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2014 DIGILAW 497 (GAU)

Kashi Teli v. Bhagirat Kahar

2014-05-07

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, C.P.C.) is directed against the judgment and decree, dated 08.06.1999 and 14.06.1999 respectively, passed by the learned Civil Judge (Sr. Divn.), Dibrugarh, in Title Appeal No. 16 of 1997, whereby the first appellate Court, while dismissing the said appeal, upheld the judgment and decree, dated 04.09.1997 and 10.09.1997 respectively, passed by the learned Civil Judge No. 1 (Jr. Divn.), Dibrugarh, in Title Suit No. 38 of 1983. Hence, the challenge in this appeal is to the concurrent findings, rendered by both the Courts below. Relevant facts of the suit, may, in brief, be stated as follows: The plaintiff/appellant instituted the said title suit, against the principal defendants (defendant Nos. 1 & 2)/respondents, seeking a decree for declaration of right, title, interest, confirmation of possession and permanent injunction in respect of the suit land. According to the plaintiff, he became the absolute owner of the suit land by virtue of purchase from its owner i.e. proforma defendant Nos. 3 and 6 and got possession in respect of the same; but the defendant Nos. 1 & 2, without having any right, title and interest had, on 29.05.1979, encroached upon the suit land by breaking down plaintiffs bamboo fencing and collecting building materials on the encroached land, measuring about 15 ft. x 36 ft. (about 4 lechas). Hence, the plaintiff brought the suit, seeking the said reliefs. 2. The principal defendants Nos. 1 and 2 contested the suit by filing written statement and alleging, therein, that the suit was hit by law of res judicata and misjoinder of parties. Disputing the plaintiffs claim regarding purchase, the contesting defendants averred that the defendant No. 1 purchased 1 katha of land, as shown in the schedule to the written statement, by registered Sale Deed No. 2292, dated 10.09.1962 from the defendant Nos. 3 and 4 i.e. the original owner and got possession of the same followed by mutation and that the suit land is part of the said 1 katha of land. It has also been contended that, at the time of purchase by the defendant, the suit land was occupied by Mr. Gokul Shah and Mr. 3 and 4 i.e. the original owner and got possession of the same followed by mutation and that the suit land is part of the said 1 katha of land. It has also been contended that, at the time of purchase by the defendant, the suit land was occupied by Mr. Gokul Shah and Mr. Jaduram Shah, as tenants under the original landlords, and due to their refusal to vacate the land, the defendants had initiated Title Suit No. 60 of 1965 for their ejectment therefrom and that during the execution of the decree, obtained by the defendant, in respect of the suit land, the plaintiff had purchased the land with the structures standing thereon and put up the fencing. It has also been pleaded, by the contesting defendants, that, in 1970, Smti Sanchari Devi and Smti Mawa Devi filed a suit challenging the said decree, obtained by the defendants, but their suit was dismissed. Therefore, it has been averred, by the contesting defendants, that the proforma defendants i.e. the vendors of the plaintiff, had no saleable right to transfer the suit in favour of the plaintiff and as such the plaintiff did not acquire any right, title and interest over the suit land. 3. Upon the pleadings of both the parties, the trial Court framed the following issues: (i) Whether the suit is maintainable? (ii) Whether plaintiff has right to sue? (iii) Whether suit is barred by res judicata? (iv) Whether suit is bad for mis-joinder and non-joinder of necessary parties? (v) Whether there is cause of action? (vi) Whether plaintiff has right, title and possession over the suit land? (vii) Whether defendant No. 1 has acquired any right and title over the suit land? Whether defendant No. 1 has possession over the suit land, as claimed? (viii) Whether plaintiff is entitled to decree, as claimed? (ix) To what relief, parties are entitled? 4. In support of his case, the plaintiff examined as many as six witnesses and exhibited some documents including the Sale Deed (Ext. No. 6). The contesting defendants also examined three witnesses and exhibited some documents, including a copy of the Jamabandi (Ext. No. 'Ka'). 5. Considering the evidence, on record, the learned Civil Judge (Jr. 4. In support of his case, the plaintiff examined as many as six witnesses and exhibited some documents including the Sale Deed (Ext. No. 6). The contesting defendants also examined three witnesses and exhibited some documents, including a copy of the Jamabandi (Ext. No. 'Ka'). 5. Considering the evidence, on record, the learned Civil Judge (Jr. Division) decreed the suit, as prayed for and also for recovery of khas possession, holding that the plaintiff could establish his right, title and interest over the suit land and that the defendants failed to establish their claim over the said land. 6. Aggrieved by the said judgment and decree, the defendant Nos. 1 and 2, as appellants, preferred the said title appeal. The learned Civil Judge, by the impugned judgment and decree dismissed the appeal for want of merit. 7. Dissatisfied with the said concurrent findings, the defendants Nos. 1 & 2, have come up with this second appeal, putting a challenge to the said findings, on the grounds, amongst others, that the Courts below failed to appreciate that, in view of the judgment and decree passed in T.S. No. 60/1995 and T.S. No. 111/1970, the suit was hit by law of res judicata, that, the vendors of the plaintiff having no saleable right, the plaintiff did not acquire any title; on the basis of the alleged purchase, vide Ext. No. 6, that the Courts below misread the evidence of D.W.-2 and D.W.-3 in holding, that the suit land of this case, the suit land of the Title Suit No. 60/1995 and Title Suit No. 111/1970 were different, that the appellant failed to prove any documents of title and that the Courts failed to appreciate the evidentiary value of Ext.-'Ka'. It has also been contended, by the appellant, that the Courts below committed error by relying on the Advocate Commission's report and the local inspection report. 8. This appeal has been admitted for hearing on the following substantial questions of law. (i) Whether the suit is barred by res judicata in view of the judgment and decree dated 30.03.70 and 11.1.72 passed in T.S.-60/65 and TS 111/70 of the Court of Sadar Munsiff, Dibrugarh? (ii) Whether the learned Court below erred in holding that the appellant/defendant had failed to prove his title by overlooking Ext. 'Ka' Jamabandi and other evidence on record on the ground that he did not prove his sale deed? (ii) Whether the learned Court below erred in holding that the appellant/defendant had failed to prove his title by overlooking Ext. 'Ka' Jamabandi and other evidence on record on the ground that he did not prove his sale deed? 9. By filing an application under Order 41 Rule 27 CPC, (Misc. Case No. 1328 of 2011) the appellant/defendant has also prayed for permission to adduce additional evidence for proving the Sale Deed No. 2292 dated 10.09.1962, on the ground that the petitioner i.e. the defendant could not trace out the Sale Deed at the stage of trial. Both the appeal and the application under Order 41 Rule 27 CPC, are taken up, together, for final disposal, by this common judgment and order. 10. Mr. S.K. Ghosh, learned Counsel, appearing for the appellant, has submitted that, in view of the judgment and decree, passed in T.S. No. 60 of 1965 and T.S. No. 111/1970, in favour of the appellant, in respect of the same suit land, the Courts below committed error, in law, by failing to appreciate that the present suit was hit by law of res judicata It has also been contended that the trial Court as well as the appellate Court committed error and illegality by failing to appreciate the evidentiary value of the jamabandi i.e. Ex.-'K' and in holding that the defendants/appellant, by failing to prove the Sale Deed, failed to establish their title over the suit land. The learned Counsel has also submitted that the Courts below misread the evidence of D W-1 and wrongly held that D W No. -1 had supported the plaintiffs case and as such the findings of the Courts below suffered from perversity. 11. With regard to the prayer for adducing additional evidence, the learned Counsel, for the appellant has submitted that it has been the consistent plea of the defendants that the defendant No. 1 had purchased the suit land vide registered Sale Deed No. 2292, on 10.09.1962, and that due to missing of the Sale Deeds, the same could not be proved earlier. Therefore, it is submitted that the Sale Deed, which has been traced out, now, is required to be proved for establishing the title of the appellant in respect of the suit land, by adducing additional evidence. 12. Therefore, it is submitted that the Sale Deed, which has been traced out, now, is required to be proved for establishing the title of the appellant in respect of the suit land, by adducing additional evidence. 12. In support of his contention, the learned Counsel for the appellant has relied on the following decisions: (i) Amiya Bala Dutta v. Mukut Adhikari & Others, 1998 (4) GUT 137 (ii) Maheshpur Tea And Industries Pvt. Ltd. v. Mantala Tea Co. Ltd. & Others, 2007 (1) GLT 141 : (2002) 1 GLR 53 (iii) State of Rajasthan v. T.N. Sahani, (2001) 10 SCC 619 (iv) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) By LRs., AIR 2008 SC 2139 13. Refuting the said argument, advanced on behalf of the appellant, Mr. G.P. Bhowmik, learned Counsel for the respondent has submitted that this being a second appeal, against the concurrent findings, questions regarding facts need not be gone into afresh, inasmuch as both the Courts below have arrived at concurrent findings regarding ownership of the suit land. 14. "With regard to the question relating to res judicata, Mr. Bhowmik, learned Counsel for the respondent, has submitted that the earlier suits, being decided between different parties, other than the present plaintiff, the decisions, rendered in the said suits, can not be applicable as res judicata against the plaintiffs and as such the trial Court as well as the first appellate Court committed no error by holding that the suit was not hit by the principle of res judicata. 15. It is also submitted that the plaintiff, having established his title by proving the title deed i.e. the Sale Deed (Ext. No. 6), executed by the actual owner and in view of the defendants' failure to prove any such Sale Deed etc. in support of their claim regarding purchase of the suit land in 1962, the mutation order i.e. Ext.-'Ka' is not sufficient to negate the title acquired by the plaintiff by virtue of Sale Deed. Therefore, it is submitted that the Courts below committed no error by refusing to declare title in favour of the defendants on the basis of Ext.-'Ka'. 16. Therefore, it is submitted that the Courts below committed no error by refusing to declare title in favour of the defendants on the basis of Ext.-'Ka'. 16. The learned Counsel for the defendant has also submitted that the defendants, though took the plea of purchase in 1962, they did not take any steps to produce and prove the Sale Deed, either by exhibiting the Sale Deed or by calling the register book, maintained in the Office of the Sub Registry. The learned Counsel has submitted that the Sale Deed, being a vital document of title, in the event of its missing, the defendant could have adduced secondary evidence to prove their title. It is also contended that even at the first appellate stage also the defendants failed to take steps for proving the Sale Deed. Therefore, it is submitted that the defendants, not being diligent in adducing evidence, can not be allowed to adduce additional evidence at this belated stage and further delay the disposal of the suit. Mr. Bhowmik, learned Counsel for the respondent, has further submitted that the land, claimed to be purchased by the defendants, not being the suit land, and, in view of concurrent findings on such matter of facts, there is no necessity to prove the Sale Deed, alleged to be executed in favour of the defendant, inasmuch as the said document is not necessary to pronounce proper judgment. Therefore, it is submitted that the defendants' application under Or. 41 Rule 27 CPC lacks merit and that the appeal as well as the said application are liable to be dismissed. The learned Counsel for the respondent has relied on the decisions held in the cases of (i) Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 (ii) Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical Industries & Another, (2004) 13 SCC 750 (iii) Ponnusamy v. Karuppanna Mudaliar (Dead) By Lrs. & Others, (2005) 12 SCC 477 (iv) Sundarammal v. Natarajan & Others, (2005) 12 SCC 479 (v) Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148 (vi) Jagdish v. Rajendra, AIR 1975 All 395 (vii) Mehar Singh & Others v. Inder Singh & Others, AIR 1975 P & H82 17. In the case of State of Rajasthan (supra), the Supreme Court held that the application under Order 41 Rule 27 CPC is to be decided along with the appeal. In the case of State of Rajasthan (supra), the Supreme Court held that the application under Order 41 Rule 27 CPC is to be decided along with the appeal. In the case of North Eastern Railway Administration (supra), the Supreme Court held that the application under Order 41 Rule 27 CPC is to be considered before taking up the appeal. In view of the above decisions, I take up the application under Order 41 Rule 27 CPC for decision. 18. The appellant by filing this application under Order 41 Rule 27 CPC has prayed for permission to allow him to adduce additional evidence. The appellant, at the second appellate stage, has contended that the Sale Deed, executed in his favour, in 1962, was untraceable and that the same is required to be proved by adducing additional evidence. 19. As held in the case of State of Rajasthan (supra), prayer to adduce additional evidence can be allowed if the document is found to be necessary to pronounce the judgment in more satisfactory manner. 20. In the case of North Eastern Railway Administration, Gorakhpur (supra), the Supreme Court has laid down the circumstances in which additional evidence could be adduced. As held in the said case, the party seeking production of additional evidence is required to establish that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time of when the decree appealed against was passed. 21. In the case of Union of India (supra), Supreme Court observed- 36. The general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate Court to take additional evidence in exceptional circumstances. The appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. 37. The appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. 39. It is not the business of the appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial Court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower Court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower Court, but failed to do so or elected not to do so, cannot have it admitted in appeal. 22. In the case of Meher Singh (supra), the Supreme Court observed that a party, in order to prove any document as additional evidence at the appellate stage must show that because of some reason, beyond their control, the party could not prove document at the trial stage. 23. In the case of Jagadish (supra), the High Court of Allahabad held that the party seeking to adduce additional evidence under Order 41 Rule 27 CPC must show that despite due diligence the evidence could not be adduced. The aid of Order 41 Rule 27 CPC can't be extended to a party failing to act with due diligence. 24. 23. In the case of Jagadish (supra), the High Court of Allahabad held that the party seeking to adduce additional evidence under Order 41 Rule 27 CPC must show that despite due diligence the evidence could not be adduced. The aid of Order 41 Rule 27 CPC can't be extended to a party failing to act with due diligence. 24. In view of the above decisions and the procedure prescribed in Order 41 Rule 27 CPC, a party, seeking to produce and prove a document by way of additional evidence, at the appellate stage, must show that despite due diligence and for reasons beyond the control of the party, the evidence could not be adduced at the appropriate time and before the appropriate forum. The Court, while considering such a prayer under Order 41 Rule 27 CPC, is to be satisfied that the proposed additional evidence is necessary to pronounce the judgment in a more satisfactory manner. 25. Admittedly, in the case at hand, though the appellant/defendant, in their written statement took the plea of purchase of the land by Sale Deed, he did not take any steps to produce and prove the same before the trial Court. Even in the first appeal also, no step was taken to prove the Sale Deed. After filing the second appeal in 1999, the appellant had filed the application under Order 41 Rule 27 CPC on 02.05.2011. In his petition, the appellant, while reiterating the earlier plea of purchase of the land in 1962, stated that at the time of giving evidence the original Sale Deed, dated 11.09.1962, could not be traced out. In his evidence, given as D.W. No. 3, the appellant (defendant) did not whisper anything indicating that the Sale Deed was not traceable or missing. I find no reason, as to what prevented the defendant from making a statement before the trial Court or the appellate Court regarding missing the Sale Deed, if so and take steps for adducing secondary evidence. In this petition, it has been stated that the original Sale Deed was not traceable at the time of giving evidence. This statement indicates that the copy of the same was available. If the land was purchased by registered Sale Deed than the concerned register book/volume book, maintained in the office of the Registrar, was sufficient to substantiate the plea of purchase. This statement indicates that the copy of the same was available. If the land was purchased by registered Sale Deed than the concerned register book/volume book, maintained in the office of the Registrar, was sufficient to substantiate the plea of purchase. In fact, the defendant was silent in this regard till 02.05.2011. He deposed as D.W. No. 3 on 28.07.1986. The silence of the defendant, on such a vital point, for such a long period, indicates his lack of diligence. Hence, it cannot be held that despite due diligence the defendant could not prove the Sale Deed at the time of giving evidence, before the trial Court. 26. In order to determine as to whether the said additional evidence is necessary for proper pronouncement of the judgment, I feel it appropriate to carefully scrutinize the evidence, on-record and I have done so. The plaintiff has sought the decree in respect of a plot of land (suit land) within a specific boundary. He has described the suit land, by giving its boundary. The defendant also, deposing as D.W.-3, has given boundary of his land. 27. A careful examination of the said descriptions i.e. boundaries reveals that the land claimed by the plaintiff and the land claimed by the defendant are not the same land. Fact remains that the land claimed by both the parties are covered by the same dag no. Therefore, even if additional evidence is taken, by allowing the defendant to prove the Sale Deed, no fruitful purpose would be served. The defendant claiming title over the suit land has examined two witnesses and himself as D.W. Nos. 1, 2 and 3. Therefore, the defendant availed ample opportunity to substantiate his claim and also to prove that the land, claimed by the plaintiff, belonged to them. Securitizing the evidence, adduced by the D.W.-1, D.W.-2 and D.W.-3, I find that all of them, including the defendant himself, in their cross-examination, stated that they did not know for which plot of land the suit was instituted. This statement, made by the defendant himself and his witnesses, clearly indicates that they had no knowledge about the identity of the suit land. This evidence negates the claim that the defendant was the owner of the suit land, because he did not know the suit land. 28. In view of the said evidence, on-record, the additional evidence can not improve the defendant's case. This evidence negates the claim that the defendant was the owner of the suit land, because he did not know the suit land. 28. In view of the said evidence, on-record, the additional evidence can not improve the defendant's case. Therefore, I have no hesitation in holding that the proposed additional evidence i.e. prove of the Sale Deed is not necessary for arriving at a just decision and to pronounce proper judgment in this appeal. Because proper and effective judgment could passed on the basis of the evidence, on record. In view of the above facts and circumstances and the conduct of the defendant, he can not be allowed to adduce additional evidence at this belated stage causing further delay in the disposal of the matter. Hence, the petition filed under Order 41 Rule 27 CPC is liable to be rejected and I do so. Accordingly, the Misc. Case No. 1328/2011 stands dismissed. 29. Now taking up the appeal for disposal, I have carefully perused the impugned judgment and orders aforesaid and the materials, on-record. This being a second appeal against the concurrent findings rendered by both the trial Court and the first appellate Court, I propose to take up the substantial questions of law for decisions. 30. With regard to the question relating to applicability of principal of res judicata , in the case at hand, the appellant's contention is that the appellant had purchased 1 katha of land out of the total land of 3 bighas 3 kathas 3 lechas, covered by dag No. 652 of P.P. No. 2292, by a Sale Deed, from the proforma defendant Nos. 3 and 4 i.e. the vendors of the plaintiff respondent in 1962 and the said land being occupied by the Jadunandan and Gokul, the appellant had filed Title Suit No. 60/05 against them and got them ejected therefrom, on the basis of the judgment and decree obtained in T.S. No. 60/2005. It has also been stated that the T.S. No. 111/70, filed by M/s. Sachan and M/s. Manki against the appellant, was also dismissed. In view of the said judgments and decrees, the appellants contended that the appellant's right, title and interest over the suit land, being declared by the Court of jurisdiction, the suit instituted by the present respondent is hit by the law of res judicata. 31. In view of the said judgments and decrees, the appellants contended that the appellant's right, title and interest over the suit land, being declared by the Court of jurisdiction, the suit instituted by the present respondent is hit by the law of res judicata. 31. Section 11 of the CPC, which provides the law of res judicata , reads as follows: Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 32. In view of the said principle of law, it is to be examined if the issue in the present case has already been decided between the present parties or the parties under whom any of them have their title in this case. As the appellants/defendants has taken the plea of res judicata it was his burden to prove that the ingredients mentioned in Section 11 CPC existed in the present case. There is nothing, on-record, to show that in the T.S. No. 60/65 and 111/07, the respondents (plaintiff) were parties. Therefore, there is no evidence to find that the decisions in the said suits are binding on the respondents as res judicata. That apart, as rightly observed by the trial Court, the appellant, taking the plea of res judicata failed to produce the copies of the judgments and decrees, passed in T.S. No. 60/2005 and T.S. No. 111/07 and as such, it cannot be concluded that the judgments and decrees, alleged to be passed in the said suits operated as res judicata in the present case. Failure of the appellant to produce the copy of the judgment and decree, in the said title suits, if any, negates his claim that the judgment and decrees existed in his favour. Therefore, I have no hesitating in holding that the Courts below rightly held that the respondent's suit was not hit by the law of res judicata. 33. The second substantial questions of law, formulated in this appeal, relates to the evidentiary value of the Ext.-'Ka’ i.e. the entry in the jamabandi. Therefore, I have no hesitating in holding that the Courts below rightly held that the respondent's suit was not hit by the law of res judicata. 33. The second substantial questions of law, formulated in this appeal, relates to the evidentiary value of the Ext.-'Ka’ i.e. the entry in the jamabandi. It is to be examined whether, in view of entry in the jamabandi, the appellant acquired title in respect of the suit land. According to the appellant, after purchasing the suit land in 1962, his name was mutated in the jamabandi and as such by virtue of said mutation, the appellant obtained title in respect of the suit land. Ext.-'Ka' i.e. the certified copy of the jamabandi reveals that the Dag No. 652 contained 3 bigha 3 katha 9 lechas of land owned by several pattadars, including the appellant (at Sl. No. 9). The appellants same has been mutated in respect of 1 katha of land along with the proforma defendant Nos. 3 and 4 i.e. the vendors (original owners). The said 1 katha of land is a part of the entire land of the dag. As the mutation was not done in respect of any specific plot of land, such entry in the revenue record (Ext.-'Ka’) does not imply that the said mutation was in respect of the suit land. 34. The law regarding scope of the second appellate Court has been laid down by the Supreme Court in a catena of decisions. In the case of Viswanath Agrawal v. Sarla Vishwanath Agrawal (supra), the Supreme Court observed- 36. In Major Singh v. Rattan Singh it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhar v. Manikrao it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. 37. In Vidhyadhar v. Manikrao it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board. 35. In the case of Mukunda Balkrishna (supra), the Supreme Court held that, unless the findings are found to be irrelevant or that the conclusion is based upon legally inadmissible or irrelevant evidence, the High Court in second appeal should not disturb the findings and reappraise the entire evidence. 36. In the case of Ponnusamy (supra), the Supreme Court held that High Court can exercise jurisdiction under Section 100 CPC to entertain second appeal only on substantial question of law framed at the time of admission or at a subsequent stage and the Court is to confine itself to the question(s) of law framed. In the case of Sundarammal (supra), also the Supreme Court reiterated the same view. 37. In view of the above referred principles of law, unless the findings of the Courts below are found to be based on no evidence or on irrelevant evidence, a second appellate Court should not interfere with the findings of the Courts below and substitute another view. 38. As correctly observed by the learned trial Judge, the appellant, taking the plea of acquiring title by way of purchase, by registered Sale Deed, failed to produce and prove the title Deed in support of his plea. Neither before the trial Court nor before the appellate Court the appellant (defendant) took the plea that the said Sale Deed (title deed) was lost or misplaced. However, the appellant, in support of his claim for title, exhibited a copy of the jamabandi as Ext. No. 'Ka' to prove that his name was mutated in respect of 1 katha of land covered by Dag No. 652. However, the appellant, in support of his claim for title, exhibited a copy of the jamabandi as Ext. No. 'Ka' to prove that his name was mutated in respect of 1 katha of land covered by Dag No. 652. Admittedly, the said dag No. contained more than 1 katha of land and the respondent's predecessor-in-interest i.e. the plaintiff also purchased land out of the said dag No. and from the same vendors (i.e. owners). In support of his plea of purchase, the plaintiff proved the Sale Deed as Ext. No. 6. P.W.-2, who was the scribe of the Sale Deed, i.e. Ext. No. 6, stated that the said Sale Deed was executed by the owners i.e. proforma defendant Nos. 3 and 4 in favour of the plaintiff. Both the Courts below, considering the evidence, on-record, came to the findings that the suit land was purchased by the plaintiff. Of course, there is no dispute regarding the said purchase, made by the plaintiff. The said findings of the Courts below are found to be based on evidence, on-record. Therefore, I find no reason to conclude that the findings regarding purchase of the land by the plaintiff, are perverse, requiring re-appreciation of the evidence, on-record. 39. Now the question is whether, in view of the mutation, entry in favour of the defendant in the jamabandi i.e. Ext.-'Ka', the Courts below committed error by declaring title in favour of the plaintiff on the basis of the Ext. No. 6 i.e. the Sale Deed. 40. In the case of Amiya Bala Dutta (supra), this Court observed: Under the Assam Land and Revenue regulation a person who is a patta holder is deemed to be a land holder and he has permanent, heritable and transfer, able right of use and occupancy in his land subject to Section 9 of the Assam Land and Revenue regulation and if a person in order to establish his title produces a patta that must be given due weightage inasmuch as a patta its issued in accordance with the provisions of Section 17 read with the Rules and that must lie considered to be a document of title and this is always considered to be a document of title. Further, that record of rights as provided under Section 40 and 41 of the Assam Land and Revenue regulation shall always be deemed to be the correct unless the contrary is proved and that presumption which is attached to the record of rights under Sections 40and 41 must be given due weightage and that is what was done by the learned lower appellate Court. Regarding mutation entries it can be said that though the mutation entries may not be the basis of title yet that mutation entries cannot be brushed aside and it must receive due consideration at the hand of the Court. Of course, it must be ascertained that the mutation entries were done properly. If it is found that the mutation entries was not done properly and/or if it is collusive and fraudulent, that mutation entries will not create any right. 41. As held in the said case, in order to declare title on the basis of the entry in the revenue record, it must be shown that the mutation entry was done properly, i.e. following the due procedure. In the present case, the defendant side, while exhibiting the said entry i.e. the mutation as Ext. No. -'Ka', failed to show that the mutation was done properly. There is nothing, on-record, to show that the prescribed procedure was followed in mutating the name of the defendant. 42. There can be no dispute that title in respect of immovable property, value of which is more than Rs. 100/-. can be transferred and acquired by execution of a registered Sale Deed (Section 54 of the Transfer of Property Act, 1882). The defendant, though took the plea of purchase in 1962, failed to substantiate the said plea by proving the Sale Deed. Even no attempt was made to substantiate the said plea by proving either the Sale Deed or the record, maintained in the Office of the Registrar i.e. Sub Registrar etc. On the other hand, the plaintiff proved the registered Sale Deed, executed by the owner in his favour. Hence, as held by the Courts below, the plaintiff could establish that he obtained title by way of transfer. That apart, both the parties claimed ownership of the land covered by the same dag No. and the dag contained huge land i.e. more than the land claimed by both the parties. Hence, as held by the Courts below, the plaintiff could establish that he obtained title by way of transfer. That apart, both the parties claimed ownership of the land covered by the same dag No. and the dag contained huge land i.e. more than the land claimed by both the parties. The said entry in the revenue record i.e. Ext.-'Ka' does indicate that the specific land, as mentioned in the Schedule of the plaint of the suit and claimed by the plaintiff i.e. the suit land, was mutated in favour of the defendant. Therefore, the said revenue entry does not per simply that the suit land stood mutated in favour of the defendant. 43. In view of the above discussion, I find no difficulty in holding that the plaintiff could show better title over the suit land, by proving the Sale Deed, whereas the defendant failed to produce the transfer deed and substantiate his plea that the land (including the suit land) purchased by the plaintiff was purchased by him much prior to the plaintiff. The mutation i.e. Ext.-'Ka' does not lead to the conclusion that the suit land was mutated in the name of the defendant as per the prescribed procedure. Therefore, in my considered opinion, the Courts below committed no error by overlooking the Ext.-'Ka' in holding that the defendant failed to prove his title over the suit land. 44. In the light of the above discussion, both the substantial questions are decided in negative. Therefore, I find no reason to interfere with the concurrent findings, rendered by he Courts below and form a different view. 45. In view of what has been discussed above, I find no merit in this appeal and the petition filed under Order 41 Rule 27 CPC. Accordingly, the appeal and the petition aforesaid are dismissed. The impugned judgment and decree are upheld and affirmed. No cost. Return the LCR.