Jammu & Kashmir High Court
Ganesh Dass vs Kuldeep Raj on 27 July, 2004
Equivalent citations: 2005(1)JKJ555
JUDGMENT Y.P. Nargotra, J.
1. Isher Dass Predecessor-in-interest of the respondents/Plaintiffs instituted a suit for possession against the appellants/defendants on the plea that plaintiff is the owner of the suit shop, which his father Ram Chand had purchased from its erstwhile owner Faquiru by virtue of a Sale-Deed dated 17th of Kartik 1966 BK, in lieu of a consideration of Rs. 99/-. To prove the title plaintiffs produced the original Sale Deed with his suit with a sanction for re-building of the same granted by Chairman, Notified Area Committee, Basohli dated 13.08.1969. The plaintiff alleged that the defendants with their predecessor-in-interest came in possession of the suit shop on 18.07.1970 by virtue of an un-registered mortgage deed duly executed in consideration of Rs. 500/- by the plaintiff in their favour. An attested true copy of the Register of Petition Writer, the scribe of the mortgage deed, was also produced with the suit. The marginal witness was Dina Nath. At the time of filing the suit, the scribe and marginal witness of the mortgage deed had admittedly expired. Through the suit the plaintiff prayed for decree of possession by redemption of the mortgage.
2. The defendants for contesting the suit inter alia took up the defence that the predecessor-in-interest of he defendants was infact the owner of the suit shop and it was he who had constructed the same about 50 years before. The Sale Deed, on which the plaintiff was basing his title being unregistered, does not confer any title on the father of the plaintiff nor the building permission could confer any title upon him. Regarding mortgage deed it was contended that the same, not having been produced in original, not being registered and stamped, is not admissible in evidence. Jurisdiction of the trial court and payment of court fee was also questioned.
3. Learned court of Munsiff Basohli framed the following issues for trial of the suit: --
"1. Whether the plaintiff is the owner of the suit shop and had mortgaged it for a sum of Rs. 500/- in favour of Sant Ram, the husband of defendant No. 1 and father of defendant 2 to 6, also Sri Ram and Sant Ram vide mortgage deed dated 14-07-1970 and after the death of Mortgagees Sant Ram and Sri Ram the defendants are in possession of the suit shop as their legal heirs. O.P.P.
2. Whether suit has not been properly valued and for want of proper court fee the suit is not maintainable. O.P.P
3. Relief."
4. Learned trial court by its judgment dated 30.07.1992 decided issue No. 1 alone in favour of the plaintiff and did not address issue No. 2, on the basis of the finding on issue No. 1, decreed the suit in favour of the plaintiff.
5. The defendants went in appeal before District Judge Kathua. Before the Appellate Court appellant contended that trial court erred in holding the mortgage deed proved and in decreeing the suit on the basis thereof, by relying upon A.I.R. 1974 S.C. 689.
6. Learned counsel for the respondent/plaintiff conceded, before the learned 1st Appellate Court that in view of the law laid down by the Supreme Court, in the said authority the trail court could not have legally admitted the said mortgage deed in evidence. However he contended that as the plaintiff has succeeded in proving his title over the suit shop so the decree of the trial court could be treated as decree on the basis of title. This plea of the plaintiff/respondent was contested by the defendants/appellants.
7. Learned 1st Appellate Court firstly held that mortgage deed was inadmissible in evidence and, therefore, the decree of the trial court as it was could not be legally sustained. Regarding the question of title of the plaintiff over the suit shop, learned 1st appellate court observed: --
"1stly, the parties have led evidence with their eyes wide open regarding the title of the respondent No. 1 over the suit shop. The respondent No. 1 over and above his own statement and his PW has produced the original sale deed executed by Faqiroo Mankotia earlier woner. This document of sale deed though un-registered and was not required to be registered because its value was less than Rs. 100/-and is a document more than 30 years old. The scribe the executor-Vendor Faqiroo Mankotia, the vendee Ram Chand father of Respondent No. 1, the marginal attesting witnesses of the Sale deed are admittedly all deed and this document was executed on 17-7-1996 BK i.e. 55 years back and as such, it is presumed to be correctly and validly executed and as such confers valid title on eh respondent No. 1 as owner."
8. The learned Appellate Court below also held that defendants have not been able to establish their own title over the suit Shop.
Learned Appellate Court below also accepted the fact that the defendants had entered the possession of the suit shop as mortgagors.
Learned Appellate Court also determined the issue No. 2 which had remained undecided and held the value of the suit property at Rs. 20000.00 and directed the plaintiff to make good the deficiency in payment of the court fee.
9. Learned 1st Appellate Court on the aforesaid findings set aside the decree of redemption of mortgage passed by the trial court and substituted it by a decree of possession on the basis of title by its judgment and decree dated 21.07.1994 hence the present Civil 2nd Appeal Under Section 100 C.P.C by the defendants.
10. This appeal has been admitted to hearing on the following substantial questions of law: --
(i) Whether the suit for redemption can be converted by the Appellate Court of his own as a suit for possession on the basis of title when no application or prayer to this effect is made by the plaintiff-respondent?
(ii) Whether when the suit for redemption is converted by the Appellate Court as a suit for title, can a decree to this effect be made without affording fresh opportunity to the other side to contest the same?
(iii) Whether a judgment and decree passed by the Munsiff whose pecuniary jurisdiction does not exceed Rs. 5000/- can be treated as a valid decree for entertaining and appeal when the value of the suit for jurisdiction purpose has been assessed at Rs. 20,000/-?
(iv) X X X
(v) Whether any document purporting to be of a date which is 30 years old at the time of institution of the suit can be treated as a 30 years old document when the actual date of its execution has not been established?
(vi) X X X
(vii) X X X
(viii) X X X
(ix) Whether having valued the suit for purpose of jurisdiction at Rs. 20,000, it was not incumbent on the learned District Judge to remand the case to the Trial Court to return a finding to this effect after affording opportunity to the parties to lead evidence in this regard?"
11. After having heard the learned counsel for the parties and perused the record, I proceed to examine these questions of law one by one in the light of the submissions made at the bar.
(1) Whether the suit for redemption can be converted by the Appellate Court of his own as a suit for possession on the basis of title when no application or prayer to this effect is made by the plaintiff-respondent?
Learned counsel for the appellant contends that suit for redemption could not converted into a suit for possession on the basis of title without any application or prayer for the same being made by the plaintiff.
12. In my considered opinion, there is no such bar. In a case like the present one, where the question of title of the suit property is an issue and parties have led the evidence for and against the issues, there is no bar either for the court or the for the parties to seek and decree the suit on the basis of the title. For claiming a decree the parties are entitled under law to put across alternative pleas.
(2) Whether when the suit for redemption is converted by the Appellate Court as a suit for title, can a decree to this effect be made without affording fresh opportunity to the other side to contest the same?
13. In view of the answer given in reply to question No. 1, this question is also answered by saying that 1st Appellate Court being the Final Court of Facts before whom the original lis continued is entitled to pass the decree for possession on the basis of title in a case where decree for possession on the basis of redemption for the mortgage has been sought for. Once the parties are found to have led the evidence for and against on the issue of title, no further or fresh opportunity is required to be given to the parties for proving their case.
(3) Whether a judgment and decree passed by the Munsiff whose pecuniary jurisdiction does not exceed Rs. 5000/- can be treated as a valid decree for entertaining and appeal when the value of the suit for jurisdiction purpose has been assessed at Rs. 20,000/-?
14. Learned counsel for the appellant contends that the originally suit for value of Rs. 500/- was filed by the plaintiff. In appeal the 1st Appellate Court held the value to be at Rs. 20,000/- The appeal became not maintainable for the reason that pecuniary jurisdiction of the appellate Court only extended to the suits valuing Rs. less than 20,000/- She has argued that suits or the appeals carrying pecuniary value of more than Rs. 20,000/- for the purpose of Court fee and jurisdiction, were required to be filed in the High Court and not before the District Court. It is another matter that after such filing the same could be transferred for disposal to the court of District Judge, by the High Court. She relies upon a Full Court Judgment of this court rendered in Tota Ram v. State and Ors., 1975 AIR J&K 73. On the other hand, learned counsel for the respondents argues that the jurisdiction of the District Court to hear the suits and the appeal is un-limited and it is only the matter of procedure which was in vogue at the time of filing the appeal that the suits carrying value for the purposes of court fee and jurisdiction at Rs. 20,000/- were required to be filed in the High Court and the High Court would then transfer the same for disposal to the court of District Judge of competent jurisdiction.
15. Mr. Sharma submits that now amendment in Section 102 of the Constitution of Jammu & Kashmir has been carried out for providing that the jurisdiction of the Principal Civil Courts to be unlimited for hearing the suits.
16. When the suit was filed the plaintiff fixed its value at Rs. 500/- for the purposes of Court fee and jurisdiction. The suit was within the pecuniary jurisdiction of the trial court. The trial court decreed the suit and therefore appeal was maintainable before the District Judge Under Section 34 of the Civil Courts Act irrespective of the value of the suit. The defendants' had questioned the value of the suit and jurisdiction on its basis before the trial court. The trial court did not decide the question while decreeing the suit. In Ist appeal the appellant raised the said question again and the Ist appellate court came to the view that the value of the suit should have been 20,000/- on determining the real value what the appellate court could do under law. It could have returned the suit for presentation in the proper court as the trial court would not have the jurisdiction to decide the suit or being the first appellate court, as the appeal is continuation of the suit, it could have itself levied the necessary court fees and decided the suit in appeal provided the District Court possessed the pecuniary jurisdiction to hear the suit. So then necessary question arising for consideration is, whether the court of District Judge Kathua possessed the jurisdiction to hear suits carrying value of 20,000/-Section 20 of the Civil Courts Act provides: --
"...Section 20. Original jurisdiction of District Judge in suits. Except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards the value."
17. Thus under Section 20 the pecuniary jurisdiction of District Judge is unlimited. However the High Court possessed the jurisdiction to hear the determine suits carrying value of Rs. 20,000/- and onwards in view of the provision contained in Clause 10 of Letters Patent and Section 56(2) of the J&K Constitution Act of 1956 which was repealed by the coming into force of Constitution of Jammu and Kashmir on 26.1.1957 which by its Section 102 however, saved and left intact Section 56(2) of Constitution Act of 1956. Therefore, on one hand the jurisdiction of the District Judge was unlimited under Section 20 of the Civil Courts Act on the other hand, High Court possessed the jurisdiction on the civil original side to hear and determine the original civil suits, the value of which was not less than Rs. 20,000/-. The point of conflict of jurisdiction of District Judge to hear and determine the cases carrying the value of Rs. 20,000/- or more and that of the civil original jurisdiction of the High Court came to be considered and resolved by a Full Bench of this Court in case Tota Ram v. State, AIR 1975 J&K 73, His Lordship Jaswant Singh J(as his lordship then was) expressed the view after noticing the provisions contained in Section 56 of the Constitution of Jammu and Kashmir Act and Clause 10 of Letters Patent Rules as follows:
"The above quoted provisions which are identical consist of two parts. The first part is in the nature of an enabling provision. It appears to have been enacted to confer original jurisdiction on the High Court. But for this provisions the High Court which, no doubt, enjoyed extraordinary original jurisdiction under Section 11 of the Civil Courts Act, 1977 (1920 A.D.) would not have been in a position to entertain any civil suit or original civil proceedings as a court of ordinary original jurisdiction. The second part contains for institution of civil suits and original proceedings by imposing an obligation on the suitors to file the aforesaid suits and original proceedings of the value of rupees twenty thousand and above on the original side of the High Court so that it may see as to which case of such a high valuation can be safely entrusted to the District Court for trial and determination. But does not oust or nullify the jurisdiction possessed by the District Court to try and determine suits of any value. This position would be clear from a perusal of Section 19 and 20 of the Civil Courts Act, 1977. According to Section 19 which is a deeming provision, the Court of District Judge has to be treated as the principal Civil Court of original jurisdiction in the District. Section 20 lays down that except as otherwise provided by any enactment for the time being in force, the Court of District Judge shall have jurisdiction in original suits without limit as regards the value. Now the requirement of the institution of the civil suits and original proceedings of the value of rupees twenty the institution of the civil suits and original proceedings of the value of rupees twenty thousand and above in the High Court enjoined by Section 56(2) of the Constitution Act, 1996, and the Clause 10 of the Letters Patent cannot by any stretch of imagination be taken to rob the District Court of its jurisdiction to try and determine them. Reference in this connection may be made to a decision of the Calcutta High Court in Mohini Mohan Das v. Kunjabehari, AIR 1943 Cal 450, where while dealing with the effect of Section 115 of the Code of Civil Procedure, which provides that every suit must be filed in the court of lowest grade competent of try it, a Division Bench of that court said: "Section 15 lays down a rule of procedure and not of jurisdiction and it does not divest any court of jurisdiction which if otherwise possesses under the Statue constituting such Courts."
His Lordship further observed that:
"It would be also profitable to bear in mind that the expression "institute," "hear" or "try" and "determine" have different connotations and are used to indicate different stages of litigation.
It view of the above discussion, I am clearly of the opinion that after a suit of the value of rupees twenty thousand of above, is instituted in the High Court it can be transferred to the District Judge for trial and. disposal."
In the same judgment, His Lordships Chief Justice S. Murtaza Fazal Ali (As His Lordship then was) while agreeing with the view expressed by his lordship Justice Jaswant Singh and after referring to the provisions contained in Section 56(2) of the Constitution Act expressed the following views: --
".The second part, however, modifies a portion of Section 20 of the Civil Courts Act by providing that any suit whose value is Rs. 20,000/-or more shall not be instituted in the District Court but in the High Court. To this extent alone the provisions of Section 20 of the Civil Courts Act have been modified both by the Constitution Act and Letters Patent of this Court. In other words the position is that whereas the District Judge continues to be competent to hear and try original suits of any value, he cannot entertain suits of the value of Rs. 20,000/- or over unless such suits after being instituted in the High Court are transferred to him. Thus the intention of His Highness in engrafting Section 56 of the Constitution Act appears to have been to insist that the suits of a particular valuation namely, suits of the value of Rs. 20,000/- or over shall be instituted only in the High Court and not in the District Court without disturbing the right of the District Court to hear and determine such suits. Thus the position is that suits of the value of Rs. 20,000/- or over would have to be instituted in the High Court and not in the District Court but once the suits are instituted in the High Court, the bar of the District Court to entertain them is completely removed and those suits can be heard by the District Court if transferred by the High Court."
The third Hon'ble Judge of the Full Bench, His Lordship Justice D.D. Thakur (as His Lordship then was) concurred with the view expressed by His Lordship Justice Murtaza Fazal Ali, Chief Justice (as His Lordship then was) and agreed to the conclusion arrived at by His Lordship Justice Jaswant Singh (as his Lordship then was) by expressing the view that: --
".I agree with the conclusion arrived at by him but am of the opinion that the principle contained in Section 15 Civil P.C. has no room for its application to justify the conclusion. Similarly the principle regarding the ouster of the jurisdiction of the civil courts too is beside the point. The case hinges upon the question as to how the seemingly conflicting provisions of the Constitution Act of 1996, the Letters Patent of this Court and those of the Civil Courts Act can be allowed to co-exist in harmony with each other, without negativing the effect of any of these provisions. I am in complete agreement with that part of the judgment of my brother Jaswant Singh J, which relates to the harmonious interpretation from which support has been borrowed appear to me to be wholly inapplicable."
His Lordship Justice Mufti Bahu-ud-Din Farooqi concurred with the view expressed by His Lordship Justice D.D. Thakur."
This judgment was noticed in C. Rev. No. 158/03 Jagdish Kumar v. Abdul Majid decided on 24.12.2003 by me and it was observed: --
"From the careful reading of the full Bench Judgment, the consistent view of the Court appears to be that the jurisdiction of the District Judge to hear and determine the civil original suits is unlimited as regards the value of the suits but provision contained in Section 20 of the Civil Courts Act has to be read by reading therein that District Judge shall not entertain the suits carrying the value of Rs. 20,000/- and more except after the transfer of such suits from the High Court. It is also manifest from the judgment that there is marked distinction between the word "entertain" and the 'jurisdiction to hear and determine' Rule of entertaining such suits is the rule of Procedure and not Rule of jurisdiction. The Rule of Procedure as enunciated by the Full Bench Judgment of this Court requires that the suits carrying value of rupees twenty thousand or more must be presented before the High Court and then if the High Court transfers that suit for trial to a District Court, the District Court will have the jurisdiction to hear and determine that suit, its jurisdiction being unlimited as regarding the value of the suit."
It was further observed: --
"In the present case, when the suit was entertained by the District Judge, Poonch, he had no power to entertain the suit as its value was Rs. 20,000/-, still the suit has been entertained and is being tried for the last about 20 years. By entertaining the suit, the District Judge has violated the rule of procedure only and not of jurisdiction because his pecuniary jurisdiction to hear suits was unlimited. Would such violation of rule of procedure vitiate the proceedings conducted by the District Judge in the suit? The answer shall be emphatically no, because Rules of procedure are only hand made tools of justice and when pitted against justice itself these always give way. Therefore, there is no merit in the argument of learned counsel for the petitioner that by entertaining the suit for the trial of which the District Judge had the jurisdiction, the proceedings conducted in the suit was well as the trial stands vitiated. It is only an irregularity of the procedure and does not in any way affect the jurisdiction of the District Judge to hear and try the suit."
18. In the present case the suit was filed on 16.1.1987 and the Learned District Judge in appeal has decided the suit on merits instead of returning the same by his judgment dated 21.07.1994.
19. The District Judge's jurisdiction to hear suit is unlimited and therefore, he can at the most be said to have violated the rule of procedure which is an irregularity and does not render his decision to be without jurisdiction, because after all had the suit been transferred by the High Court the same District Judge could pass the same decree in the same suit. Section 99 of C.P.C. protects such decrees. Moreover, no prejudice appears to have been caused to the defendants by disposal of the case on merits and under Section 1KB) of Suits Valuation Act the appellate court was competent to disallow the objection to the jurisdiction of the trial court on being satisfied that defendants had not been prejudicially affected by disposal of the suit or appeal on merits. It is not the case of the appellants here that they have been prejudiced by the disposal on merits. Thus this question is answered by saying that decree passed in the suit is not rendered invalid on the ground that value of the suit was Rs. 20,000/-.
Question No. 5: --
Whether any document purporting to be of a date which is 30 years old at the time of institution of the suit can be treated as the 30 years old document when the actual date of its execution has not been established?
20. Mrs. Sharma has argued that a document which is produced before a court and presumption of its execution is sought to be drawn under Section 90 of the Evidence Act being thirty years old, it is necessary that the date of its execution is established. Where actual date of its execution is not established by the party relying upon it no presumption can be drawn. Section 90 reads: --
"Presumption as to documents thirty years old. -- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
21. From the Section the principle appears to be that when a document either purports to be thirty years old or it is proved to be thirty years old and is produced from any custody which the court considers proper custody the court may presume that signatures and every other part of such document which purports to be in the handwriting of a person, is in that persons hand writing and in case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
22. The presumption allowed by the Section is in the discretion of the court. The document produced before the court is not required to be always proved in the ordinary manner. The court is entitled to draw the presumption if it appears to the court that the document is thirty years old and that it has come from the custody of a person in whose custody it should be in the normal course of things. The court must satisfy itself that document is thirty years old before it draws the presumption and such satisfaction may be made from the date on which it is purported to have been executed or from the age of the document in which case party producing the document may have to prove that it is thirty years old document. The presumption under this section is a rebuttable presumption, therefore, opposite party may prove that the document is not genuine or that it was not executed on the date it purports to have been executed or that it is not a thirty years old document. Where genuineness of the documents is not challenged and it is not proved that the document is not thirty years old by the opposite party it cannot be allowed to be contended that presumption should not be drawn because the party producing it has not established its date, of execution.
23. In the present case, the appellant has not disputed the genuineness of the Sale-deed nor its execution on the particular date was challenged. Therefore, learned Appellate Court below was justified in drawing the presumption, which has remained un-rebutted. Therefore, finding on the point returned by the Learned District Judge cannot be faulted with. The Question No. 5 is thus accordingly answered.
Question No. 9: --
Whether having valued the suit for purpose of jurisdiction at Rs. 20,000, it was not incumbent on the learned District Judge to remand the case to the Trial Court to return a finding to this effect after affording opportunity to the parties to lead the evidence in this regard.?
In view or the reasons given above for deciding question No. 3, there is no need to determine this question, as it also stands answered.
24. For the reasons stated above, I find no merit in the appeal of the appellants and dismiss the same. The Judgment and decree of the 1st Appellate Court is affirmed. Parties are left to bear their respective costs of the appeal. Record of the courts below be returned with a copy of this judgment.