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2016 DIGILAW 531 (GAU)

Sunil Kalita v. Haren Kalita

2016-06-09

N.CHAUDHURY

body2016
JUDGMENT : This is an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure challenging the judgment and order dated 13.09.2004 passed by learned Civil Judge (Sr. Divn.) No. 2, Kamrup at Guwahati in title appeal No. 71/2003 whereby the learned first appellate court remanded the matter to the learned trial court for retrial setting aside the judgment and decree dated 22.09.2003 passed in title suit No. 211/2001 of the court of learned Civil Judge (Jr. Divn.) No. 1, Kamrup at Guwahati. 2. The appellant herein, as plaintiff, instituted title suit No. 211/2001 in the court of learned Civil Judge (Jr. Divn.) No. 1, Kamrup at Guwahati against one Haren Kalita as defendant and two others as proforma defendants stating that land measuring 3K covered by dag No. 955 of KP Patta No. 761 of Village Nahira under Mouza Rampur in the district of Kamrup was owned and possessed by Jiumala Kalita by way of exchange with the original owner Dandi Kalita. Jiumala Kalita being owner in possession of the suit land obtained mutation in her name and thereafter executed registered sale deed dated 28.12.1990 in favour of the plaintiff and handed over possession. Plaintiff also obtained mutation in his favour but son of aforesaid Jiumala Kalita, Sri Haren Kalita dispossessed the plaintiff from the suit land for which proceedings were held before the Executive Magistrate. The plaintiff did not get any relief and so by filing the present suit made a prayer for decree declaring his right, title and interest over the suit land described in schedule B to the plaint and for recovery of khas possession by evicting the defendant etc. 3. On being summoned, the defendant appeared and in paragraph 8 of the written statement admitted that his mother Jiumala Kalita was the actual owner of the plot of land measuring 4K 1L covered by the suit dag and patta. But having made admission that his mother has right, title and interest to the suit dag and patta denied execution of the sale deed in favour of the plaintiff and prayed that the suit of the plaintiff be dismissed with cost. 4. The learned trial court thereupon framed 6 issues which are quoted below :- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit is barred by limitation? 4. 4. The learned trial court thereupon framed 6 issues which are quoted below :- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit is barred by limitation? 4. Whether registered sale deed No. 6257 dated 28.12.90 was executed in favour of the plaintiff by Late Jiumala Kalita? 5. Whether the plaintiff has right, title, interest over the suit land? 6. Whether the plaintiff is entitled to a decree as prayed for? 5. In course of trial, plaintiff examined 5 witnesses including himself and exhibited as many as 4 documents as Ext. 1 to 4. The defendants, on the other hand, examined 2 witnesses including the defendant No. 1 and exhibited 3 documents as Ext. Ka, Kha and Ga. Learned trial court considered the pleadings and evidence of both sides and after hearing them, held that there is cause of action for the suit and that the suit is maintainable as no argument was put forward by the defendant in regard to maintainability of the suit. The suit was held to be not barred by limitation and by deciding issues No. 4 and 5 together, learned trial court held that the plaintiff acquired right, title and interest with respect to the suit land on the basis of Ext. 1 and that possession was also handed over to him. The learned trial court held that defendant No. 1 examining himself as DW 1 did not deny sale by his mother Jiumala Kalita in favour of the plaintiff and thus, taking into consideration all these aspects of the matter decided issues No. 4 and 5 in favour of the plaintiff. Consequently, the suit of the plaintiff for recovery of khas possession was also decreed. This judgment and decree passed on 22.09.2003 was challenged by the defendant No. 1 before the learned first appellate court vide title appeal No. 71/2003 and the learned first appellate court by his judgment and decree dated 13.09.2004 allowed the appeal, setting aside the judgment and decree passed by the learned trial court and remanding the matter to the trial court for deciding as to whether plaintiff had right, title and interest with respect to the suit land. This was done only on the ground that the plaintiff having claimed right, title and interest with respect to the suit land did not prove exchange of the suit land between Dandi Kalita and Jiumala Kalita. According to the learned first appellate court, exchange can be done only by a registered instrument and unless such document is adduced and proved, it cannot be presumed that Jiumala Kalita acquired right, title and interest by way of exchange and consequently right, title and interest of the plaintiff also cannot be declared. This is because plaintiff acquired title from Jiumala by purchase. This first appellate court’s judgment and order dated 13.09.2004 has been called in question in the present appeal. 6. The appeal was admitted on 17.01.2005 but no substantial question of law was framed. An appeal under Order XLIII Rule 1(u) is in the nature of appeal under section 100 of the Code of Civil Procedure and in terms of the law laid down by the Hon’ble Supreme Court in the case of Narayanan vs. Kumaran and ors reported in (2004) 4 SCC 26 framing of substantial question of law is also necessary. 7. Having gone through the records I find that contesting defendant No. 1 appeared in the present second appeal by engaging learned counsel whose names have been shown in the cause list along with name of the learned counsel for the appellant. But no one came forward to argue the case on behalf of the respondent/ defendant when the matter was taken up for hearing and hearing was held. 8. I have perused the pleadings of the parties, the evidence adduced both oral and documentary as well as both the judgments passed by the learned courts below. 9. The plaintiff instituted the suit for declaration of his right, title and interest with respect to the suit land measuring 3K specifying dag number and patta number on the basis of registered sale deed No. 6257 dated 28.12.1990. He claimed to have purchased the land from Jiumala who is none other than the mother of defendant No. 1. According to the plaintiff, the suit land measuring 3K being part of 4K of land under same dag and patta originally belonged to Dandi Kalita who exchanged the same with Jiumala Kalita and handed over possession. He claimed to have purchased the land from Jiumala who is none other than the mother of defendant No. 1. According to the plaintiff, the suit land measuring 3K being part of 4K of land under same dag and patta originally belonged to Dandi Kalita who exchanged the same with Jiumala Kalita and handed over possession. Jiumala Kalita thereafter got mutation in her favour on the basis of possession and title and thereafter sold the same to the plaintiff on 28.12.1990 by executing registered sale deed and by handing over possession. About a decade thereafter, the defendant No. 1 trespassed into the suit land and occupied the same taking opportunity of the proceedings under section 107 as well as under section 145/146 of the Code of Criminal Procedure. The defendant No. 1 who is the son of aforesaid Jiumala Kalita, did not say that his mother did not have right, title and interest with respect to the suit land. He specifically admitted in paragraph 8 of the written statement that Jiumala was the actual owner of the plot of land measuring 4K 1L covered by dag No. 955 and KP patta No. 761. This averment made in paragraph 8 is in reply to averments made by the plaintiff in paragraph 1 and 2 of the plaint. Paragraph 1 and 2 of the plaint and paragraph 8 of the written statement are quoted below for ready reference:- “Plaint: 1. That, land measuring 4 Katha 1 Lecha out of 2B 3K 15Ls covered by dag No. 955 of K.P. Patta No. 761 of village Nahira in Rampur Mouza under Palashbari Police Station in the district of Kamrup, originally belonged to one Dandi Kalita (since deceased) S/o Late Meladhar Kalita of village Nahira of Rampur Mouza, Kamrup. 2. That, said Dandi Kalita transferred his said 4 Katha 1 Lecha of land to one Jiumala Kalita (since deceased) w/o late Kanthi Ram Kalita of Nahira, Rampur Mouza in lieu of some land of said Jiumala Kalita in his favour. And accordingly, the said 4 Katha 1 Lecha of land being transferred and mutated in her name, Jiumala Kalita became the rightful owner and possessor of the said 4 Katha 1 lecha of land, which is fully described in the schedule A to the plaint. Written statement: 8. And accordingly, the said 4 Katha 1 Lecha of land being transferred and mutated in her name, Jiumala Kalita became the rightful owner and possessor of the said 4 Katha 1 lecha of land, which is fully described in the schedule A to the plaint. Written statement: 8. That with regards to the statements made in paras 1 and 2 of the plaint the answering defendant No. 1 has nothing to comment. The mother of the defendant No. 1 Late Jiumala Kalita was the actual owner of a plot of land measuring 4 Kathas 1 lecha covered by Dag No. 955 and KP Patta No. 761 of Village Nohira of Mouza Rampur under Palashbari Revenue Circle, Dist. Kamrup, Assam.” 10. On perusal of paragraph 1 and 2 of the plaint and paragraph 8 of the written statement quoted above, it would be clear that title of Jiumala Kalita over the suit land by way of exchange from Dandi Kalita was not disputed by defendant No. 1 and rather it was specifically admitted. It is under such circumstances, the learned trial court did not feel any necessity to frame any issue as to whether Jiumala had right, title and interest to the suit land. The title of Jiumala Kalita over the suit land having been admitted fact the plaintiff was not required to lead evidence in regard to acquisition of title by Jiumala Kalita from Dandi Kalita by way of exchange or otherwise. The defendant having denied execution of sale deed by Jiumala Kalita on 28.12.1990, plaintiff had focused on proof of the aforesaid sale deed and handing over possession only. This the plaintiff did by examining witnesses including the son of said Dandi Kalita. Anandi Kalita is the son of late Dandi Kalita and he came to the witness box claiming that defendant’s mother Jiumala Kalita had sold 3K of land out of her 4K 1L covered by suit dag and patta. In paragraph 4 of his examination-in-chief he also disclosed that this 4K 1L of land originally belonged to his father Dandi Kalita who during his life time had exchanged this land with Jiumala Kalita and thus Jiumala Kalita became owner and possessor of said 4K 1L of land. In paragraph 4 of his examination-in-chief he also disclosed that this 4K 1L of land originally belonged to his father Dandi Kalita who during his life time had exchanged this land with Jiumala Kalita and thus Jiumala Kalita became owner and possessor of said 4K 1L of land. As would appear from examination in chief of PW 3, Anandi Kalita, Dandi Kalita was no more and so it is this Anandi Kalita who would have inherited the suit land, had there been no exchange. Admission of Anandi Kalita by coming to witness box as to exchange of suit land by his father with Jiumala, therefore, establishes exchange. As has been pointed out above that defendant No. 1 also admitted the fact as to exchange of suit land between Dandi Kalita and Jiumala Kalita and so this was not the fact in issue between the plaintiff and the defendant. Fact in issue has been defined in section 3 of the Indian Evidence Act, 1872 which is quoted below without illustration for ready reference:- “Section 3: ..... “Facts in issue”. – The expression “facts in issue” means and includes – any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation. – Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue. ......” Since the fact as to exchange of the suit land between Dandi Kalita and Jiumala Kalita was not a fact in issue, it could not be a fact under enquiry as well. A fact under enquiry would be the fact which is in issue between the parties and to establish such fact in issue evidence is required to be led. Evidence within the meaning of section 3 of the Evidence Act means and includes all those statements or records which are required to be made or produced before court in relation to matters of fact under enquiry. Since it is not a fact in issue and so not a fact under enquiry, there is no question of being there any evidence in regard to such fact. Since it is not a fact in issue and so not a fact under enquiry, there is no question of being there any evidence in regard to such fact. Rather, facts admitted need not be proved in terms of section 58 of the Indian Evidence Act, 1872. Learned first appellate court failed to notice that defendant No. 1 had made specific admission in paragraph 8 of the written statement in regard to the fact of exchange between Dandi Kalita and his mother Jiumala Kalita. The learned first appellate court also failed to notice that son of said Dandi Kalita came to the witness box by leading oral evidence proved that there was exchange of suit land between his deceased father and Jiumala Kalita leading to establishment of title of Jiumala over the suit land and her acquisition of mutation in the Records of Rights consequently. The defendant No. 1 denied only the execution of sale deed by his mother Jiumala Kalita in favour of the plaintiff and the factum of handing over of the possession of the suit land by his mother to the plaintiff. The fact under enquiry in the present proceeding, therefore, was only limited to the extent as to execution of the sale deed and handing over of possession. Anandi Kalita (PW 3) being a witness of the sale deed came to the witness box and proved the Ext. 1 document. The learned trial court accepted the evidence of the parties in regard to execution of sale deed (Ext. 1). Learned first appellate court has not found any fault with such finding of the learned trial court. Oral evidence as to dispossession of the plaintiff by defendant No. 1 was also believed by the learned trial court and this is how both the issues No. 4 and 5 were decided in favour of the plaintiff in the trial court judgment and decree. Such finding of the learned trial court has not been considered by the learned first appellate court and he rather proceeded to hold that plaintiff did not establish the title of his vendor. When the title of the vendor is not in question, there was no necessity on the part of the plaintiff to lead any evidence in regard thereto as such fact was neither in issue nor under enquiry. 11. When the title of the vendor is not in question, there was no necessity on the part of the plaintiff to lead any evidence in regard thereto as such fact was neither in issue nor under enquiry. 11. In view of what has been stated above, it appears that the basic substantial question of law involved in the present appeal is as follows:- Whether the impugned first appellate judgment is in violation of Order XLI Rule 24 of the Code of Civil Procedure? 12. Mr. Sheeladitya appearing on behalf of the appellant has argued at length that there are sufficient materials on record to come to a finding that Ext. 1 sale deed was executed by Jiumala Kalita. True, sale deed need not be proved under section 68 of the Indian Evidence Act, 1872 but nevertheless applicability of section 67 of the Indian Evidence Act, 1872 cannot be denied. The plaintiff, therefore, was duty bound to adduce evidence to the effect that such a deed did exist, that such a deed was executed by the vendor and that execution was witnessed by some witnesses. The plaintiff was also duty bound to lead evidence to the effect that possession of the suit land was handed over to the plaintiff simultaneous to or subsequent to execution of sale deed Ext. 1. Plaintiff produced the document in question, examined 5 witnesses including himself and including the witness of the deed. The scribe was also examined. The depositions of all these witnesses were considered by the learned trial court and thereupon it was held that Ext. 1 was executed by Jiumala Kalita, mother of the defendant No. 1. The learned trial court, therefore, refuted the denial made by the defendant No. 1 in his written statement and decided the issue in favour of the plaintiff. The learned first appellate court being the last court of law and fact was duty bound to examine as to whether such finding of the learned trial court is correct or not on the basis of materials available on record. Witness of the document has been examined. Scribe of the document was examined. Eye witness was examined to prove handing over possession and documentary evidence were led to prove mutation in favour of the plaintiff and his vendor. Witness of the document has been examined. Scribe of the document was examined. Eye witness was examined to prove handing over possession and documentary evidence were led to prove mutation in favour of the plaintiff and his vendor. Despite all these materials, learned first appellate court was of the view that further evidence is required to establish title of the vendor which does not appear to be necessary at all as the same is not a fact in issue and is rather an admitted fact in terms of paragraph 8 of the written statement. There is no difficulty in holding that without raising the issue for the first time at first appellate stage in regard to validity of exchange of the suit land between Jiumala Kalita and Dandi Kalita, learned first appellate court was in a position to decide the basic question as to whether Jiumala Kalita had executed sale deed in favour of the plaintiff and whether she had handed over possession to him. The evidence being available in terms of the pleadings, remand made by the learned first appellate court is in contravention of the provision of Order XLI Rule 24 of the Code of Civil Procedure. This rule prohibits a remand by appellate court when material is available on record to decide an appeal on merit. The sole substantial question of law is accordingly decided in favour of the appellant and consequently the appeal stands allowed. Impugned first appellate judgment is hereby set aside. The matter is sent back to the learned first appellate court for deciding the appeal afresh on merit on the basis of materials available on record. 13. Send down the records immediately. The learned first appellate court shall notify the parties after receipt of the records for proceeding further. 14. Interim order passed earlier stands automatically vacated.