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2008 DIGILAW 148 (GAU)

Sariar Ahmed v. State of Assam

2008-02-20

T.NANDAKUMAR SINGH

body2008
JUDGMENT T. Nandakumar Singh, J. 1. The challenge in the present second appeal are to the judgment and decree dated 13.8.99 passed by the learned Civil Judge (Senior Division), Karimganj in T.A. No. 43/95 dismissing the appeal and thereby affirming the judgment and decree dated 25.7.95 passed by the learned Munsiff No. 2, Karimganj dismissing T.S. No. 169/98. The Appellant herein is the Plaintiff in T.S. No. 169/98. 2. Heard Mr. A. Rafique, learned Counsel appearing for the Appellant/Plaintiff and Dr. B. Ahmed, learned Counsel appearing for the Respondent/Defendant No. 1, Shri Ram Janam Kairi. 3. The present Second Appeal is admitted for hearing on the following substantial question of law: There being clear, positive and convincing evidence that the Defendant executed the Ekrarnama Exhibit 1 with a condition that he would execute a deed of reconveyance in favour of the Plaintiff, whether the courts below were justified in holding that Exhibit-I was not proved and rejected the same without making any efforts to compare the Thumb Impression by the courts or without obtaining expert's opinion as to the genuineness of the thumb impression of the Defendant. 4. Dr. B. Ahmed, learned Counsel appearing for the Respondents/Defendants has strenuously contended that the substantial question of law formulated above for hearing the present second appeal is not the substantial question of law and also that in the present appeal there is no substantial question of law contemplated in Section 100 of the Code of Civil Procedure. 5. For deciding the present appeal a short fact is required to be noted. The Appellant/Plaintiff filed T.S. No. 169/98 on the pleaded case that in the year 1973 Abdur Rahman and Muhibur Rahman the two uncles of the Plaintiff borrowed a sum of Rs. 500/- (Five hundred) from the Respondent/Defendant No. 1, Ram Janam Kairi and in lieu of that they executed a registered document in respect of one Kedar land out of the suit land and the Respondent/Defendant No. 1 also agreed to execute a deed of reconveyance in case of repayment of the said amount either by the borrowers or by their successors. The Appellant/Plaintiff also took some money from the Respondent/Defendant No. 1 and in proof of that he executed two documents on 17.9.81 in favour of the Respondent/Defendant No. 1 in respect of the remaining two bighas of the suit land. The Appellant/Plaintiff also took some money from the Respondent/Defendant No. 1 and in proof of that he executed two documents on 17.9.81 in favour of the Respondent/Defendant No. 1 in respect of the remaining two bighas of the suit land. On 4.10.81 the Respondent/Defendant No. 1 executed an Ekrarnama (Ext. 1) agreeing to execute an registered a deed of reconveyance in respect of the suit land in favour of the Appellant/Plaintiff in case of repayment of the borrowed money by the Plaintiff within the period of 10 years. It is also pleaded that the Appellant/Plaintiff has been possessing the suit land in Ejmali along with the other cosharers. On 30.5.88 the Appellant/Plaintiff repaid an amount of Rs. 2000/- (two thousand) to the Respondent/Defendant No. 1 and the Respondent/Defendant No. 1 had assured that he would execute a deed of reconveyance in respect of the suit land within 7 or 8 days after taking land selling permission. But the Respondent/Defendant did not execute the deed of reconveyance in respect of the suit land in favour of the Appellant/Plaintiff. Accordingly, the Appellant/Plaintiff filed the T.S. No. 169/88 for the main reliefs that his possession over the suit land be confirmed upon declaration of his title acquired through purchase and also in case the Respondent/Defendant fail to execute the deed of reconveyance in respect of the suit land in favour of the Appellant/Plaintiff, the court be pleased to pass an order directing the Respondent/Defendant No. 1 to execute the deed of reconveyance in favour of the Appellant/Plaintiff and register the same and also for permanent injunction against the Respondents/Defendants. 6. The Respondent/Defendant No. 1 filed written statement specifically denying the pleaded case of the Appellant/Plaintiff. In the written statement the Respondent/Defendant No. 1 specifically pleaded that the Respondent/Defendant No. 1 purchased 1 Bigha of land on the Southern Eastern portion of the suit land from Abdur Rahman and Muhibur Rahman by registered sale deed No. 4130 dated 22.7.73. Thereafter, the Respondent/Defendant No. 1 also purchased one and half bighas of land out of the remaining portion of the suit land from the Appellant/Plaintiff by registered sale deed No. 4528 dated 17.9.81. Vide Anr. registered sale deed dated 17.9.81 the Respondent/Defendant No. 1 purchased the remaining 2 Kathas of the suit land from the Appellant/Plaintiff. Thereafter, the Respondent/Defendant No. 1 also purchased one and half bighas of land out of the remaining portion of the suit land from the Appellant/Plaintiff by registered sale deed No. 4528 dated 17.9.81. Vide Anr. registered sale deed dated 17.9.81 the Respondent/Defendant No. 1 purchased the remaining 2 Kathas of the suit land from the Appellant/Plaintiff. At the time of purchasing the suit land, the Respondent/Defendant No. 1 obtained delivery of possession of the suit land. The Respondent/Defendant No. 1 also specifically pleaded in his written statement that he did not execute any Ekrarnama in favour of the Appellant/Plaintiff. The Ekrarnama Ext. 1 produced by the Appellant/Plaintiff is a forged and collusive one. On 20.6.88 the Respondent/Defendant No. 1 had sold the suit land to Asad Uddin and Faizul Haque through a registered sale deed dated 20.6.88 and delivered the possession of the suit land to them. 7. The whole case of the Appellant/Plaintiff for the relief sought for in the T.S. No. 169/98 is mainly based on the Ekrarnama dated 4.10.81 alleged to have been executed by the Respondent/Defendant No. 1 agreeing to execute an registered deed of reconveyance in respect of the suit land in favour of the Appellant/Plaintiff in case of repayment of borrowed money by the Appellant/Plaintiff within a period of 10 years. The Appellant/Plaintiff exhibited the Ekrarnama dated 4.10.81 as Ext. 1. Heavy burden of proof lies on the Appellant/Plaintiff to prove the Ekrarnama dated 4.10.81. When the Appellant/Plaintiff was examined as PW No. 1, he stated that only the thumb impression of the Respondent/Defendant No. 1 was obtained on the blank white paper and after 5 or 6 days the Scribe Shri Mohuri wrote the deed of Ekrarnama on the said blank white paper in his own house. The attesting witness in the said Ekranama when examined as PW-2 stated that in his presence the Respondent/Defendant No. 1 put his thumb impression in the said Ekrarnama Ext.1 after the writing the said Ekrarnama. The deed writer (Mohuri) as PW-4 stated that the Respondent/Defendant No. 1 put his thumb impression in the said Ekrarnama Ext. 1 after he prepared the said Ekrarnama. Both the learned trial court and the first appellate court, after appreciating the statements of the PWs and DWs, held that there is a grave discrepancy in the evidence of the PWs regarding the execution of Ekrarnama Ext. 1 after he prepared the said Ekrarnama. Both the learned trial court and the first appellate court, after appreciating the statements of the PWs and DWs, held that there is a grave discrepancy in the evidence of the PWs regarding the execution of Ekrarnama Ext. 1 by the Respondent/Defendant No. 1 and after such finding both the learned trial court and first appellate court held that the Appellant/Plaintiff had failed to prove the fact that the Respondent/Defendant No. 1 executed the Ekrarnama Ext.1. 8. It is the well settled law that in a civil suit the Plaintiff would not be expected to prove his pleaded case beyond any reasonable doubt but a high degree probability of the pleaded case would be enough to shift the onus on the Defendant and if the Defendant does not succeed in shifting back the onus, the Plaintiffs burden of proof can safely be deemed to have been discharged. Reference may be made to R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. (2003) 8 SCC 752 . There is no requirement under the law on the part of the learned trial court as well as the learned appellate court to fill up any lacuna on the part of the Appellant/Plaintiff in proving the said Ekrarnama dated 4.10.81. Rather the Trial Court and appellate court should not take up any action for filling up any lacuna in proving the Ekrarnama as it would cause prejudice to the other party. It is the mandatory requirement of the Appellant/Plaintiff under the law to prove his pleaded that the Ekrarnama dated 4.10.81 Ext. 1 was executed by the Respondent/Defendant No. 1. 9. It is fairly well settled law that the High Court, while exercising jurisdiction under Section 100 of the Code of Civil Procedure, cannot reverse the findings of the lower courts on facts merely on the ground that on the facts found by the lower courts Anr. view was possible. The findings on facts by the first appellate court as a final court of fact based on appreciation of evidence cannot be treated as perverse. view was possible. The findings on facts by the first appellate court as a final court of fact based on appreciation of evidence cannot be treated as perverse. The High Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure has to limit its inference to the judgment and decree of the lower court only to the substantial question of law framed at the time of admission of the appeal or to the additional substantial question of law framed at the later date after recording the reasons. Admittedly, in the present appeal neither the parties formulated any additional substantial question of law at the time of hearing of the second appeal nor this Court framed any additional substantial question of law at the later date after recording the reasons. Therefore, only substantial question of law involved in the present appeal is the substantial question of law quoted above. 10. The High Court while deciding the second appeal by exercising jurisdiction under Section 100Code of Civil Procedure cannot proceed to reappreciate the evidence without adverting to the substantial question of law formulated at the time of admission and also that without deciding the substantial question of law framed at the time of admission of the second appeal, the High Court in exercise of jurisdiction under Section 100 Code of Civil Procedure cannot set aside the findings of the subordinate court by reappreciating the evidence. 11. There must be first a foundation for the substantial question of law in pleading and secondly the question to be considered in the second appeal should be the substantial question of law merged from substantial findings of fact arrived at by the court of fact and thirdly it must be necessary to decide that question of law for a just and proper decision of the case. The High Court, in the absence of substantial question of law that arose for consideration between the parties in the second appeal, cannot interfere with the findings of the first appellate court by taking different view on reappreciation of evidence. Reference may be made to Hamida and Ors. v. Md. Kahlil AIR 2001 SC 2282 . Paras 6 and 7 of the AIR in Hamida and Ors. (supra) read as follows: Para 6. Reference may be made to Hamida and Ors. v. Md. Kahlil AIR 2001 SC 2282 . Paras 6 and 7 of the AIR in Hamida and Ors. (supra) read as follows: Para 6. The High Court has upset the finding of fact recorded by the first appellate court, taking a different view merely on reappreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgment reads: The appellate court although has decided the issue of personal necessity but from the judgment it appears that the appellate court has not decided this issue in its correct perspective. Since the trial court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this Court can reappreciate the evidence and scrutinize the findings recorded by the appellate court under Section 100 Code of Civil Procedure when admittedly this issue was not decided by the trial court. .... The sons of the Plaintiff for whose requirement the Plaintiff sought eviction, have not been examined. The nephew of the Plaintiff was examined as a witness who supported the case of the Plaintiff. The Plaintiff has also not led any evidence to the effect that the house property where the Plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the Plaintiff for meeting the requirement, I am, therefore, of the view that the finding recorded by the appellate court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence. There is also no evidence to the effect that suitable alternative accommodation is not available to the Plaintiff for meeting the requirement, I am, therefore, of the view that the finding recorded by the appellate court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence. As can be seen from the para extracted above, the High Court though that it could re-appreciate the evidence and scrutinize the findings recorded by the first appellate court under Section100 Code of Civil Procedure. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the Plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate court and noted above already, there is evidence of the Plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate court based on evidence could not be interfered with by the High Court, that too in the absence of any substantial question of law that arose for consideration between the parties. Para 7. We repeat and reiterate this position as stated by this Court time and again. In one such judgment in Smt. Satya Gupta @ Madhu Gupta v. Brijesh Kumar (1998) 6 SCC 423 , this Court, in Para 16, has stated thus: 16. 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 perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating 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 Code of Civil Procedure, 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 Anr. view was possible. 12. Dr. The High Court, it is well settled, while exercising jurisdiction under Section 100 Code of Civil Procedure, 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 Anr. view was possible. 12. Dr. B. Ahmed, learned Counsel appearing for the Respondents/Defendants has strenuously contended that this Court shall keep in view of the parameter of Section 100 Code of Civil Procedure while deciding the present appeal. He also further submitted that the substantial question of law formulated in the present second appeal is not the substantial question of law contemplated in Section 100 of the Code of Civil Procedure, but it is only a question of fact, inasmuch as, it relates to the findings of fact by the trial court and first appellate court that the Appellant/Plaintiff had utterly failed to prove the fact that the Respondent/Defendant No. 1 had executed the said Ekrarnama dated 4.10.81 Ext. 1. Dr. B. Ahmed by placing heavy reliance on the decision of the Apex Court in Hero Vinoth (Minor) v. Seshammal (2006) 5 SCC 545 submitted that an interference of fact from a document is a question of fact but the legal effect of the terms or a term of a document is a question of law. He also asserted that whether the Respondent/Defendant No. 1 had executed the said Ekrarnama Ext. 1 dated 4.10.81 or not is a question of fact. It can never be the substantial question of law contemplated in Section 100 of the Code of Civil Procedure. Hon'ble Mr. Justice Arijit Pasayat in Hero Vinoth case (supra) had observed that: Para 21. The phrase "substantial question of law", as occurring in the amended Section 100 Code of Civil Procedure is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta AIR 1928 PC 172the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 Code of Civil Procedure (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case 1962 Supp (3) SCR 549 : AIR 1962 SC 1314 , the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju AIR 1951 Mad. 969 Sir Chunilal Case 1962 Supp (3) SCR p.p. 557-58. When a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal Case, SCR 557-58). This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal Case, SCR 557-58). The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. Para 22. In Dy. Commr. v. Rama Krishna Narain 1954 SCR 506 : AIR 1953 SC 521 also it was held that a question of law of importance to the parties was a substantial question of law entitling the Appellant to a certificate under (the then) Section 100 Code of Civil Procedure. Para 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. See Santosh Hazari v. Purushottam Tiwari (2001)3 SCC 179 . Para 24. The principles relating to Section 100 Code of Civil Procedure relevant for this case may be summarized thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and. involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings. 13. For the reasons discussed above, this Court is of the considered view that there is no substantial question of law that arose for consideration between the parties in the present second appeal and also that the substantial question of law formulated in the present second appeal is not the substantial question of law. Therefore, in the absence of substantial question of law, this Court is not re-appreciating the evidence for interfering with the concurrent finding of facts by the trial court and the first appellate court. Accordingly, the appeal is devoid of merit and stands dismissed. 14. However, parties are to bear their own costs.