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2013 DIGILAW 693 (GAU)

Tarun Chandra Kumar v. Bidyadhar Kalita

2013-09-18

NISHITENDU CHAUDHURY

body2013
JUDGMENT Nishitendu Chaudhury, J. 1. This Second appeal has been preferred by the defendant of title suit No. 19 of 1993 against the appellate Court judgment and decree dated 29.05.2003 reference in title appeal No. 27 of 2001 setting aside and reversing the trial court judgment dated 11.09.2001 passed by the learned Civil Judge (Junior Division No. 1) Rangia in title suit No. 19 of 1993. I have heard Mr. Z. Mukit, learned counsel on behalf of the appellant who has been authorized by Mr. A. Sattar, learned advocate on record, to argue on behalf of the appellant in this case. I have also heard Mr. B.K. Bhagabati, learned counsel on behalf of the respondent (s)/plaintiff(s). 2. Late Bidyadhar Kalita, plaintiff, instituted title suit No. 19 of 1993 praying for declaration of his title over Schedule-'A' land and confirmation of possession over the said land. The plaintiff has made a prayer for recovery of possession of Schedule- 'B' land on declaration of his title thereto and for eviction and removal of apan-gumti owned by the defendant. It is the case of the plaintiff (s) that a land measuring 1 Katha 15 Lachas belonged to 2 brothers, namely, Brojo Namasudra and Debaru Nnamasudra. Said Brojo Namasudra sold his share of land i.e. 1K 15L by sale deed dated 25.10.1977 and the legal heirs of Lt. Bidyadhar Kalita after his death transferred his share of land to the plaintiffs by another registered sale deed on 31.10.1977. Thus, the plaintiffs claim to have purchased the entire land of 1K 15L. Though the defendant denies acquisition of any title by the plaintiffs and getting of possession thereof yet it is the case of the deceased plaintiff that he is in possession of Schedule -'A' land since the date of purchase. According to him, he was dispossessed from the Schedule-'B' land on 02.02.1984 for which filing of this suit became necessary. The defendant, on the other hand, states that the land is a 'Dharmotter' land and the land could not have been converted. It is the submission of the defendant that Debaru Namasudra transferred his share in favour of the defendant by a Katcha sale deed. The defendant claims to have been in possession of the Schedule-'B' land since purchase from Debaru Namasudra. It is the submission of the defendant that Debaru Namasudra transferred his share in favour of the defendant by a Katcha sale deed. The defendant claims to have been in possession of the Schedule-'B' land since purchase from Debaru Namasudra. The alternative stand taken by the defendant in the written statement is that he has perfected his title by adverse possession over Schedule -'B' land because of possession over 30 years to the knowledge of all concerned including the original owners. On the basis of the pleadings the learned trial court framed 5 (five) issues and the same are quoted below: "i) Whether there is cause of action for the suit? ii) Whether the plaintiff has right, title and possession over the suit land? iii) Whether the defendant has dispossessed the plaintiff from the suit land as shown in the Schedule-'B' by constructing a Pangumti? iv) Whether the defendant is entitled to claim right by adverse possession over the suit land? v) Whether relief(s) the plaintiff is entitled to?" 3. Plaintiffs examined 4 witnesses and exhibited some documents including the certified copy of the aforesaid sale deeds as Exts-3 & 4. The defendants, on the other hand, examined 4 witnesses and exhibited 2 documents as Exts. 'Ka' & 'Kha' revenue receipts. It appears that without there being any application under Order VI Rule 17 of the CPC or under any other law for the time being in force and without there being any order from the Court, the plaintiff himself amended the plaint and changed the schedule after the prayer for substitution of the original plaintiff Bidya Dhar Kalita by his legal heirs was permitted, such amendment being unauthorized is not permissible in law. Under Section 105 CPC any order committing error, defect or irregularity, affecting the decision of the case may be set forth as a ground in the memorandum appeal and so, an appellate court has power and jurisdiction to remedy such error. The error in the present case falls in such category. 4. The learned trial court after considering materials on record found that 2 certified copies of sale deeds dated 25.10.1977 and 30.01.1977 were brought on record, but the said sale deeds were not proved in accordance with law. Sale deeds per se are not public documents. The error in the present case falls in such category. 4. The learned trial court after considering materials on record found that 2 certified copies of sale deeds dated 25.10.1977 and 30.01.1977 were brought on record, but the said sale deeds were not proved in accordance with law. Sale deeds per se are not public documents. The sale deeds when registered the contents of the sale deeds, these are entered in the book maintained by the Sub-Registrar and there upon the contents of the said book become public document and as such the certified copy of the said contents of the book/register, is admissible in evidence. It is established law that in case of loss of any primary document the same can be proved with the help of its certified copy by calling witness from office of the Sub-Registry to prove the contents from the book. This Court in the case of Md. Saimuddin Sheikh Vs. Abedjuddin Sheikh reported in year 1979 Gauhati page 14 held that when the original sale deed is lost, evidence of content of the sale deed can be given through certified copy from the book maintaining in Registrar Office by calling witness from the said office. Admittedly, plaintiff in the present case has not made any statement in course of deposition or otherwise that the originals of the sale deeds was lost or are not in his custody. No attempt has been made to call for witness from the concerned Sub-Registry as well to prove the contents of the sale deeds from the book maintained by the Sub-Registry. The Sub Registry's book alone is a public document and not the original sale deed. In that view of the matter, the finding of the learned trial court that the plaintiff has failed to prove his purchase by the aforesaid sale deeds cannot be interfered with. Once the plaintiff fails to prove his purchase of the land he cannot have any right to claim recovery of possession and as such the learned trial Court has rightly dismissed the suit of the plaintiff by judgment and decree dated 11.09.2001. The plaintiff challenged the judgment of the trial court in title appeal No. 72 of 2001 in the court of the learned Civil Judge (Senior Division) No. 3, Guwahati. The learned lower appellate court by the judgment under challenge has reversed the finding of the learned trial Court. The plaintiff challenged the judgment of the trial court in title appeal No. 72 of 2001 in the court of the learned Civil Judge (Senior Division) No. 3, Guwahati. The learned lower appellate court by the judgment under challenge has reversed the finding of the learned trial Court. It appears that the learned first appellate court has referred the aforesaid sale deeds wrongly as Exts. 1 & 4 and not as Exts. 3 & 4. Be that as it may, the findings of the learned trial court that the said sale deeds could not be proved in accordance with law and, therefore, it did not receive any consideration. It is the duty of the first appellate court to discuss and deal with the reasons and findings of the trial court before reversing a finding. It is a settled law that the first appellate court is duty bound to the advert to the findings of the lower court before reversing the same. For the sake of reference one can take help of the judgments of the Hon'ble Supreme Court reported in A.I.R. 1999 Supreme Court Page 2213, AIR 1963 Supreme Court Page 362, and AIR 1995 Supreme Court 1607 in this regard. The learned first appellate court has accepted the argument of the plaintiff/appellant that since the sale deeds produced are registered one the contents there of must be held to be have been proved. By this way, the learned first appellate court has held that the plaintiff has right, title and interest over the suit land and has presumed that the plaintiff is in possession of Schedule-'A' land. The first appellate court has also allowed the prayer of the plaintiffs/defendant for recovery of Khas possession of Schedule-'B' land by removing the Pangumti of the defendant. This judgment is challenged in the present second appeal. This court by order dated 22.07.2003 has framed 2 (two) substantial questions of law as follows: "a) Whether the substituted plaintiffs can change and alter the area of suit land mentioned in the Schedule of the original plaint without seeking amendment of the plaint at the time of substitution? b) Whether any right, title was conferred on the plaintiff by sale deed Exts. 1 and 4?" 5. So far as the first substantial question of law is concerned, in course of hearing Mr. b) Whether any right, title was conferred on the plaintiff by sale deed Exts. 1 and 4?" 5. So far as the first substantial question of law is concerned, in course of hearing Mr. B.K. Bhagabati, the learned counsel for respondents, was requested to inspect the document received from the learned trial court and to find out as to whether there is any copy of the application filed by the plaintiffs under Section Order VI Rule 17 of the CPC and or any order allowing the amendment. The learned counsel for respondents after diligent search into the lower court records could not find any such application. Per contra, it is submission of the learned counsel Mr. Mukit, appearing on behalf of the appellant that there was neither any application available in the amendment nor any order of amendment was passed entitling the plaintiffs to make any change in the schedule of the plaints. There was an order for substitution of the original plaintiff Bidya Dhar Kalita on his death and his legal heirs were substituted by way of amendment. Perhaps in course of making such amendment the plaintiffs themselves made an amendment in the schedule of the plaint at their own accord. This act of amendment, therefore, is unauthorized and this can be ground for challenging the orders of the learned trial courts below. The first substantial question of law, therefore, has to be decided in negative against the plaintiffs/appellants and in favour of the present appellant i.e. defendant. 6. The second substantial question of law is as to whether the plaintiffs have acquired any right, title and interest over the suit land on the basis of the sale deeds, which have been described in the order of the reference as Exts. 1 & 4. It is stated above that the sale deeds dated 25.10.1977 and 31.10.1977 were really marked as Exts. 3 & 4 at the time of trial. It has also been found that the originals of the aforesaid sale deeds were withheld by the plaintiffs and no reason has been assigned for the same. 2 (two) certified copies of these 2 (two) sale deeds were brought on record and they were merely marked as exhibits. Marking a document as exhibit does not prove its contents. The contents are to be proved individually. 2 (two) certified copies of these 2 (two) sale deeds were brought on record and they were merely marked as exhibits. Marking a document as exhibit does not prove its contents. The contents are to be proved individually. It is settled law that even if execution of a document is presumed to be correct but its contents cannot be authentically proved. The case of Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar, reported in (2013) 3 SSC 801 (Paragraph No-31) can be referred in this regard. The previous judgments of the Hon'ble Supreme Court in this regard have also been quoted in the said judgment. Considering from the said stand point it is clear that merely by marking the sale deeds as Exts. 3 & 4 and that, too, of the certified copies, the plaintiffs have failed to discharge the burden to prove the contents of the documents and as such the plaintiffs have not proved the said sale deeds. Consequently, it is to be held that the plaintiffs have failed to prove acquisition of title to the said land vide Exts. 3 & 4. The substantial question No. 2, therefore, is decided in the negative against the plaintiffs and it goes in favour of the defendant. 7. In result the appeal is allowed. The impugned lower appellate Court judgment and decree dated 29.05.2003 passed in title appeal No. 72 of 2001 by Senior Division No. 3, Kamrup, Guwahati, is set aside and the same of the learned Civil Judge (Junior Division), Rangia, in title suit No. 19 of 1993 is hereby restored. 8. Send down the records after preparation of decree. No order as to cost.