judgment and decree passed by Smt. Manjusri Mondal, learned Civil Judge, 6th Court (Jr. Division) Howrah in T. S. No. 147 of 1999. The suit has been instituted for declaration that the plaintiff is an occupier of the suit property and for permanent injunction restraining the defendant from creating any disturbance in the peaceful possession of the suit property. The case of the plaintiff/appellant, in short, is that the defendant is the owner of a property measuring more or less 5 cottahs of land by registered sale deed of the year 1976. The plaintiff is the brother of the defendant and the defendant is a non-registered Medical Practitioner. After purchasing the suit property the defendant gave consent to the plaintiff for construction of the pucca structure over the suit property. Accordingly, the plaintiff constructed a pucca building with tile shed surrounded by boundary wall. The plaintiff has been possessing the said property for residential purpose along with the members of his family since 1976. The plaintiffs name has been recorded in the Voters' List and also in the Ration Card. The defendant with the help of some promoters has been trying to demolish the said construction of the plaintiff without giving any notice or information to the plaintiff. The plaintiff is willing to purchase the property from the defendant at the market value. But, the defendant is trying to transfer the same without any notice or information to the plaintiff. The plaintiff filed application under sections 144 (2)/107 of the Code of the Criminal Procedure before the learned Executive Magistrate. The plaintiff has been enjoying the said premises as occupier and using the same only for residential purpose. But, the defendant is trying to transfer the same without any notice or information to the plaintiff. The plaintiff filed application under sections 144 (2)/107 of the Code of the Criminal Procedure before the learned Executive Magistrate. The plaintiff has been enjoying the said premises as occupier and using the same only for residential purpose. Under the circumstances, the plaintiff instituted the suit before the learned trial Court for a declaration that he is the occupier in respect of the residential premises of the property situated at Mouza - Santragachi, j. L. No. 4, Khatian No. 288 Dag No. 2 under Howrah Municipal Corporation in the Ward No. 47 measuring more or less 5 cottahs of land with building thereon surrounded by boundary wall under the defendant and for permanent injunction restraining the defendant from creating any disturbance in the peaceful possession of the plaintiff along with the members of his family. ( 2 ) THE case of the defendant /respondent on the other hand is that the allegation of giving permission by the defendant to the plaintiff for construction of the house is false. The defendant is the absolute owner of the suit property by purchasing the same from the then owner Narayan chandra Dutta by virtue of a Sale Deed dated 15. 02. 1976. Thereafter, the defendant also purchased the other part of the said property measuring more or less 2 cottahs of land and after purchasing the said property the defendant has been enjoying the said property and made construction thereon. The defendant mutated her name in the Howrah Municipal corporation and has been paying the tax thereof in her name. As per request of the plaintiff the defendant permitted the plaintiff to stay in the said building as caretaker and in fact the plaintiff has no right, title and interest in any portion of the property in question. The plaintiff is not entitled to get any equitable right and or injunction against the defendant in respect of the suit property. As per request of the plaintiff the defendant permitted the plaintiff to stay in the said building as caretaker and in fact the plaintiff has no right, title and interest in any portion of the property in question. The plaintiff is not entitled to get any equitable right and or injunction against the defendant in respect of the suit property. ( 3 ) IN this appeal the following substantial questions of law were formulated at the time of the admission of the appeal : - (i) Whether the learned Appellate Court below erred on the substantial question of law by reversing the judgment and decree of the trial Court by relying upon Exhibit-'d' which was not proved in accordance with law after the same was allowed to be produced by the defendant/respondent under Order 41 Rule 27 of the Code of civil Procedure and was marked exhibit; (ii) Whether the learned Appellate Court below erred on the substantial question of law by not considering principle of Order 41 rules 28 and 29 while admitting Exhibit-'d' under Order 41 Rule 27 and the learned Appellate Court below relying on the document which has not been proved in accordance with law passed its judgment, particularly when it is not the defence case in written statement that the defendant had revoked the licence of the plaintiff by any notice; (iii) Whether the learned Appellate Court below erred on the substantialquestion of law by holding that "it is settled principle of law that title follows possession" when undisputedly the plaintiff has been in exclusive possession of the suit property since 1976. ( 4 ) THE learned Advocate appearing on behalf of the appellant has submitted that the plaintiff constructed the building at his own cost with the permission of the defendant and, as such, the plaintiff has acquired a right under Section 60b of the Easement Act and it has become an irrevocable licence. It is contended that the trial Court proceeded on onus probandi, but when both sides led evidence, the onus probandi lost its force and it has become academic. It is contended that the trial Court proceeded on onus probandi, but when both sides led evidence, the onus probandi lost its force and it has become academic. The learned Counsel for the appellant has drawn my attention to the evidence of D. W. 1 and submitted that there is no document to show that the defendant obtained any loan or sold ornaments for the construction of the pucca structure and further submitted that the evidence on the side of the plaintiff is more acceptable as it remained unshaken even after undergoing the test of cross-examination. It has further been contended that additional evidence was allowed to be adduced at the appellate stage without giving opportunity to the plaintiff to adduce rebuttal evidence and there is no pleading in written statement that the plaintiff wrote the letter Exhibit-'c' in the year 1996 agreeing to vacate the suit premises. It is contended that the Exhibit-'c' was wrongly admitted in the evidence and the plaintiff actually did not write Exhibit-'c'. And in this connection, the learned Counsel for the appellant has referred to and cited decisions reported in 1996 SC 112 Para-5 [abubakar abdul Inamdar (dead) by LRs and Anr. v. Harun Abdul Inamdar and Others]', air 1971 SC 1865 (para 15)[sa/y Tarajee Khimchand and Others v. Yelamarti Satyam and Others] and submitted that without pleading, Exhibit-'c' ought not to have been relied upon. It has further been contended that it was a licence with a grant conferring some right on the plaintiff in the property. The learned Counsel has referred to and cited another decision reported in AIR 1964 SC 880 para-11 [kalwa Devadattam and Others v. Union of India]. ( 5 ) THE learned Advocate appearing on behalf of the defendant/ respondent has submitted that there is no pleading in the plaint that it is an irrevocable licence and that the learned Trial Court held that the plaintiff is a licensee and the plaintiff did not prefer any appeal against the finding in the learned Trial Court that the defendant is a tress-passer. It is further contended that the finding in the judgment of the First Appellate Court being the final Court of facts, it was arrived at on the basis of evidence and such finding of facts of the learned First Appellate Court cannot be interfered with in the Second Appeal in view of Section 100 C. P. C. It is further contended that Exhibit-'c' is a document which was admitted in evidence on proof whereby the plaintiff admitted that he would vacate the suit premises. In this connection, it has been contended that Exhibit-'c' is a matter of evidence and it is not to be averred as pleading. As regards the finding of facts arrived at by the learned First Appellate Court on the basis of evidence on record learned Counsel has referred to and cited decisions reported in AIR 1972 SC 608 [p. C. Purushothama Reddiar v. S. Perumal] paras 18 and 19; and 2006 (2) WBLR (SC) 891 para 19 [hero Vinoth v. Seshammal]. Point Nos. 1, 2 and 3 as formulated in this appeal ( 6 ) THE plaintiff is, admittedly, in permissive possession of the suit property. It is the further contention of the plaintiff that he made construction on the suit property with the consent of the defendant. The defendant is also, admittedly, the owner of the suit property by purchase on the basis of Registered Deed of Sale. It has been contended by the learned Advocate for the appellant that the learned First Appellate Court wrongly placed the onus upon the plaintiff and when both parties led evidence, the onus probandi has become academic. In this connection, learned Counsel has referred to and cited decision reported in 1964 SC 880. The observation of the Hon'ble Apex Court in the said decision reported in AIR 1964 SC 880 (supra) para 11 reads as follows : - "the question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. " Here in the instant case the matter in issue is who constructed the building - the plaintiff on taking the defendant's permission or the defendant? So, in the facts of the instant case I think that the principle laid down in the aforesaid decision is squarely applicable here. Now as regards the raising of construction taking the consent of the defendant, evidently there is no written document. P. W. 1 is the plaintiff who has stated that he filled up the low land and constructed the house and has been residing there and that the defendant permitted him to do the above acts. None of the other P. Ws. stated that the defendant gave consent to the plaintiff to raise such construction. So on the point of consent, there is no evidence. As regards the alleged construction made by the plaintiff, P. W. 3 has stated that the plaintiff looked after the construction of the building which was going on at that time. P. W. 4 has stated that his father worked under the plaintiff in connection with the construction of the boundary wall. P. W. 5 has no knowledge when the house was constructed. It is in his evidence that the plaintiff resides in the suit property with the members of his family. P. W. 6 has stated that he has seen the plaintiff to reside in the suit property since 1977. The plaintiff as P. W. 1 has stated that he constructed the house at his own cost. It is in his evidence that no plan was sanctioned as it was in a village area. The plaintiff has stated in his evidence that he will try if he could file the documents regarding the expenses that he incurred for raising the construction. But no such document was filed by the plaintiff. It is in his evidence that no plan was sanctioned as it was in a village area. The plaintiff has stated in his evidence that he will try if he could file the documents regarding the expenses that he incurred for raising the construction. But no such document was filed by the plaintiff. It is in his evidence that there is no document to show that the said house or land has been mutated in his name. D. W. 2 who is the brother of the plaintiff has stated that the plaintiff resided in the house of Sahadeb Das as tenant and after having defaulted in payment of rent vacated the suit premises and thereafter the defendant on request of the plaintiff permitted the plaintiff to reside in the suit property. P. W. 1 has also stated that he was previously a tenant in the house of Sahadeb das. The D. Ws. have stated that the defendant constructed the house. The defendant has also produced the tax receipt as exhibit-B, B/1 which stand in the name of the defendant. From the evidence as discussed above it is clear that regarding the construction allegedly made by the plaintiff the evidence is not at all convincing. The plaintiff, therefore, has failed to prove that he raised the construction on taking consent of the plaintiff. The contention of the learned Advocate for the appellant that the licence is irrevocable one by virtue of the provision of Section 60b of the easement Act is, therefore, of no avail to the plaintiff. The further contention in this regard that it was a licence with grant is also not acceptable. The exclusive possession for any length of time does not, ipso facto, prove that it was a licence coupled with a grant. The title in the instant case rests with the defendant and the plaintiff is in permissive possession of the suit property. It is, therefore, a case of leave and licence simpliciter. ( 7 ) AS regards the point of additional evidence at the stage of First appeal it is the contention of the learned Advocate for the appellant that learned First Appellate Court erred in law in admitting the notice as Exhibit-'d' without giving an opportunity to the plaintiff for adducing rebuttal evidence. ( 7 ) AS regards the point of additional evidence at the stage of First appeal it is the contention of the learned Advocate for the appellant that learned First Appellate Court erred in law in admitting the notice as Exhibit-'d' without giving an opportunity to the plaintiff for adducing rebuttal evidence. It has further been contended that Exhibit-'c' was wrongly marked exhibit in absence of any pleading and that it was not proved according to law. In this connection the learned Counsel has referred to and cited the decision reported in AIR 1971 SC 1865 para 15 and AIR 1996 SC 112 para 5. It has been held in the decision reported in AIR 1971 sc 1865 (supra) para 15 that mere marking of a document as an exhibit does not dispense with its proof. In the decision reported in AIR 1996 SC 112 para 5 it has been held that in absence of any plea regarding adverse possession, in the pleadings, no amount of proof can substitute pleadings which are foundation of claim of a litigating party. It is in evidence of the defendant (D. W. 1) that he requested the plaintiff 10/12 times to vacate the suit property and the plaintiff sent a letter to him in the year 1996 in this respect. He has also stated in his evidence that he knows the signature and hand writing of the plaintiff and he has proved the letter which the plaintiff sent to him and which was marked as Exhibit- 'c'. This goes to show that the letter was proved by D. W. 1 according to law. It was, therefore, marked Exhibit - 'c' on proof. When this letter was shown to the plaintiff during cross-examination, he stated that he could not remember if he wrote such a letter on 28. 07. 1996 to Shyamal i. e. the defendant's husband and stated that without spectacles he could not see anything. Now it is the contention of the learned Advocate for the plaintiff/appellant that in absence of any pleading, the learned First Appellate Court erred in law in admitting the said letter in evidence. 07. 1996 to Shyamal i. e. the defendant's husband and stated that without spectacles he could not see anything. Now it is the contention of the learned Advocate for the plaintiff/appellant that in absence of any pleading, the learned First Appellate Court erred in law in admitting the said letter in evidence. In the decision reported in AIR 1996 SC 112 para 5 the question was of adverse possession and it was held by the hon'ble Apex Court that there was no pleading from what time the possession of the licensee became adverse and that no amount of proof could substitute the pleading. Here in the instant case the facts are different. This is a suit filed by the licensee praying for a declaration that he is the occupier of the suit premises with the pleading that he raised construction on taking consent of the owner i. e. the defendant. The defendant in the suit has contended that the plaintiff is a licensee and no such consent was given and the plaintiff had no right to raise any construction. In view of such pleadings, I think the production of the letter at the time of examination of witnesses, is a matter of evidence and not pleading. The Exhibit-'c' is not the foundation of claim of the party producing it. The facts of the instant case are different and, as such, the aforesaid principle as enunciated in the decision reported in AIR 1996 SC 112 para 5 is not applicable in the instant case. ( 8 ) IT appears that the defendant filed an application under Order 41 rule 27 of the C. P. C. for producing additional evidence in the learned first Appellate Court and the learned Appellate Court took up the matter along with the appeal and after hearing arguments of both sides allowed the said application as mentioned in the judgment. Under Order 41 Rule 28 the Appellate Court itself may take such evidence and since the defendant produced the notice to quit at the stage of First Appeal and the learned First Appellate Court having heard the arguments of both sides marked the said notice as Exhibit-'d'. I find that the learned First Appellate court while marking the said notice to quit as Exhibit-'d' did not commit any error in law and the provision of Order 41 Rules 28 and 29 were not treated in breach. I find that the learned First Appellate court while marking the said notice to quit as Exhibit-'d' did not commit any error in law and the provision of Order 41 Rules 28 and 29 were not treated in breach. ( 9 ) HAVING regard to the evidence both oral and documentary adduced by both parties, I find that the findings of the learned First Appellate Court are based on materials-on-record. It cannot be said that the judgment of the learned First Appellate Court suffers from any perversity. Therefore, there is no ground to interfere with the findings of the learned First Appellate court. In the result the present appeal fails. The judgment and decree passed by the learned First Appellate Court are hereby affirmed. The appeal is accordingly dismissed with no order as to costs. .