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Gauhati High Court · body

2015 DIGILAW 777 (GAU)

Paresh Chandra Das v. Pradip Kumar Roy

2015-06-19

A.K.GOSWAMI

body2015
JUDGMENT Heard Mr. S. Sarma, learned counsel for the appellant/defendant. Also heard Mr. B. R. Dey, learned Senior counsel, assisted by Mr. S. Dey, learned counsel appearing for the respondents/plaintiffs. 2. This Second Appeal is directed against the judgment and decree dated 18.05.2004, passed by the learned Civil Judge, Senior Division, Goalpara, in Title Appeal No. 6/2002 affirming the judgment and decree dated 28.09.2000 passed by the learned Civil Judge (Junior Division) No.1, Goalpara, in Title Suit No.66/1995, whereby the suit of the plaintiff was decreed. 3. During pendency of the suit, the sole plaintiff had died and his legal representatives were brought on record by way of substitution. The case set out by the plaintiff is that the plaintiff was the absolute owner of the land and house described in the schedule to the plaint and that he had purchased the suit land vide registered sale deed dated 13.06.1985. Because of good relationship with the defendant, he had entered into an agreement with the defendant on 07.01.1987 in terms of which the plaintiff was to construct a residential house on the suit land, which the defendant would occupy as a tenant and that the rate of the monthly rent would be fixed after construction of the house. The defendant would pay some amount towards construction of the house and the said amount would be adjusted with the monthly rent payable by the defendant. In terms of the aforesaid agreement, the defendant occupied a partly constructed house from the month of May, 1987 and the rent was fixed at Rs. 100/- per month. Subsequently, with the completion of the construction of the house in the month of October, 1988, the rent was fixed at Rs. 250/- per month. It was pleaded that a sum of Rs. 15,200/- had been paid by the defendant, which was adjusted with the monthly rent due up to the month of March, 1993. The defendant defaulted in making payment of rent from the month of April, 1993 and created certain forged documents for the purpose of claiming title of the suit property. Though not entitled to, a notice under Section 106 of the Transfer of Property Act, 1882 was served upon the defendant, but the defendant did not vacate the suit property. The defendant defaulted in making payment of rent from the month of April, 1993 and created certain forged documents for the purpose of claiming title of the suit property. Though not entitled to, a notice under Section 106 of the Transfer of Property Act, 1882 was served upon the defendant, but the defendant did not vacate the suit property. Accordingly, prayer was made for khas possession of the suit property by evicting the defendant on the basis of tenancy along with realisation of the arrear rent and damage, etc. till the defendant was evicted. Alternatively, in the event of denial of title or in the event the tenancy was not proved, the plaintiff claimed possession of the suit property on the basis of title. Interest on the decreetal amount @ 15%, per annum, from the date of filing of the suit till realization was also prayed for. Subsequently, certain amendments in respect of the valuation of the suit were prayed for, which was allowed. One more defendant, as defendant No. 2, was also arrayed by way of such amendment. Paragraph 11 of the plaint was also amended with the insertion of the word “in December, 1988”. 4. The aforesaid amendments were prayed for and granted after the defendant had filed written statement. The positive case set out by the defendant was that the defendant never entered into any agreement with the plaintiff on 07.01.1987, or at any point of time, and there was no relationship of landlord and tenant between the plaintiff and the defendant. It was pleaded that the defendant purchased the suit land from Abdul Kasem, who was arrayed as defendant No. 2, and took delivery of possession of the same and constructed a house thereon at his own expenses. The plaintiff had sold the suit land to Abdul Kasem vide an unregistered sale deed on receipt of Rs. 13,500/- and agreed that he would execute a registered sale deed in favour of Abdul Kasem. The plaintiff failed to perform his part of the contract and, thereafter, Abdul Kasem executed an unregistered sale deed in favour of the defendant. After possession had been taken over by the defendant, he constructed the house and, therefore, he is protected under Section 53-A of the Transfer of Property Act, 1882. The plaintiff failed to perform his part of the contract and, thereafter, Abdul Kasem executed an unregistered sale deed in favour of the defendant. After possession had been taken over by the defendant, he constructed the house and, therefore, he is protected under Section 53-A of the Transfer of Property Act, 1882. Along with the written statement, a counter-claim was lodged for a declaration that the plaintiff is debarred from enforcing any right against the defendant; for a direction to the plaintiff to execute a sale deed in his favour or Abdul Kasem and, in the event of failure on the part of the plaintiff to do so, execution of a registered sale deed to be made by the Court. Defendant No. 2 also filed written statement taking the same stand as taken by the defendant No. 1. 5. On the basis of the pleadings, the learned trial Court framed the following issues: “1. Whether there is any cause of action? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the suit is under-valued? 5. Whether the plaintiff sold the suit land to Abul Kasem by unregistered sale deed at Rs. 13,500/- and gave him delivery of possession? 6. Whether the plaintiff was the owner of the suit land and also the houses thereron? 7. Whether said Abul Kasem sold the suit land to the defendant by an unregistered sale deed and gave him delivery of possession on 27.12.88? 8. Whether the defendant have been occupying the suit land as tenant under the plaintiff under an agreement with clauses mentioned in para 3 of the plaint? 9. Whether the defendant under said agreement paid Rs. 15,200/- as advance? 10. Whether the defendant has forfeited his tenancy or he is protected u/s 53-A of the T.P. Act? 11. Whether the plaintiff is entitled to arrear rent as claimed in the plaint? 12. Whether the plaintiff is entitled to the relief claimed?” 6. During trial, the plaintiffs examined 5 witnesses. The defendant also examined 5 witnesses. 7. The appeal was admitted to be heard by an order dated 04.02.2005 on the following substantial questions of law: “1. Whether the Appellate Court has passed the impugned judgment in accordance with the provision of Order 41, Rule 31 of the Code of Civil Procedure? 2. During trial, the plaintiffs examined 5 witnesses. The defendant also examined 5 witnesses. 7. The appeal was admitted to be heard by an order dated 04.02.2005 on the following substantial questions of law: “1. Whether the Appellate Court has passed the impugned judgment in accordance with the provision of Order 41, Rule 31 of the Code of Civil Procedure? 2. Whether granting of interest @ 15% per annum is in violation of Section 34 of the Code of Civil Procedure? 3. Whether both under Section 17 and Section 49 of the Registration Act, a document requiring compulsory registration can be used for collateral purpose to invoke the doctrine of Section 53-A of the Transfer of Property Act?” 8. It is submitted by Mr. Sarma that notwithstanding the fact that the judgment of the learned Lower Appellate Court is a judgment of affirmation, even then it cannot be said that the impugned judgment of the learned Lower Appellate Court is a judgment which satisfies the requirement of Order 41 Rule 31 CPC. According to him, the impugned judgment of the learned Lower Appellate Court does not reflect that the learned Court below had assessed the evidence on record in its proper perspective. It is also submitted that the learned Lower Appellate Court shifted the burden to the defendant to prove the case while it is an established proposition of law that it is the plaintiff, who is to prove his case and that the plaintiff cannot take any benefit from the weakness in the case projected by the defendants. Placing reliance on the judgment of this Court in the case of Rualkhumi v. Lalvuani and Ors., reported in 2011 (5) GLT 291, learned counsel submits that it is a fit case where this Court ought to set aside the judgment of the learned Lower Appellate Court and remand the case to the learned Lower Appellate Court for disposal afresh in accordance with law. He is quick to submit that in case such a course of action is not resorted to, it will be essential for this Court, for ends of justice, to frame a substantial question of law to the effect as to whether the finding of the learned Courts below that there was a tenancy between the plaintiff and the defendant is perverse. 9. Considering the submission of Mr. 9. Considering the submission of Mr. Sarma, it was deemed appropriate by this Court to elicit the response of Mr. B.R. Dey, learned Senior counsel appearing for the respondent. Mr. Dey, learned Senior counsel is forthright and in his usual fairness has candidly submitted that in spite of the judgment of the learned Lower Appellate Court being a judgment of affirmation, learned Lower Appellate Court ought to have discussed the evidence on record, especially, to determine the crucial finding regarding tenancy. It is submitted by Mr. Dey that the learned Lower Appellate Court being a court of law as well as facts under Order 41 Rule 31 CPC, a duty is cast upon the court to consider the evidence on record. Though the judgment may not be as elaborate as in the case of reversal of the judgment, nonetheless, the judgment must reflect the attributes of a judgment, he submits. He submits that in the facts and circumstances of the case, having regard to the nature of the judgment passed by the learned Lower Appellate Court, this Court may remand the matter to the learned Lower Appellate Court for disposal afresh in accordance with law specifying a time-period within which the appeal should be disposed of. 10. In view of the submission of Mr. Dey, it will not be necessary for this Court to look into the other substantial questions of law as also the proposed substantial question of law, as suggested by Mr. Sarma. 11. It is noticed that the appeal was preferred before the learned Lower Appellate Court specifically stating a ground that the learned trial Court had failed to appreciate the evidence of the witnesses in the correct perspective and had come to a wrong decision. As noticed earlier, 5 witnesses were examined on behalf of the plaintiff. 12. As held in Punjab Urban Planning and Development Authority v. Shiv Saraswati Iron and Steel Rolling Mills, reported in (1998) 4 SCC 539 , as also in Sayed Muhammed Mashur Kunhi Koya Thangal v. Budagara Jumayath Palli Dharas Committee and Others, reported in (2004) 7 SCC 708 , the plaintiff must succeed or fail on his own case and cannot take advantage of the weakness in the defendant’s case to get a decree. In the instant case, the entire case was decided by the learned Lower Appellate Court in one single paragraph, namely, paragraph 16. In the instant case, the entire case was decided by the learned Lower Appellate Court in one single paragraph, namely, paragraph 16. No evidence of even one single witness of the plaintiff was discussed. No evidence with regard to tenancy, either from the side of the plaintiff, or from the side of the defendant was discussed though reference was made to DW 1, DW2, DW4 and DW5 with regard to the sale deed and delivery of possession. A finding is straightaway recorded in the beginning of paragraph 16, without any elaboration, regarding fixation of rent and payment of advance of Rs. 15,200/- by the defendant. 13. Being the final court of facts, it is incumbent on the Lower Appellate Court to consider the evidence adduced and the documents exhibited both by the plaintiff as well as the defendant. In a case where the appellate Court agrees with the view of the trial court on the evidence, it may not be necessary for the appellate court either to reiterate the reasons given by the trial court or to reaffirm the effect of the evidence. In such a case, expressions of general agreement with the reasoning given in the judgment under challenge would normally suffice. In the case of affirmation of judgment appealed against, the reasoning offered by the learned trial court can be said to be the view or reasons of the appellate court. 14. When the appeal was filed on the ground that there is perversity in appreciation of the evidence on record by the learned trial Court, it is incumbent on behalf of the learned Lower Appellate Court to appreciate the evidence and it cannot merely affirm the judgment of the learned trial Court. The Lower Appellate Court must refer to the evidence which propels him to accept the findings of the learned trial Court. Sadly, such discussions are totally lacking in the instant case. 15. In view of the above, while upholding the substantial question of Law No. 1 in favour of the appellant, the impugned judgment of the learned Lower Appellate Court is set aside. The learned Lower Appellate Court is now directed to dispose of the appeal afresh within a period of four months from the date of appearance of the parties before the learned Lower Appellate Court. 16. Both Mr. Sarma and Mr. The learned Lower Appellate Court is now directed to dispose of the appeal afresh within a period of four months from the date of appearance of the parties before the learned Lower Appellate Court. 16. Both Mr. Sarma and Mr. Dey have submitted that as they are not in touch with the respective parties, it will be appropriate for the Lower Appellate Court to issue notice to the parties for appearance. 17. Accordingly, it is directed that the learned Lower Appellate Court will issue notice to the parties for appearance and, thereafter, proceed to dispose of the matter in accordance with law. Till the appeal is disposed of, the impugned judgment and decree of the learned trial Court shall remain suspended. 18. No order as to costs. 19. Registry will send back the records forthwith.