Calcutta High Court
Nalini Kumar Majumder Alias Nalini ... vs Dwijendra Kr. Sil on 5 March, 2003
Equivalent citations: (2003)3CALLT87(HC)
JUDGMENT A.K. Mitra, J.
1. Challenging the judgment dated September 5, 1986 and the decree dated September 17, 1986 passed by the learned Additional District Judge, Second Court, Nadia in Title Appeal Nos. 102 of 1985 and 103 of 1985 affirming the Judgments dated 1.3.1985 and decree dated 11.3.1985 passed by the learned Munsif, Second Court at Ranaghat, Nadia in T.S. No. 706 of 1980 these two second appeals have been preferred. The Title Suit No. 380 of 1980 and Title Suit No. 706 of 1980 were tried analogously and by a single judgment both the suits were disposed of. Accordingly, Title Appeal No. 102 of 1985 and 103 of 1985 were also heard analogously and both the appeals were disposed of by a single judgment. The back-drop of the appeals as come out from the records is, inter alia, as follows:
2. Nalini Kr. Majumder being the plaintiff filed Title Suit No. 474 of 1978 on 14.12.1978 and on transfer it was renumbered as Title Suit No 380 of 1980 against Dwijendra Kr. Sil being the defendant. This suit is a suit for declaration of title mandatory injunction and eviction of a licensee. In Title Suit No. 380 of 1980 the plaintiff alleged that the suit land belonged to him and the defendant, Dwijendra Kr. Sil was his very close friend. The defendant was a tenant in respect of one shop room with tile shed and in that room defendant had for something done manure business during the end of Baishak, 1382. The defendant Dwijendra approached the plaintiff Nalini and stated that there is possibility of getting a licence of husking machine in his name and in order to get the licence the defendant was to produce title deed in his favour before the competent authority. Being convinced, Nalini agreed to execute one sham deed and thereafter to avoid Income tax clearance the plaintiff executed 3 sham deeds In'favour of the defendant and it was agreed that the same will remain in the custody of their party. The plaintiff had no intention to execute deeds and no consideration money passed and the said deeds have never been acted upon. In this context, it is stated that in the meantime the defendant had already filed Title Suit No. 192 of 1978 on 15.4.1978 claiming the suit land as his own property and thus finding no alternative the plaintiff had to file this suit and had to pray for declaration that the three sale dated 31.5.1975 were illegal, void, without consideration, paper transaction and not binding upon plaintiff Nalini and for permanent injunction on restraining Dwijendra from transferring the suit property and for other reliefs. The defendant contested the suit by filing written statement and denied all the material allegations made in the plaint. According to the defendant the suit is not maintainable for various technical defects. According to the defendant, the suit land originally belonged to plaintiff Nalini and he sold away the property to defendant Dwijendra by registered kobala executed on 2.6.1975 on payment of consideration money of Rupees Ten thousand. After purchase the defendant raised pucca construction (two rooms) in the suit land by the said rooms and he installed different machines in the tiled room and he is in possession. The plaintiff had a shop room over national highway and it was demolished at the time of emergency in 1970 and finding no alternativethe plaintiff Nalini approached the defendant to permit him to use one of his rooms as a shop room and considering the difficulties of Nalini Dwijendra permitted to use one and thus the plaintiff is a licensee under the defendant and several times defendant asked the plaintiff to vacate his shop room which refused and the defendant thus for the said reason prayed for dismissal of the suit of Nalini, Dwijendra filed two Title Suit 192 of 1978 (557 of 1980) but some mistakes being there in that suit Dwijendra withdrew that suit and filed Title Suit No. 706 of 1980 on 3.12.1980. Plaint case of Dwijendra in T.S. 706 of 1980 is same as defence case in 380 of 1980 brought by Nalini as plaintiff. The defendant in T.S. No. 706 of 1980 who is plaintiff in T.S. No. 380 of 1980 that is Nalini had filed written statement denying all the material allegations made in the plaint and according to the defendant Nalini this suit is not maintainable for various technical defects. The defendant Nalini therefore prayed for dismissal of the instant suit. The learned trial Judge heard both the suits that means 706 of 1980 and 380 analogously by framing six issues.
3. Title Suit No. 380 of 1980 was dismissed on contest and T.S. No. 706 of 1980 was accordingly decreed on contest. Dwijendra Sil's title in respect of the suit land was declared and Nalini Kr. Majumder was directed to deliver khas possession within a month from the date of decree to the plaintiff failing which the plaintiff was given liberty to put the decree into execution through Court. Both suits were disposed of by a single judgment.
4. Two appeals being T.S. No. 102 of 1985 and 103 of 1985 were preferred by the appellant Nalini Kr. Majumder against Dwijendra Kr. Sil and these two appeals being Nos. 102 of 1985 and 103 of 1985 were also dismissed on contest with costs and the judgment and decree passed by the learned trial Judge was affirmed. Thus two appeals were also disposed of by a single judgment and hence these two second appeals are taken up together for hearing analogously. It appears from records that the finding of the two Courts below are concurrent. It is to be tested first as to whether there is any substantial question or questions of law then what are the said substantial question or questions which is or are to be decided.
5. In view of the amended position of Section 100 of the Code Civil Procedure substantial question of law is to be formulated below deciding the appeal. To formulate the substantial question of law, therefore, it is to be decided first as to whether at all in this appeal any substantial question of law is there which is to be decided by this Court or whether this Court should interfere with the findings of the Courts below. After the amendment of Civil Procedure Code in so far as scope of Section 100 is concerned so many decisions have been given by the Apex Court and our High Court both. In Full Bench decision reported in 1993 Vol. 1 CHN p. 307 (Ratanlal Bansilal v. Kishori Lal Goenka) on a detailed discussion the scope of second appeal under the provisions of Section 100 of the Code of Civil Procedure has been decided. That apart, the Hon'ble Supreme Court time to time delivered judgments in different matters defining the scope of Section 100 and/or the jurisdiction of the High Court to interfere in a Second Appeal under Section 100 of the Code of Civil Procedure. Recently, the Apex Court in the Bench constituted by Three Hon'ble Judge's and presided over by the Hon'ble The Chief Justice of India delivered a judgment which has been reported in 2001 Vol. (Ill) SC page 179 (Santosh Hazari v. Purusottam Tewari). In this decision it has been observed that substantial question is such a question "involved in the case" must have foundation in the pleadings and should emerge from sustainable findings of fact reached by Court of facts and further an answer to such question must be necessary for a just and proper decision of the case.
6. Let us examine as to whether, on scan of the judgments of both the Courts below any substantial question of law evolves or not. The learned Judge in view of the facts and circumstances of the case as made out in the Title Suits filed by the respective parties and evidence adduced therein dismissed the suit being Title Suit No. 380 of 1980 filed by Nalini Majumder and decreed the suit being Title Suit No. 706 of 1980 filed by the Dwijendra Sil.
7. The Appellate Court below affirmed the judgment and decree passed by the learned trial Judge and dismissed both the appeals filed by Nalini Mazumder, the appellant herein. On scanning of evidence the learned trial Judge disbelieved the case of Nalini Mazumder. On perusal of both the judgments by the learned trial Judge as well as the learned Appellate Court below it would appear that the findings are identical and concurrent. It will be needless to encumber this judgment by quoting each and every portion of evidence of the trial Courts judgment as well as of the judgment of first Appellate Court. However, this Court relevantly certain observations of the first Appellate Court such as in one place the first Appellate Court observes "so in the absence of further evidence in this regard, I hold and conclude that Nalini has failed to prove that Dwijendra was ever inducted as a tenant in the tiled structure. It is also not proved when Dwijendra entered into the said structure as a tenant. So I hold and conclude that Dwijendra was not a tenant under Nalini in respect of the tiled structure as alleged". In another place the first Appellate Court observes, "I hold and conclude that the said three sale deeds are genuine documents for valuable consideration and those were not procured by Dwijendra on the basis of misrepresentation to Nalini as alleged".
8. It, therefore, appears that findings are concurrent where the second appeal can only interfere if the judgment is perverse or if it is found that material evidence has not been considered or if it is found that the Court below or the Courts below did not or could not arrive at the decision on proper application of the legal tests as has been observed by the different decisions of the Hon'ble Apex Court including the decision in the matter of Santosh Kumar Hazra (supra). In this case I do not find anything from which it can be said that the judgment of first Appellate Court is perverse or it can be said that the Courts below did not consider any material on record. I do not also find any glaring inconsistency and contradiction in the evidence and issues raised when also second Appellate Court can interfere as considered and observed by the Apex Court in Its decision (State of Rajasthan v. Harphool Singh). On the contrary it can be very well said that in such circumstances the second Appellate Court should not interfere remaining within the ambit of Section 100 of the Code of Civil Procedure. The Hon'ble Apex Court in its decision (Pakeerappa Rai v. Seethamma Hengsu). "But the High Court in exercise of power of Section 100 of Code Of Civil Procedure cannot interfere with the erroneous findings of fact, however, the finding of fact or gross the error seems to be". The same principle has been followed in the decision of the Apex Court (Mohan Singh v. Nehar Singh).
9. Both the Courts below also found that the suit is not maintainable, in view of the provisions of Section 42 of the Specific Relief Act. The Hon'ble Apex Court in this regard in its decision observed "we are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact finding Court, Ganga Devi is in possession of some of the suit properties. They merely claimed a declaration that they are the owners of the suit property. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation".
10. Lastly, the learned counsel for the appellant made submissions that Issue No. 1 as framed by the trial Court was "are both the suits maintainable in their present form?" and the learned trial Judge observed that this Issue is not pressed by the defendant and as such this issue is disposed of accordingly. In that view when once it is observed that the issue of maintainability of both the suits is not pressed and disposed of by the learned trial Judge as such, ultimately the counsel cannot say that the suit of the present appellant is not maintainable. I respectfully disagree with this submission and also with the other submissions of the learned counsel for the appellant in this regard, in my view, if issue No. 1 is not pressed then automatically it does not mean that the suit becomes maintainable inasmuch as even on consent any illegality or any violation of statute cannot be legalised or validated. The learned trial Judge in deciding the issue No. 1 though has observed that the maintainability issue is disposed of being not pressed it does not mean that in the course of hearing or trial of the suit for in the first appellate stage in considering the evidence or when considering the submission if the Courts below find that the statute does not permit a suit or an appeal to be not maintainable then only because of the reason that initially issue No. 1 has been disposed of being not pressed the Court or the Courts will have to accept the illegality to be legal. More so point of maintainability is a point of law. The decision relied on in this regard being (Ram Saran and Anr. v. Smt. Ganga Debi) in this context cannot be said to be relevant.
11. In view of the discussions made above and in considerations of the submission made by the learned counsel for the respective parties and also in consideration of the judgments and decrees of both the Courts below as well as the evidence on record I do not find any question of law far less any substantial question of law to be involved in these two appeals. I also do not find any merit in these two appeals. These two appeals are, therefore, dismissed. All parties are to bear their respective costs.
Decrees may be drawn up accordingly. Let the LCR be sent down to the Court below forthwith.