Calcutta High Court
Manoranjan Das And Ors. vs Bishnupada Bhattacharya And Ors. on 22 July, 2004
Equivalent citations: (2004)3CALLT514(HC), 2005(1)CHN254
JUDGMENT A.K. Mitra, J.
1. This Second Appeal has been preferred challenging the judgment and decree dated 28.2.1979 passed by the learned Subordinate Judge VIIIth Court at Alipore in Title Appeal No. 168 of 1978 affirming the judgment and decree dated 27.01.1978 passed by the learned Munsif, 1st Court at Baruipur in Title Suit No. 57 of 1969.
2. This appeal arises out of a suit for declaration of title and permanent injunction in respect of suit property.
3. The case as has been made out by the plaintiff is inter alia as follows:
One Haridas Bhattacharya and his brother Phanibhushan Bhattacharya were the owners of the land recorded in C.S. Khtian No. 212 and Surabala Debi, wife of Haridas Bhattacharya was the recorded owner of C.S. Khatian No. 210/1 of Mouza-Panchghara, P.S.-Baruipur. Phanibhusan died leaving behind him no other heir except his brother Haridas. Accordingly, Haridas became the sole owner of the land in C.S. Khatian No. 212. Plaintiffs are the heirs of Haridas and Surabala and as such they are claiming title to the suit plot by inheritance and possession and all through they got the land cultivated through hired labourers. It is alleged by the plaintiffs that the defendants along with others had cut fully riped paddy as grown by the plaintiffs on the suit land, proceeding under Section 145 Code of Criminal Procedure was started accordingly at the instance of the Plaintiff No. 1 which was disposed of by the learned Magistrate, Alipore by his order dated 07.08.1968. The order of the learned Magistrate was challenged before the High Court but to no effect. The learned Magistrate found possession against the plaintiffs on the basis of entries in R.S. Khatian 209 and 217. The plaintiffs challenged the said entries as being erroneous.
4. According to the plaintiffs it was made in collusion with one Y.A.R. Ali, a clerk in the Settlement Department and an henchman of the defendants in the name of one Nishit Kumar Kar on the basis of auction sale in his favour in a Certificate case and it was alleged that delivery of possession was made. The plaintiffs challenged the said auction sale and stated that it was a nullity and questioned the defendants getting possession of the suit plot. Consequently, the plaintiffs brought this suit for a declaration that they were lawful owners of the suit land and for a further declaration that R.S. Khatian 209 was entirely wrong and that plot should have been recorded in R.S. Khatian No. 217 in the name of the plaintiffs after necessary correction. The plaintiffs also prayed for permanent injunction against the defendants from interfering with their possession over the said land.
5. The defendants' case is that the entire land in suit was sold on 17.05.1948 in the Certificate case for default in payment of road and auction cess concerning the suit plots by the recorded owners and purchased by Nisit Kr. Kar, who had thereby acquired title and possession. One Abhimanyu Sardar was the transferee from Nisit Kr. Kar and the transfer was through a sale deed. The defendants claimed interest by virtue of their purchase from Abhimanyu Sardar by a Deed of Sale dated 2.01.1961. the defendants also stated that the plaintiffs were aware of the said auction purchase and the entries in the relevant khatian.
6. The defendants also took a legal objection to the effect that the Court had no jurisdiction to correct and rectify the R.S. Khatian as prayed for in the plaint. The defendants also contended that the suit is barred under Section 34 of the Specific Relief Act and the plaintiffs being out of the land and or possession for more than 12 years, the instant suit for permanent injunction is not maintainable.
7. The suit was decreed in favour of the plaintiffs and the title of the plaintiffs over the suit land was established. But the learned trial Judge rejected the prayer for permanent injunction.
8. Appeal was preferred, the learned Appellate Court reversed the judgment, according to the plaintiffs on following points.
(i) The title of the plaintiffs to the said plot has been proved and to that effect the finding of the learned Magistrate should be affirmed.
(ii) Plaintiffs are entitled to the declaration that the R.S. Khatian No. 217 is erroneous or for cancellation of R.S. Khatian No. 209.
(iii) Regarding possession, the plaintiffs are found to be not in possession of the land in suit recorded in R.S. Khatian No. 217 only in view of the order under Section 145 Code of Criminal Procedure by the learned Magistrate, but that will not make the plaintiffs unable to claim physical possession in respect of the lands recorded in R.S. Khatian No. 205. It will be necessary for the plaintiffs to make assessment of their own possession and to decide whether they should pray for recovery of possession of the entire plot or only the land recorded in Khatian No. 209.
9. Opportunity was given to the plaintiffs accordingly to amend their prayers for relief by way of recovery of possession at the trial Court for a fresh decision. It was however, been specifically pointed out by the learned Appellate Court that the points decided in the judgment will be taken as final and the parties will not be entitled to reopen the same in course of hearing after remand.
10. The plaintiffs amended the plaint by adding prayer for recovery of possession of 59 decimals of land under R.S. Khatian No. 209, that being the position. The point as it now stands that the plaintiffs did not pray recovery of possession of the entire plot in suit but in respect of plot pertaining to. R.S. Khatian No. 209 only.
11. In all 10 issues were framed, including 3 additional issues.
12. The learned Appellate Court below took up the following points for determination of the First Appeal.
(i) Did the trial Court fail to frame proper issue?
(ii) Did the trial Court fail to decide the suit in accordance with Order of Ramand.
(iii) Did the trial Court erred by granting injunction in respect of the lands of Khatian No. 217?
(iv) Was the trial Court wrong in deciding the issue on adverse possession?
(v) To what other reliefs, if any, are the appellants entitled?
13. The appeal was dismissed on contest with costs and the judgment and decree of the learned Court below was affirmed by the learned Appellate Court below.
14. Since in view of the provisions of Section 100 of the Code of Civil Procedure substantial questions of law are to be framed before finally hearing of the appeal.
15. The learned counsel for the parties made their respective submissions as to involvement of substantial questions of law in this Second Appeal. Now for that purpose hearing took place for four days making the matter as heard in part and after hearing was concluded on that score it was observed by this Court that the matter will appeal under the heading "For Order" when necessary orders will be passed.
16. The learned counsel for the appellants submitted that no additional issue has been framed as to the validity of auction sale and purchase. No receipt or sales certificate was produced. The learned counsel also submitted that since no issue has been framed by trial Court regarding adverse possession, order is based on surmise and conjectures.
17. The learned counsel further submitted that it is a question as to whether the Courts below proceeded on the basis of Remand Order dated 17.09.1949. No proceeding was initiated by the plaintiffs under Section 51 of West Bengal Land Reforms Act or 44(2A) of the Estate Acquisition Act.
18. The learned counsel submitted that possession of the land was established in the proceeding under Section 145 Code of Criminal Procedure. Record of Rights was prepared in the name of Vendor's Vendor. The plaintiffs also did not take any step under Section 51 of the West Bengal Land Reforms Act or 44(2A) of the Estate Acquisition Act.
19. The learned trial Judge did not consider all these aspects.
20. The learned counsel further submitted that without the State being made a party, no declaration can be made and the State is a necessary party in the suit since question of correction of Record of Rights is there.
21. The learned counsel then submitted that both the Courts below while dealing with the question of possession considered two documents but no issue was framed relating to the validity of the sales certificate and as such the judgment of the trial Court has vitiated and more so when it is not in accordance with the Remand Order.
22. The learned counsel also submitted that the Appellate Court's finding is wrong.
23. The learned counsel then attacked the judgment and decree passed by the Lower Appellate Court and submitted that the learned Appellate Court below ought to have considered that admittedly no step was taken to correct the Record of Rights and presumption of the Record of Rights was not rebutted by any cogent evidence.
24. The plaintiffs did not adduce any rebuttal evidence regarding the record of rights.
25. The learned counsel then submitted that the mutation stood in the name of Nisit Kr. Kar, Record of Rights was there, sales certificate was there and as such delivery of possession was also there and in that event the learned Appellate Court below should have discarded the evidence adduced on behalf of the defendants.
26. The learned Appellate Court below did not consider the judgment and decree passed by the learned trial Judge in its proper perspective and as such the Appellate Court went on wrong without considering or scrutinizing the judgment of the trial Court in view of the provisions of Section 96 of the Code of Civil Procedure.
27. The learned counsel for the appellants in support of his contention placed reliance on a judgment (Bhairab Chandra v. Ranadhir Chandra).
28. The learned counsel laid stress on the observations made in paragraph 6 of this judgment which is quoted hereinbelow:
"6. learned counsel for the respondent submitted that the appellant has another house situate in Ismail Madan Lane and, therefore, the appellant was not left without alternate accommodation and, as such the appellant has not satisfied the requirements of Section 13(ff) for seeking possession of the leased portion for his own occupation. The house situate in Ismail Madan Lane is said to be more than three miles away from the suit house as per statement of counsel made at the bar. Moreover, the house is not lying vacant. The appellant's witness Mukhtar Ahmed examined as PW 2 has deposed that he is a tenant in the house in Ismail Madan Lane and that the entire house is in the occupation of tenants and no portion is lying vacant. Apart from this, it has also to be pointed out that this is a case where the appellant is occupying a portion of the house and wants possession of the leased portion only by way of additional accommodation. To such a case the condition imposed by Section 13 that "landlord should not be in possession of any reasonably suitable accommodation" may not be strictly attracted. Otherwise, it would lead to a landlord being asked to disrupt the family and providing accommodation for the members of his family at different places. The respondent's counsel submitted that since no issue has been raised on the question of alternative accommodation being available, the appeal may be remanded to the Appellate Court for evidence being taken and a finding rendered on the question whether the house in Ismail Madan Lane would meet the requirement of the appellant. We do not find any merit in this submission. Though formally no issue was framed, the parties went to trial and adduce evidence with this issue in mind and have drawn the attention of the Court to the existence of another house belonging to the appellant in Ismail Madan Lane and the said house being not vacant. There is, therefore no need for the appeal being remanded for a finding on the question whether alternative suitable accommodation is available for the appellant."
29. The learned counsel for the appellants relying on this judgment submitted that since no issue has been framed on a particular question, if the said aspect has been dealt with, then only for mere technicality that the issue was not framed, the Appellate Court should not remand it to the trial Court.
30. The learned counsel for the respondents submitted that sale certificate has been found to be null and void and that apart no appeal was preferred against the Order of Remand.
31. The learned counsel for the respondents further submitted that the title was declared in favour of the plaintiffs rightly. The Appellate Court below scrutinized the judgment passed by the learned trial Judge.
32. The learned counsel for the respondents sought to distinguish the citations placed before this Court on behalf of the appellants reported in AIR 1984 SC (supra).
33. The learned counsel for the respondents in support of his submissions relied on the decision (Sheel Chand v. Prakash Chand).
34. The learned counsel for the respondents laid stress on the observations of the Hon'ble Apex Court made in paragraphs 6 and 7 of this judgment which are quoted herein below:
"6. The above judgment was approved by a three-Judge Bench of this Court in Kshitish Chandra Purkait v. Santosh Kumar Purkait wherein it was held: (SCC p. 445, para 10) "10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to Sub-section (5) of Section 100 Code of Civil Procedure in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is abnegation or abdication of the duty cast on Court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 Code of Civil Procedure should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposes of, without conforming to the above discipline."
"7. The question of law formulated by the learned single Judge, noticed above, strictly speaking is not even a question of law, let alone a substantial question of law. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 Code of Civil Procedure. It appears that the learned single Judge overlooked the change brought about to Section 100 Code of Civil Procedure by the amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100 Code of Civil Procedure. It was not proper for the learned single Judge to have reversed the concurrent findings of fact while exercising jurisdiction under Section 100 Code of Civil Procedure. That part, we find that the learned single Judge did not even notice, let alone answer the question of law which had been formulated by it at the time of admission of the second appeal. There is no reference to the question of law in the impugned order and it appears that the High Court thought that it was dealing with a first appeal and not a second appeal under Section 100 Code of Civil Procedure. The findings of fact recorded by the two Courts below were based on proper appreciation of evidence and the material on the record. There was no perversity, illegality or irregularity in those findings. None has been brought to our notice by the learned counsel for the respondent either. The findings, therefore, did not require to be upset in a second appeal under Section 100 Code of Civil Procedure. The judgment of the learned single Judge, under the circumstances, cannot be sustained. This appeal consequently succeeds and is allowed. The judgment and order of the High Court dated 13.9.1996 is set aside. As a result, the eviction suit filed by the landlord shall stand dismissed. No costs."
35. The learned counsel then relied on a decision of this High Court (Jairam Gharami v. Atul Krishna Das Kuri and Ors.).
36. The learned counsel laid stress on the observations made in paragraph 13 of this judgment which is quoted hereinbelow:
"13. In my opinion, the number of the suit as given in the sale certificate is evidently wrong because there is no discrepancy regarding the number of the rent execution case. It is true that there is no evidence to indicate that Harimati Dasi was a tenant of the defaulting holding but the mention of her name in the sale certificate as one of the judgment-debtors appears to me to be quite inconsequential as the names of the recorded tenants appear in the sale certificate."
37. The learned counsel then relied on a decision (Shyam Sundar Dutta v. Baikuntha Nath Banerjee and Ors.).
38. The learned counsel laid stress on paragraph 5 of this judgment which is quoted below:
5. The question of the respondents to have remained in possession cannot be gone into by the High Court, since the District Court on consideration of the entire evidence had categorically recorded a finding of fact that the appellant and his co-sharers remained in possession from August 1945 and that the respondents were not continuing in possession from that time. This being a finding of fact, the High Court would not have gone into the question. However, it would appear that on the question of limitation under the Bengal Tenancy Act when the arguments were addressed, in consideration of that question, the High Court has gone into question whether the respondents were not dispossessed from suit lands and recorded a finding that they remained in possession. That finding does not appear to be warranted in view of the fact that the evidence was not discussed and as rightly contended the only evidence the High Court had considered was that of PW 1 but the first Appellate Court had considered the evidence of PWs 2 to 5 and the documentary evidence and that evidence was found to be in support of the evidence given by PW 1 that the respondents did not continue in possession from August 1945. Therefore, the finding recorded by the High Court, in fact, was not necessary. Even otherwise, that finding was recorded without adverting to all the material evidence and that, therefore, the finding of possession recorded by the High Court is clearly illegal."
39. The learned counsel further relid on a judgment (Smt. Katya Bala Dassi v. Nilmoni Pakhira and Ors.).
40. The learned counsel relied on the observations made in paragraph 32 of this judgment of the Hon'ble Division Bench which is quoted hereinbelow:
"32. Considering the facts of this case, the pleadings and the prayers and having tested them in the light of the determinations amongst others in the case of Ram Krishna Mullick v. State of West Bengal (1975)1 Cal LJ 154) (supra) and those in the case of Ayubali Sardar v. Derajuddin Mullick (1975) 2 Cal LJ 305) (supra), we do not find any justification in holding or in that, agreeing with the submissions of Mr. Banerjee, that the suit out of which this appeal arose, had abated. In fact, there has been no abatement of the suit under Section 57B of the West Bengal Estates Acquisition Act, 1953 and in any event Ram Krishna Mullick's case (supra), will have no application in a suit like the present one, where the question of title is involved. The above determination in Ram Krishna Mullick's case (supra), will not apply in this case since in the connected suit in our case, there was really no prayer for declaration of title and the same was one for partition and furthermore, the decree as passed, would come under Order 20 Rule 18 of the Code of Civil Procedure. The determinations in Ram Krishna Mullick's case (supra), in our view would enure to the benefit of the plaintiff/respondents and not the defendant/ appellants. Similarly, on facts, we cannot also agree with the submissions of Mr. Banerjee and that too on consideration of the decisions as cited at the Bar, that the learned Court below did any wrong in not framing such additional issue as claimed and as indicated by Mr. Banerjee and (that) too when, parties to the proceedings went to the trial, with full knowledge of each others case and that being the position, the non-framing of such additional issue as claimed, even if the same was necessary, has not caused any prejudice to any of the parties to the proceedings and they had in fact, received all and every opportunities to establish their respective cases. Such and above being the position, we do not also accede to the prayers of Mr. Banerjee that there should be an order for remand to the learned Court below, for having the lis, duly and effectively determined, on framing an additional issue as indicated above. In the facts of this case, we cannot also agree with the submissions of Mr. Banerjee, that there has been infraction of Order XIV Rule 1 Sub-rule (5) of the Code of Civil Procedure by the learned Court below. In terms of our under the above mentioned provisions, a Court has no doubt the obligation to frame proper issues from the materials on record, so that the material points in controversy may be duly and appropriately decided and finality of the concerned litigation is reached. We are of the view that the way and the manner in which the issues were framed, has left no room or any need for framing any additional issue, even after the admitted filing of the additional written statement by Katyabala and her daughter and that too when, the manner in which the said additional written statement was filed or language in which the same was worded. The issues in this case were really framed upon the case as founded on the pleadings or which were consistent with the case of the respective parties."
41. The learned counsel laid stress on this judgment and submitted that issue is to be framed and the learned trial Judge will have to decide the issue, otherwise the judgment is a nullity.
42. According to the learned counsel insofar as the adverse possession is concerned, no issue was framed.
43. The learned counsel for the respondents also cited the following proposition (Mohan Lal v. Mirza Abdul Gaffar and Anr.) and (Pakeerappa Rai v. Seethamma Hengsu and Ors.) and relied on the judgment of the Hon'ble Apex Court (Veerayeeamrnal v. Seeniamman).
44. The learned counsel for the respondents also relied on two other decisions of the Hon'ble Apex Court reported in (2001) 8 SCC 581 (Mohan Lal v. Nihal Singh) and (M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar).
45. Heard the learned counsel for the parties, considered their respective submissions, the judgments and decrees passed by both the Courts below insofar as the possibility of having substantial question of law for the purpose of hearing the instant second appeal.
46. It appears that the suit was tried once, thereafter it went up on appeal, the suit came on remand the trial Court and the trial Court heard the suit afresh. The trial Court framed three additional issues which were in addition to the earlier issues framed in the earlier suit which came back in remand. The said three issues are as follows:
Additional Issue No. 8:
Is the suit property valid and correctly stamped, has the Court pecuniary jurisdiction to entertain the suit?
Additional Issue No. 9:
Are the plaintiffs in possession over the suit and covered by R.S. Khatian No. 227?
Additional Issue No. 10:
Are the plaintiffs entitled to recovery of possession of the suit land under R.S. Khatian No. 209?
47. The learned trial Judge decided all these three issues on exhaustive discussion.
48. The learned Appellate Court below also discussed the entire evidence on record and on proper scrutiny of the judgment of the learned trial Judge, the Appellate Court came to the finding and dismissed the appeal on contest with costs.
49. Now it is the submission of the learned counsel for the appellants that no issue was framed regarding possession and without framing any issue regarding possession, the learned Appellate Court below made discussions and came to a decision regarding adverse possession.
50. According to the learned counsel, without framing the issue, the Court cannot come to a conclusion.
51. With respect to the learned counsel for the appellants, I am unable to accept this contention inasmuch as when same issue has been considered by both the Courts below and discussions have been made on that issue and the Court comes to a finding, then on the mere technical ground that the issue was not framed, the judgment cannot stand vitiated and again there is no scope of sending the matter back on remand. Since the question of possession arose and in the Record of Rights the name of the plaintiffs did not appear, the question of possession was to be discussed by the learned Courts below including the possibility of remaining in possession adversely. Both the Courts concurrently found in respect of the special possession which is a question of fact, this Second Appellate Court cannot enter into the said finding of fact as observed also in the judgments of the Hon'ble Apex Court referred to above including the judgment delivered in the case of Pakeerappa Rai (supra).
52. In that view of the matter it cannot be said that the issue of possession has not been discussed thoroughly by both the Courts below and since no issue was framed, on this technical ground, the Second Appellate Court should not interfere with the findings of the learned Judges of the Courts below.
53. Considering the other aspects also, I am of the view that no substantial question of law is involved in this sond appeal, which should be decided by this Court.
54. In that view of the matter the appeal is dismissed, judgments and decrees passed by both the Courts below are affirmed.
In the circumstances there will be no further order as to costs.
Parties are to bear their own costs.
Let a decree be drawn up accordingly.
Let the records of the Courts below be sent down forthwith.
Urgently xeroxed certified copy, if applied for, will be given to the parties expeditiously.