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2010 DIGILAW 43 (GAU)

Sadhan Das v. Mrinal Kanti Datta

2010-01-27

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. This is an appeal under Section 100 of the Code of Criminal Procedure against the judgment and decree, dated 13.2.2008 and 25.2.2008, respectively; passed, in Title Appeal No. 25/2007, by the learned Civil Judge No. 1, Cachar, Silchar, dismissing the appeal and affirming thereby the judgment and decree, dated 23.4.2007, passed, in Tile Suit No. 293/2006, by the learned Munsiff No. 1, Silchar, Cachar, whereby the plaintiff's suit stood decree. 2. I have heard, at length, Mr. P. Roy, learned Counsel/appearing for the defendant-appellant, and Mr. B.K. Jain, leaned counsel, appearing on behalf of the plaintiffs-respondents. 3. While considering the present second appeal, it needs to be borne in mind that according to Section 100, a second appeal lies provided that the High Court is satisfied that the case involves a substantial question of law. The question, therefore, which this Court has to determine, before this appeal is admitted, is as to whether this appeal involves any substantial question of law. 4. For the purpose of answering the question posed above, let us, first, take note of the case, which the plaintiffs had set out. 5. The plaintiffs have instituted a suit seeking a decree, inter alia, declaring rights, title and interest of the plaintiffs in the suit land, a decree for eviction of the defendant from the suit land by removing the house raised on the suit land by the defendant and delivery of khas possession thereof to the plaintiffs. The case of the plaintiff is as under : The suit land is a land measuring 5 kathas covered by Dag No. 105 ad 2 kathas covered by Dag No. 16 of patta No. 17 of Mouza Sidheswar, Part-1L PO. Kathigorah, Cachar, and bounded as described in the schedule to the plaint. The suit land, as described hereinbefore, is part and parcel of the land measuring 2 bighas 19 kathas 9 channels; of the land covered by Dag Nos. 103, 105 and 106 and 107 of RS patta No. 17, which was purchased by the predecessor-in-interest of the plaintiffs by registered sale-deed, date 1241/1967, from its owner, Surendra Kumar Dey. On humanitarian ground, the plaintiff, on request made by the defendant, allowed the defendant to shift his house to the suit land. The defendant offered to buy the said land and the plaintiff agreed thereto. A sum of Rs. On humanitarian ground, the plaintiff, on request made by the defendant, allowed the defendant to shift his house to the suit land. The defendant offered to buy the said land and the plaintiff agreed thereto. A sum of Rs. 42,000/- was fixed as consideration for sale. The plaintiffs Nos. 1, 2 and 5 accordingly executed, on 13.3.2000, an unregistered agreement for sale of 7 kathas of land at Rs. 42,000/-only and acknowledged receipt of a sum of Rs. 10,000/-, as advance, from the defendant. As per the terms of agreement, both parties to the agreement applied for No Objection Certificate from the competent authorities on 3.3.2000 itself. Though the agreement mentioned that the land, referred to in the said agreement, was covered by Dag Nos. 104, 105 and 106, it was, later on, found that Dag No. 104 had been wrongly inserted in their agreement. Both the parties, therefore, made correction of their application for NOC and obtained, with correction so made, the requisite NOC on 1.9.2000. Though the plaintiffs had asked the defendant to produce the said original unregistered agreement for sale, but the defendant did not hand over the same to the plaintiffs. During the second part of March, 2000, the defendant shifted his house to the suit land. The plaintiffs, on good faith, allowed the defendant to occupy the suit land as a licensee on and from 20.3.2000. The defendant himself assured that if, for any reason, he failed to purchase the suit land, he would vacate the suit land as and when the plaintiffs so demand. Though the plaintiffs requested the defendant to pay the balance amount of consideration money, the defendant failed to perform his part of the contract as per the agreement. Due to the default, on the part of the defendant, the advance of Rs. 10,000/-was forfeited. The defendant served a notice, dated 17.10.2000, on the plaintiffs and asked the plaintiffs to refund the said sum of Rs. 10,000/- with interest, etc., on a false plea that the NOC had been obtained by the plaintiffs without having any title to the suit land. The plaintiffs, being the lawful owner of the suit land, demanded, by a notice issued by them on 6/7.11.2000, that the defendant shall vacate he suit land by removing his house, his belongings, etc., from the suit land, but the defendant did not respond to the said notice. The plaintiffs, being the lawful owner of the suit land, demanded, by a notice issued by them on 6/7.11.2000, that the defendant shall vacate he suit land by removing his house, his belongings, etc., from the suit land, but the defendant did not respond to the said notice. Hence, the suit. 6. The defendant contested the suit, his case being, in brief, thus : The defendant had entered into an agreement, on 3.3.2000, with the plaintiff Nos. 1, 2 and 5 to purchase an area of land measuring 8 kathas in Dag No. 104, 4 kathas in Dag No. 105 and 1 katha in Dag No. 106 on a consideration of Rs. 42,000/- only and accordingly, an agreement was executed on payment of advance of Rs. 10,000/- with the stipulation that on receiving the balance consideration money, the plaintiffs would execute a registered sale-deed in favour of the defendant. Subsequently, the plaintiffs delivered khas possession of the suit land to the defendant as the defendant was facing accommodation problem. The defendant, then, constructed an Assam Type house on the suit land and since then, the defendant has been in possession of the suit land. However, on receiving the NOC delivered by the plaintiffs, the defendant came to know that the land, mentioned in the NOC, does not tally with the schedule of the land proposed to be purchased by him. The defendant also found that the land, which he has had been in possession of, is actually owned by the heirs of Pulin Chandra Das, Jagdish Das and others. On enquiry by the defendant, it was found that the purchase of the predecessor- in-interest of the plaintiff, Dhirendra Chandra Dutta, in the year 1967, from Surendra Kumar Dutta was never acted upon nor did Dhirendra Chandra Dutta acquired any title to, or possession of, the suit land. Surendra Kumar Dutta, vendor of Dhirendra Chandra Dutta, had no title to, or possession of, the suit land by virtue of his alleged purchase from one Raman Chandra Das by registered deed, dated 3.6.1952, and that the jamabandi shows that Raman Chandra Das sold the suit land to Pulin Chandra Das and the name of Pulin Chandra Das was duly mentioned in the jamabandi. In fact, the revenue records do not show any rights, title or interest of the plaintiffs to the suit land. In fact, the revenue records do not show any rights, title or interest of the plaintiffs to the suit land. The plaintiffs have no rights, title and interest in the land of Dag Nos. 105 and 106 of 2nd RS patta No. 17 and, hence, the plaintiffs are not entitled to any relief in the suit. 7. Both the parties to the suit adduced evidence by examining witnesses and also by proving certain documents. 8. The learned Muniff No. 1, Silchar, Cachar, having found that the plaintiffs had proved their case, decreed the suit. Aggrieved by the decree, the defendant, as already mentioned above, preferred an appeal. As the appeal has been dismissed, the defendant is, now, before this Court with this second appeal. 9. It is contended, on behalf of the defendant-appellant, that in the suit at hand, the decree has been passed for eviction of the appellant from the suit land, which is covered by a joint patta and it was, therefore, impermissible, on the part of the learned trial Court, to grant decree, in the suit, for eviction of the appellant without the suit land having been partitioned and without the co-pattadars having been made parties to the suit. This appeal, thus, according to Mr. Roy, learned Counsel for the defendant - appellant, raises a substantial question of law as to whether a Court can grant a decree for eviction of a person, who is claimed to have entered into the suit land on the basis of an agreement for sale without impleading the co-sharers or co-pattadars of a joint patta, 10. It needs to borne in mind that Section 100 of the Code of Criminal Procedure, which lays down the parameters of the power of the High Court to interfere with a decree in a second appeal, makes it clear that a second appeal will lie only when the case involves a substantial question of law. The substantial question of law, which Section 100 envisages, is not substantial question of law of general importance; but a question of law, which has arisen in a suit. Hence, every substantial question of law cannot be entertained in an appeal unless such a substantial question of law arises in the facts of a given case and the law relevant thereto. 11. In the present case, the defendant-appellant is, admittedly, not one of the co-pattadars. Hence, every substantial question of law cannot be entertained in an appeal unless such a substantial question of law arises in the facts of a given case and the law relevant thereto. 11. In the present case, the defendant-appellant is, admittedly, not one of the co-pattadars. Thus, the dispute at hand is not amongst the various co-sharers of the suit land. A patta may be ejmali, i.e., joint, but that does not mean that in all kinds of suits, relating to such a land, the co-sharers must be joined as parties. The suit, at hand, arose out of an agreement between the parties to the suit and under this agreement, the appellant had offered to purchase the suit land, which the respondents had agreed to sell. As the agreement had failed due to refusal of the defendant to buy the suit land on the ground that the suit land does not belong to, and is not owned 'by, the plaintiffs, the suit was instituted for eviction of the appellant. The question as to whether the appellant is liable to be evicted from the suit land on the failure of the agreement, in question, does not involve presence of the co-pattardars. Presence of the co-pattadars is also not-necessary if this Court upholds the conclusion reached by both, the learned Courts below that the respondents are owners of the suit land. The appellant has challenged the title of the respondents to the suit land. As the respondents have sought for declaration of their title, the respondents are, admittedly, required to show as to whether they are title holders of the suit land or not. For this purpose, and, particularly, when there is no dispute amongst various co-sharers of the joint patta, in question, all co-sharers cannot be said to be necessary parties to the suit and, in their absence, the suit could not have failed. Considered in this light, it becomes clear that the fact that the co-sharers, Other than the plaintiffs, who had instituted the suit, were not parties to the suit, did not make the suit bad in law and the decree passed therein, if otherwise, valid, cannot be interfered with on this ground. 12. Considered in this light, it becomes clear that the fact that the co-sharers, Other than the plaintiffs, who had instituted the suit, were not parties to the suit, did not make the suit bad in law and the decree passed therein, if otherwise, valid, cannot be interfered with on this ground. 12. It is next contended, on behalf of the defendant-appellant, that the learned trial Court had not framed any issue as to whether the plaintiffs had right, title and interest in the suit land and, in the absence of such an issue, the suit was bad in law and, hence, the substantial question of law, which arises in the present appeal, is as to whether the decree, which has been passed in the present suit, without framing the issue as to whether the plaintiffs have right, title and interest in the suit land, is a valid decree or not. 13. While considering the question posed above, it needs to be noted that an issue arises only when a material proposition of fact or law is affirmed by one party and denied by the other. In he present case, while the plaintiffs claimed to be the owner of the suit land, the defendant disputed he same. Hence, the issues were as to whether the plaintiffs were owner of the suit land and whether in the facts and circumstances of the present case, the defendant was liable to be evicted from the suit land. True it is that when the defendant had disputed the title of the plaintiffs to the suit land, the issue had arisen as to whether the plaintiffs had right, title and interest in the suit land Or not. Essentially, what was required to be determined by the learned trial Court was as to whether the plaintiffs were owner of the suit land whether the defendant shall be evicted from the suit land. 14. Essentially, what was required to be determined by the learned trial Court was as to whether the plaintiffs were owner of the suit land whether the defendant shall be evicted from the suit land. 14. Though, as already noted by the learned First Appellate Court, there was no specific issue framed in the suit as to whether the plaintiffs had right, title and interest in the suit land, the fact remains that issue No. 5 read, "Whether the plaintiffs are the owner of the suit land?" and the issue No. 6 was, "whether the defendant is liable to be evicted?" Thus, the issues, already framed in the suit, were wide enough to cover the issue, which, according to the appellant, ought to have been framed. In effect, the issue as to whether the plaintiffs are owners of the suit land determine the question as to whether they have right, title and interest in the suit land. The darned First Appellate Court is, therefore, not incorrect in taking the view that the learned trial Court, while discussing the issue No. 5, has, in substance, discussed and decided the issue as to whether the plaintiffs have right, title and interest in the suit land. 15. As the defendant had disputed the title of the plaintiffs to the suit land, the plaintiffs adduced evidence to prove their title to the suit land. In such circumstances, it cannot be said that proper issues had not been framed in the suit, particularly, when the issue No. 5 was, as already pointed out above, whether the plaintiffs are the owners of the suit land? On the ground, therefore, though proper issues had not been framed in the suit, no substantial question of law can be said to have arisen. 16. When the parties to a suit know each other's case and, accordingly, adduce evidence as has been done in the present case, no prejudice can be said to have been caused to anyone of them. Mere omission to frame an issue cannot make a Court interfere with a decree if the decree is, otherwise, valid unless the Court is satisfied that omission to frame an issue has caused prejudice to the aggrieved party. Mere omission to frame an issue cannot make a Court interfere with a decree if the decree is, otherwise, valid unless the Court is satisfied that omission to frame an issue has caused prejudice to the aggrieved party. In the present case, proper issues had, in fact, been framed and in such circumstances, and, particularly, when both parties know each other's case, had adduced evidence and no prejudice is shown to have been caused to them, the contention that: non-framing of issue, namely, whether the plaintiffs have right, title and interest in the suit land, is of no material consequence and cannot make this Court interfere with the impugned decree in exercise of its powers under Section 100. 17. Coupled with the above, what needs to be noted is that the plaintiffs proved, as rightly pointed out by the learned First Appellate Court, Exhibit-1 as the registered sale-deed, dated 11.4.1967, whereunder the suit was claimed to have been purchased by the plaintiff's precedessor-in-interest, namely, Dhirendra Chandra Datta, and the measurement of the land, so purchased, was 2 bighas 19 kathas and 9 lechas and further that the land had been purchased from its recorded proprietor, namely, Surendra Kr. Dey @ Surendra Datta, together with some other land and the plaintiffs' predecessor-in-interest had obtained possession thereof. The name of Dhirendra Ch. Datta was mutated in the revenue records by right of purchase and possession and he also used to pay land revenue to the Government, Ext. 2 being, in this regard, the certified copy of jamabandi of second R.S. patta No. 17 and Ext. 3, 3(1) to 3(8) being the challans showing payment of land revenue in respect of the said purchased land. The plaintiffs also produced the original title deed (Ext. 4) of the vendor, namely, Surendra Kumar Dey, executed in favour of late Dhirendra Chandra Datta, predecessor-in-interest of the plaintiffs. In Ext. 1, the vendor, Surendera Kumar Dey, made a reference of his purchase deed bearing No. 2528, which has been marked as Ext. 4. The defendant merely denied the title of the plaintiffs to the suit land by contending that the suit land belongs to Pulin Ch. Das and that the father of the plaintiffs had not acquired any title to, or possession of, the suit land from Surendra Kumar Dey. 4. The defendant merely denied the title of the plaintiffs to the suit land by contending that the suit land belongs to Pulin Ch. Das and that the father of the plaintiffs had not acquired any title to, or possession of, the suit land from Surendra Kumar Dey. The plaintiffs, as correctly mentioned by the learned First Appellate Court, had traced their title to the suit land from Ext. 1 and 4, which are more than 30 years old. Nothing could be brought on record by the defendant to show that these two documents could not have been legally relied upon. This apart, a certificate (Ext. 15) was proved by the officials of the land revenue department showing that the suit land along with other land is under the possession of the plaintiffs. The area of the land, marked in Ext. 15, is mentioned in the name of Dhirendra Ch. Datta. Though the defendant proved Ext. A, a jamabandi, to show that the name of Dhirendra Ch. Datta does not appear in the jamabandi, the fact remains that the learned Appellate Court has pointed out that when Ext. 2, admittedly, shows that the name of the predecessor-in-interest of the plaintiff stood mutated in respect of the suit land, the fact that during third re-settlement, the respondents' name have not been mentioned can be of no material consequence so long as the settlement is not finalized. This apart, when the defendant had admitted, in his written statement, that he had received possession of the suit land from the plaintiffs, there remains no room for doubt that the plaintiffs had been in possession of the suit land. In such circumstances, the fact that in the new settlement, the name of the plaintiff's predecessor-in-interest and/or of the plaintiffs had not appeared till then was of no material consequence. 18. It needs to be noted that Ext. 5, i.e., the agreement for sale was executed on 3.3.2000. The agreement relates to the land covered by Dag No. 104, 105 and 106 measuring an area of 7 kathas. The plaintiffs claim that they, later on, discovered that Dag No. 104 had been inadvertently mentioned in the schedule of the Ext. 5, and, on coming to know of the said fact, they made an application for correction of the NOC and accordingly, corrected copy of the NOC (Ext. The plaintiffs claim that they, later on, discovered that Dag No. 104 had been inadvertently mentioned in the schedule of the Ext. 5, and, on coming to know of the said fact, they made an application for correction of the NOC and accordingly, corrected copy of the NOC (Ext. 6), allowing them to sell the land covered by Dag No. 105 (measuring an area of 5 kathas) and Dag No. 106 (measuring an area of 2 kathas) totaling an area of 7 kathas of 2nd R.S. Patta No. 17, was issued. Thus, the area of the land in the NOC and that of the agreement remains the same as noted by the learned Courts below. 19. Coupled with the above, and most importantly, while it was the case of the plaintiffs that the suit land was covered by Dag No. 105 and 106, the defendant, in his written statement, took a specific plea that the plaintiffs had no right, title and interest over the land of Dag Nos. 106 and 106. In the fact of the overwhelming materials on record, there could have been no escape from the conclusion that the plaintiffs were the owners of the land covered by Dag Nos. 105 and 106 of the land of 2nd R.S. Patta No. 17. The defendants adduced no evidence to show that the suit land or any part thereof was covered by Dag No. 104 of the said patta. In such circumstances and in the face of the evidence on record, the learned Courts below were wholly correct in coming to the conclusion that the suit land was covered by Dag No. 105 and 106 of the said patta and that the plaintiffs were owners of the suit land. 20. In the backdrop of the fact that the defendant has not even disputed the plaintiffs' assertion that they are owners of the land covered by Dag Nos. 105 and 106 of the said patta and the plaintiffs have proved that the suit land is covered by Dag Nos. 20. In the backdrop of the fact that the defendant has not even disputed the plaintiffs' assertion that they are owners of the land covered by Dag Nos. 105 and 106 of the said patta and the plaintiffs have proved that the suit land is covered by Dag Nos. 105 and 106 and there is no evidence on record to show that the suit land or any part thereof is covered by Dag No. 104, when one considers the case of the plaintiffs vis-a-vis the defendant, it becomes clear that it is the admitted case of the parties that an agreement had been reached between the parties, whereunder the defendant had agreed to purchase the land for a sum of Rs. 42,000/- and he had paid an advance of Rs. 10,000/-, but he failed to pay the remaining consideration money of Rs. 32,000/-despite demands raised by the plaintiffs on the ground that the plaintiffs were not owners of the suit land, but the plaintiffs proved their title to, and rights and interest in, the suit land. In such circumstances, the agreement had failed and, in the fact of the unwillingness of the defendant to abide by the agreement, the defendant had lost his own rights, if any, to remain in occupation and use of the suit land and he was, therefore, liable to be evicted from the suit land. 21. I may pause here to point out that though the plaintiffs claim that the defendant was, initially, a licensee, the defendant disputed this fact, namely, that he was a licensee. This apart, even the defendant has disputed the ownership of the title holders to the suit land. In such circumstances, the defendant is not entitled to receive such protections, which a licensee has in law. 22. Because of what have been discussed and pointed out above, it becomes clear that the learned trial Court was wholly justified in coming to the conclusion that the plaintiffs were the owners of the suit land and the defendant was liable to be evicted from the suit land. The learned Appellate Court committed no error in agreeing with the findings of the learned trial Court and affirming the decree. This Court finds no infirmity, legal or factual, in the reasoning assigned by the learned trial Court for passing the decree and by the learned Appellate Court in affirming the decree. The learned Appellate Court committed no error in agreeing with the findings of the learned trial Court and affirming the decree. This Court finds no infirmity, legal or factual, in the reasoning assigned by the learned trial Court for passing the decree and by the learned Appellate Court in affirming the decree. No question of law, far less substantial question of law, has been raised in this appeal. The appeal is, therefore, not admitted and the same shall accordingly stand dismissed. 23. With the above observations and directions, this appeal shall stand disposed of. 24. No order as to costs.