Orissa High Court
Chintamani Kandi Dead After Him His ... vs Arjuna Kandi And Others on 20 November, 2014
Author: R. Dash
Bench: Raghubir Dash
ORISSA HIGH COURT: CUTTACK
S.A. NO.109 OF 1986
From the judgment and decree dated 12.02.1986 and 26.02.1986,
respectively, passed by Sri S.K. Panda, IInd Additional District Judge,
Puri in Title Appeal No.41/76 of 1985/1984 reversing the judgment
and decree dated 09.04.1984 and 19.04.1984, respectively, passed by
Sri G.N. Pattnaik, Additional Sub-ordinate Judge, Puri in Original
Suit No.139/178 of 1981/79-I.
__________
Chintamani Kandi (Dead) after him, ...... Appellants
his L.Rs. Para Dei and others
Versus
Arjuna Kandi and others ...... Respondents
For Appellants : M/s. S.C. Satapathy,
Ch. P.K. Mishra, S.K. Nayak,
K.B. Kar & A.P. Pattanaik
(For Appellant No.1(a)(i))
M/s. A.K. Mishra(B),
Ch. P.K. Mishra & S.C. Satpathy
M/s. Sk. E. Raheman,
B. K. Nayak, A.K. Mishra,
P. Mohanty, S. Ratho,
S. Mohanty & A.K. Das
(For Appellant Nos.1(b) to 1(e) and 2)
For Respondents : M/s. S.P. Mishra, S. Latif,
A.K. Mishra, A.R. Dash &
B.S. Mishra,
(For Respondent Nos.1 to 5, 7 and 9 to 10)
M/s. S.K. Bal & N. Mishra
(For Respondent Nos.5(a) to 5(f))
PRESENT :
THE HONOURABLE MR. JUSTICE RAGHUBIR DASH
Date of hearing : 11.11.2014 Date of judgment : 20.11.2014
R. DASH, J.Being aggrieved by the judgment and decree dated 12.02.1986 and 26.02.1986, respectively, passed by the learned IInd 2 Additional District Judge, Puri in Title Appeal No.41/76 of 1985/1984 reversing the judgment and decree dated 09.04.1984 and 19.04.1984, respectively, passed by the learned Additional Sub- ordinate Judge, Puri in Original Suit No.139/178 of 1981/79-I the plaintiffs before the learned Sub-ordinate Judge have preferred this Second Appeal.
2. The original Appellants in this Second Appeal are the plaintiffs. Plaintiff-Appellant No.1-Chintamani Kandi having died during pendency of the Second Appeal, his L.Rs. have been substituted as Appellant Nos.1(a) to 1(e). Deceased Chintamani Kandi and Ratnakar Kandi (Appellant Nos.1 and 2) filed the suit for permanent injunction against the defendants restraining them from entering into the suit property and interfering with their possession and enjoyment over the same. Their case, in short, is that the suit land measuring Ac.02.89 decimals originally belonged to late Sapani Kandi and late Nokei Kandi. Chintamani Kandi being the son of Nokei, and Ratnakar Kandi being the grandson of Sapani Kandi have been in peaceful possession and enjoyment of the suit properties over which they have got their residential houses and bari. The defendants having no manner of right, title, interest or possession over the suit property, threatened to dispossess the plaintiffs from the suit property and also initiated a criminal proceeding under Section 3 145, Cr.P.C. against the plaintiffs on false allegations. Hence, the suit.
3. D-1 and D-2 are sons of Jahana Kandi and D-3 and D-4 are sons of Bahudi Kandi. They have filed written statement jointly claiming that the suit property is ancestral property of the plaintiffs as well as the defendants and that the property having not yet been partitioned amongst the co-sharers, the defendants still continue to be the co-sharers in respect of the suit property. They claim that the suit property originally belonged to Hari Kandi and Bali Kandi, who are two brothers. Hari Kandi had two sons, namely, Sapani and Gopal and Bali Kandi had two sons, namely, Nokei and Madana. The defendants are the successors-in-interest of Gopal Kandi. Therefore, they have got interest in the suit property. Their further plea is that during 1927 settlement, Sapani and Nokei, being the eldest members of the branches of Hari and Bali were looking after the settlement affairs and they got the suit property recorded in their names. In the year 1975 there was some dispute among the co-sharers relating to the suit property which was amicably settled with the intervention of local gentlemen. On 25.05.1975 one agreement (marked Ext.-C) recording the terms of the settlement was signed by plaintiff No.1 and the defendants admitting therein the aforestated relationship of the parties and the defendants' interest in the suit property but, subsequently, the plaintiffs being ill-advised have filed the suit to 4 deprive the defendants from their legitimate interest in the suit property.
4. On consideration of evidence on record, learned trial court concluded that the agreement marked Ext.-C is not a genuine document. Disbelieving the defendants' claim that they are co- sharers in respect of the suit property but relying on the evidence adduced by the plaintiffs, learned trial court held the plaintiffs to be the exclusive owners of the suit property and decreed the suit. Learned lower appellate court, however, accepted Ext.-C to be a genuine document and, observing that the defendants have interest in the suit property, allowed the appeal and dismissed the suit observing that the defendants being co-owners of the suit property cannot be restrained from enjoyment of the property.
5. This Second Appeal is admitted on the following substantial questions of law:
(i) Whether the appellate court has committed illegality in admitting Ext.-C in evidence and dismissing the suit solely on the basis of Ext.-C?
(ii) Whether relationship between plaintiffs and the defendants can be said to have been duly established ?
6. Questioning the admission of Ext.-C in evidence, it is argued by the learned counsel for the Appellants that the document being unstamped and unregistered could not have been admitted in 5 evidence and even if it was marked as an exhibit it could not have been read as a piece of evidence even for collateral purpose. Further contention is that the document cannot be said to be duly proved when the scribe was not examined to prove due execution of the document. Thus, the objection is both on the admissibility of the document and on the mode of its proof. In order to strengthen the argument on the admissibility of the document strong reliance has been placed on the following observations of the apex Court in Ram Rattan v. Bajrang Lal, AIR 1978 SC 1393 which is referred to in Doddabasappa v. Gurubasappa (deceased by L.Rs.) and others, reported in AIR 2001 Karnataka 149:
"When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is restored to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the Court to decide the objection. If after applying mind to the rival contentions the trial Court admits a document in evidence, S.36 of the Stamp Act 6 would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting S.36.
7. The above observation is in respect of admissibility of a document which is not duly stamped. Section 35 of the Indian Stamp Act, 1899 lays down that an instrument which is chargeable with duty but not duly stamped shall not be admitted in evidence for 'any purpose'. Section 36 of the said Act, however, lays down that when such an instrument has been admitted in evidence such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Section 36 does not cover a case where an instrument not duly stamped has been admitted in evidence without judicial determination of the matter as to whether the document is not duly stamped. Where a document has been inadvertently admitted and marked as an exhibit then the instrument cannot be said to have been admitted in evidence so as to attract Section 36 of the Stamp Act. Therefore, if such an instrument has been inadvertently 7 admitted in evidence, then its admissibility on the ground that it has not been duly stamped can be raised even though it has been admitted in evidence.
8. In the case on hand, the LCR reveals that Ext.-C was admitted in evidence on 2.3.1984 subject to payment of stamp duty and penalty and, subsequently, on 14.3.1984 challan for depositing stamp duty of Rs.1.50/- and penalty of Rs.15/- was tendered by the defendants on whose behalf the document was exhibited. It is found from the LCR that when the document was tendered to be received as evidence the learned trial court marked it as an exhibit without any objection raised from other side. Such admission of the document was made subject to payment of stamp duty and penalty. Therefore, it is to be presumed that learned trial court impounded the document and simultaneously admitted it in evidence making its admissibility subject to payment of stamp duty and penalty as assessed by the court itself. As such, Section 36 of the Stamp Act is attracted and such admission cannot be called in question on the ground that it has not been duly stamped.
The LCR, however, does not reveal as to what further action was taken by the learned trial court subsequent to the tendering of a challan for Rs.16.50/- towards stamp duty and penalty. On payment of stamp duty and penalty the person admitting it in evidence shall send to the Collector an authenticated 8 copy of such instrument together with a certificate in writing stating the amount of duty and penalty levied in respect thereof along with the amount received towards stamp duty and penalty. On the other hand, when an instrument has been impounded but not admitted in evidence upon payment of stamp duty and penalty, the instrument in original shall be sent to the Collector. The object of sending a copy of the instrument or its original can be found from Section 61(4) of the Stamp Act. Therefore, necessary instruction has to be issued to the learned trial court to comply with the provisions contained in Section 38 of the Stamp Act.
9. In Javer Chand and others v. Pukhraj Surana, reported in AIR 1961 SC 1655 it is held that where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far the parties are concerned, the matter is closed.
Taking note of the procedure which has been adopted by the learned trial court while admitting Ext.-C in evidence this Court is of the considered view that there is substantial compliance of the provisions of law contained in S.35 as well as S.36 of the Stamp Act and the document in question has been admitted in evidence. Since the document has been admitted in evidence the 9 Appellants cannot now raise the question of inadmissibility of the document on the ground that Ext.-C being an unstamped document cannot be read in evidence even for collateral purpose.
10. The objection that the execution of the document has not been duly proved inasmuch as the scribe thereof has not been examined as a witness is without much substance. Learned lower appellate court has observed that one of the gentlemen who participated in the discussions and brought about the settlement vide Ext.-C has been examined as a D.W. and, therefore, examination of the scribe could not have improved matters in any way. That apart, such an objection regarding mode of proof ought to have been raised before the evidence was tendered. The LCR reflects that Ext.-C was admitted in evidence without any objection. Therefore, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any subsequent stage. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr., reported in AIR 2003 SC 4548 it has been observed that the omission to raise such an objection becomes fatal for the reason that by such failure the party entitled to raise the objection allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof.
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11. It is further argued that the learned lower appellate court could not have reversed the findings of the learned trial court and dismissed the suit solely on the basis of Ext.-C. Learned lower court has used Ext.-C for collateral purpose. The document is described as a deed of partition and, admittedly, it is not a registered document. Learned lower appellate court has looked into the document to rely on an admission made therein by one of the plaintiffs that the defendants have a share in the suit property. It is true that the suit for permanent injunction has been dismissed mostly on the basis of the admission contained in Ext.-C. The suit has been filed on the basis of plaintiffs' exclusive title in the suit land with further assertion that the defendants have got no relationship with the plaintiffs. The defendants, on the other hand, claim that the parties to the suit hail from one common ancestor and the suit property is their ancestral property wherein they have also got share. The defendants also take the specific stand that on 25.05.1975 there was an amicable settlement with the intervention of the local gentlemen and a written agreement (Ext.-C) was brought about wherein Chintamani Kandi (plaintiff No.1), was a signatory admitting that the defendants have got a share in the suit property. The defendants have disputed the plaint genealogy, besides taking the specific stand that the defendants' branch was not shown in the plaint genealogy which amounted to suppression of material fact. The defendants' 11 claim is that the suit property having not yet been partitioned they, as co-owners, are in possession of the suit property. In spite of such stand taken by the defendants in their W.S. the plaintiffs did not amend their plaint to seek appropriate relief. In a suit for injunction simplicitor, complicated questions as to whether the plaintiffs have exclusive title over the suit property or whether the defendants are co-owners in respect of the suit property, cannot properly be examined. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs & Ors., reported in AIR 2008 SC 2033, it is observed that complicated questions could properly be examined only in a title suit and not in a suit for injunction simplicitor. In the aforestated reported case the plaintiffs had filed the suit for injunction purely based on their title but the defendants disputed their title and claimed possession and took defence giving rise to complicated questions for determination. Despite of such defence the plaintiffs therein did not amend their plaint. Their Lordships observed that the predicament of plaintiffs was brought upon themselves by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for a declaration of a title, the parties cannot be 12 said to have an opportunity to have a full fledged adjudication regarding title.
12. In the suit out of which the present appeal arises, there is an issue as to whether the plaintiffs have got exclusive title to the suit property. But in a suit for injunction simplicitor the parties cannot get an opportunity to have a full fledged adjudication regarding title. Therefore, the defendants are not required to make all efforts to establish their case. It is sufficient for them to make out a case that they have also got a share in the suit property and plaintiffs' claim of exclusive title is doubtful. The defendants can be said to have acquitted themselves of discharging that onus by proving Ext.-C wherein one of the plaintiffs made admission against his interest endorsing that defendants also have a share in the suit property. Therefore, the learned lower appellate court cannot be said to have committed any illegality in dismissing the suit for permanent injunction mostly on the basis of Ext.-C.
13. At this stage the Appellants' prayer for accepting the Consolidation record of right in respect of the suit land which was finally published during the pendency of the second appeal may be taken up. It is not in dispute that during pendency of the case consolidation operation commenced in the area where the suit land situates and during pendency of the second appeal the finally published consolidation R.O.R. was made available to the Appellants. 13 It is also not in dispute that the consolidation R.O.R. relates to the suit land and the consolidation authority has recorded the suit land in the names of the plaintiffs-Appellants. Therefore, the document sought to be produced as additional evidence could not have been produced by the Appellants before the learned Courts below. That apart, the document is necessary to enable the Court to pronounce judgment, inasmuch as the consolidation authority having decided Appellants' title in the suit land have recorded it in the name of the Appellants. Therefore, the settlement R.O.R. (Khatian No.1002 of Mouza- Astaranga) is marked as Ext.10. Now, basing on the consolidation R.O.R. (Ext.10) the Appellants can be said to have established their exclusive title as well as possession over the suit land and on that basis, the relief of permanent injunction against the Respondents can be made available to the plaintiffs-Appellants.
14. As to the second substantial question of law it may be mentioned at the outset that neither of the learned Courts below have recorded a definite finding that the parties hail from one common ancestor and, therefore, they are co-sharers in respect of the suit property. In the absence of such finding the question need not be answered in this second appeal.
15. In the result, solely basing on the consolidation R.O.R. (Ext.-10) the appeal is allowed on contest but, in the facts and circumstances, without any cost. The impugned judgment and 14 decree passed by the learned appellate court are set aside and the judgment and decree passed by the learned trial court are confirmed.
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R. Dash, J.
Orissa High Court, Cuttack The 20th November, 2014/D. Aech, Sr. Steno L. Murmu, Jr. Steno