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2015 DIGILAW 433 (GAU)

Dhan Razia Gour @ Sahu & Ors. v. Shyam Rathi Sahu @ Gour & Ors.

2015-04-07

MANOJIT BHUYAN

body2015
Manojit Bhuyan, J. – Heard Mr. S. Dutta, learned senior counsel assisted by Mr. S. Dutta, learned counsel for the appellants. Also heard Mr. P.J. Saikia, learned counsel, appearing for the respondents. 2. This appeal was admitted for hearing on 29.8.2014 on the following substantial question of law: "Whether the finding of the learned Courts below that Ram Kumar is not the legal heir of Bhagmoni is perverse"? 3. At the very outset, both the counsels submit that the name 'Ram Kumar' appearing in the substantial question of law so formulated should actually be 'Raj Kumar'. Having gone through the record and noticing the facts involved I agree with the submissions made by the counsel and accordingly, the said substantial question of law will now read as. "Whether the finding of the learned Courts below that Raj Kumar is not the legal heir of Bhagmoni is perverse"? 4. The Title Suit No. 87/2004 was instituted by Smti Shyam Rathi Sahu @ Shah @ Gour and others, respondents herein for declaration of right, title and interest over the land and property described in Schedule-1 to the plaint, delivery of khas possession of the suit premises described in Schedule-II to the plaint by evicting appellants/defendants, their men etc. from the suit premises by removing their property and for perpetual injunction thereof. 5. The case of the respondents/plaintiffs is that on or about 100 years ago one Shri Dhudhnath Gour @ Sahu and his wife Smti Bhagmoni Gour @ Sahu (both deceased) had been occupying land measuring 13 4/6 lechas covered by Dag No.15, P.P. No.4 situated at Panchali, old Amulapatty Ward, Dibrugarh Town Mauza, Dibrugarh, Assam and they were residing in the house constructed thereupon. On 28.8.1963 Smti Bhagmoni purchased the land from the rightful owner vide Sale Deed No. 1813 dated 28.8.1963 and thereafter got the land mutated in her name vide Mutation Case No.92.1972-73 and her name was recorded in the Record of Rights. On or about in 1969 Dhudnath Gour died leaving behind his wife Smti Bhagmoni and his only son Sri Ram Kumar Gour @ Sah. Smti Bhagmoni died in 1976 and thereafter in the year 1983 Ram Kumar Gour also expired leaving behind the plaintiffs i.e. the wife and four sons besides Smti Mongly Sahu and Komly Sahu who are his daughters. Smti Bhagmoni died in 1976 and thereafter in the year 1983 Ram Kumar Gour also expired leaving behind the plaintiffs i.e. the wife and four sons besides Smti Mongly Sahu and Komly Sahu who are his daughters. The said two daughters having released and relinquished their share, the respondents/plaintiffs inherited and succeeded to the landed property. Thereafter, in terms of Mutation Case No.560/94-95, the suit property was mutated in the name of the plaintiffs. 6. According to the respondents/plaintiffs about 40 years ago one Raj Kumar Sahu (since deceased) came in as a tenant of Smti Bhagmoni and was residing in the house premises consisting of eight rooms at a monthly rent of Rs. 100/-. Upon the demise of Smti Bhagmoni, Raj Kumar paid rent to Ram Kumar Gour and upon demise of Ram Kumar Gour in 1983, paid rent to plaintiff no.2 at the enhanced rate of Rs. 1000/- per month. In 2002 Raj Kumar died leaving behind the appellants/defendants. In so far as the rent is concerned, the same came to be paid by the widow i.e. the appellant no.1/defendant no.1 to the plaintiffs. However, since January, 2004 payment of rent was stopped and the appellants/defendants started conspiring to dispossess the plaintiff. Demolition of certain structures led to complaints before the police authorities, whereupon appellants/defendants were apprehended in connection with the complaints. The plaintiffs also alleged that a part of the suit premises in Schedule-II to the plaint was sub-let by the appellants/defendants to one Sri Ram Nath Sharma in violation of the rental condition, thereby losing right to use the house premises of the plaintiffs warranting eviction therefrom. In so far as the land documents pertaining to the suit land are concerned, the plaintiffs alleged that the same were handed over to the defendant no.1 in good faith enabling her to get her son released on bail. According to the plaintiffs the said documents were never returned on the plea of being lost. At that point of time the appellants/defendants had instituted Title Suit No. 33/2004 for khas possession and cancellation of the Mutation in respect of the suit premises. Mention be made that the said Title Suit No.33/2014 is the subject matter in the analogous appeal i.e. RSA No. 76/2013. 7. The appellants/defendants had appeared and contested Title Suit No. 87/2006 and had also filed a joint written statement. Mention be made that the said Title Suit No.33/2014 is the subject matter in the analogous appeal i.e. RSA No. 76/2013. 7. The appellants/defendants had appeared and contested Title Suit No. 87/2006 and had also filed a joint written statement. According to the appellants/defendants, Smti Bhagmoni had expired on 15.11.2090 leaving behind her only son Sri Ram Kumar Sahu @ Raj Kumar Sahu @ Gour (since deceased) who was actually the husband of the defendant no.1 and father of defendant nos.2,3 and 4. Situated thus, the defendants became the owner of the land and house described in the schedule to the plaint. 8. The appellants/defendants alleged that the mutation in favour of the plaintiffs had been fraudulently obtained for which Title Suit No.33 of 2004 had been instituted by them. In so far as letting out the premises and giving away the land documents are concerned, the appellants/defendants alleged that the facts are otherwise and contrary to what had been alleged by the plaintiffs. According to the appellants/defendants they are in no way related to the plaintiffs. They alleged that the suit instituted by the respondents/plaintiffs is only a case of land grabbing and for wrongful gain. The further contentions of the appellants/defendants are that the issue in Title Suit No.33/2004 and the present suit i.e. Title Suit No.87/2004 being directly and substantially common, the question of trying both the suit is barred under Section 10 of the C.P.C. 9. Keeping in mind the substantial question of law so formulated, the issues framed by the Trial Court, particularly the Issue No.4 assumes utmost significance, which is: "4. Whether Ram Kumar Gour @ Sahu or Raj Kumar Sahu was the son of Shri Dudhnath Sahu and Smti Bhagmoni Sahu." 10. The Trial Court while considering the Issue No.4 examined the evidence of Durga Prasad Sahu as PW-1 (herein respondent no.2/plaintiff no.2) who stated inter alia that Raj Kumar Sahu was son of one Bisheswar Gour. The fact that Ram Kumar Sahu was the son of Dhudnath Sahu the Trial Court placed reliance upon the death certificate of Ram Kumar Sahu (Ext.2) as well as the certified copy of voter list of 1993 (Ext. 7) showing Raj Kumar Sahu as the son of Bisheswar Gour. The evidence of P.W.2, Sanuwar Khan was also taken into consideration, who supported the statements of PW.1. 7) showing Raj Kumar Sahu as the son of Bisheswar Gour. The evidence of P.W.2, Sanuwar Khan was also taken into consideration, who supported the statements of PW.1. The Trial Court also considered evidence of DW-1, Suresh Gour @ Sahu and DW-2, Jyoti Hussain, both of whom denied that Ram Kumar Sahu was the son of Dudhnath Sahu and Bhogmoni Sahu. 11. Upon appreciation of the evidence on record, the Trial Court found that the defendants did not submit any document in support of their case. Rather, from Ext. 7 and 8 the Trial Court found that Raj Kumar Sahu was the son of Bisheswar Sahu and Ram Kumar Sahu was the son of Dudhnath Sahu @ Gour. The Trial Court also found that the Ext. 2 showed that the Ram Kumar Sahu was the son of Dudhnath Sahu @ Gour. Besides, the Trial Court also took note of the fact that the defendants did nothing to prove that the documents at Ext.2, 7 and 8 are of no value or false. Insofar as the evidence of DW-1 Suresh Gour @ Sahu is concerned, the Court found that he had little knowledge of Dudhnath Sahu and Bhogmoni Sahu, in that, he did not even know when Dudhnath Sahu and Bhogmoni Sahu died. On the evidence as laid out, the Trial Court answered the Issue No.4 holding that Ram Kumar Sahu was the son of Dudhnath Sahu and Bhogmoni Sahu. Considering all the other issues, the suit was allowed and decreed vide judgment and decree dated 2.11.2006. 12. In Title Appeal No.65 of 2006, preferred by the present appellants/defendants, the First Appellate Court took up for determination the most vital issue i.e. Issue No.4. While appreciating the evidence on record, oral and documentary, the First Appellate Court concurred with the findings and decision of the Court below and held that Ram Kumar Sahu was the sole legal heir of Dudhnath Sahu and Bhogmoni Sahu. The Title Appeal having been found to be devoid of merit even in respect of the other issues, was accordingly dismissed vide judgement and decree dated 21.12.2012. 13. Mr. S. Dutta, learned senior counsel representing the appellants/defendants assails the findings and decision in Issue No.4 on ground that the same was rendered by ignoring the voter list of 1977 (Ext.8), in that, the same was not considered in its entirety. 13. Mr. S. Dutta, learned senior counsel representing the appellants/defendants assails the findings and decision in Issue No.4 on ground that the same was rendered by ignoring the voter list of 1977 (Ext.8), in that, the same was not considered in its entirety. According to the senior counsel, the said voter list of 1977 also indicated that Raj Kumar Gour was the son of Dudhnath Gour. In that view of the matter, the findings of the Courts below, according to the learned senior counsel, are wholly perverse and suffers from substantial error as well as defect in procedure. Learned senior counsel while maintaining the stand that the plaintiffs had failed to establish their case, relied upon the case of Moran Mar Basselios Catholicos and another v. Mar Poulose Athanasius & others, reported in AIR 1954 SC 526 : (1955) 1 SCR 520 . Reliance has also been placed in Dinesh Kumar v. Yusuf Ali, reported in (2010) 12 SCC 740 to say that if the fact recorded by the Courts below are perverse being based on no evidence, an appeal is not only maintainable but it is also permissible for the court to re-appreciate the evidence. In the same breath, learned senior counsel refers to the case of Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi, reported in (2011) 1 SCC 673 to say that the findings based on no-evidence would give rise to a substantial question of law . 14. Mr. P.J.Saikia, learned counsel for the respondents/plaintiffs submits that Ext. 8 have erroneously shown Dudhnath Gour as the husband of Dhan Rajia Gour and also Dudhnath Gour as the father of Raj Kumar Gour. According to Mr. Saikia the said voter list of 1977 (Ext. 8) do not portray the correct picture. To reinforce his argument Mr. Saikia submits that in the subsequent voter list of 1993 (Ext.7), the error had been rectified. In other words, the name of the father of Raj Kumar Gour being Bisheswar and the husband of Dhan Rajia Gour being Raj Kumar has been correctly shown. Lastly, Mr. Saikia submits that the evidence on record conclusively shows that the respondents/plaintiffs are the legal heirs of Ram Kumar Sahu @ Gour, and, therefore, the concurrent findings of the Courts below does not call for interference. 15. I have heard arguments of both sides and have also perused the evidence on record. Lastly, Mr. Saikia submits that the evidence on record conclusively shows that the respondents/plaintiffs are the legal heirs of Ram Kumar Sahu @ Gour, and, therefore, the concurrent findings of the Courts below does not call for interference. 15. I have heard arguments of both sides and have also perused the evidence on record. The deposition of PW-1 and PW-2 as well as DW-1 and DW-2 together with the documents at Ext. 2, 7 and 8 have been examined. 16. The Ext. 2, which is the death certificate of Ram Kumar Gour @ Shah @ Sahu, clearly indicates the name of his father as late Dudhnath Gour @ Sahu. This document finds favour with the case of the plaintiffs. In so far as Ext. 8, which is the voters list of 1977, the names of the father of both Ram Kumar Gour and Raj Kumar Gour is indicated as Dudhnath Gour. So also Dhan Rajia Gour is shown as the wife of Ram Kumar Gour. The said voters list of 1977 brings out an inherent anomaly, inasmuch as Dudhnath Gour was shown to be the father of both Ram Kumar Gour and Raj Kumar Gour, which is wholly improbable in view of the fact that Ram Kumar and Raj Kumar are not related to each other. However, the subsequent voter list of 1993 (Ext. 7) do not show the inherent anomaly, in that, Bisheswar is shown as the father of Raj Kumar Gour and the same Raj Kumar Gour was shown as husband of Dhanrajia Gour. On an examination of the said documents at Exts. 8 and 7, as well as Ext.2, it cannot be said that the Courts below had erred in deciding the Issue No.4 on the basis of the oral and documentary evidence on record. 17. The case law relied upon by Mr. S. Dutta, learned senior counsel do not come to the aid of the appellants/defendants. The respondents/plaintiffs had succeeded to establish their case in respect of Issue No.4 by leading cogent evidence, oral and documentary, while the appellants/defendants failed to cause dent to the evidence produced by the plaintiffs. The concurrent findings of the Courts below, particularly in respect of Issue No.4, does not suffer from perversity or no-evidence. The respondents/plaintiffs had succeeded to establish their case in respect of Issue No.4 by leading cogent evidence, oral and documentary, while the appellants/defendants failed to cause dent to the evidence produced by the plaintiffs. The concurrent findings of the Courts below, particularly in respect of Issue No.4, does not suffer from perversity or no-evidence. The finding of facts based on evidence do not give rise to a substantial question of law requiring this Court to re-appreciate the evidence in exercise of powers under Section 100 of the C.P.C. It is too well settled in law that the adequacy and sufficiency of evidence cannot be looked into and gone into in Second Appeal when there is no substantial error or defect in the procedure followed by the Courts below. 18. This is not a case where the oral evidence or the material evidence has not been considered by the Courts below. No ground is laid out to justify that the ultimate conclusion of the Courts below is vitiated. Existence of a substantial question of law being sine qua non for exercise of jurisdiction under Section 100 of the C.P.C. and there being none in the present case, the inevitable conclusion is that this Appeal must fail. Accordingly, this Second Appeal stands dismissed, however, without any order as to costs.