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Madhya Pradesh High Court · body

2013 DIGILAW 1521 (MP)

Chandramoul Shukla v. Ramvishwas

2013-12-05

K.K.TRIVEDI

body2013
JUDGMENT 1. This second appeal under section 100 of the Code of Civil Procedure is by the plaintiffs against the judgment and decree dated 11.2.1997 passed in Civil Appeal No.21-A/1996 by the First Additional Judge to the Court of District Judge, Satna, by which reversing the judgment and decree dated 17.4.1996 passed in Civil Suit No.28-B/1995 by the Civil Judge Class I, Satna, the suit of the appellants-plaintiffs has been dismissed. 2. Since the claim was granted against the respondent No.2 only by the learned trial Court and the claim made against the respondent No.1 was dismissed by the trial Court, a cross appeal was filed by the appellants-plaintiffs before the lower appellate Court, when the appeal was preferred by the respondent No.2 against the judgment and decree passed by the trial Court aforesaid. Since that cross appeal was also dismissed, hence, this appeal. This Court has admitted the appeal on the following substantial questions of law : “1. Whether oral evidence was admissible in view of the Proviso 4 of section 92 of the Evidence Act, 1872? 2. Whether defendant No.2 having harvested and appropriated the crops was liable to make over the crops and/or price thereof to the plaintiffs?” 3. Brief facts of the case are that the appellants were the landlords and owners of the land in dispute. The respondent No.1, accompanied with the respondent No.2, approached them for the purpose of granting lease of the land for the purposes of cultivation. Such a lease was written on a piece of paper by the respondent No.2 in his own handwriting on 12.11.1994 and on a revenue stamp of 20 paise such a lease was signed by the appellant No.3 as an agent of appellants No.1 and 2 and himself. It was agreed under the said lease that the land, commonly known as Bada Bandh, is given on lease for the purposes of cultivation to respondent No.1 on the terms that he will pay 150 bags of wheat to the appellants as their share out of the crops, which was to be sown and cultivated at his own expenses by the respondent No.1. For the purposes of irrigation, facility was to be taken from the well of one Kedar Prasad Shukla by the respondent No.1. Two witnesses have signed the said document. For the purposes of irrigation, facility was to be taken from the well of one Kedar Prasad Shukla by the respondent No.1. Two witnesses have signed the said document. It was alleged in the plaint that after cultivation certain crops were received by the respondents, but only 50 bags of wheat was given to the appellants and rest of the crops were not delivered nor any amount in cash was paid to the appellants. It was averred in the plaint that though the respondent No.2-defendant No.2 was also a partner in such lease with respondent No.1-defendant No.1, but he too has not given any crops to the appellants thereby a loss of Rs.40,000/- was caused to the appellants. Accordingly, with all expenses, an amount of Rs.41,000/- was claimed against the respondents-defendants. 4. The said suit was contested by the respondent No.1 by filing a written statement stating that the aforesaid agreement though was executed in the name of the respondent No.1, but, in fact, the respondent No.2 was also a partner in the said agreement. In fact, since the appellants-plaintiffs and the respondent No.2-defendant No.2 were relatives, deliberately, with mala fide intention, the lease agreement was executed only in the name of respondent No.1. It was contended that the cost of the agriculture expenses was borne by the respondent No.1 only. When the crops were sown, the respondent No.2 had taken his share and did not pay anything to the appellants. On the other hand, the respondent No.1 had paid his share of lease charge to the appellants. Therefore, no decree was to be granted against him. The respondent No.2-defendant No.2 filed his written statement separately denying all the allegations and stating that at no point of time any agreement of lease was executed between him and the appellants. Only because he was known to the parties to the aforesaid lease agreement, he went with the respondent No.1 to the appellant No.3 for the purposes of grant of lease of land and on his request such an agreement was reduced in writing and he signed the same as subscriber of the agreement. It was thus contended that no claim whatsoever was made out against the respondent No.2 and the suit so filed against him was liable to be dismissed. It was thus contended that no claim whatsoever was made out against the respondent No.2 and the suit so filed against him was liable to be dismissed. It was stated that the demand was made from the respondent No.2 by the appellants, but this fact was denied and despite that the suit has been filed. Therefore, the same was liable to be dismissed. 5. The trial Court framed the issues, recorded the evidence and came to the conclusion that the document Ex.P-1 was an agreement of lease in between the appellants and the respondent No.1, but since the respondent No.2 was also a party to the said agreement, as was proved by the oral evidence, the respondent No.2 was also liable to pay the amount claimed by the appellants. It was held that since the respondent No.1 has already paid his share, no decree could be passed against him, as claimed by the appellants, but the suit of the appellants was to be decreed against the respondent No.2 only. The suit against the respondent No.1 was dismissed. Feeling aggrieved by the judgment and decree passed by the civil Court, the respondent No.2 preferred an appeal against the said judgment and decree before the lower appellate Court. Since the decree was not granted against the respondent No.1 herein, he too was impleaded as a respondent in that appeal as respondent No.4. It will not be out of place to mention here that there was no question of filing any appeal by the respondent No.1 against the judgment and decree since the suit against him was dismissed. 6. The appellants herein, who were respondents before the lower appellate Court, preferred a cross appeal before the lower appellate Court claiming that while dismissing the appeal of the respondent No.2 a decree may also be granted against the respondent No.1. The said cross appeal was also considered by the lower appellate Court while deciding the appeal. The learned lower appellate Court, after hearing the parties, reached to the conclusion that the trial Court has not assessed the evidence in appropriate manner. If there was an agreement in writing for grant of lease of land for the purpose of cultivation only in respect of one person, there cannot be any oral agreement substituting any clause of the said agreement, as was treated to be proved by the civil Court. If there was an agreement in writing for grant of lease of land for the purpose of cultivation only in respect of one person, there cannot be any oral agreement substituting any clause of the said agreement, as was treated to be proved by the civil Court. In view of this, it was held that no decree could be granted against the respondent No.2. However, taking it as if the entire amount of the crop agreed to be paid to the appellants by the respondent No.1, the cross appeal of the appellants was also treated to be dismissed. While allowing the appeal of the respondent No.2, the judgment and decree passed by the civil Court was set aside and the cross appeal of the appellants was dismissed. Hence, this appeal, which has been admitted on the aforesaid substantial questions of law. 7. It is vehemently contended by the learned counsel for the appellants that the findings recorded by the lower appellate Court are contrary to the provisions of section 92 Proviso 4 of the Indian Evidence Act, 1872. Reading the said provisions, it is contended that if an agreement independently was made for grant of lease of land to the respondent No.1 and subsequently a fresh condition was agreed by the parties, to treat the lease as granted in favour of the respondent No.2 as well, it could not be said that the oral evidence was to be completely excluded and such an oral agreement could not be proved. There was no modification in the terms and conditions agreed on the agreement Ex.P-1 executed between the appellants and the respondent No.1. In fact the agreement was independently made treatinjg it as if the lease was granted to the respondent No.2 as well or that he became the partner to the said lease agreement and, therefore, the oral evidence adduced in this respect was to be read and believed in terms of the provisions of section 92 Proviso 4 of the Indian Evidence Act. Relying in the case of Niranjan Kumar and others v. Dhyan Singh and another [ AIR 1976 SC 2400 ], it is contended that the law is well settled and section 91 of the Evidence Act is required to be read along with section 92 to understand whether independent agreement orally could be made or not. Relying in the case of Niranjan Kumar and others v. Dhyan Singh and another [ AIR 1976 SC 2400 ], it is contended that the law is well settled and section 91 of the Evidence Act is required to be read along with section 92 to understand whether independent agreement orally could be made or not. Thus, it is contended that since this aspect is not considered by the lower appellate Court and though evidence to this effect was produced by the apellants that the lease agreement was in fact with the respondent No.2 also, wrongly the appeal of the respondent No.2 has been allowed. It is further contended by the learned counsel for the appellants that even if decree could not be granted against the respondent No.2, since the suit was filed jointly against the respondents No.1 and 2 and admittedly there was an agreement of lease with a condition that after the crops are sown, 150 bags of wheat would be given to the appellants by the respondent No.1, to that extent, the rejection of the suit of the appellants-plaintiffs by the trial Court was bad in law. If the decree granted by the trial Court was not to be affirmed inasmuch as respondent No.2 is concerned, at least the suit was to be decreed against the respondent No.1 as a whole and the amount, payable to the appellants was to be decreed against the respondent No.1. 8. Per contra, it is contended by learned counsel for the respondent No.1 that the suit could not have been decreed against the respondent No.1 inasmuch as the entire evidence led by the parties indicate that there was an agreement jointly with respondents No.1 and 2 for taking the field of the appellant on lease. The lower appellate Court has erroneously held that the respondent No.2 herein was not liable to pay any of amount to the appellants. Since it was found in the evidence that the wheat agreed to be given to the appellants by the respondent No.1, as a rent for the lease of the land, was already delivered to the appellants by the respondent No.1, no decree could be granted against the respondent No.1 at any rate even if the appeal of the respondent No.2 was to be allowed by the lower appellatle Court. No submissions have been made by the respondent No.2, though represented before this Court, earlier. 9. After hearing the learned counsel for the parties and after perusing the record, it has to be held that there was no proof of any such agreement of lease with the respondent No.2 and, therefore, the civil Court was not right in granting a decree against the respondent No.2 in favour of the appellants. To that extent, the judgment and decree of the lower appellate Court need not to be interfered with. Precisely, this finding is to be recorded in view of the fact that the provisions of section 91 were not rightly examined by the lower appellate Court. Though it is settled in law that there is no restriction put in any law that if any agreement is executed in writing, any further agreement in furtherance to any such written agreement cannot be made orally, in accordance to the provisions of section 92 Proviso 4 of the Indian Evidence Act, and no oral evidence adduced in this respect is to be admitted. The fact remains that no such oral evidence to the extent proving an oral agreement in between the appellant and the defendant No.2-respondent No.2 was available in the record and, therefore, the learned civil Judge was not right in holding that there was an agreement in between the appellants and the respondent No.2 with respect to the lease of the land owned by the appellants. True it is that there was an admitted document (Ex.P-1), which was an agreement of lease executed by appellant No.3 as the agent for appellants No.1 and 2 and for himself in favour of the respondent No.1 herein. Though the averments were made in the plaint that there was an oral agreement, but, except the statement of plaintiff No.3 (appellant No.3 herein) as PW1, there was no other evidence produced. The oral statements of other witnesses of the appellants-plaintiffs namely Dharamdas (PW2), Gulab Prasad (PW3) and Chandramoul Shukla (PW3) nowhere specifically say that any oral agreement was made by the respondent No.2 for the purposes of taking the land of the appellants on lease. The oral statements of other witnesses of the appellants-plaintiffs namely Dharamdas (PW2), Gulab Prasad (PW3) and Chandramoul Shukla (PW3) nowhere specifically say that any oral agreement was made by the respondent No.2 for the purposes of taking the land of the appellants on lease. One of the witnesses said that in fact the agreement was executed in between the two parties jointly with the respondents No.1 and 2, but a perusal of Ex.P-1 itself indicates that it was never executed in between the appellants and the respondent No.2 jointly with respondent No.1. Therefore, such an evidence was not enough. The respondent No.1, who was examined as DW1, though has stated that agreement was executed jointly with the respondent No.2 for taking the lease of the land of appellants, but, again his statement could not be accepted in view of the written agreement (Ex.P-1). The respondent No.2 himself was a witness examined as DW1 for defendant No.2, but he denied any such agreement. Therefore, such a fact could not be treated to be proved nor any decree could have been granted against the respondent No.2. 10. Now this left with the consideration whether on the basis of evidence available on record and keeping in view the written agreement (Ex.P-1) any decree was to be granted against the respondent No.1 or not. It is not in dispute that such an agreement was executed exclusively with respondent No.1. It was his responsibility to payback the rental in shape of crops to the appellants for the lease of the land taken by him. The appellants themselves have admitted that only 50 bags crops was given to the appellants by the respondent No.1. Precisely the claim was made only for 100 bags of the wheat, though it was said that the same was to be given to the appellants jointly by the respondents No.1 and 2. The decree itself was claimed in the suit against the defendants i.e. the respondents No.1 and 2 both jointly, as a prayer was made in this respect in the plaint. In view of this, if the fact was found proved that appellants were not delivered the crops in shape of rental for the lease of land granted to the respondent No.1, at least the decree was to be granted against the respondent No.1. In view of this, if the fact was found proved that appellants were not delivered the crops in shape of rental for the lease of land granted to the respondent No.1, at least the decree was to be granted against the respondent No.1. There was no occasion for the civil Court to decree the suit only against the respondent No.2. Therefore, this particular aspect was lost sight by the lower appellate Court also while considering the cross appeal filed by the appellants. In fact the appeal of the respondent No.2 was to be allowed. The judgment and decree passed against him by the civil Court was liable to be set aside, but while allowing the cross appeal, the judgment and decree was to be granted against the respondent No.1 by the lower appellate Court. If at all there was any proof of the fact that the respondent No.2 has harvested and appropriated the crops sown by the respondent No.1, that was the responsibility of the respondent No.1 to claim such amount from respondent No.2 by the independent proceedings. No cross-objection was filed by the respondent No.1 before the civil Court in this respect. If the liability was on the respondent No.1 to pay the entire rental for the lease of the land taken by him, he was not to be absolved of the responsibility merely on saying that the crops was harvested by the respondent No.2 in any manner or under any agreement with him therefore he would not be liable to pay rental to the appellants. 11. In view of this, though the judgment and decree passed by the lower appellate Court, in respect of reversing the judgment and decree of the trial Court granted against the respondent No.2 is not to be interfered with, but the cross appeal of the appellants ought to have been allowed by the lower appellate Court and the suit of the appellants should have been decreed against the respondent No.1. 12. Accordingly, this appeal is allowed in part. While affirming the judgment and decree of the learned lower appellate Court in so far as reversal of the judgment and decree of the civil Court granted against the respondent No.2 is concerned, the judgment and decree passed by the lower appellate Court rejecting the cross appeal of the appellant is hereby set aside. While affirming the judgment and decree of the learned lower appellate Court in so far as reversal of the judgment and decree of the civil Court granted against the respondent No.2 is concerned, the judgment and decree passed by the lower appellate Court rejecting the cross appeal of the appellant is hereby set aside. The judgment and decree of the Courts below is thus modified decreeing the entire suit of the appellants against the respondent No.1-defendant No.1 only. However, in vierw of the peculiar facts and circumstances of the case, parties to the appeal are directed to bear their own costs, in this appeal.