IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) RSA No. 171/2014 On the death of Late Purna Chandra Deka, his legal heirs:- 1. Srimati Pramila Deka 2. Smti. Pratibha Kalita 3. Sri Promod Chandra Deka 4. Sri Pradip Chandra Deka 5. Smt. Mamoni Kalita..Appellants -Versus- Sri Prasanta Deka Son of Sri Baikuntha Nath Deka Resident of Sukleswar, Panbazar Guwahati District-Kamrup (M), Assam. For the Appellants : Mr. D. Majumdar Sr. Advocate For the Respondent : Mr. S. Ali, Sr. Advocate.Respondent BEFORE THE HON BLE MR. JUSTICE MIR ALFAZ ALI Date of hearing : Date of Judgment and order : JUDGMENT & ORDER (CAV) This second appeal is directed against the judgment and decree dated passed by the Additional District Judge No. 2, Kamrup in Title Appeal No. 2/2011 upholding the judgment and decree dated passed in Title Suit No. 52/2008 by the Civil Judge No. 3, whereby and RSA 171 of 2014 Page 1 of 16

2 whereunder decreeing the suit of the plaintiff/respondent for declaration of right, title, interest, recovery of khas possession and permanent injunction. 2. The respondent/plaintiff (hereinafter referred to as the plaintiff) purchased the suit land measuring 1 (one) katha 2 (two) lechas covered by Dag No. 893, K.P. Patta No. 25 (new)/332 (old) of village-sahar Ulubari, Pt- II, Mouza-Ulubari, Dist-Kamrup from Ajimuddin Ahmed and Tafiqul Syed Tafiqul Hussain by registered Sale Deed No. 1930/97 dated and took possession thereof. The plaintiff further pleaded that the original pattadar of the suit land was Annaram Kalita and the vendor of the plaintiff purchased the suit land from Annaram Kalita in In the month of March, 1998, taking advantage of absence of the plaintiff, the defendant with the help of some hired persons forcibly trespassed into the suit land and thereby dispossessed the plaintiff compelling him to institute the suit for declaration of right, title, interest, recovery of possession and permanent injunction. 3. In obedience to the summon issued by the Court, the appellant/defendant (hereinafter referred to as the defendant) entered appearance and contested the suit raising the plea that one Lal Bahadur Chetri was the owner of the suit land and in 1970 he possessed the suit land with the knowledge of Lal Bahadur Chetri. Thereafter the said owner asked him to vacate the suit land, but he refused and has been possessing the suit land continuously by constructing houses. The defendant further pleaded that the plaintiff or vendor of the plaintiff never possessed the suit land and the sale deed in favour of the plaintiff and also in favour of the vendor of the RSA 171/2014 Page 2 of 16

3 plaintiff as well as their mutation were mere paper works, inasmuch as, neither the plaintiff nor his vendor or vendor s vendor ever possessed the suit land. The defendant further pleaded that Annaram Kalita, the plaintiff as well as the vendor of the plaintiff, Ajimuddin Ahmed and Tafiqul Hussain also asked the defendant to vacate the suit land, but he refused. The defendant has also put up a plea of adverse possession. 4. On the pleadings of both the parties, the learned Trial Court framed the following issues: 1. Whether there is cause of action of the suit? 2. Whether the suit is maintainable in the present form and order? 3. Whether the suit is properly valued? 4. Whether the suit is barred by limitation? 5. Whether the suit is bad for non joinder of necessary party? 6. Whether the plaintiff has acquired right title and interest over the suit land and as such entitled to get a decree as prayed for? 7. Whether the plaintiff is entitled to a decree of recovery of possession as well as restoration of possession of the suit land as directed in the plea? 8. What other relief/reliefs the parties are entitled to get? 5. During the course of trial, the plaintiff examined three witnesses including the plaintiff himself and proved various documents including the sale deed, mutation orders, certified copies of jamabandi, revenue receipts etc. The defendant also examined three witnesses. Having considered the evidence brought on record and hearing the learned counsel for the parties, RSA 171/2014 Page 3 of 16

4 the learned Trial Court decreed the suit declaring right, title and interest of the plaintiff and other consequential reliefs sought for. 6. Aggrieved by and dissatisfied with by the judgment and decree of the learned Trial Court, the defendant preferred an appeal before the learned Additional District Judge, No. 3 and the learned Additional District Judge after hearing both the sides, by the impugned judgment and order, upheld the decree of the learned Trial Court. 7. Aggrieved by the judgment and decree of the first appellate court, the respondent/appellant has preferred instant second appeal. At the time of admission of this second appeal, this Court by order dated formulated the following substantial questions of law. 1. Whether the first appellate court was justified in taking additional evidence on record (copy of sale deed No.9854/83) without there being any application under Order 41 Rule 27 of CPC filed by the respondent and further without recording any finding as to whether any case for filing additional evidence at the appellate stage was made out as provided under Order 41 Rule 27 of CP Code? 2. Assuming that the lower appellate court was justified in allowing the respondent (plaintiff) to file additional evidence at the appellate stage, whether lower appellate court was justified in not granting any opportunity to the appellant herein of filing any document in rebuttal and straight away proceeded RSA 171/2014 Page 4 of 16

5 to decide the appeal by placing reliance on the additional piece of unproved evidence for affirming the judgment/decree of trial court? 3. Assuming that the lower appellate court was justified in permitting the respondent to file the additional evidence was it not necessary for the court to then examine its effect as to whether the case requires remand to the trial court for proving the evidence or/and to invite finding of the trial court by retaining session of appeal to itself as the case may be? 4. Whether the lower appellate court was justified in affirming the finding of the trial court by placing reliance on the additional unproved evidence? 8. I have heard Mr. D. Majumdar, learned Sr. Counsel for the defendant and Mr. S. Ali, learned Sr. Counsel, for the plaintiff and also perused and considered the records. 9. Learned Sr. Counsel, Mr. Majumdar submits that the defendant has all along been in possession of the suit land and the plaintiff or his vendor or vendor s vendor never possessed the suit land. The sale deed, mutation entry etc. by which, the plaintiff claimed to have acquired title over the suit land were mere paper documents and the plaintiff never acquired any title on the strength of such documents, submits Mr. Majumdar. Further submission of the learned Sr. Counsel is that the learned first appellate court allowed the RSA 171/2014 Page 5 of 16

6 plaintiff to adduce additional evidence (copy of sale deed in favour of the plaintiff s vendor) in total disregard to provision of Order 41 Rule 27 CPC and took judicial notice of such additional evidence, without such additional documents having been proved. Learned Sr. Counsel further submits that Section 57 of the Evidence Act does not permit judicial notice of the copy of a sale deed, which does not come in the categories of documents/record, enumerated in Section 57.Judgment rendered by the first appellant court on the basis of such additional evidence cannot be sustained, submits learned counsel for the appellant. To substantiate the submissions, Mr. Majumdar, placed reliance on the following decision: 1. (2007) 6 SCC 737 (Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale) 2. (2009) 2 SCC 323 (P.H. Dayanand Vs. Venugopal Naidu) 3. (2009) 4 SCC 193 (Kaliaperumal Vs. Rajagopal) 4. (2012) 8 SCC 148 ( Union of India Vs. Ibrahim Uddin) 5. (2015) 1 SCC 665 (Surjit Singh Vs. Gurwant Kaur) 6. AI 1965 SC 1506 (Brahma Nand Puri Vs. Neki Puri Since Deceased represented by Mathra Puri) 10. Mr. S. Ali, learned Sr. Counsel for the plaintiff submits that there was no substantial questions of law involved in this second appeal. Further submission of Mr. Ali, is that the suit of the plaintiff having based on title, RSA 171/2014 Page 6 of 16

7 only burden on the plaintiff was to prove his title and the plaintiff having successfully discharged such burden, he could not be unsuited, unless the defendant succeeds to prove his plea of adverse possession. The concurrent findings of facts with regard to title of the plaintiff, arrived at by both the court below, cannot be disturbed by this Court in second appeal, submits learned counsel for the plaintiff. Mr. Ali further submits that the additional evidences, of which cognizance was taken by the first appellate court, even if ignored, there would be no impact on the concurrent finding of both the courts below and therefore there is no question of remanding back the suit for proving the additional evidence as per law. Mr. Ali placed reliance on the following authorities to substantiate his submission: 1. (2006) 2 GLR 565 ( 2. (2012) 8 SCC 148 ( 3. (2007) 3 SCC 114 (M. Durai Vs. Muthu & Ors.) 11. The plaintiff in support of his title proved the sale deed in respect of the suit land by his vendor and marked as Ext.1. The plaintiff also proved the mutation entry in his favour as well as in favour of his vendor being Ext.3. Revenue receipts Ext.4 to 4(5) have also been proved showing that plaintiff as well as his vendor paid revenue for the suit land. In fact the defendant admits the title of the pattadar of the suit land Annaram Kalita and the existence of the sale deeds in favour of the plaintiff as well as in favour of vendor of the plaintiff. Only plea of the defendant is that those documents were mere paper documents and thereby no title was conveyed for want of RSA 171/2014 Page 7 of 16

8 delivery of possession of the suit land pursuant to such deeds. Mr. Majumdar, learned Sr. Counsel for the appellant submitted that whatever sale deed might be in favour of the plaintiff or his vendor, they were mere paper document, not capable of creating any better title in favour of the plaintiff than the possessory title of the defendant. To buttress the submission, Mr. Majumdar, placed reliance on the decision of the Apex Court in the case of Kalia Perumal (supra). In para-22 of the said decision, the Apex Court has held as under: 22. There is yet another circumstance to show that title was intended to pass only after payment of full price. Though the sale deed recites that the purchaser is entitled to hold, possess and enjoy the scheduled properties from the date of sale, neither the possession of the properties nor the title deeds were delivered to the purchaser either on the date of sale or thereafter. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact, the appellant, therefore, sought a decree for possession of the suit properties from the respondents with mesne profits. If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant. 12. In this decision, the dispute was between the seller and buyer inasmuch as, at the time of execution of sale deed, full payment was not RSA 171/2014 Page 8 of 16

9 made and consequently, neither the delivery of possession was given to the vendor, nor sale deed was handed over to the vendor. On the above facts, the Apex Court observed that if really the intention of the parties was that the title to the properties should pass to the purchaser on execution of the deed and its registration, the possession of the suit properties would have been delivered to the purchaser. On factual matrix, the above decision is distinguishable, inasmuch as, in the instant case, the seller has never come forward to challenge sale of land to the plaintiff. The other decision in Brahmanand Puri Vs. Neki Puri (supra), relied by the learned counsel for the appellant, the issue was with regard to claim of possession of certain properties belonging to the Dera of Sanyasi Sadhus in Mouza Kharak Tahsil Hansi, District Hissar. The question involved in that case was, as to who would succeeds to the Dera of Sannyasi Sadhu after the death of last Mahant. Therefore, this case is also of no help to the defendant. 13. Section 54 of the Transfer of Properties Act reads as follows: 54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. RSA 171/2014 Page 9 of 16

10 Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. 14. A plain reading of Section 54 makes it abundantly clear that transfer of immovable property by way of sale, value of which is Rs. 100/- or upward can be made only by a registered instrument for a price paid or promised or part-paid and part-promised. Therefore, in order to affect a valid transfer by sale delivery of possession is not a pre-condition. This Court in the case of Manmatha R. Tribedi (supra) relied by learned counsel for the plaintiff held as under: 12. It is, thus, clear that in order to acquire a valid right, title and interest over any immovable property valued Rs. 100 or above by way of purchase it should be effected by a registered instrument by payment or promising to pay the consideration money. The Transfer of Property Act does not lay down any condition that in order to acquire title over a property purchased by executing registered sale deed, the delivery of possession is a condition precedent. RSA 171/2014 Page 10 of 16

11 15. In another recent decision of this Court in the case of Sheo Prasad Chouhan Vs. Joyradha Das reported in 2015 (5) GLT 347 it has been held that delivery of possession is not a pre-condition for valid sale. 16. Evidently, the suit of the plaintiff was based on title and therefore, would be governed by Article 65 of the Limitation Act. When a suit is governed by Article 65 of the Limitation Act, the limited burden of the plaintiff is to prove his title. Once the title is proved, the plaintiff cannot be unsuited unless adverse possession of the defendant is proved extinguishing the title of the plaintiff, as has been rightly submitted by the learned counsel for the plaintiff placing reliance on the decision of the Apex Court in M. Durai Math (2007) 3 SCC 14 (supra), wherein the Apex Court held as under. 6. Learned counsel appearing on behalf of the appellant inter alia submitted that the purported substantial question of law formulated by the High Court was mis-conceived inasmuch as in terms of Articles 64 and 65 of the Limitation Act, 1963, the burden of proof to establish that they had perfected their title by remaining in possession would be on the defendants. We see force in the submissions of the learned counsel. 7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the Plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. 17. Pleaded case of the defendant in the written statement was that the suit land originally belong to one Lal Bahadur Chetri and the defendant has RSA 171/2014 Page 11 of 16

12 been possessing the suit land with the knowledge of Lal Bahadur Chetri since 1970 and refused to vacate the suit land on being asked by Lal Bahadur Chetri and subsequently by Annaram Kalita, Ajimuddin Ahmed and Tafiqul Hussain (vendor of plaintiff) and also the plaintiff and sought to put up a plea of adverse possession. No evidence could be adduced by the defendant to show that Lal Bahadur Chetri was the owner of the suit land at any point of time. The defendant admitted the ownership of Annaram Kalita, the recorded pattadar of the suit land by a specific averment that Annaram Kalita purchased the suit land in an auction sale. Categorical admission of the defendant in his evidence is that he has been possessing the suit land as permissible occupier. He even went on admitting in evidence that he is not the owner of the suit land with title, and he has not taken any steps to acquire title over the suit land.. He also deposed that he did not raise claim of adverse possession at the time of obtaining holding and thereafter at the time of hearing regarding cancellation of the holding also. It is pertinent to mention here that the holding obtained by the defendant over the suit land was cancelled by Ext.5, order dated in Mutation Case No. 96/2001. The above unambiguous and unequivocal admission of the defendant rendered the plaintiff s pleaded case of adverse possession redundant. What therefore, follows from the above evidence and materials is that plaintiff discharged his burden to prove right and his title over the suit land. RSA 171/2014 Page 12 of 16

13 18. Trial Court on the basis of the above evidence and materials the defendant came to the following finding and decided the suit of the plaintiff I, therefore find, that the defendant could not establish his plea of adverse possession. On the contrary, the plaintiff successfully proved the acquiring of right, title and interest over the suit land and decreed the suit. Learned first appellate has also upheld the judgment and decree of the learned Trial Court concurring with the findings of the learned trial Court. 19. A copy of the sale deed in favour of the vendor of the plaintiff was produced before the learned first appellate court at the time of hearing of the appeal and the learned appellate court took judicial notice of the said deed and observed that anomaly, if any in the mutation entry with regard to the year in respect of the said sale deed was a typographical mistake. Referring to Section 57 of the Evidence Act, learned Sr. Counsel, Mr. D. Majumdar contended that judicial notice could not be taken of such a document being copy of a sale deed, inasmuch as, it does not come within the purview of Section 57 of the Evidence Act. Mr. Majumdar further submits that production of additional document at the appellate stage is not a matter of right. An additional document can be allowed to be adduced at the appellate stage, only under the circumstances laid down in Order 41 Rule 27 CPC. In the instant case, no petition was filed under Order 41 Rule 27 seeking leave to adduce additional evidence and therefore, taking cognizance of an additional document at the appellate stage going beyond the provision of Order 41 Rule 27 was not acceptable under the law, submits Mr. Majumdar. The entire RSA 171/2014 Page 13 of 16

14 substantial question of law framed, was centering around the said additional document, which learned appellate court, allowed to be produced without any application having been filed under Order 41 Rule 27, and also took judicial notice. 20. It is apparent from the judgment of the first appellate court, that it did not disagree with the findings of the trial court in respect of the plaintiff having acquired title over the suit land on the basis of title deeds proved in the case. However, during the course of hearing when a copy of the sale deed in favour of the vendor of the plaintiff was produced before the first appellate court by the learned counsel for the defendant and attracted the attention of the court to some anomaly in the mutation entry with regard to the year of execution of the deed. Learned first appellant court, taking judicial notice of the said copy of the sale deed that anomaly, so pointed out in the mutation order with regard to the year of the sale deed was only a typographical error. 21. Now the question that may arise is, whether the said additional evidence had any impact on the decision of the appeal and the findings arrived at by the learned first appellate court concurring with the finding of the trial court. So far as the sale deed executed by the vendor of the plaintiff or his vendors vendor, there was no dispute, inasmuch as, the defendant never denied in his pleadings the existence of the sale deed in question. Specific plea of the defendant was that those deeds were only paper works RSA 171/2014 Page 14 of 16

15 incapable of conveying title in absence of delivery of possession. It is now settled position, that mutation entry neither creates or extinguish title. Therefore, even if, there was some error or anomaly in the mutation order or mutation entry, that could be of no consequence in view of the fact that the deed in question having bearing on the title of the plaintiff were never in dispute. 23. No doubt, granting or refusing leave to adduce additional evidence is a judicial discretion of the appellate court to be exercise within the parameter of Order 41 Rule 27 of the CPC. In the instant case, learned appellate court appears to have traveled beyond the scope of Order 41 Rule 27 CPC, while allowing the additional evidence. When additional evidence is allowed to be adduced at the appellate stage going beyond the scope of Order 41 Rule 27 CPC, such evidence is to be ignored as has been held by the Apex Court in the case of Natha Singh & Ors. Vs. The Financial Commissioner, Taxation, Punjab & Ors. reported in (1976) 3 SCC 28. So far as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have RSA 171/2014 Page 15 of 16

16 to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. (See Arjun Singh Alias Puran v. Kartar Singh and Ors.(1). In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to the spurious. 24. Keeping in mind the legal proposition that mutation neither creates nor extinguish title, even if the additional evidence of which learned appellate court took judicial notice, is totally ignored or obliterated, there could be no scope for coming to a findings different from the one, arrived at by the trial court and also concurred by the first appellate court on the basis of the evidence available on record as discussed hereinbefore. 25. In view of the above discussion, the appeal is found devoid of merit and substantial questions of law are answered accordingly. The appeal stands dismissed. No Cost. 26. Registry shall send down the record. JUDGE Mkk RSA 171/2014 Page 16 of 16