Tripura High Court
Smti. Laxmi Bala Das vs Sir Ratan Kumar Debnath on 18 December, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RSA. No. 26 of 2017
1. Smti. Laxmi Bala Das,
wife of late Jagabandhu Das,
daughter of late Bipin Chandra Das,
resident of Vill: Dugangi, P.O. Gandhigram, P.S. Airport, District: West
Tripura
2. Sri Binod Das,
son of late Bipin Chandra Das,
resident of Vill: Mechuria, P.O. Kamalpur, P.S. Kamalpur, Sub-Division:
Kamalpur, District: Dhalai
.........Appellant- Defendants
-VERSUS-
1. Sir Ratan Kumar Debnath,
son of Hari Charan Debnath,
resident of Ramnagar Road No. 1(end), Agartala, P.O. Ramnagar, P.S. West
Agartala, District: West Tripura
2. Sri Ratan Kumar Das,
son of Sri Rebati Mohan Das,
resident of Ramnagar Road No. 1(end), Agartala, P.O. Ramnagar, P.S. West
Agartala, District: West Tripura
3. Smt. Nirupama Paul(Nath),
wife of Sri Mrinal Kanti Nath,
resident of 26, Krishnanagar near Sanghati Club Agartala, P.O. Agartala,
P.S. West Agartala, District: West Tripura
4. Smti. Gopa Chakraborty (Chatterjee),
wife of Sri Damodar Chatterjee,
resident of F/I Gitanjali Apartment, H.G. Road, Agartala, P.O. Agartala, P.S.
West Agartala, District: West Tripura
......Respondent-plaintiffs
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the Appellants : Mr. B. K. Nath, Advocate For the respondents : Mr. S. Mahajan, Advocate Date of hearing and delivery of Judgment and order : 18.12.2017 Whether fit for reporting : YES RSA. No. 26 of 2017 Page 1 of 14 Judgment and Order (Oral) Heard Mr. B. K. Nath, learned counsel appearing for the appellants as well as Mr. S. Mahajan, learned counsel appearing for the respondents.
[2] This is an appeal under Section-100 of the CPC from the judgment dated 06.06.2017 delivered in Title Appeal No. 15 of 2016 by the Additional District Judge, Court No. 2, West Tripura, Agartala. By the said judgment, the judgment dated 22.01.2016 delivered in Title Suit No. 17 of 2014, which suit has been instituted by the respondent herein has been reversed declaring the title in favour of the plaintiffs and also issuing the decree of eviction directing the appellants to vacate the suit land. Further, the appellant-defendants have perpetually injuncted from interfering with the possession.
[3] This appeal was admitted by the order dated 20.09.2017 on the following substantial questions of law:
"Whether the first appellate court was correct in holding that the plaintiffs had the title, based on the sale deed (Exbt.1) and accordingly, the plaintiffs were entitled to get the vacant possession of the suit land?"
[4] In the said order dated 20.09.2017 erroneously it was recorded that the first appellate court had returned the findings that the plaintiffs failed to prove the fact that the plaintiffs have right, title and interest over the suit land and the suit land is wrongly recorded in the name of Bipin Behari Das. The said statement was placed inverted with bold in the said order. That was the statement RSA. No. 26 of 2017 Page 2 of 14 made by the learned counsel appearing for the appellants. To that extent, the order dated 20.09.2017 stands corrected, in order to obviate any confusion.
[5] Mr. Nath, learned counsel appearing for the appellants has submitted that the sale deed (Exbt.1 & 2) was not admitted after observing the requirement of Section-67 of the Evidence Act. According to Mr. Nath, learned counsel that neither the author or any person having the acquaintance with the writing or signature of the executant, the previous title holder, had identified the writing or the signature on the sale deed (Exbt.1 & 2) and as such, it cannot be stated that the content of the document being the sale deed (Exbt.1 & 2) has been proved.
[6] Since such content of the document being Exbt.1 has not been proved, by relying on the content of the said document, the first appellate court has committed substantiate error of law by returning the finding that the plaintiffs have proved the title of the suit land.
[7] Mr. Nath, learned counsel has further submitted that the dispute between the plaintiffs (the respondents) and the defendants (the appellants) are long pending over the same suit land. The defendant-appellants earlier instituted a suit being T.S. 06 of 2011 for declaration of title and confirmation of possession. The said suit was partly allowed, but admittedly by dismissing the relief RSA. No. 26 of 2017 Page 3 of 14 for declaration of the title over the suit land, which is the suit land of the subsequent suit being T.S. 17 of 2014.
[8] Mr. Nath, learned counsel appearing for the appellant has submitted that neither of the parties in T.S. 06 of 2011 carried out any appeal against the said judgment. Hence, the said judgment delivered in T.S. 06 of 2011 reached its finality by reflex of time. Therefore, Mr. Nath, learned counsel has submitted that so far the issue of the possession is concerned it cannot be re-agitated as such finding returned in T.S. 06 of 2011 has reached to its finality as there was no challenge from ether of the parties in the dispute. [9] Mr. Nath, learned counsel has fairly submitted that similarly the issue on title of the suit land as decided in the suit No. 06 of 2011 cannot be questioned. Even though, Mr. Nath, learned counsel tried to reopen the said issue by stating that the allotment order which was issued by the competent authority was in the name of the defendants' predecessor. To place the narrative strictly based on the records, it has to be held that there is no such pleading in the written statement. Even, there is no attempt to prove such claim by way of evidence as ancillary to the other fact that has been pleaded, nor was there any submission in the first appellate court to that extent. Since this Court is exercising its jurisdiction under Section - 100 of the CPC, this Court cannot embark on a fresh inquiry into the fact which is raised for the first time in this stage. RSA. No. 26 of 2017 Page 4 of 14 [10] Thus, the issue of determination of the title cannot be agitated by the defendant-appellants therefore the title of the suit land is to be held with the plaintiff-respondents. Now, on the issue of the possession, this Court has examined the judgment dated 04.12.2013 delivered in T.S. 06 of 2011. The finding that has been returned under the issue No. 4 of the said suit as follows:
"In this issue, I have to decide whether the plaintiffs are in possession of the suit land. In this respect, it is admitted by the defendant No. 1 to 4 of the amended plaint that at present the plaintiffs are in possession over the suit land. Hence, it can be said that the plaintiffs are in possession over the suit land."
[11] It is to be mentioned here that the amended plaint as appearing in the finding has been described erroneously it should have been the amended written statement as reference has been made by the defendants No. 1 to 4 for purpose of that pleading. [12] It has been also observed in the said judgment that the plaintiffs, the defendant-appellants herein, have failed to prove the fact that the plaintiffs have right, title and interest over the suit land and that the suit land is wrongly recorded in the name of Bipin Behari Das, for which, it was held that the plaintiffs are not entitled to a direction for recording the suit land in separate Khatian, either in the name of Bipin Ch. Das or in the name of the plaintiffs by separating the suit land from Khatian No. 693. Therefore, the issue that has been raised by Mr. Nath, learned counsel appearing for the appellants was conclusively decided in the earlier suit and as such, RSA. No. 26 of 2017 Page 5 of 14 there is no requirement for this Court to reopen the dispute again for purpose of redetermination.
[13] So far the possession is concerned it is noticeable that the length of possession has not been determined. Mere the possession over the suit land on the relevant point of time, was taken into consideration in the earlier suit for purpose of confirmation and the finding is limited to that aspect that the plaintiff-respondents admitted in the written statement, as amended, that the defendant-appellants were in possession. To be very precise, in the amended written statement what was placed in the pleading by the present plaintiff-respondents is the narrative as recorded by the trial court in the suit being T.S. 06 of 2011, which is reproduced hereunder:
"The defendants No. 1 to 4 of amended plaint further pleaded that on 01.05.2010 the defendants No. 1 to 4 of the amended plaint got information that the plaintiffs took illegal possession of the suit land, for which, they approached the police station and on 28.05.2010 applied for mutation and also filed a case under Section 145 of the Cr. P.C and the same is still pending."
[14] Even the Court by the earlier judgment has not determined whether that fact as pleaded was correct or not. As such, the yolk of Section-11 of CPC cannot be fasten for determination of this issue, even though the controversy engulfs the same parties. Even the principles of the constructive res-judicata would not come to play, inasmuch as the plaintiff-respondents were the defendants in that suit.
RSA. No. 26 of 2017 Page 6 of 14 [15] Mr. Nath, learned counsel appearing for the appellants, in order to nourish his submission in respect of requirement of Section-67 of the Evidence Act has relied on a decision of the Apex Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal and Another, reported in AIR 2004 SC 175. the Apex Court observed in the said report as under:
"16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd., (supra). The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the evidence of those persons who can vouchsafe for the truth of the facts in issue. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as an admitted documents."
[16] Mr. S. Mahajan, learned counsel appearing for the plaintiff-respondents has however submitted to repel the argument constructed by Mr. Nath, learned counsel appearing for the defendant-appellants. His submission is even though in a way very strange that for proving the content of a document within the meaning of Section-61 of the Evidence Act, the requirement of Section-67 is not required universally. Section-67 of the Evidence Act is relevant only when the handwriting of the documents is under challenge.
RSA. No. 26 of 2017 Page 7 of 14 [17] He has further submitted that so far the Exbt.1, the sale deed is concerned, the defendant-appellants did never challenge the handwriting of the executant nor its execution. On the contrary, the executant came to the court as PW-2 and submitted that he has executed the sale deed by transferring the suit land in favour of the plaintiffs. However, Mr. Mahajan, learned counsel has fairly admitted that PW-2 never identified the signature or the handwriting on the said sale deed (Exbt.1 & 2).
[18] Mr. Mahajan, learned counsel appearing for the respondents has further submitted that the statement made by PW- 2 in the trial was not even challenged by the defendant-appellants. There was no attempt by way of cross-examination to contradict the statement made by PW-2.
[19] It has further been submitted that even though the sale deed (Exbt.1 & 2) is a private document but it comes within the meaning of Section-61 of the Evidence Act and when this document was admitted, the defendant-appellants did not raise any objection. According to Mr. Mahajan, learned counsel appearing for the plaintiff-respondents that there cannot be any amount of dispute that the sale deed (Exbt.1 & 2) even though is a private document but is definitely an admissible document and when the admission of such document is not contested by the defendants at the opportune time, they cannot be allowed to raise any objection regarding the admission of the said document in the latter phases. RSA. No. 26 of 2017 Page 8 of 14 [20] In this regard, Mr. Mahajan, learned counsel appearing for the plaintiff-respondents has relied on a decision of this Court in Prativa Dey (Deb) v. Saraswati Joy and Another, reported in (2016) 1 TLR 869, where this Court has observed as under:
"The solitary question that has been debated in this appeal is that whether the sale deed, Exbt.1 was admitted as required in law meaning as provided under Section 67 of the Indian Evidence Act. The apex court has enunciated the law very clearly in R.V.E Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another that if any objection as to the admissibility is to be raised that has to be raised at the time of tendering the document and marking of the same by the trial Judge. Unless the mode is objected at that time, subsequently, on the ground of the adopted mode no such objection can be sustained, if the document is otherwise admissible in evidence. This observation is based on the principle of waiver. But at the same time the objection can always be raised if the document is inadmissible in the evidence. In this case, the sale deed is an admissible document. But there was no objection to its mode of admissibility at the time when the document was marked by the trial Judge. As such, this Court does not have any other option but to hold that the law as decided by the Gauhati High Court has not dealt with all relevant aspects of the matter. In Javer Chand and others vs. Pukhraj Surana, reported in AIR 1961 SC 1655, it has been enunciated by the apex court that 'once a document has been marked as an exhibit in the case and has been used by the parties in examination, cross-examination of the witness...., it is not open either to the trial court itself or to court of appeal or revision to go behind that order.' To the same effect in Purushothama Reddiar vs. S. Perumal, reported in AIR 1972 SC 608, the apex court has laid down the law as under: "It is not open to a party to object to the admissibility of the documents which are marked as exhibits without any further objection from such parties." As such, the plea of admissibility is rejected by this Court. Since the principal defendant, the appellant herein, has not discharged her onus as to the non- execution of the sale deed, Exbt.1 or any right that she is entitled to, in respect of the possession, this Court is of the considered opinion that the impugned judgment does not warrant any interference at all."
[21] In the present case as this Court has already recorded that so far the issue of title of the suit land is concerned, is finally decided and this Court or any other court cannot reopen it as the RSA. No. 26 of 2017 Page 9 of 14 parties herein have allowed the said decision to reach its finality. Now the question that has to be decided is relating to possession Mr. Nath, learned counsel appearing for the appellants has made a feeble attempt to show that the possession was also determined in the earlier judgment. He is absolutely correct when he has contended that the possession was determined but in the earlier suit neither the nature of possession nor the length of the possession has been determined to seal the fate of the plaintiffs, the respondents herein from approaching the civil court for eviction. Even his contention that since the plaintiff-respondents as the defendants did not file any counter-claim in the suit, they are prohibited by law to pray fresh relief of eviction of the defendant-appellants. [22] In that regard, this Court finds it to apposite to refer to Order-VII Rule-6(A), CPC which provides for filing of the counter claim by the defendants. It is clearly provided that a defendant in a suit may, in addition to his rights of pleading a set-off under Rule-6, set up, by way of counter-claim against the claim of the plaintiffs, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
RSA. No. 26 of 2017 Page 10 of 14 [23] It has been further provided in the sub-Rules 2 and 3 as under:
"Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
3.The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."
[24] Mere reading of this provision would show that it merely enables the defendants to setup the counter claim but it does nowhere provide if the defendant does not file the counter-claim his chance to institute a fresh suit is barred. Even the counter-claim is treated as a plaint and that is governed by the rules applicable for such plaint.
[25] This Court is of the considered view that it is the option to the defendant but it does not obligate the defendant to file compulsorily the counter-claim. The defendant always keeps the right to file a separate suit for purpose of realizing the reliefs, he would have made in the counter-claim. Therefore, if it is proved by the defendants in a fresh suit as the plaintiff that this suit has been filed within the limitation, that suit cannot fall through only because he did not set up the counter-claim in the suit earlier filed by the defendant in his suit.
[26] This Court has curiously noted the finding returned by the appellate court in respect of the import and ambit of Section-67 RSA. No. 26 of 2017 Page 11 of 14 of the Evidence Act. It has been observed by the appellate court as under:
"Now it is contended that Section-67 of Evidence Act renders its necessary that direct evidence of the handwriting of the persons who is alleged to have executed the deed must be given by some person who saw the signature affixed. But it is not so expressly stated in the section and it does not appear to me that was the intention of the legislature. It seems to me that section merely states with reference to the deeds, what is the universal rule in all cases, that the person who makes an allegation must prove it. It lays down no new rule whatever as to the kind of proof which must be given. In that respect the rule is precisely the same as it stood before. It leaves it as before entirely to the discretion of the presiding judge of fact to determine what satisfied him that the document is a genuine one."
[27] This observation is an angular interpretation of Section-67 of the Evidence Act. When someone is obligated with the burden to prove the fact which may lead to the judgment that burden has to be discharged by the person. In the event of a suit it is the plaintiff who pressed for reliefs before the Civil Court of the first instance and the burden is always upon him to prove the fact as pleaded in the plaint. It is not at the discretion of the Court, the fact has to be proved in accordance with the provisions as provided in the Evidence Act. For this reason, we may look back into the provisions of Section-61 of the Evidence Act which provides as under:
"Proof of contents of documents.- the contents of the documents may be proved either by the primary or by secondary evidence."
[28] Section-61 therefore saddles a liability on the person who wants to prove the content of the document, firstly to place the document in original or the secondary evidence following the RSA. No. 26 of 2017 Page 12 of 14 procedure as laid down in the Evidence Act. To prove the contents of the document, firstly the primary evidence of the document has to be placed, meaning the original document has to be placed on the evidence. Section-62 has given the definition of the primary evidence by saying that the primary evidence means the document itself produced for the inspection of the Court. [29] Certain explanations are given as well. But the secondary evidence is not the documents itself but its exact copies as stipulated by Section-63 of the Evidence Act and the document must be proved, proof of documents shall always be by primary evidence. In addition thereto, when there is a dispute regarding the content of the document and the content of the document is not admitted by the parties, it will be the liability ordinarily of the person who is relying on the content of the said document to satisfy the requirement of Section-67 of the Evidence Act. [30] In the present case, since there is no objection from the defendant-appellants when the document was admitted and moreover, the person who executed the said document came and stated in the trial that he had executed such document though he has not identified his signature or writing in the document. If these evidence are read cumulatively, the result would be that the content of the document has been proved to the hilt. This Court is constrained to observe that the interpretation as given by the appellate court of Section-67 of the Evidence Act as extracted above, RSA. No. 26 of 2017 Page 13 of 14 is not a correct exposition or interpretation of Section-67 of the Evidence Act.
[31] Be that as it may, as we have observed that the content of the documents has been proved so far the title is concerned, the substantial question as framed fails, warranting no interference from this Court. So far the possession is concerned, this Court is of the view that since there was no finding from which date, the plaintiff- respondents were dispossessed, but as they have proved by the evidence that they were dis-possessed within 12 years preceding the date of institution of the suit, the appellate court did not make any error in directing the eviction of the defendant-appellants and by decreeing the suit on reversing the finding as returned by the trial court.
In the result, this appeal stands dismissed. Send down the LCRs after drawing the decree in terms of the above.
JUDGE A. Ghosh RSA. No. 26 of 2017 Page 14 of 14