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2015 DIGILAW 220 (GAU)

Neulakalita v. Rajani Kalita

2015-02-24

MANOJIT BHUYAN

body2015
JUDGMENT Manojit Bhuyan, J. 1. Heard Mr. D. Baruah, learned counsel for the appellants. None appears on behalf of the respondents. Title Suit No. 107/2000 was brought about by Sri Bhaba Nanda Kalita (now substituted by his legal heirs and respondents in the present appeal) for declaration of right, title and interest over the scheduled land; recovery of possession and for permanent injunction in respect of a plot of land measuring 1 Bigha 2 Kathas 14 Lechas covered by Dag No. 127 of K.P. Patta No. 227 of village Baranti Moniari, Mouza Chhayani in the District of Kamrup. The plaintiff claimed that the suit land devolved upon him being the only son of legal heirs of late Sambhu Ram Kalita who was the original pattadar. The cause of action arose on 2.6.2000 when the appellant/defendant forcefully entered into the suit land and took possession, whereupon the suit was filed. A joint written statement was filed by the appellants/defendants pleading, inter alia, that the suit was joint family property which eventually fell into the share of Santa Ram Kalita, the father of the appellant No. 1 as per arrangement amongst the brothers i.e. Sambhu Ram Kalita, Baneswar Kalita and Santa Ram Kalita (all deceased). The defendants pleaded that since Shambu Ram Kalita was the eldest amongst the three brothers, the suit land, which was purchased with the joint family income more than 70 years back was in the name of Shambu Ram Kalita. However, in terms of a family settlement, the suit land fell into the share of the father of the appellant No. 1. Upon the demise of his father i.e. Santa Ram Kalita, the suit land devolved upon the three sons, namely, Sri Neula Kalita (appellant No. 1), Sri Bhupen Kalita and Sri Naren Kalita until they separated by oral partition in the year 1984. Thereupon, the suit land fell into the share of the appellant No. 1, Sri Neula Kalita. The appellant as defendant also pleaded that the suit land have been under their possession over a fairly long period and was holding and possessing the suit land continuously, openly and to the knowledge of the plaintiff for more than the statutory period of limitation. According to the appellant, he had acquired non-evictable right over the suit land and has become the true owner of the property in question. According to the appellant, he had acquired non-evictable right over the suit land and has become the true owner of the property in question. On such pleadings the appellants prayed that the suit be dismissed with cost. 2. In the suit as many as 6 Issues were framed and 3 witnesses examined from the plaintiffs' side and 5 form the defendants' side. As documentary evidence, the plaintiff produced the Katcha Patta in the name of late Sambhu Ram Kalita (under objection) as Ext. 1: certified copy of the Jamabandi as Ext. 2: certified copy of the Mutation Chitha (under objection) as Ext. 3 and the Revenue Paying Receipts as Ext. 4(1) to 4(24). The appellants/defendants exhibited the certified copy of the Sadar Jamabandi pertaining to K.P. Patta No. 21 of Dag No. 125 as Ext. A; certified copy of the Patta No. 200 as Ext. B; certified copy of the Chitha of Dag No. 127 as Ext. 6; certified copy of the Sadar Jamabandi of K.P. Patta No. 227 as Ext. D and certified copy of the order passed in Mutation Case No. 43/1999-2000 as Ext. E. 3. The learned Trial Court, upon appreciation of oral and documentary evidence as well as the pleadings of the rival parties held that the suit was barred by the law of limitation in terms of Article 65 of the Limitation Act, 1963 and also held that the plaintiff had failed to prove right, title and interest over the suit land. As a necessary corollary, the Trial Court held that the plaintiffs are not entitled to delivery of khas possession or to any relief. Accordingly, the suit was dismissed on contest without cost vide Judgment and Decree dated 13.9.2005. 4. Title Appeal No. 99/2005 was preferred by the legal heirs of Sri Bhabananda Kalita and the First Appellate Court allowed the appeal on contest with cost by reversing the finding of the Trial Court on the point of limitation as well as on the finding of the Trial Court with regard to Issue No. 4 and 5 which pertained to right, title and interest of the plaintiff and recovery of possession of the suit land respectively. In view of the findings arrived at, the First Appellate Court while allowing the appeal decreed the suit in favour of the plaintiff. 5. In view of the findings arrived at, the First Appellate Court while allowing the appeal decreed the suit in favour of the plaintiff. 5. The Second Appeal which has been filed before this Court against the judgment and decree dated 10.7.2006 in Title Appeal No. 99/2005 passed by the First Appellate Court was admitted for hearing by order dated 26.9.2006 on the following substantial questions of law "1. Whether the learned First Appellate Court was justified in applying the principles of Article 64 of the Limitation Act, 1963 in a suit which was based upon title and fell squarely within the purview of Article65 of the Limitation Act, 1963? 2. Whether the learned First Appellate Court was justified in decreeing the suit in favour of the plaintiff without taking into account the various pleadings of the defendants and the various admissions made by the plaintiff to the effect that the defendants have been possessing the suit land openly, exclusively and continuously adverse to the interest of the plaintiff for a period of more than thirty years? 3. Whether the learned First Appellate Court was justified in decreeing the suit in favour of the plaintiff by declaring the plaintiff's right, title and interest alongwith recovery of khas possession in respect to the suit land that to when it was an admitted fact that the suit land was a joint family property amongst the plaintiff and the defendants? 6. With regard to the first substantial question of law so formulated, Mr. D. Baruah, learned counsel for the appellant submits that whereas the Trial Court while deciding the point on limitation took into consideration the evidence of the plaintiff witness No. 1 and arrived at the findings that the dis-possession of the plaintiff occurred more than 12 years back, the First Appellate Court reversed the finding on the ground that there was no document except Ext. D & E to show the possession of the father of the appellant/defendant. According to learned counsel, the First Appellate Court instead of looking into the aspect as to whether the plaintiff could prove his case rather took into account the case of the defendant. D & E to show the possession of the father of the appellant/defendant. According to learned counsel, the First Appellate Court instead of looking into the aspect as to whether the plaintiff could prove his case rather took into account the case of the defendant. Furthermore, without any discussion as to whether the father of Bhabananda Kalita or the original plaintiff were in possession of the suit land prior to the date of the cause of action i.e. 2.6.2000, had erroneously arrived at the finding that the suit was not barred by the law of limitation. According to Mr. D. Baruah, learned counsel, the First Appellate Court had incorrectly applied the provision of the Limitation Act, 1963. In this regard, reliance has been placed upon the decision of Baidyanath Pd. Singh Vs. Gauri Shankar Pd. Singh & Ors., reported in(2005) 12 SCC 159 to say that such incorrect application of provision of statute gives rise to a substantial question of law. Mr. Baruah, learned counsel also places reliance upon the decision in the case of Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRS, reported in (2001) 3 SCC 179 and referring to paragraph 15 thereof submits that the duties cast upon the First Appellate Court and more so, when it seeks to reverse the findings of the Trial Court, were totally ignored. According to Mr. Baruah there was no basis upon which the First Appellate Court could arrive at the finding that the father of the original plaintiff and after his death, the original plaintiff were in possession prior to the date of cause of action i.e. 2.6.2000. Mr. Baruah submits that the First Appellate Court reversed the Trial Court's finding on limitation without considering the clear admission on the part of the plaintiff himself who stated that the defendants were in possession of the suit land 30 years ago and late Sambhu Ram Kalita used to pay the land revenue on behalf of all. Further, that the contents of Ext. E, clearly goes to show that the appellants/defendants were in possession of the suit land since long. 7. Mr. Further, that the contents of Ext. E, clearly goes to show that the appellants/defendants were in possession of the suit land since long. 7. Mr. Baruah, learned counsel for the appellants, in his fairly long arguments, also touched upon the well settled principles of law that the onus is upon the plaintiff to establish his case for grant of a declaration and the weaknesses, if any, of the case set out by the defendants would not be a ground to grant relief to the plaintiff. According to Mr. Baruah, the determination of the Issue No. 4 with regard to right, title, interest could not have been answered in favour of the plaintiff by the First Appellate Court when the plaintiff utterly failed to prove his own case and in this regard relied upon the case of Union of India & Ors. Vs. Vasabi Cooperative Housing Society Limited & Ors, reported in (2014) 2 SCC 269 . Mr. Baruah also relied upon the case of Life Insurance Corporation of India & Anr. Vs. Ram Pal Singh Bisen, reported in (2010) 4 SCC 491 (para 25) and P.G.D. Ombrain & Ors. Vs. Collector of Kamrup, Guwahati & Anr., reported in AIR 1980 Gau 55 (para 9) to say that mere admission of a document in evidence does not amount to its proof, that is, mere marking of exhibit on a document does not dispense with its proof. The same has to be done in accordance with law. The said two decisions were placed in view of the fact that the plaintiff in his cross-examination had stated that he did not know what documents has been exhibited and also did not know the contents of the plaint. Another point urged by Mr. Baruah was with regard to the revenue documents produced by the plaintiff which were marked as Exhibits 1 to 4. According to Mr. Baruah, such revenue papers cannot form the basis for declaration of title in favour of the plaintiff and in this regard relied upon the case reported in (2014) 2 SCC 269 (supra). The aforesaid submissions of Mr. Baruah are taken on board. However, this Court is of the opinion that an answer to the first two substantial questions of law, which are more or less on the point of limitation, would answer the fate of this appeal. 8. The aforesaid submissions of Mr. Baruah are taken on board. However, this Court is of the opinion that an answer to the first two substantial questions of law, which are more or less on the point of limitation, would answer the fate of this appeal. 8. With regard to the issue as to whether the suit was barred by limitation, law provides that every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. The said prescription of law is, however, subject to the provisions contained in Sections 4 to 24 of the Limitation Act, 1963. Apparently, the said exceptions do not come into play in so far as the Title Suit 107/2003 is concerned. Article 65 of the Limitation Act, 1963 prescribes that in a suit for possession of immovable property or any interest therein based on title, the period of limitation for institution of suit is twelve years form the time when the possession of the defendant becomes adverse to the plaintiff. 9. Turning to the case in hand and in the backdrop of the provisions under Article 65 of the Limitation act, 1963, it would be imperative to dwell upon the testimony of P.W. 1 i.e. the original plaintiff himself. Records go to show that in the cross-examination of said P.W. 1, he has stated that about 30 years back there was a case between the parties and he went to occupy the land but he was stopped by the defendants. This piece of evidence itself, by way of admission on the part of P.W. 1, i.e. the original plaintiff, goes to show that dispossession of the plaintiff is more than the statutory period of twelve years. The Trial Court answered the issue on limitation against the plaintiff on the basis of the evidence on record. In contrast, the said finding was reversed by the First Appellate Court holding that except for the documents at Ext. D, being the Jamabandi dated 19.7.2000 and Ext. The Trial Court answered the issue on limitation against the plaintiff on the basis of the evidence on record. In contrast, the said finding was reversed by the First Appellate Court holding that except for the documents at Ext. D, being the Jamabandi dated 19.7.2000 and Ext. E, being the Mutation Order dated 19.5.2000, there is no other document to show possession of the father of the appellant/defendant The First Appellate Court also held that from the evidence available on record it reveals that the father of the original plaintiff i.e. Santa Ram Kalita, and on his demise the original plaintiff i.e. Bhabananda Kalita (now deceased) were in possession prior to the date of cause of action i.e. 2.6.2000. As such, according to the First Appellate Court, the suit had been filed within the period of limitation. This finding of the First Appellate Court is apparently without any justification and basis. The same has been made only as a matter of course without any discussion on the testimony of P.W. 1, as aforestated, save and except a mere mention of it by simply referring to the decision of the Trial Court on the point. 10. The procedure followed by the First Appellate Court on the point of limitation cannot find support of the decisions in Santosh Hazari's case (supra) as well as decision in Vasabi Co-operative Housing Society's case (supra). Although, this Court is generally not empowered to interfere on ground that the finding of the First Appellate Court is erroneous, however, it is permitted to do so when there is substantial error or defect in the decision. Interference is also permitted when a finding is perverse and oral evidence is not considered which, if considered, would have led to an opposite conclusion. On the face of it, there is substantial error and defect in the procedure followed by the First Appellate Court while answering the Issue No. 3 with regard to the point of limitation vis-a-vis the evidence on record, thereby warranting interference of this Court. 11. Before concluding, there is another aspect to be gone into. It leaves no room for doubt that the judgment and decree of the First Appellate Court, primarily with regard to the finding on the point of limitation, suffers from lack of due application of mind. 11. Before concluding, there is another aspect to be gone into. It leaves no room for doubt that the judgment and decree of the First Appellate Court, primarily with regard to the finding on the point of limitation, suffers from lack of due application of mind. The First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. However, in the instant case, the failure of the First Appellate Court to discharge its judicial obligation have raised a question of law having a substantial impact on the rights of the appellants/defendants [Ref (2002) 7 SCC 441 Ratan Dev Vs. Pasam Devi]. In view of the above, the substantial questions of law, as dealt herein, are accordingly answered. This appeal stands allowed by setting aside the Judgment and Decree dated 10.7.2006 passed by the Court of Civil Judge (Senior Division) No. 3, Kamrup, Guwahati in Title Appeal No. 99/2005 and confirming the Judgment and Decree dated 13.9.2005 passed by the Court of Civil Judge (Junior Division) No. 1, Kamrup, Guwahati in Title Suit No. 107/2000. No costs.