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2014 DIGILAW 851 (GAU)

Pradip Kumar Paul v. Nitya Gopal Roy

2014-09-05

N.CHAUDHURY

body2014
ORDER (ORAL) All the defendants in Title Suit No. 88/1998 of the Court of learned Civil Judge (Junior Division) No. 1, Silchar have jointly preferred this second appeal challenging concurrent findings of the learned Courts below. Suit of sole respondent Nitya Gopal Roy was decreed by the trial Court declaring his right, title and interest with respect to 3 bighas 10 kathas of land on the basis of Ext.-1 sale deed. Defendants challenged the decree before first appellate Court vide Title Appeal No. 52 of 2002 in the Court of learned Civil Judge (Senior Division) No. 1, Cachar at Silchar. On dismissal of their title appeal by the impugned judgment and decree, this second appeal was preferred. 2. Plaintiff, Nitya Gopal Roy instituted the suit on 15.09.1998 stating that one Nil Kumar Sarma was originally owner in possession of a plot of land measuring 4 bighas covered by Dag No. 210 of second R.S. Patta No. 1 in Mouza Niz Lakhipur, Part-I in the district of Cachar. He executed a registered sale deed being No. 2336 of 1983 on 14.10.1983 in favour of the plaintiff on receipt of valuable consideration of Rs. 8,000/- and handed over possession. In paragraph 3 of the plaint the plaintiff pleaded that although aforesaid sale deed was executed for an area of 2 bighas 10 kathas of land only but plaintiff was given possession for 3 bighas 10 kathas of land by the vendor. While plaintiff was peacefully enjoying the land the defendants sought to disturb his peaceful possession by force for which there was a village bichar on 20.08.1998 when the defendants disclosed existence of some collusive deeds by showing photocopies thereof and claimed the land. Under such circumstances, plaintiff collected certified copy of the aforesaid purported deeds claimed to have been executed in favour of the defendants by the original owner, namely, Nil Kumar Sarma and thereupon instituted the suit for declaration of his right, title and interest over the schedule land measuring 3 bighas 10 kathas and for confirmation of possession thereon and also for declaration that sale deeds described in Schedule-II to the plaint are void, illegal and fraudulent. 3. 3. The defendants appeared and submitted written statement, wherein they contested the claim of the plaintiff specifically and further claimed that plaintiff was never in possession of the land and that he never had any occasion to purchase any land from Nil Kumar Sarma. Defendants also stated that Nil Kumar Sarma was the original owner of 4 bighas of land under the suit, dag and patta. He sold 2 bighas of land to defendant No. 1 on 13.09.1984 vide registered deed No. 2270, 1 bigha of land in favour of defendant No. 2 vide registered sale deed No. 1759 dated 07.10.1985 and remaining 1 bigha of land in favour of defendant No. 3 vide registered sale deed No. 1758 dated 07.10.1985. The defendants also filed a counter claim alongwith the written statement for declaration of their right, title, interest and confirmation of possession over the land described in Schedule I, II and III of the written statement cum counter-claim and for declaration that sale deed dated 14.10.1983 claimed to have been executed in favour of the plaintiff was void, fraudulent, illegal etc. The plaintiff submitted a written statement against the counter claim of the defendants and denied the averment in entirety. 4. On the basis of the aforesaid rival contention of the parties, learned trial Court framed as many as 8 issues. However, subsequently four more additional issues were also framed. All these issues, original as well as additional, are quoted below: 1. Is there any cause of action for the plaintiff? 2. Whether the suit is barred by limitation? 3. Whether the suit is bad for defect of parties? 4. Whether the sale deed No. 2270 dated 13.09.1984 purported to have executed in favour of defendant No. 1 by Nil Kumar Sarma, sale deed No. 1759 dated 7.10.85 purported to have executed in favour of defendant No. 2 by Sri Nil Kumar Sarma and deed No. 1758 dated 7.10.85 purported to have executed in favour of defendant No. 3 by Nil Kumar Sarma and deed No. 1758 dated 7.10.85 purported to have executed in favour of defendant No. 3 by Nil Kumar Sarma are collusive, fraudulent, illegal, void and liable to be cancelled? 5. Whether the plaintiff got right, title, interest and possession over the disputed land? 6. Whether the defendants threatened the plaintiffs to dispossess from the suit land on the strength of fraudulent deeds? 7. 5. Whether the plaintiff got right, title, interest and possession over the disputed land? 6. Whether the defendants threatened the plaintiffs to dispossess from the suit land on the strength of fraudulent deeds? 7. Is the plaintiff entitled to get the relief as claimed? 8. To what relief/reliefs, the parties are entitled? ADDITIONAL ISSUES:- 1. Whether the defendants have any right, title, interest and possession over the suit land? 2. Whether the purchased deed of the plaintiff is fraudulent, void, illegal, without consideration and liable to be cancelled? 3. Whether the defendants are entitled to get any decree/relief(s), as prayed for in their counter claim? 4. Whether the suit and the counter claim have not been properly valued and stamped? 5. Plaintiff examined 4 witnesses including himself and the attesting witness of the sale deed. He exhibited documents including the sale deed dated 14.10.1983 (Ext.-1). Defendants side examined 5 witnesses and exhibited 7 documents out of which Exts.-A, B & C are the three registered sale deeds referred to above. 6. The learned trial Court decreed the suit vide his judgment and decree dated 10.09.2002. Learned Court found that Ext.-1 sale deed dated 14.10.1983 executed for 2 bighas 10 kathas in the suit, dag and patta was duly proved. The learned trial Court also accepted the contention of the plaintiff that vendor had handed over 3 bighas 10 kathas of land to the plaintiff within same boundary although by sale deed title to 2 bighas 10 kathas of land was only conveyed. Consequently the counter claim of the defendants was also rejected. The suit was decreed not only for declaration of right, title and interest of plaintiff over suit land measuring 3 bighas 10 kathas over the suit, dag, and patta but also for confirmation of the possession of the plaintiff. The counter claim of defendants was dismissed in entirety. 7. Aggrieved by the trial Court’s judgment and decree referred to above, all the three defendants approached Civil Judge (Senior Division) No. 1 at Silchar vide Title Appeal No. 52 of 2002. Learned first appellate Court having considered the materials on record and after hearing the parties dismissed the appeal. What is noticeable is that, the learned first appellate Court did neither consider the appeal issue wise nor did the Court frame points for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. Learned first appellate Court having considered the materials on record and after hearing the parties dismissed the appeal. What is noticeable is that, the learned first appellate Court did neither consider the appeal issue wise nor did the Court frame points for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. The learned first appellate Court merely by two short paragraphs, namely, paragraph No. 8 & 9 upheld the findings of the learned first appellate Court without considering pleadings and evidence in detail and/or the contention of the parties with reference to the evidence led. As against both these judgments and decrees, the defendants preferred the present second appeal. 8. This Court while admitting the second appeal on 04.10.2004 framed following two substantial questions of law: 1. Whether the decree passed by the trial court and affirmed by the appellate court is in accordance with law in view of the specific averment in the plaint that only 2 Bighas 10 Kathas of land was sold to the plaintiff. 2. Whether the appellate Judgment is a Judgment under Order 41 Rule 31 CPC. 9. I have heard learned counsel for the parties at length. I have also perused the lower Court records including the exhibits and the deposition of the witnesses. 10. Learned counsel for the appellants submits that the plaintiff based his claim on the document of title, namely, Ext.-1. Ext.1 contains recital as to conveyance of 2 bighas 10 kathas of land only but plaintiff claimed 3 bighas 10 kathas of land in the plaint. Plaintiff failed to produce any document of title in support of his claim of acquisition for 1 bigha of land under the said dag and patta. The simple case of the plaintiff is that though 2 bighas 10 kathas of land was sold to him by the original owner but he was really given possession of 3 bighas 10 kathas of land. This according to the learned counsel for the appellants would have been sufficient for the learned courts below to confine the decree with the land covered by Ext.-1 only. This according to the learned counsel for the appellants would have been sufficient for the learned courts below to confine the decree with the land covered by Ext.-1 only. In brief, it is the case of the learned counsel for the appellants / defendants that plaintiff has failed to prove his right, title and interest beyond 2 bighas 10 kathas of land conveyed to him vide Ext.-1 and so the impugned decree passed by the learned Courts below are liable to be modified to that extent. 11. Per contra, the learned counsel for the sole respondent would argue that within the same boundary there was land of 3 bighas 10 kathas and the vendor of the plaintiff having transferred whole of the land to the plaintiff. It is immaterial as to whether sale deed was executed for 3 bighas 10 kathas or for 2 bighas 10 kathas. Learned counsel has placed reliance on the following reported judgments in support of his contention. (i) Sheodhyan Singh & Others v. Musammat Sanichara Kuer reported in AIR 1963 SC 1879 (ii) Haladhar Sarma v. Assam Go-Seva Samity reported in AIR 1979 Gau 23 . (iii) G. Amalorpavam & Others v. R.C. Diocese of Madurai and Others reported in (2006) 3 SCC 224 . 12. In the case of Sheodhyan Singh (supra) the Court was concerned with a contradiction as to identity of land. The khata number and boundaries to the suit land in that case referred to plot No. 1060 but while making mention of it a zero was dropped and the plot No. was accordingly mentioned as 160 whereas it should have been plot No. 1060. However the boundaries of the suit land were correctly described. Considering the discrepancies in plot number and boundaries, the Hon’ble Supreme Court held in that case that if there is dispute between plot number / dag number and boundaries of a land, it is boundaries which shall prevail. In the case in hand, there is no discrepancy as to description of a plot of land. Identity of suit land is not in question. The only task before the Court was to find out as to whether Nil Kumar Sarma conveyed 2 bighas 10 kathas of land to plaintiff or 3 bighas 10 kathas of land. In the case in hand, there is no discrepancy as to description of a plot of land. Identity of suit land is not in question. The only task before the Court was to find out as to whether Nil Kumar Sarma conveyed 2 bighas 10 kathas of land to plaintiff or 3 bighas 10 kathas of land. This could have been established if Nil Kumar Sarma would have been impleaded in the case or atleast he would have been examined as witness. Plaintiff not having impleaded Nil Kumar Sarma or his legal heirs (if he was dead at that time), cannot expect that 2 bighas 10 kathas of land shown to have conveyed to him by Nil Kumar Sarma should be understood to be 3 bighas 10 kathas. This becomes more relevant because the defendants came forward with three sales deeds which show that on 13.09.1984, 2 bighas of land was sold by same Nil Kumar Sarma to defendant No. 1 and on 07.10.1985 the remaining 2 bighas was sold by Nil Kumar Sarma to defendants No. 2 & 3 by two separate deeds. Having so found it appears that Nil Kumar Sarma did not transfer whole of the land to the plaintiff in the suit Dag and Patta on 14.10.1983. Plaintiff having claimed right, title and interest on the basis of a document of title, the recital made in the title has to be taken in its face value. When there is a written document showing a definite quantum of land to have been conveyed to the plaintiff, the said documentary evidence cannot be overridden merely by oral evidence of the plaintiff. The dispute being between oral claim of the plaintiff and the documentary evidence adduced by him, only documentary evidence would be given precedence over his oral claim. Such an interpretation also appears to be in consonance with the spirit of Section 92 of the Evidence Act. It needs to be mention here that the case of Haladhar Sarma (supra) is also to the same tune as in the case of Sheodhyan Singh (supra). 13. Coming to the second substantial questions of law it is the case of the learned counsel for the appellant that appellate Court has committed serious error by not following the mandate of Order XLI Rule 31 of the Code of Civil Procedure. 13. Coming to the second substantial questions of law it is the case of the learned counsel for the appellant that appellate Court has committed serious error by not following the mandate of Order XLI Rule 31 of the Code of Civil Procedure. The learned first appellate Court did neither frame point for determination of the appeal nor did it proceed to determine appeal issue wise. It had simply upheld the findings of the learned trial Court without independent application of mind in this case. The learned counsel for the respondent placing reliance on the case of G. Amalorpavam (supra) submits that substantial compliance of the provision of Order XLI Rule 31 is what is contemplated by law. There is no dispute on this point of law. 14. The provision as to Order XLI Rule 31 in its letters is not mandatory. If appellate Court substantially follows the same by considering the materials available on record that would suffice. First appellate Court is the last Court of law in fact. In the case of Santor Hazari reported in (2001) 3 SCC 179 Hon’ble Supreme Court has discussed the nature, scope and responsibility of the first appellate Court. First appellate Court was not supposed to step in scarily agreeing to the findings of the learned trial Court. It had to consider the evidence independently and thereupon decide as to whether learned trial Court had arrived at the findings of fact and law in correct and proper way. Framing point for determination and deciding the same is only a prescribed means for such objective to be achieved by the learned first appellate Court. If appellate Court without point for determination decides the case issue wise and in so doing the evidences led by the parties are taken into consideration independently and thereupon findings are arrived at that stage it would be substantial compliance of the provision of Order XLI Rule 31 of the Code of Civil Procedure. Having so found, let us see whether first appellate Court in the present case has substantially complied with the aforesaid norms and guidelines. 15. Learned first appellate Court has failed to consider that plaintiff purchased merely 2 bighas 10 kathas of land out of 4 bighas of land owned and possessed by Nil Kumar Sarma. Ext.-1 is the only basis on which plaintiff claimed title. 15. Learned first appellate Court has failed to consider that plaintiff purchased merely 2 bighas 10 kathas of land out of 4 bighas of land owned and possessed by Nil Kumar Sarma. Ext.-1 is the only basis on which plaintiff claimed title. The vendor or its family member has neither being impleaded in the case nor was any of them examined as witness to prove that something beyond Ext.-1 was conveyed to the plaintiff. It is relevant aspect that the matter has not been considered by the learned first appellate Court. So learned first appellate Court cannot be said to have exercised appellate jurisdiction in the way it is contemplated under Order XLI Rule 31 of the Code of Civil Procedure. Non-framing of point for determination may not be fatal but non-consideration of the relevant materials for adjudicating the matter in dispute may vitiate the first appellate judgment. 16. As referred to above, plaintiff acquired right, title and interest to 2 bighas 10 kathas of land on the basis of Ext.-1 (registered sale deed dated 14.10.1983) and so plaintiff cannot claim any land more than the same. This being the position, the impugned judgment and decree passed by the learned courts below needs to be modified and the same are accordingly modified. The decree passed by the learned trial Court shall be confined to 2 bighas 10 kathas of land as conveyed under Ext.-1. 17. There being only two substantial questions involved in this case, they are accordingly answered. 18. Appeal is partly allowed. 19. Draw up decree and send back the records immediately.