Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 697 (GAU)

Krishna Lal Ghosh v. Rabindra Kr. Ghose

2016-07-29

N.CHAUDHURY

body2016
JUDGMENT : N. Chaudhury, J. 1. The judgment of reversal passed by learned First Appellate Court allowing the appeal and setting aside the judgment and decree passed by the learned trial Court has been called in question in the present Second Appeal. Suit of the plaintiff for declaration of right, title and interest and for confirmation of possession was decreed by the learned Civil Judge (Junior Division) No. 2, Karimganj by judgment and decree dated 19.12.2000 passed in Title Suit No. 136/1996. The said decree has been set aside by the learned First Appellate Court by his judgment and decree dated 26.09.2006 passed in Title Appeal No. 4/2001 and thereupon the present Second Appeal has arisen. 2. This Court while admitting the Second Appeal on 23.03.2007 framed three substantial questions of law which are quoted below:- “(1) Whether the impugned judgment and decree passed by the learned lower appellate court in setting aside the decree passed against all the plaintiffs by ignoring the order dated 9.5.06 passed by the learned lower appellate court in T.A. No. 4/2001 and thereby setting aside the decree passed by the trial court in its entirety are sustainable in law? (2) Whether the impugned judgment an decree passed by the learned lower appellate court ignoring the averments made in the plaint regarding execution of the registered sale deed dated 23.12.73 by the predecessor of the defendant No. 1 and 2 in respect of the suit land in favour of the vendor of the predecessor of the plaintiffs and thereby in setting aside the decree passed by the trial court without affording an opportunity to the plaintiffs/appellants to prove the said document are sustainable in law? (3) Whether the impugned judgment and decree passed by the learned lower appellate court and thereby setting aside the decree passed by the learned trial court for grant of injunction ignoring the possessory title of the plaintiffs over the suit land are sustainable in law?” 3. Before going to adjudicate the substantial questions of law framed in the present Second Appeal it is necessary to have a bird's eye view of the facts involved in this litigation. Before going to adjudicate the substantial questions of law framed in the present Second Appeal it is necessary to have a bird's eye view of the facts involved in this litigation. As many as seven plaintiffs claiming to be successors of late Harendra Kumar Ghose instituted Title Suit No. 136/1996 in the Court of learned Civil Judge (Junior Division) No. 2 at Karimganj stating that the suit land measuring 18 kedars of permanently settled estates under mouza Paharkitta in the district of Karimganj was originally under jote right of Satindra Nath Bhattacharjee as raiyot of Abdul Matin Choudhury and others. Satindra Nath Bhattacharjee transferred his jote right in favour of one Haribhajan Ghose, the predecessor-in-interest of the defendants No. 1 and 2 and handed over possession. This Haribhajan Ghose, in turn, by registered sale deed dated 07.01.1974 transferred the suit land in favour of one Binoy Bhusan Mazumdar and this Binoy Bhusan Mazumdar executed a registered sale deed in favour of Harendra Kumar Ghose, the predecessor-in-interest of the plaintiffs and handed over possession. But the defendants without having any semblance of right, title or interest with respect to the suit land started publicizing that they would dispossess the plaintiffs forcibly on the basis of some fabricated sale deeds. Hence, the plaintiffs instituted the suit for declaration of the landholders' right with respect to the suit land and for confirmation of possession along with negative declaration that the defendants did not have any right, title or interest or possession over the suit land. Prayer for permanent and temporary prohibitory injunction was also made in the suit. 4. On being summoned the defendants appeared and submitted a joint written statement wherein they denied the claim of possession and title of the plaintiffs over the suit land. In paragraph 14 of the written statement they furnished their own facts wherein they also pleaded that Satindra Nath Bhattacharjee was the original holder of jote right over the suit land who sold it to Haribhajan Ghose, the predecessor-in-interest of the defendants No. 1 and 2. Thus, it is the case of both the plaintiffs and the defendants that the land was under jote right of Satindra Nath Bhattacharjee who thereafter transferred the same in favour of Haribhajan Ghose, the predecessor-in-interest of the defendants. Thus, it is the case of both the plaintiffs and the defendants that the land was under jote right of Satindra Nath Bhattacharjee who thereafter transferred the same in favour of Haribhajan Ghose, the predecessor-in-interest of the defendants. The defendants, however, claimed that after death of Haribhajan Ghose they stepped into the shoes of Haribhajan, their predecessor and at that stage being in stringent need of money entered into an agreement for sale of the aforesaid land in favour of defendant No. 3 (Dulal Chandra Saha). Sale was negotiated at a total consideration of Rs. 1,00,000/- out of which defendant No. 3 paid a sum of Rs. 70,000/- on 15.06.1995 and it was agreed among them that as and when the balance sum of Rs. 30,000/- would be paid by Dulal Chandra Saha they would execute a valid sale deed in his favour. However, they handed over possession of the land in favour of defendant No. 3 who has been possessing the same since 15.06.1995 and thus the claim of the plaintiffs as to right, title or interest or possession over the suit land is a sham. With these averments the defendants prayed that suit of the plaintiffs be dismissed with compensatory cost. 5. The learned trial Court upon consideration of the rival contentions of the parties as revealed in their respective pleadings framed as many as four issues and the same are quoted below:- “1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Whether the plaintiffs have got right, title and interest over the suit land? 4. Whether the plaintiffs are entitled to get decree as prayed for?” 6. In course of trial plaintiffs examined two witnesses including plaintiff No. 1, Krishna Lal Ghose. PW 2, Mahendra Kumar Dutta is the scribe of sale deed dated 8.10.74 whereby Binoy Bhusan Mazumdar sold the jote right with respect to the suit land to Harendra Kumar Ghose. They exhibited sale deed dated 08.10.1974 but although certified copy of sale deed dated 07.01.1974 purportedly executed by Haribhajan Ghose, the predecessor-in-interest of defendants No. 1 and 2, in favour of Binoy Bhusan Mazumdar, the father of the plaintiffs, was produced but it was not exhibited formally. The defendants, on the other hand, examined five witnesses. They exhibited sale deed dated 08.10.1974 but although certified copy of sale deed dated 07.01.1974 purportedly executed by Haribhajan Ghose, the predecessor-in-interest of defendants No. 1 and 2, in favour of Binoy Bhusan Mazumdar, the father of the plaintiffs, was produced but it was not exhibited formally. The defendants, on the other hand, examined five witnesses. Defendant No. 3, Dulal Chandra Saha, was examined as DW 1 but the defendants No. 1 and 2 did not come to the witness box. The defendants exhibited two documents as Exts-A & B. Ext-A is the agreement for sale dated 15.06.1995 whereas Ext-B is the registered Kabuliyat executed in favour of landlord by Haribhajan Ghose. After considering the aforesaid materials the learned trial Court passed the impugned judgment on 19.12.2000 thereby decreeing the suit of the plaintiffs in entirety. 7. Aggrieved at the judgment and decree passed by the learned trial Court, all the three defendants preferred Title Appeal No. 4/2001 in the Court of learned Civil Judge (Senior Division) at Karimganj. During pendency of the appeal defendant No. 3 died and accordingly his four legal heirs were substituted. It is to be noted here that on 09.05.2006 the learned First Appellate Court passed an order dismissing the appeal as against plaintiffs No. 3 to 7 on the ground that no step was taken by the appellants (defendants No. 1 to 3) for giving notice to these respondents No. 3 to 7 in spite of giving sufficient time including last chance. The appeal thus stood dismissed against respondents No. 3 to 7 who were plaintiffs No. 3 to 7 and the appeal was continued as against respondents No. 1 and 2, namely, the plaintiffs No. 1 and 2. 8. The learned First Appellate Court after hearing the parties and on perusal of the materials available on record passed the impugned judgment and decree of reversal on 26.09.2006 thereby dismissing the suit of the plaintiffs and setting aside the judgment and decree passed by the learned trial Court. In so doing the learned First Appellate Court has not considered the legal consequences of passing earlier order dated 09.05.2006 as the dismissal of the appeal against plaintiffs Nos. 3 to 7. The learned First Appellate Court decided Point No. 3 which is really the Issue No. 3. In so doing the learned First Appellate Court has not considered the legal consequences of passing earlier order dated 09.05.2006 as the dismissal of the appeal against plaintiffs Nos. 3 to 7. The learned First Appellate Court decided Point No. 3 which is really the Issue No. 3. According to the learned First Appellate Court the plaintiffs led evidence as to purchase of the suit land by their father by registered deed from Binoy Bhusan Mazumdar. Their father died in 1986 and the plaintiffs after death of their predecessor. But defendant No. 1 stated on oath that Satindra Nath Bhattacharjee was the original owner of 20 kedars of land under Khatian No. 92 and he sold it to Haribhajan Ghose. Defendants No. 1 and 2 are the successors of Haribhajan Ghose who being in possession of the land entered into agreement for sale with the defendant No. 3 at a consideration of Rs. 1,00,000/-. Defendant No. 3 paid Rs. 70,000/- to defendants No. 1 and 2 and they delivered possession of the suit land. According to the learned First Appellate Court, Haribhajan Ghose executed registered sale deed in favour of Matin Ahmed Choudhury on 30.12.1972 and it was exhibited in the Court. The agreement for sale was written by Riaj Uddin. But upon consideration of the materials available on record the learned First Appellate Court was of the opinion that there is no documentary evidence on record to substantiate the contention of the plaintiffs that Binoy Bhusan Mazumdar had purchased the land from Harendra Kumar Ghose (sic). Thus, evidence of the plaintiff fell short of showing source of title of their father. With these findings the learned First Appellate Court was of the view that plaintiffs failed to establish their title over the suit land and accordingly the judgment passed by the learned trial Court was set aside. 9. The learned First Appellate Court has not pointed out as to whether the appellate judgment and decree was only with respect to plaintiffs No. 1 and 2 and/or whether it extended to other plaintiffs as a whole. This judgment and decree passed by the learned First Appellate Court on 26.09.2006 has been called in question by all the plaintiffs before this Court and this is how the aforesaid three substantial questions of law were framed by this Court. 10. This judgment and decree passed by the learned First Appellate Court on 26.09.2006 has been called in question by all the plaintiffs before this Court and this is how the aforesaid three substantial questions of law were framed by this Court. 10. It is to be noted here that during pendency of the Second Appeal the appellants filed an application being I.A. No. 2422/2015 under the provision of Order XLI Rule 27 of the Code of Civil Procedure praying for leave to adduce additional evidence so as to mark the sale deed dated 07.01.1974 as exhibit. It is stated in the application that the aforesaid document was produced at the time of issues and documents but in course of evidence inadvertently because of mistake of the counsel the said document was not marked as exhibit and thus the learned First Appellate Court had arrived at the view that source of title or Binoy Bhusan Mazumdar was not established. This application is also taken up along with the hearing of this appeal. 11. I have heard learned counsel for the parties at length. I have also perused the lower Court records to find out as to whether the plaintiffs had at all produced sale deed dated 07.01.1974 along with other documents. It appears that a certified copy of sale deed dated 07.01.1974 was filed with the trial Court record and the same is available but the same was neither marked nor exhibited. 12. Learned counsel for the appellants strenuously urges that the plaintiffs have disclosed their full facts in the plaint. According to them, Satindra Nath Bhattacharjefe was the original jote holder and he made sale in favour of Haribhajan Ghose. This Haribhajan Ghose sold his right, title and interest in favour of Binoy Bhusan Mazumdar on 07.01.1974 and this Binoy Bhusan Mazumdar, in turn, transferred his right, title and interest in favour of Harendra Kumar Ghose, the predecessor-in-interest of the plaintiffs. The defendants in their written statement admitted in paragraph 14 that Satindra Nath Bhattacharjee is the original owner of the suit land and he sold it to Haribhajan Ghose. But the defendants remained silent about sale of Haribhajan Ghose in favour of Binoy Bhusan Mazumdar. The defendants in their written statement admitted in paragraph 14 that Satindra Nath Bhattacharjee is the original owner of the suit land and he sold it to Haribhajan Ghose. But the defendants remained silent about sale of Haribhajan Ghose in favour of Binoy Bhusan Mazumdar. Under such circumstances, the plaintiffs were required to prove that Haribhajan Ghose had transferred his title in favour of Binoy Bhusan Mazumdar and accordingly plaintiff No. 1 came to the witness box with a copy of sale deed dated 07.01.1974. This sale deed was inadvertently not marked but for which it did not receive consideration from the learned First Appellate Court. Since the dispute between the plaintiffs and the defendants is limited only to the point as to whether Haribhajan Ghose had transferred his interest in favour of Binoy Bhusan Mazumdar and the whole dispute hinges on this issue, sale deed dated 07.01.1974 assumes most importance. Actually it is the document on which the fate of the suit is dependent. Plaintiffs as clients did their job by producing it to the Court but the same was not exhibited in due course. According to learned counsel for the appellants, it is a fit case to entertain this document under Order XLI Rule 27(b) of the CPC. 13. Learned counsel for the respondents strenuously urges that such a prayer has come only at the second appellate stage. The plaintiffs were very much aware that this document was not exhibited before the trial Court and so they were at liberty to make a prayer before the learned First Appellate Court under Order XLI Rule 27 CPC and they not having done so, burden falls on them to explain the delay as to why the application has been filed at the second appellate stage. According to learned counsel for the respondents, it is not a case under Order XLI Rule 27(b) but rather a case under Order XLI Rule 27(aa) and this is why before the application is taken up for consideration it is necessary to examine as to whether appellants have discharged their burden to establish due diligence for failure to produce the document. 14. I have given my anxious consideration to the submissions put forward by both sides. It is true that adducing of evidence is not permissible at the appellate stage. 14. I have given my anxious consideration to the submissions put forward by both sides. It is true that adducing of evidence is not permissible at the appellate stage. However, an exception has been carved out under Order XLI Rule 27 by laying down three exigencies as to when such a power can be exercised. These three exigencies are laid down under clause (a), (aa) and (b) of Order XLI Rule 27(1) CPC. Clause (a) of the aforesaid rule provides that if the learned trial Court did not permit a party to lead evidence, in that event adducing evidence at the appellate stage can be allowed. This is not the case in the present appeal. The second exigency has been delineated under clause (aa) of the rule which provides that if a party was not aware about the evidence in spite of due diligence or could not produce the same in appropriate time, in that event appellate court can allow such evidence to be adduced at appellate stage. The condition precedent under clause (aa) is that the party will have to establish due diligence as to why it could not be ‘produced’ in due course. The word ‘produced’ occurring in clause (aa) of Order XLI Rule 27(1) cannot be overlooked. Legislature in its wisdom has incorporated a word in the statute. It cannot be ignored or it cannot be altered by court. The provision is clear and unambiguous and so question of interpretation does not arise. The literal meaning of the clause (aa) is that if the party did not ‘produce’ the document at the trial stage ‘in spite of due diligence’ this clause (aa) would apply. Due diligence, therefore, would arise only if the document is not produced at appropriate stage. The present case is distinguishable on the ground that the plaintiffs had produced the document before the learned trial Court but did not mark the same as exhibit or did not prove the contents in accordance with law. A mere production of document in the record would not amount to evidence unless the same is duly exhibited in accordance with law and its contents are proved. The plaintiffs, in the present case, did not fail to produce the document and so the liability to establish due diligence within the meaning of clause (aa) of Order XLI Rule 27(1) of the CPC would not arise in the present case. The plaintiffs, in the present case, did not fail to produce the document and so the liability to establish due diligence within the meaning of clause (aa) of Order XLI Rule 27(1) of the CPC would not arise in the present case. Here, mistake, if there be any, is of the learned counsel. Now, after having noticed the rival contentions of the parties the learned trial Court was aware as to what was the crux of the dispute between the parties. The whole dispute between the plaintiffs and the defendants lie on the point as to whether right, title and interest of Haribhajan Ghose stood transferred in favour of Binoy Bhusan Mazumdar or not. This is because plaintiffs successfully proved sale deed dated 23.12.1973 registered on 08.10.1974 executed by Binoy Bhusan Mazumdar in favour of Harendra Kumar Ghose but failed to exhibit sale deed dated 07.01.1974 to establish acquisition of title of Binoy Bhusan Mazumdar from Haribhajan Ghosh. If this missing link is supplied in that event the basic question hanging between the two parties stands answered. Under such circumstances, the learned trial Court was duty bound to consider exercise of power under Section 30 of the CPC for getting this document exhibited, more so when it was presented before the learned trial Court by the plaintiffs in due course. This not having been done and since this Court is of the view that sale deed dated 07.01.1974 is necessary for proper adjudication of the matter in dispute the objection of the respondents against the prayer under Order XLI Rule 27 of the CPC cannot be sustained. Accordingly, the application is taken up for consideration. 15. The learned First Appellate Court does not appear to have applied mind while passing the impugned judgment. The finding that Haribhajan Ghose had executed sale deed in favour of Abdul Matin Choudhury is perverse. Even as per the pleadings of the defendants, Haribhajan Ghose executed Kabuliyat in favour of Abdul Matin Choudhury the land owner. Kabuliyat is a document whereby a raiyot acknowledges the landlord as his zamindar. This finding of the learned First Appellate Court is perverse. The learned First Appellate Court also did not consider as to what was the legal implication of the order dated 09.05.2006 whereby the appeal has been dismissed as against respondents No. 3 to 7. Kabuliyat is a document whereby a raiyot acknowledges the landlord as his zamindar. This finding of the learned First Appellate Court is perverse. The learned First Appellate Court also did not consider as to what was the legal implication of the order dated 09.05.2006 whereby the appeal has been dismissed as against respondents No. 3 to 7. It was necessary to decide as to whether dismissal of the appeal as against plaintiffs No. 3 to 7 by order dated 09.05.2006 which attained finality created any bar for the defendants/appellants. If the decree passed by the learned trial Court attained finality insofar as plaintiffs No. 3 to 7 are concerned, in that event whether the appeal in respect to other respondents, namely, plaintiffs No. 1 and 2 stood barred by res judicata, was also required to be examined by the learned First Appellate Court. This is precisely the first substantial question of law in the present Second Appeal. 16. Having considered the aforesaid provisions and the facts situation including the incident of order dated 09.05.2006 as well as the necessity to allow evidence at appellate stage under Order XLI Rule 27(b) of the CPC, this Court is not inclined to decide any of the substantial questions of law framed at this stage. Any observation made in regard to any substantial question of law may prejudice the parties in their future course of action. That being the position, the impugned first appellate judgment is set aside and the matter is remanded to the learned First Appellate Court with a direction to allow the plaintiffs to prove the sale deed dated 07.01.1974 by appropriate method and if any witness is examined to prove the document or the contents thereof, in that event the defendants/ appellants should be given full opportunity to cross-examine the witness to the full extent. The learned First Appellate Court shall also decide the legal implication of the order dated 09.05.2006. The learned First Appellate Court shall endeavour to dispose of the case as expeditiously as possible, preferably within a period of six months from the date of appearance. 17. The parties shall appear before the learned First Appellate Court on 05.09.2016. If in any event the appellants/defendants do not appear, in that event the learned First Appellate Court shall issue notice to the appellant for appearance by fixing a further date. 17. The parties shall appear before the learned First Appellate Court on 05.09.2016. If in any event the appellants/defendants do not appear, in that event the learned First Appellate Court shall issue notice to the appellant for appearance by fixing a further date. Such a provision is made at the instance of the learned counsel for the respondents who intimated this Court that after appearance there was no communication between the learned counsel and the defendants Nos. 1 to 3. 18. No order as to cost. 19. Send down the records immediately.