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2014 DIGILAW 1271 (PAT)

Sheoraj Devi v. Shukhdeo Nonia

2014-12-22

KISHORE KUMAR MANDAL

body2014
KISHORE KUMAR MANDAL, J.:–The plaintiffs-appellants who are purchaser(s) of the suit land from the heirs of the two daughters of Nath Mishra have filed the present appeal aggrieved by the judgment and decree 30.08.1986 and 08.08.1986 respectively passed by the Sub-ordinate Judge-III, Aurangabad in T.A. No. 69 of 1978 affirming the judgment and decree dated 11.07.1978 and 18.07.1978 respectively passed by the Munsif, Aurangabad in T.S. No. 224 of 1971. 2. The background facts leading to the present appeal may briefly be noted and they are as follows:- The plaintiff(s) filed the suit stating that the suit land appertaining to plot nos. 1018 and 1019 under khata nos.131 and 138 respectively measuring a total area of 1.66 acre originally belonged to one Nath Mishra who had Brahmotta Jagirdari thereon having been gifted as such by the ex landlord. After the death of Nath Mishra the suit property was inherited by his two daughters (their heirs were impleaded as proforma defendants as 1st set and 2nd set). By virtue of the two sale deeds, both dated 03.01.1970 (Exts.1 and 1/A) the plaintiffs purchased the suit land from the heirs and legal representatives of the two daughters. The defendants tried to interfere with the possession of the plaintiffs and actually dispossessed them leading to the filing of the suit with the following prayer(s):– 1. To declare that the suit land is raiyati land of the plaintiffs. 2. The plaintiffs‘ possession over the suit land be restored. 3. Decree for mesne profit from the date of dispossession till recovery of possession be granted. 4. In the alternative, for recovery of the consideration amount of Rs. 2000/- with interest @ 12 annas per annum from each of proforma defendant (s) (the seller(s) of the land). 3. The defendant 1st set contested the suit and filed the written statement stating therein that Nath Mishra was, of course, the Jagirdar of the suit land who died leaving behind the grand son(s) (being the sons of the two daughters). The suit land devolved on them. Ishwar Nand Pathak became the ‘Karta’ of the family of one daughter and in such capacity he settled 83 decimal of land to Anandi Bhagat (ancestor of the contesting defendants). Similarly, Vidya Nand Pathak the ‘Karta’ of family of another daughter settled remaining 83 decimals of the land in favour of the father of contesting defendants. Ishwar Nand Pathak became the ‘Karta’ of the family of one daughter and in such capacity he settled 83 decimal of land to Anandi Bhagat (ancestor of the contesting defendants). Similarly, Vidya Nand Pathak the ‘Karta’ of family of another daughter settled remaining 83 decimals of the land in favour of the father of contesting defendants. In token of such settlement, the Hukumnamas (Exts. C and C/1) were executed on 1337 Baishakh Fasli. The defendants were since then in exclusive possession over the suit land. They used to cultivate and distribute the produce with the landlord against the rent receipts which were, however, missing. The defendants on the basis of the aforesaid statement denied to have dispossessed the plaintiffs. The trial court on a consideration of the of rival pleadings framed diverse issues and permitted the parties to lead evidence. On behalf of the defendants the Hukumnamas executed by the heirs of Nath Mishra in 1937 Baishakh Fasli were produced and exhibited as Exts. C and C/1. On a consideration of the evidence adduced by the parties, the trial court dismissed the suit. Aggrieved thereby the plaintiffs filed appeal. The appellate court re-appraised the evidence and ultimately concurred with the finding(s) recorded on all the core issues by the trial court. Resultantly, the appeal was dismissed. Dissatisfied therewith, the plaintiffs-appellant(s) have filed the present appeal which was admitted to hearing and the following substantial question of law was formulated:– Whether the plaintiff appellant was entitled to the alternative relief of a money decree against the proforma defendant respondents. 4. It may be relevant to note here that by the judgment dated 26.09.2001 the appeal was allowed which was impugned by the contesting defendant(s) before the Hon‘ble Apex Court in SLP (Civil) No.22265 of 2001. After the grant of leave the same was converted into Civil Appeal No.3963 of 2006. The Apex Court under order dated 05.09.2006 passed therein set aside the judgment passed by this Court on the ground that substantial question of law framed in the appeal was neither considered nor answered. The appeal was restored on the file of this Court for re-hearing and disposal in accordance with law. That is how the appeal has been listed before this Court for final disposal. 5. Heard Mr. Dhrub Narain Sr. Counsel for the appellants and Mr. Nand Kishore Prasad Sinha for the contesting respondents. 6. Mr. The appeal was restored on the file of this Court for re-hearing and disposal in accordance with law. That is how the appeal has been listed before this Court for final disposal. 5. Heard Mr. Dhrub Narain Sr. Counsel for the appellants and Mr. Nand Kishore Prasad Sinha for the contesting respondents. 6. Mr. Narain submits that the substantial question of law framed while admitting the appeal merits to be answered in favour of the appellants. If the plaintiffs failed to prove title over the suit land then surely the plaintiffs are entitled to the relief prayed alternatively. He would further urge that the appeal raises some more additional substantial question of law and filed the same after serving a copy thereof on the counsel for the respondents. After hearing both sides this Court formulated the following two additional substantial question(s) of law:– 1. Whether the plaintiffs suit for declaration of title based on admitted title of their vendors has rightly and legally been dismissed by the courts below? 2. Whether the courts below have rightly decided the issue of possession of the defendant 1st set over the suit land based on the basis of Ext.C and C-1 without getting the document legally testified or proved as required under section 67 of the Indian Evidence Act, read with section 47 of the Act? 7. In support of the additional substantial question no.1, it has been submitted that the plaintiffs laid claim over the suit property based on title derived by the two sale deeds (Exts.1 and 1/A). Both the courts below committed serious error in not appreciating the aforesaid fact presumably influenced by the fact that the defendant(s) were in possession of the said land and dismissed the suit. Non proving the date of dispossession shall have no relevance. The plaintiffs would be entitled to the main relief if the title was proved. In my view, the aforesaid submission of Mr. Narain is not sound and well-founded. The case of the principal defendant(s) was that of course Nath Mishra was the Jagirdar of the suit land and after his death the same devolved upon his grandsons. The two grandsons namely Ishwara Nand Pathak as ‘Karta’ of the family and Vidya Nand Pathak as ‘Karta’ of another family had settled the suit land in favour of the ancestor of the contesting defendant(s). Such settlement was made by Hukumnamas (Exts. The two grandsons namely Ishwara Nand Pathak as ‘Karta’ of the family and Vidya Nand Pathak as ‘Karta’ of another family had settled the suit land in favour of the ancestor of the contesting defendant(s). Such settlement was made by Hukumnamas (Exts. C & C/1) executed on 1137 Baishakh Fasli and since then they were in exclusive possession of the suit land. In other words, the defendants claimed not only continuous and exclusive possession but also title over the suit land. The principal defendant(s) therefore did not lay claim over the suit land based on possession only. In a case like this the plaintiffs were surely required to prove their title over the suit land. The courts below have therefore rightly considered the matter and appraised the evidence on record. There is no legal flaw in the consideration of the case of the parties. The aforesaid substantial question of law is, thus, answered against the appellants. 8. Coming to the additional substantial question no.2 this Court notes that the appellant(s) have challenged the correctness of the judgment under appeal on the ground that Exts. C and C/1 were relied upon by the court without getting those documents legally testified or proved as required under section 67 of the Indian Evidence Act read with section 67-A of the Act. This Court now proceeds to consider the same. It has been contended that Exts. C and C/1 [the Hukumnama(s)] were not legally proved as required under section 67 of the Indian Evidence Act and the courts below could not have referred to and relied on these documents which support the case of the contending defendant(s). Section 67 of the Evidence Act reads as under:– “Proof of signature and handwriting or person alleged to have signed or written document produced.–If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person‘s handwriting must be proved to be in his handwriting.” 9. The aforesaid provision of law contemplates that If a document is said to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person‘s handwriting must be proved to be in his handwriting. The aforesaid provision of law contemplates that If a document is said to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person‘s handwriting must be proved to be in his handwriting. In this context, it is to be noticed that the aforesaid documents were brought into existence on 1137 Baishakh Fasli corresponding to June, 1930. This Court would take here notice of the provision contained in section 90 of the Evidence Act which also finds mentioned in Chapter V of the Evidence Act which relates to documentary evidence. 10. Section 90 of the Evidence Act reads as under:– “Presumption as to documents thirty years old.–Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person‘s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.–Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had legitimate origin, of if the circumstances of the particular case are such as to render such an origin probable.” 11. It is thus seen that if the document purporting or proved to be thirty years old is produced from the custody of a person which the Court, in a particular case, considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person‘s handwriting. 12. D.W.5 (defendant no.1) deposed in this case on 29.06.1978 to state that his claim rested on settlement paper(s) which were filed and marked as X and X/1 respectively for identification. Those documents were subsequently marked as exhibit as would appear from the order of the learned trial court passed on 11.07.1988. 12. D.W.5 (defendant no.1) deposed in this case on 29.06.1978 to state that his claim rested on settlement paper(s) which were filed and marked as X and X/1 respectively for identification. Those documents were subsequently marked as exhibit as would appear from the order of the learned trial court passed on 11.07.1988. In between, the plaintiffs did not raise any objection with regard to admissibility of those documents. Those documents having been exhibited the appellants cannot raise an issue in this regard in the second appeal particularly when no such issue appears to have been raised either before the trial court or the appellate court. That apart, as noticed above, those documents of settlement (Exts. C and C/1) being more than 30 years old and coming from proper custody of the defendants could have been accepted in evidence under section 90 of the Evidence Act. Further, from the perusal of the judgment passed by the learned trial court it appears that adequate evidence was led by the defendants that the scribe of the settlement documents (Exts. C & C/1 and the witness thereto had already died. It further appears therefrom that relevant consideration in this regard have been made and evidence of D.W.3 as well as D.W.8 was evaluated. The appellate court found that D.W. 8 has in fact proved the signature of the executor on those documents. In view of aforesaid, this Court finds that Exts. C and C/1 were legally brought on record and the courts below did not err in taking note of those exhibits while appraising the case of the parties. Furthermore, it is incorrect to say that the appellate court did not consider the recitals made therein. In fact the appellate court went through the recitals made in those documents and only thereafter placed reliance thereon to discard the case of the plaintiffs and to hold that they had purchased only litigation. Incidentally, it may further be observed here that the courts below have decided the question of title and possession not solely on the strength of Exts. C and C/1 but also on appraisal of other relevant oral and documentary evidence on record. The additional substantial question of law no.2 is also answered against the appellants. 13. Incidentally, it may further be observed here that the courts below have decided the question of title and possession not solely on the strength of Exts. C and C/1 but also on appraisal of other relevant oral and documentary evidence on record. The additional substantial question of law no.2 is also answered against the appellants. 13. Now coming to the original substantial questions of law framed at the time of admission, it transpires that issue no.8 in this regard was specifically framed by the learned trial court and negated on consideration of the evidence. The trial court considering the rival pleadings of the parties found that principal defendant(s) had challenged the sale deed(s) without consideration whereas the proforma defendant(s) had admitted the receipt of the consideration amount. The trial court noted that the cause of action had arisen as per the plaintiff(s) on 08.11.1978 when the plaintiffs admitted the title of the proforma defendant(s) and as such there was no cause of action for recovery of the consideration money of the sale deed(s) in question. That apart, no court fee was paid for the said relief of recovery of consideration money. Accordingly the said issue was answered against the plaintiffs. Again the appellate court formulated diverse points for determination in appeal. Point no.5 relates to the grant of alternative relief to the plaintiffs. The appellate court in the light of the discussion made in connection with other points found that the plaintiffs had intentionally purchased the suit property through the sale deed(s) (Exts.1 and 1/A) and filed the suit claiming title over the property accepting thereby the title of the vendor. If there was no fraud committed in execution of the sale deed and the plaintiffs accepted the title of the vendor then the plaintiffs were not entitled to the alternative relief of recovery of consideration money. The said point was answered against the plaintiffs-appellants. No submission has been advanced on behalf of the plaintiffs-appellants to show any apparent perversity in such consideration of the matter by the two courts below. If that be the case, in my view, substantial question of law under reference is bound to be answered against the plaintiffs appellants which is accordingly answered. 14. Having answered all the substantial questions of law against the plaintiffs-appellants the appeal is held devoid of merit and is accordingly dismissed. No cost(s). ?