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2018 DIGILAW 808 (GAU)

Guttu and Company Private Limited v. Siraj Ali

2018-05-16

PRASANTA KUMAR DEKA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. B.Sarma, learned counsel for the plaintiff appellant and Mr. N.Dhar, learned counsel and Ms. R.Choudhury, learned counsels appearing for the respondents. 2. The present appellant is the plaintiff in Title Suit No. 39/2001 in the Court of learned Civil Judge (Junior Division) No. 2, Karimganj which was filed against the defendants respondents claiming the declaration of its right, title and interest over the suit land, recovery of khas possession by evicting the defendants respondents and for injunction. 3. The facts in brief, as per plaint is that Bharat Samiti Limited was the original owner of Kalinagar Tea Estate and the suit land is a part and parcel of the said tea estate. Bharat Samiti Limited sold the Kalinagar Tea Estate to M/s Sri Ram Tea Company and thereafter on 13.3.1974, the plaintiff appellant purchased the said tea estate from M/s Sri Ram Tea Company by way of registered sale deed. The suit land was kept reserved for cultivation of tea and for ancillary purpose. The name of the plaintiff appellant was recorded and prior to that the same was standing in the name of its vendor M/s Sri Ram Tea Company. The name of the plaintiff company was recorded in the resettlement operation held in the year 1990- 91. The defendants respondents get the suit land recorded in their names, filed objection before the Assistant Settlement Officer, Ramkrishna Nagar with the help of one Arjomon Ali. The said objection was rejected and finally the name of the plaintiff respondent was recorded. The said Arjomon Ali alongwith some other instituted Title Suit No. 303/1986 against the management of Kalinagar Tea Estate for recovery of vast area of land including the suit land. The said suit ended in compromise as the plaintiff in Title Suit No. 303/1986 relinquished their right and claim of possession. Later on in the month of February, 1988 the defendants respondents constructed a house on the suit land and since then stayed there illegally. For the said reason the suit was filed with the aforesaid reliefs. 4. The defendants respondents contested the suit by filing written statement. The defendants respondents denied the claim of the plaintiff appellant but admitted that Bharat Samiti Limited was the original owner of the said land. For the said reason the suit was filed with the aforesaid reliefs. 4. The defendants respondents contested the suit by filing written statement. The defendants respondents denied the claim of the plaintiff appellant but admitted that Bharat Samiti Limited was the original owner of the said land. In the year 1960, one Suraj Ali got jote settlement of land measuring 1 hal including the suit land and in the year, 1970 the defendants respondents purchased the northern part of the suit land from Suruj Ali and on 22.1.1997 purchased the rest part. It is further stated that the defendants respondents are in possession of the suit land for more than 30 years by constructing house, planting trees etc. On 30.10.1986, Bharat Samiti Limited sold 1200 bighas of land covered by dag Nos. 70 and 89 to Moulabi Abdul Karim and 23 others by executing a registered sale deed No. 164 of 1986 dated 30.1.1986. The said defendant respondent No. 1 purchased southern part of the suit land in his wifes name i.e. defendant respondent No.2 from Moulabi Abdul Karim vide deed No. 445 dated 17.3.1997 and northern part of the suit land purchased in the name of the defendant respondent No. 1 vide registered sale deed 446 dated 17.3.1997. Accordingly, the defendants respondents pleaded that the plaintiff appellant has no right, title and interest over the suit land. 5. On the basis of the pleadings following issues were framed:- 1. Is there cause of action for the suit? 2. Whether the suit is bad for defect of necessary parties ? 3. Whether the suit is properly valued and court fee is paid thereof ? 4. Whether the suit is maintainable in its present form and manner? 5. Whether the suit land is properly described in the schedule of the plaint? 6. Whether the plaintiff has right, title interest over the suit land? 7. Whether the plaintiff is entitled to relief’s as claimed for? 6. Parties in the suit adduced evidence both oral and documentary. The learned trial court decreed the suit vide judgment and decree dated 22.8.2002. The learned trial Court took up the issue No. 6 for discussion. 6. Whether the plaintiff has right, title interest over the suit land? 7. Whether the plaintiff is entitled to relief’s as claimed for? 6. Parties in the suit adduced evidence both oral and documentary. The learned trial court decreed the suit vide judgment and decree dated 22.8.2002. The learned trial Court took up the issue No. 6 for discussion. It was held that admittedly the land covered by suit dag No. 70 (old) /90 (new) of Kalinagar Jungle Block, Part-II alongwith the land of Kalinagar Tea Estate belonged to Bharat Samiti Limited which was sold to Sri Ram Tea Estate by a registered sale deed in the year 1965 by the said Bharat Samiti Limited. The learned trial court considered the evidence of the Manager of the plaintiff appellant company, PW 1 and the Ext.7, the registered sale deed No. 652 dtd. 13.3.1974 which was executed by Sri Ram Tea Company and Ext.1, the final khatian stood in the name of Kalinagar tea estate covering land under dag No. 70 and held that the plaintiff appellant is the owner of the said land. Without there being any sale deed exhibited by the plaintiff appellant showing the sale transaction between Bharat Samiti Limited and Sri Ram Tea Company and considering the Ext.2 which is the draft patta showing the land under suit dag No. 70 (old) /90 (new) in the name of plaintiff appellant, the learned Court below held that the suit land belongs to the plaintiff appellant as the owner and further held the right, title and interest of the plaintiff over the suit land. 7. Thereafter the learned trial court holding that the burden is upon the defendants respondents to disprove the said ownership on the plaintiff appellant, it took note of the facts from the pleadings. Considering the pleadings of the defendants respondents with respect to the jote settlement of Suruj Ali, the vendor of defendant respondent No. 1, it came to the conclusion that there is no such kabuliat in support of said jote settlement. Ext. C is the rent paying receipt by Suruj Ali to the Mirasdar Bharat Samiti Ltd, the same was disbelieved as it was not proved properly. Ext. C is the rent paying receipt by Suruj Ali to the Mirasdar Bharat Samiti Ltd, the same was disbelieved as it was not proved properly. Further the learned trial court did not take into consideration Ext.A which is the registered sale deed executed by Suruj Ali in favour of the defendant respondent No. 1 thereby selling possessory right by Suruj Ali to defendant respondent No. 1 as because the same was not proved by calling attesting witness or scribe by executants. The Ext.1 and its content was accepted by coming to the conclusion that the defendants respondents failed to substantiate that the land of dag No.70 was never sold by Bharat Samiti Ltd in favour of the Sri Ram Tea Company and thus, held the issue in favour of the plaintiff appellant. The learned trial court also did not consider the title of defendant respondent No.2 as the sale deed Ext.D in her favour, does not speak about the title of its executant Maulabi Abdul Karim. It is pertinent to mention herein that the defendant respondent Nos.1 and 2 pleaded that on the southern side of the suit land the title devolved on them from their vendor Maulabi Abdul Karim who purchased the suit land vide registered sale deed No. 164 of 30.1.1986 executed by Bharat Samiti Ltd. in favour of said Maulabi Abdul Karim and 23 other purchasers. After holding the said issue No. 6 in favour of the plaintiff appellant the learned trial court decreed the suit in favour of the plaintiff appellant. 8. Being aggrieved by the said judgment and decree dated 22.8.2002 the defendants respondents preferred title Appeal No. 102/2003 in the Court of Civil Judge at Karimganj which was allowed vide judgment and decree dated 30.7.2007. Thereafter the present second appeal was filed by the plaintiff appellant which was admitted on 27.8.2008 on the following substantial questions of law:- "1. Whether the appellate Court below committed a grave error of law in rejecting the sale deed in favour of appellant merely because the deed in favour of Sri Ram Tea Company was not exhibited when the suit land is the part and parcel of Kalinagar Tea Estate ? (2) Whether Exhibit E being certified copy of the document having not been proved in accordance with Evidence Act could have been relied by the appellate Court below while allowing the appeal?" 9. Mr. (2) Whether Exhibit E being certified copy of the document having not been proved in accordance with Evidence Act could have been relied by the appellate Court below while allowing the appeal?" 9. Mr. Sahewalla submits that the judgment and decree passed by the learned First appellate Court is not as per requirements under Order 41 Rule 31 of the Code of Civil Procedure (CPC) as the judgment lacks in issue wise discussion. The act of rejecting the sale deed, Ext.1 by the first appellate court and its contents, only because of the reason that the sale deed between Bharat Samiti Ltd and Sri Ram Tea Company was not exhibited was not justified. It is also submitted that there is perversity in the findings of the courts below inasmuch, as per the deposition of DW 4, the land so purchased by him and others falls outside the land of Tea Estate on the face of the Ext.3 wherein the said land was mutated in the name of the plaintiff/appellant. Mr. Sahewalla submits that the first appellate Court is the court of facts and duty is cast upon the said court to take into consideration the facts and evidence on record in order to decide the dispute and/ or the issues that has arisen between the parties to the suit. Referring the judgment passed by the first appellate court, Mr. Sahewalla submits that there is flagrant non-compliance of the manner in which the learned first appellate court ought to have decided the same and the same requires to be remanded to the first appellate court to record its findings compatible to the provision of order 41 Rule 31 CPC. In support of his submission, Mr. Sahewalla relies on the following case laws:- 1. (2016) 13 SCC 124 (Union of India Vs. K.V. Lakshman) 2. (2015) 1 SCC 391 (Vinod Kumar Vs Gangadhar) 3. (2014) 16 SCC 109 (United Engineers and Contractors vs. Secretary to Government of Andhra Pradesh and others) 4. (2017) 4 GLT 152 (Sonseni Bibi (Musstt.) & Anr. Vs Legal Heirs of Babul Boro & ors) 5. (2016) 4 GLT 1120 (Piramal Kejriwal & Anr Vs. Radheshyam Paul & ors) Submitting so, Mr. Sahewalla argued that the second appeal be allowed by setting aside the judgment and decree of the first appellate court. 10. Mr. (2017) 4 GLT 152 (Sonseni Bibi (Musstt.) & Anr. Vs Legal Heirs of Babul Boro & ors) 5. (2016) 4 GLT 1120 (Piramal Kejriwal & Anr Vs. Radheshyam Paul & ors) Submitting so, Mr. Sahewalla argued that the second appeal be allowed by setting aside the judgment and decree of the first appellate court. 10. Mr. Dhar on the other hand, submits that the plaintiff appellant Company in order to discharge the burden on it ought to have proved that the vendor of the plaintiff-appellant had the right, title and interest over the suit land so claimed by the plaintiff appellant, while transferring the land by Sri Ram Tea Company to it. Instead of discharging the said burden in order to put the onus on the defendants respondents, the plaintiff appellant even did not exhibit the sale deed on the strength of which the plaintiff appellant claimed that the vendor of Sri Ram Tea Company sold the land which is the suit land under Dag No.70. The learned trial court without considering the said aspect of the matter shifted the onus to the defendants respondents which the learned First appellate court aptly noticed the wrong appreciation of the evidence of the trial court and on its own entered into the materials before the court including the issues and going through the issues rightly formulated the point for determination. It is the contention of Mr. Dhar that the crux of the dispute between the parties can very well be resolved by deciding whether the Bharat Samiti Ltd sold the suit land pertaining to dag No. 70 to M/s Sri Ram Tea Company. While discussing the said point for determination the first appellate court had considered all the relevant facts, evidence on record and gave its finding in favour of the defendants respondents thereby reversing the finding of the trial court. There is no illegality on the part of the learned first appellate court in coming to the said findings, not to speak of non-adherence of the principles for deciding a first appeal. Accordingly he submits that there is no merit in the second appeal and the same is liable to be dismissed. 11. The submission of the learned counsel of the parties are considered. Accordingly he submits that there is no merit in the second appeal and the same is liable to be dismissed. 11. The submission of the learned counsel of the parties are considered. The learned first Appellate Court while formulating the point for determination had rightly come to the conclusion that the Bharat Samiti Ltd sold the suit land to M/s Sri Ram Tea Company or it was sold to Maulabi Abdul Karim by executing a registered sale deed No. 164 dated 30.10.1986. From the Ext.1, final khatian, it is seen that the Bharat Samiti Ltd was issued the same after the acquisition of the land by the Government under the Assam State Acquisition of Zamindaris Act, 1951. The jote settlement of Suruj Ali under the Bharat Samiti Ltd can very well be prepondered vide Ext.C which is rent paying receipt on being deposited by the Suruj Ali who executed the sale deed thereby transferring the possessory right to the defendant respondent No.1. The said jote settlement was with respect to the estate 15796/211 which is similar to that of Ext.1, the final khatian standing in the name of Bharat Samiti Ltd. The said Ext.A is a registered sale deed bearing No. 188 dated 22.1.1979. The said Ext.A and the land shown therein was rectified by way of Ext.B by introducing the dag No. 70 after resettlement operation. Ext.D and Ext.E are the registered sale deeds bearing Nos. 445 and 446 respectively both dated 17.3.1997 in favour of the defendant respondent Nos. 1 and 2 executed by Maulabi Abdul Karim. In the said Ext.D and Ext.E, it is stated that Maulabi Abdul Karim is one of the purchasers of the land so sold to the defendants respondents which he purchased vide registered sale deed No. 164 dated 30.1.1986 executed by Bharat Samiti Ltd in his favour alongwith other 23 purchasers. 12. It is seen from the judgment passed by the learned first Appellate court that it discussed the materials placed on record by the defendants respondents in order to disprove the claim of the plaintiff appellant. It also entered into the evidence of the witnesses and came to the conclusion that Exts.D and E were written by the deed writer DW 2 and DW 3 and thereafter came to the conclusion that the plaintiff appellant failed to dislodge the execution of the said Exts. It also entered into the evidence of the witnesses and came to the conclusion that Exts.D and E were written by the deed writer DW 2 and DW 3 and thereafter came to the conclusion that the plaintiff appellant failed to dislodge the execution of the said Exts. D and E. On the other hand, from the exhibits of the plaintiff appellant it is clear that Bharat Samiti Ltd was given the settlement by way of final khatian immediately after the resettlement operation after the Assam State Acquisition of Zamindaris Act, 1951 came into force in the undivided Cachar district. The estate has the similarity with respect to the Estate mentioned in Exts A, E and B. Under such circumstances the learned trial Court cannot simply throw away the rent paying receipt Ext.C applying the Rule of preponderance of probabilities of evidence that Suruj Ali, executor of Ext. A was not the holder of jote settlement under Bharat Samiti Ltd merely by holding that the said Ext.C was not proved properly. 13. On scrutiny of the findings of the First Appellate Court and on perusal of the records, it is found that the first Appellate court appreciated the evidence of the defendants respondents properly. Thereafter the first Appellate Court considered the Ext. 1 of the plaintiff appellant and held that mere Ext.1 is not sufficient to prove the title of plaintiff appellant putting the burden on the plaintiff appellant by holding that it had failed to prove the source of title by purchase of the Kalinagar Tea Estate including the suit land covered by dag No.70. 14. Scanned the evidence on record of the plaintiff appellant. It is the pleading of the plaintiff appellant that Bharat Samiti Ltd was the original owner of the land covered by tea estate including that covered by dag No. 70, the suit dag. Further it is admitted that the said Bharat Samiti Ltd by way of registered sale deed sold the total land to Sri Ram Tea Estate in the year, 1964 and thereafter the said Sri Ram Tea Company sold the land to the plaintiff appellant by way of registered sale deed executed in the year, 1974. The registered sale deed Ext. 7 i.e. deed No. 652 dated 13.3.1974 is exhibited as Ext. The registered sale deed Ext. 7 i.e. deed No. 652 dated 13.3.1974 is exhibited as Ext. 7 and on perusal of the same it is seen that the same does not describe any dag numbers covering the land so sold. Coming to the point in dispute between the parties to the suit the learned first Appellate court held that the transfer deed which was executed by the Bharat Samiti Ltd. in favour of M/s Sri Ram Tea Company is neither exhibited nor any other material fact regarding the alienation of suit land is proved. That is quite obvious inasmuch as it is the plaintiff appellant who had sought for its declaration of right, title and interest over the suit land and accordingly, the manner in which the title of the plaintiff appellant devolved upon it, is the principal burden on the plaintiff appellant to get the issue more specifically, the issue No. 6 in its favour. Having not done so the learned First Appellate Court reversed the findings of issue No. 6, as decided by the learned trial Court. 15. From the findings of the trial court it is clear and apparent that the learned trial court put the burden on the defendants respondents wrongly which was correctly pointed out by the first appellate court and after pointing out the said wrong finding, entered into the material facts and evidence available on record and reversed the finding of the learned trial court. As herein above stated that on the face of the defence taken by the defendants respondents and in order to discharge the principal burden of proving the right, title and interest of the plaintiff appellant over the suit land a duty was cast upon it to prove the devolution of title on the plaintiff appellant with respect to the suit land on the face of the specific plea of defence taken by the defendants-respondents. The plaintiff appellant was supposed to exhibit the sale deed which was executed by Bharat Samiti Ltd in favour of Sri Ram Tea Company. Having not done so the findings of the appellate Court is proper and substantial question of law No. 1 is answered in the negative. 16. I have gone through both the judgments passed by the first appellate Court and the trial Court. Also perused the material piece of evidence on record. Having not done so the findings of the appellate Court is proper and substantial question of law No. 1 is answered in the negative. 16. I have gone through both the judgments passed by the first appellate Court and the trial Court. Also perused the material piece of evidence on record. "Perversity" is an expression which connotes to my opinion a measure of scrutiny which can be used while appreciating the materials on record and in order to bracket any findings within the term "Perversity" it must show that the courts below omitted or wrongly appreciated any evidence or has not considered any piece of evidence though the same is on record and very vital for deciding an issue involved. For instance, the learned trial court did not consider the Exts. D and E, the registered sale deeds on the strength of which the respondents purchased land covering the suit land from Maulabi Abdul Karim with its recital that Maulabi Abdul Karim purchased the land vide a registered Sale Deed bearing No. 164 dated 30.01.1986. There is no rebuttal evidence to disprove the said recital on the basis of which Maulabi Abdul Karim purchased the land from Bharat Samiti Ltd. The trial Court ought to have considered that the link Sale Deed conveying the title upon the plaintiff appellant over the land covered by Dag No. 70 from Bharat Samiti Ltd. through Sri Ram Tea Company is a vital piece of evidence in order to decide the Issue No.6 in favour of plaintiff appellant but it was satisfied considering the final Khatian Ext.1 which is not at all a title deed moreso when the defence is denial of the ownership of plaintiff appellant upon any part and parcel of land covered by Dag No. 70. So it amounts to "perversity" The learned trial Court did not enter into it at all nor considered the same on the face of the Sections 91 and 92 of Indian Evidence Act, 1872 which says that no evidence is to be considered beyond what an instrument reflects unless pleaded by any parties to the instrument. 17. Mr. Sahewalla raised before this court that the judgment passed by the first appellate court lacks compliance of the requirements under Order 41 Rule 31 CPC which prescribes the manner as to how the first appellate court is supposed to take up the first appeal for its disposal. 17. Mr. Sahewalla raised before this court that the judgment passed by the first appellate court lacks compliance of the requirements under Order 41 Rule 31 CPC which prescribes the manner as to how the first appellate court is supposed to take up the first appeal for its disposal. Mr. Sahewala relies on Union of India vs. K.V. Lakshman, (2016) 13 SCC 124 (supra) wherein the Honble Apex Court while prescribing the proper mode for disposal of an appeal u/s 96 of the CPC held as follows : "21. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate court while hearing the first appeal is very wide like that of the trial court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is duty of the first appellate court to appreciate the entire evidence and may come to a conclusion different from that of the trial Court." 18. In Santosh Hazari Vs. Purustom Tewari (dead) reported in AIR 2001 SC 965 the Hon’ble Apex Court circumscribing the jurisdiction of the appellate court held that it has jurisdiction to reverse or affirm the findings of the learned trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is open for rehearing both on question of fact and law. The judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising alongwith the contention put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the learned trial court and then assign its own reasons for arriving at a different findings. 19. Other judgments and decisions relied by Mr. Sahewalla also are of similar views so far the jurisdiction of the appellate court u/s 96 CPC is concerned. 20. In the present case in hand, I have gone through the judgment passed by the first appellate court and found that the issues framed by the learned trial court had well been taken care of. Sahewalla also are of similar views so far the jurisdiction of the appellate court u/s 96 CPC is concerned. 20. In the present case in hand, I have gone through the judgment passed by the first appellate court and found that the issues framed by the learned trial court had well been taken care of. The first appellate court entered into the submission of the learned counsels which culminated as the point for determination rightly. The reasonings of the trial court in passing the judgment and decree are recorded and thereafter the first appellate court on its own reasoning came to the finding as to why the sale deed between the Bharat Samiti Ltd and Sri Ram Tea Company stands as a piece of vital evidence. Thereafter the learned first appellate Court took into consideration the evidence adduced by the defendants respondents and gave its finding that the plaintiff appellant failed to discharge its burden in proving its case. I do not find any "Perversity" being crept into the judgment and decree passed by the first appellate court nor there is any non-compliance on the part of first appellate court in adhering to the principles for disposal of first appeal by the first appellate court. 21. Accordingly, the second substantial question of law is also decided in the negative. As a result this second appeal is devoid of any merit and same is dismissed without cost. 22. Send back the LCR.