Gauhati High Court
Union Of India vs Surjya Hazarika & Anr on 26 June, 2015
Author: P.K. Saikia
Bench: P.K. Saikia
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
R SA No. 117 of 2012
Union of India,
Represented by the Deputy
Director of S.I.B., Arunachal Pradesh.
..... Appellant
Defendant
-Versus -
1. Sri Surjya Hazarika,
S/o Late Dr. Dibakar Hazarika,
Residing at Tezpur Town, Mouza,
Mahabhairab, P.O. & P.S.- Tezpur,
District - Sonitpur, Assam,
Residing at Chiring Chapari,
Dibrugarh, P.S.- Dibrugarh,
District - Dibrugarh, Assam.
2. Sri Pramod Kumar Jain,
S/o Phool Chand Jain,
Residing at Tezpur Town,
Mouza Mahabhairab,
P.O. & P.S. - Tezpur,
District - Sonitpur, Assam.
..... Respondents
Plaintiffs BEFORE THE HON'BLE MR.JUSTICE P.K. SAIKIA For the appellant :-Mr. Randeep Sharma, Asstt. SGI :-Mr. Jayanta Deka, C.G.C. For the respondents :-Mr. Puspa Prasad Das, :-Mr. Kulendra Bhatta, :-Mr. Suleman Ali & Innajit Sarma, Advocates.
Date of Hearing :-25.03.2015
Date of Judgment :-26.06.2015
JUDGMENT AND ORDER CAV)
This appeal is directed against the judgment dated 30.05.2012 rendered by learned Civil Judge, Sonitpur, Tezpur in T.A. No. 3 of 2011 dismissing the appeal questioning the 2 judgment and decree dated 15.03.2011 rendered by Munsiff No. 1, Sonitpur, Tezpur, in T.S. No. 5 of 2004 decreeing the suit of the plaintiffs.
2. Heard Mr. J. Deka, learned C.G.C. for the appellant. Also heard Mr. K. Bhatta, learned Senior Ccounsel assisted by Mr. D.C. K. Hazarika for the respondents.
3. The facts necessary for disposal of the present appeal, in brief, are that the respondent No. 2 and 3 herein (who would be referred to as plaintiff Nos. 1 and 2 respectively), filed Title Suit No. 5 of 2004 against the appellant herein (who would be referred to as the defendant) seeking a decree for permanent and perpetual injunction restraining and prohibiting the defendant therein and its officers and employees from raising any construction on the land, more particularly described in the Schedule B and C of the plaint.
4. It is the case of the plaintiff that one Punya Prabha Hazarika (since deceased) was the mother of the plaintiff No. 1 as well as one Dr. Bani Hazarika was the absolute owner of the land measuring 2Bs 4 Ks 10Ls, covered by Periodic Patta No. 340 (old)/343 (new) under Dag No. 797 of Tezpur town, 2nd part Mouza, Mahabhairab, PS- Tezpur, in the district of Sonitpur.
5. After her death on 09.08.1995, the plaintiff No. 1 and his elder sister Smti Bani Hazarika became the absolute owners of the said plot of land and accordingly, their names were mutated in the record of rights. During her life time, Late Punya Prabha Hazarika equally divided the said land between plaintiff No. 1 and his elder sister Dr. Bani Hazarika and accordingly, said Bani Hazarika became the owner of half of the share of land, same being 1B 2Ks 5Ls.
6. Even thereafter, the plaintiff No. 1 used to manage the land of Dr. Bani Hazarika in the suit patta over which there are houses and other structures which were let out to Subsidiary Intelligent Bureau (in short, 'SIB'), Govt. of India, the defendant in the suit. In 2002, the plaintiff No. 2 purchased a plot of land measuring 4Ks 4Ls out of total land measuring 2 Bs 4Ks 10 Ls from Dr. Bani Hazarika on the basis of registered Sale Deed No. 660 and on the same day, the possession of such land was delivered to plaintiff No. 2.
7. Thereafter, Dr. Bani Hazarika remained the owner of 3 Ks 1 Ls of land in the aforesaid plot of land. The land, so purchased by plaintiff No. 2 is specifically described in the Schedule 'B' to the plaint and portion of the land which is in the occupation of plaintiff 3 No. 1 is mentioned in the Schedule 'C' of the plaint. In due course, the plaintiff No. 2 also got his name mutated in respect of the land in Schedule 'B' to the plaint in the relevant record of rights and since then he has possessed the aforesaid land as the owner thereof on paying revenue therefor regularly.
8. However, the officers and employees of the defendant most illegally threatened to construct a pucca house and structures on the land described as Schedule B & C to the plaint by evicting the plaintiffs there-from by force and the defendant did so in spite of the fact that it had no right, title and interest over the aforesaid land since the defendant has been occupying a part of the aforesaid plot of land only as monthly tenant under Dr. Bani Hazarika.
9. Since the defendant had been trying to evict the plaintiffs from the land in Schedule 'B & C' to the plaint, over which they have no right, title and interest, such action on the part of the defendant clouded their right, title and interest of plaintiffs over the aforesaid land and as such, they approached the Civil Court by way of Title Suit No. 5 of 2004 praying for the aforesaid relief.
10. After receipt of the summons, the defendant contested the suit having filed written statement, stating, among other things, that the suit is not maintainable in law and facts, that the suit is barred by limitation, that the suit is bad for non-joinder of necessary parties and that the suit is undervalued. The further case of the defendant was that late Punya Prabha Hazarika was the owner of several plots of land situated, not only in Assam but in Meghalaya as well.
11. Lt. Punya Prabha Hazarika had only one son and one daughter. They being Ranjit Hazaikia who pre-deceased his mother and Dr. Bani Hazarika. Except Ranjit Hazarika and Bani Hazarika, Late Punya Prabha Hazarika had no other issue. Nor had she or her husband ever adopted any one as their son. Being so, said Punya Prabha Hazarika was the absolute owner of the land measuring 2Bs 4Ks 10 Ls in the suit patta. In course of time, the name of Punya Prabha Hazarika was also mutated in respect of the aforesaid land in the record of rights.
12. On 18.10.1978, Punya Prabha Hazarika sold 4Ks 4 Ls of land out of 2Bs 4Ks 10 Ls of land to her daughter through registered sale deed. Thereafter, Dr. Bani Hazarika, daughter of Lt. Punya Prabha Hazarika, got her name mutated in the record of rights in respect of 4 the aforesaid land. In the meantime, Dr. Bani Hazarika shifted to Cumbria in England and also took her mother to such place since there was none to look after her in Assam.
13. While in England Punya Prabha Hazarika executed a power of Attorney in favour of Dr. Bani Hazarika on 05.04.1993 in relation to all her properties and assets. Late Punya Prabha Hazarika also executed a WILL appointing her daughter Bani Hazarika as sole executrix and trustee of the WILL and also bequeathed to her the building premises, named "Uttarayan" together with the land.
14. It was also mentioned in the aforesaid WILL that after the death of Dr. Bani Hazarika, the premises, namely, "Uttarayan" together with the land and premises would be the property of the Govt of India for using it as office of the SIB. After the death of Punya Prabha Hazarika on 09.09.1995, Bani Hazarika, as executrix, obtained probate on will on 12.09.1995. Thus, after the death of Punya Prabha Hazarika, Dr. Bani Hazarika became the landlady in respect of entire land in the suit patta. However, premises, aforesaid, viz. "Uttarayan" has all along been under the occupation of the Deputy Director of SIB which occupies the same as monthly tenant since 1961.
15. As Dr. Bani Hazarika, a resident of England, executed a Power of Attorney in England in favour of the plaintiff No. 1 but same was executed to receive the patta of Dr. Bani Hazarika and to sell the land which is situated only in Shillong, Meghalaya. But the plaintiff No. 1 forged the said Power of Attorney and used it as a Power of Attorney for selling the part of the suit land in favour of the plaintiff No. 2 on behalf of Dr. Bani Hazarika.
16. The further case of the defendant was that the plaintiff No. 1 was not the son of late Punya Prabha Hazarika. He was a orphan of 2nd World War. He along with his own sister Jyoti Devi arrived at the Refugee Camp at Dimapur. When he was a boy of hardly 3 years of age, Dr. Dibakar Hazarika brought him and his sister by providing them required foods, clothes and shelter. However, at no point of time, he had adopted the plaintiff No.1 as his son. Since he was not adopted son of Dr. Dibakar Hazarika, he is not entitled to become the absolute owner of half of the land in the aforesaid suit patta.
17. Since plaintiff No. 1 has no right, title and interest over any part of the land in suit patta, since the plaintiff had fabricated false documents to sell the land in Schedule B to the plaint and since the plaintiff No. 2 had never purchased land in Schedule B to the 5 plaint property from the original owner as required under the law, the said suit is liable to be dismissed.
18. Upon hearing the learned counsel for the parties, the following issues were framed :-
1. Whether the suit is maintainable?
2. Whether the suit is bad for non-joinder of necessary parties ?
3. Whether the plaintiff No. 1 is the son of Late Punya Prabha Hazarika ?
4. Whether the plaintiffs have right, title and interest over the suit land ?
5. Whether the plaintiffs are entitled to a decree as prayed for?
19. In order to substantiate his case, the plaintiff No. 1 had examined 4 PWs including himself. On the other hand, the defendant also examined as many as 6 (six) DWs. Both the sides adduced a number of documents in support of their respective case. On conclusion of trial, the learned trial court decreed the suit as prayed for.
20. Being aggrieved, the defendant in Title Suit No. 5 of 2004 preferred an appeal before the learned Civil Judge, Sr. Division, Tezpur, contending that the judgment under challenge is unsustainable since it was not rendered on the basis of materials on record nor was it rendered in accordance with the prescription of law. Such appeal was contested by plaintiffs/respondents and on hearing both the parties, the learned Appellate Court was pleased to dismiss the appeal on holding that the judgment of the trial court does not suffer from any infirmity whatsoever.
21. It may be stated that the learned appellate court discussed all the issues in threadbare. Since issue No. 2, 3 and 4 have huge bearing on the decision of the suit, we find it necessary to look into it. For ready reference, deliberation on issue No. 2, and 4 as has been done by appellate court is reproduced below :-
In regards to the issue No. 2 and 4, the learned Munsiff has decided both the issues jointly and decided both the issues in affirmative in favour of the plaintiffs by holding that the suit is not bad for non-joinder of necessary parties and the plaintiffs have right, title and interest over the suit land.
On examination of case records, it is found that the plaintiff No. 1 Surjya Hazarika stated in his plaint as well as in his evidence that he got the right, title and interest over one portion of land measuring 1 bighas 2 kathas 5 lessas as the land was inherited on division by earlier owner Lt. Punya Prabha Hazarika among son and daughter.
Then with the help of Power of Attorney executed by Dr. Bani Hazarika, the owner of remaining other share of plot of land, he sold the plot of land measuring 4 kathas 4 lessas out of 1 bigha 2 kathas 6 5 lessas of the share of Dr. Bani Hazarika to plaintiff No. 2, Promod Kr. Jain with execution of a registered sale deed. The land was sold on 07.05.2002 by virtue of Sale Deed No. 660 of Tezpur Sub-Registry Office and remaining portion of land measuring 3 kathas 1 lessas remains under the possession of Dr. Bani Hazarika and the defendant is occupying the land measuring 3 kathas 1 lessas as a tenant of landlady Dr. Bani Hazarika. So considering the content of pleadings and evidence of PWs in its entirety, it is found that the plaintiffs have pleaded that the plaintiff No. 1 got the right, title and interest by virtue of acquisition through inheritance as son on division of land by earlier owner Punya Prabha Hazarika and plaintiff No. 2 Promod Kr. Jain got the right, title and interest over the land mentioned in the schedule B of the plaint by virtue of registered sale deed executed by plaintiff No. 1 as Attorney of Dr. Bani Hazarika on 07-05-2002. In support of said contention, the plaintiffs produced the Jamabandi of the land as Ext. 1, one revenue receipt as Ext. 2, the sale deed and the rectification deed as Ext. 3/14, 15/16.
On the other hand, the defendant has stated in the written statement as well as in the evidence that both the plaintiffs never got any right,title and interest over any part of land which was earlier owned by Punya Prabha Hazarika as alleged by the plaintiffs. As plaintiff No. 1 is not adopted son of late Punya Prabha Hazarika so there is no question of acquiring right, title and interest over the land possessed by Punya Prabha Hazarika. The defendant has further stated that Dr. Bani Hazarikia, the owner of the land permitted the defendant to look after the entire plot of land and used the land as tenant. The defendant has also further stated that the original owner Late Punya Prabha Hazarika executed a Deed of WILL and bequeathed the land to Dr. Bani Hazarika and after the death of Dr. Bani Hazarkia to the defendant, the Office of Deputy Director, SIB, Govt. of India. In support of said contention, the defendant has produced the deed of WILL and testament as Ext. A, some letters written by Dr. Bani Hazarika addressed to Deputy Director SIB, Govt. of India as ext. F,G,H, I, J, K, L, M, N, O, P and some letters written by Dr. Bani Hazarika addressed to Deputy Commissioner, Sonitpur as Ext. B, C, D and E. It is pertinent to mention in this context that as per WILL and testament executed by Punya Prabha Hazarika (Ext. A), it is found that initially the property was bequeathed to Dr. Bani Hazarika and after the death of Dr. Bani Hazarika the property will be bequeathed to Govt. of India for using as the office of SIB. So, it is cystal clear that till today, the defendant has remained as tenant of Dr. Bani Hazarika. It is also found that the property namely, "Uttarayan" building together with the share of land was stated to be bequeathed by the said WILL and testament. But the exact measurement of land and property is not mentioned in the WILL and testament. On perusal of other exhibits proved by the defendant, it is also found that the exact measurement of land owned and possessed by Dr. Bani Hazarika was not the said document. So considering the content of the said document it is not clear to ascertain the measurement of land owned and possessed by Dr. Bani Hazarika.
In preferring the appeal the appellant/defendant has stated that the learned Munsiff, decided the issue considering the content of inadmissible document which is produced by plaintiff as Ext. 1. The appellant has also further mentioned the grounds of appeal that the 7 content of Sale Deed Ext. 3/14 and 15 has not been duly proved as per provision of law. The learned counsel has also placed reliance in support of said ground on some decisions of Hon'ble Apex Court reported in (2003) 7 SCC 350, (2006) 10 SCC 631 and (2003) 8 SCC 745.
In this context, I like to cite the observation made by Hon'ble Apex Court in the case reported in (2003) 8 SCC 745 (para 16) as it is found relevant for deciding the suit in hand. In para 16 it is observed by Hon'ble Apex Court as "16. Reliance is heavily placed on behalf of the appellant in the cae of Ramji Dayawala & Sons (P) Ltd. The legal position is not in dispute that mere production and asking of a document as exhibited by the court can not 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 OP, 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 can not be treated to have been exhibited as admitted documents."
But considering the material in its entirety, it is found that the plaintiff No. 1 executed the sale deed in favour of the plaintiff No. 2 on behalf of Dr. Bani Hazarika as Attorney and he has proved the document itself . So, ground raised by the appellant is found not tenable even in view of above observation of Hon'ble High Court. The appellant has also submitted that Ext. 10 is also not admissible document becaused it has not been duly executed as per provision of Section 85 of the Evidence Act.
The appellant side has also further stated that Dr. Bani Hazarika is the necessary party of the suit and considering the materials in its entirey, it is found that the plaintiffs have instituted the suit against the defendant because the defendant tried to raise structures on the land mentioned in Schedule B and C land. The plaintiffs have pleaded that the defendant is only the tenant in respect of the land measuring 3 kathas 1 lessas owned and possessed by Dr. Bani Hazarika and plaintiffs have not claimed the right, title and interest over the said plot of land. So considering such content of the plaint, I find that Dr. Bani Hazarika is not the necessary party to decide the suit because the plaintiffs have proved with cogent and reliable documentary evidence that the plaintiff No. 1 was the absolute owner and possessor of the land mentioned in schedule C of the plaint and the plaintiff No. 2 is the absolute owner and possessor of the schedule B land.
So, in view of above discussions, I am of the considered opinion that the plaintiffs have proved with sufficient, cogent and reliable documentary as well as oral evidence that the plaintiffs have right, title and interest over their respective share of land and the suit is not bad for non-joinder of necessary parties. The learned Munsiff Tezpur has rightly decided both the issues in favour of the plaintiffs. I 8 do not find any justified ground to interfere with the decision of learned Munsiff in this regard.
For ready reference, deliberation on issue No. 3 is also reproduced below:-
In regard to the issue No. 3, the learned Munsiff decided this issue in affirmative by holding the opinion that the plaintiff No. 1 is the son of Late Punya Prabha Hazarika on the basis of contents of Ext. 1, 3, 4, 14, 15 and 16.
On meticulous examination of materials on record, it is found that the plaintiff No. 1 has stated in his plaint as well as in his evidence that initially the land mentioned in the schedule A of the plaint was owned and possessed by Late Punya Pabha Hazarika and during the life time of Late Punya Prabha Hazarika the said land was equally divided between him and his elder sister because he was the adopted son of Late Dibakar Hazarika, the husband of Punya Prabha Hazarika. PW 2 has stated in his evidence that plaintiff No. 1 was known to him since his childhood and since then he knew him as the son of Late Punya Prabha Hazarika and Late Dibakar Hazarika. Subsequently, he came to know that Surjya Hazarika is the adopted son of Late Punya Prabha Hazarika and Late Dibakar Hazarika. PW 3 Zamal Hussain has also stated in his evidence that he came to know that Surjya Hazarika was adopted son of Late Dibakar Hazarika.
On perusal of exhibits produced by plaintiff No. 1, it is found that the name of Surjya Hazarika was mutated along with late Punya Prabha Hazarika, Bani Hazarika in the land covered by PP No. 340(old)/ 343(new) as it appears in Ext. 1 (Zamabandi of the land). In the Ext. 4 and 5 it is also found that the plaintiff no. 1, Surjya Hazarika has been shown as son of Late Dibakar Hazarikia. From Ext. 14 (Deed of Sale) and Ext. 15 (Deed of rectification) it appears that Surjya Hazarika has been shown as the son of late Dibakar Hazarika. So, after appreciation of evidence of PWs and examination of aforesaid documents, I am of the considered opinion that the plaintiff No. 1 has proved with sufficient documentary as well as oral evidence that he is the son of late Punya Prabha Hazarika. But though the defendant has denied the said contention raised by the plaintiff No. 1 and stated that Surjya Hazarika was never the adopted son of Late Punya Prabha Hazarika but the defendant has failed to disprove the said contention with sufficient material though the burden of proof shifted to the defendant to disprove the same in view of Section 102 of Indian Evidence Act. The defendant has only stated in the written statement as well as in the evidence that Surjya Hazarika was only looked after by the husband of late Punya Prabha Hazarika. But was never adopted by late Dibakar Hazarika. But considering the materials in its entirety, I find that there is no such material on the record to hold that the plaintiff No. was not the son of Late Punya Prabha Hazarika.
Learned counsel for the appellant has submitted that the plaintiff No. 1 has never pleaded in the plaint that he is the adopted son of Late Punya Prabha Hazarika. Only on evidence he has claimed that he is the adopted son of Late Punya Prabha Hazarika which is not tenable because the evidence put forward beyond pleading is not admissible.
Learned counsel for the appellant has submitted that the decision of Hon'ble Apex Court reported in (2000) 8 SCC 191, (2011) 6 SCC 555 and the decision of Hon'ble Gauhati High Court reported in (1995) 1 GLR 77. But after going through the decisions and considering the material facts of the instant case, I find that said decisions are not applicable in this instant case as the facts and circumstances of the cases are not identical with this case.
9From the above discussions, I am of the considered opinion that the plaintiff No. 1 has proved with sufficient, cogent and documentary as well as oral evidence that he is the son of Late Punya Prabha Hazarika. I do not find any justified ground to interfere the decision of learned Munsiff in this regard.
22. Contending that the judgments of courts below are liable to be quashed and set aside since such judgments were rendered in total violation of the law holding the field as well as in total disregard to the facts on record, the appellant (the defendant) has preferred this Second Appeal which was admitted on the following substantial questions of law :-
1. Whether the Power of Attorney (Exhibit -10) alleged to be executed outside India is admissible in evidence without valid execution and authentication as per Section 85 of the Indian Evidence Act, 1872 and without fulfilling the requirements of Sections 32 and 33 (c) of the Registration Act, 1980, Sections 3(c), 18 and Schedule 1 at Sl. No. 48(f0 of the Stamp Act, 1899 and Order 7 Rule 14 of CPC ?
2. Whether the learned courts below misread and misconstrued Ext. 1, Jamabandi, while passing the impugned judgments and decrees ?
3. Whether in absence of any pleading by the plaintiffs, the learned courts below could have recorded a finding that the plaintiff No. 1 is an adopted son of Lt. Punya Prabha Hazarika and Lt. Dibakar Hazarika ?
23. According to the learned counsel for appellant/defendant the learned trial court misread and misconstrued the relevant Jamabandhi (Ext. 1) while rendering the judgments and decrees in favour of the plaintiffs. According to the learned counsel, though the learned trial court has placed enormous reliance on the Jamabandi, under the law, such reliance is uncalled for. In support of such contention, the decisions of this Court reported in the case of (a) (Amiya Bala Dutta v. Mukut Adhikari And Ors.), 1988 (4) GLT 137 and (b) (Dayal Hari Paul And Ors. v. Pradip Kum ar Lahkar And Ors .) 2006 (3) GLT 680 have been relied on.
24. It has also been contended that though the plaintiff contends that he sold the land described in Schedule 'C' of the plaint, on the basis of Power of Attorney authenticated in England, such Power of Attorney was not executed in accordance with prescription of law. In support of such contention, the decisions of Apex Court reported in the case of (a) 10 Jugraj Singh And Another v. Jasw ant Singh And Others, 1970 2 SCC 386, (b) (M / s Electric Construction and Equipm ent Co. Ltd. V. M / s Jagjit Electric W orks, Sirsa (Haryana ), AIR 1984 Delhi 363 and (c)M ohanshet Purushottam Gujar v. M rs. Jayashri Vasantrao M ahagaonkar , AIR 1979 Bombay 202 were relied on.
25. It has further been contended that the plaintiff had never stated in his plaint that he was the adopted son of the parents of Dr. Bani Hazarika. Since such important material fact was not incorporated in the plaint, he cannot be allowed to lead evidence on such subject since one cannot lead evidence beyond pleadings. In support of such contention, the decisions of Apex Court reported in the case of (a) R avinder Singh v. Janm eja Singh and Ors ., (2000) 8 SCC 191 , (b) Janak Dulari Devi and Another v. K apildeo and Another , (2011) 6 SCC 555 as well as of this court in Banamali Deka v Upendra Nath Das, (1995) 1 GLR 77 have been relied on.
26. It has also been contended that the alleged sale deed under which the land in Schedule 'C' said to have been sold by plaintiff No. 1 in favour of plaintiff No. 2 was not proved in accordance with law. Since the said sale deed was not proved in accordance with the prescription of law mere marking of the same against the document will not make such a document admissible in law. In support of such contention, the decisions reported in the case of (a) Subhash M aruti Avasare v. State of M aharashtra, (2006) 10 SCC 631 and (b) Narbada Devi Gupta v. Birendra Kum ar Jaisw al And Another, (2003) 8 SCC 745 have been relied on.
27. All those contentions were refuted by the learned counsel for the respondents/plaintiffs stating that none of those law points survives for discussion since on the facts on record, those questions cannot be agitated for the adjudication of this Court in Second Appeal.
28. Before we proceed further, we need to remind ourselves that the scope of the court in Second Appeal is extremely limited. In this connection, we can profitably peruse the decision of R am anuja Naidu Vs K anniah Naidu and Ors , reported in (1996) 3 SCC 392. The relevant part is reproduced below:-
"11. We are of the view that in interfering with the concurrent findings of facts of the lower courts, the learned single Judge of the High Court acted in excess of the jurisdiction vested in him under Section 100 of Civil Procedure Code. The learned Judge totally erred 11 in his approach to the entire question and in reappraising and re- appreciating the entire evidence and in considering the probabilities of the case, to hold that the judgments of the court below are 'perverse' and that the plaintiff is entitled to the declaration of title to suit property and recovery of possession. It is evident that the courts below found, on the basis of oral and documentary evidence, that Ex.B-2 sale deed obtained by the first defendant on 05.05.1967 is genuine and valid, and that the first defendant discharged the mortgage Ex. B-1 on 10.05.1967, took possession of the suit property and thereafter cultivated the same. The courts, below were of the opinion that Ex. A-1 cannot be accepted n view of the contradictions in the evidence of PW-1 and PW-2 regarding the payment of consideration, and none of the attestors to Ex. A-1 were examined. Laying stress on Ex. A-4, suit notice, sent by the plaintiff to the first defendant and other circumstances, the courts also found that there is collusion between the plaintiff and the second defendant and so Ex. A-1 purported to have been executed by the second defendant in favour of the plaintiff is not valid in law. These concurrent findings of facts of the courts below, were based on oral and documentary evidence. The learned Single Judge on re-appreciating the evidence took the view that it was "no possible" that the document Ex. B-1 "would have' been executed on 05.06.1967 in view of the delay in the registration of the document. In second appeal, the learned Single Judge of the High Court totally ignored the concurrent findings of the courts below that the first defendant discharged the mortgage, Ex. B- 1 on 10.05.1967, took possession of the property and cultivated the same and the said finding was based on the oral evidence of DW-3, the mortgagee and independent witnesses, DW-4 and DW-5scribe, besides the defendant, DW-6. There was no evidence contra. The concurrent findings of the court/courts below that Ex. B-2, sale deed in favour of the first defendant is earlier in point of time and was genuine and valid is a finding of fact. Such a finding was not open to any challenge in second appeal. The learned Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code of Civil Procedure in the way he did. No question of law arose for consideration before the learned Single Judge. The sole question that arose for consideration was, whether Ex. B-2, sale deed, in favour of the first defendant dated 05.05.1967, which is admittedly earlier in point of time to Ex. A-1 dated 05.06.1967, in favour of the plaintiff is genuine and valid. Both the trial court as well as the appellate court, rightly, in our opinion started with the normal and reasonable presumption that Ex. B-2 dated 05.05.1967, was made on that day which is earlier to Ex. A-1 dated 05.06.1967, and that there was no evidence to offset or rebut the said presumption, to hold that Ex. B-2 was not executed on 05.05.1967 as pleaded by the plaintiff. On the other hand, according to the courts below, the evidence available in the case reinforced the 12 aforesaid presumption and positively pointed out that Ex. B-2 was, in fact, executed that it was "not probable" that Ex. B-2 dated 05.05.1967 would have been executed on that day in view of "the delay" in registration. The approach so made and the resultant conclusion are totally unjustified and unsustainable in law."
"9. It is fairly settled law that the High Court, while exercising jurisdiction under Section 100 of the CPC, cannot reverse the findings of the lower courts on facts merely on the ground that on the facts found by the lower court another view was possible. The findings on facts by the first appellate court as a final court of fact based on jurisdiction under Section 100 of the CPC has to limit its inference to the judgment and decree of the lower court only to the substantial question of law framed at the time of admission of the appeal or to the additional substantial question of law framed at the later date after recording the reasons. Admittedly, in the present appeal neither the parties formulated any additional substantial question of law at the later date after recording the reasons. Therefore, only substantial question of law involved in the present appeal is the substantial question of law quoted above.
10. The High Court while deciding the second appeal by exercising jurisdiction under Section 100 CPC cannot proceed to re-appreciate the evidence without adverting to the substantial question of law formulated at the time of admission and also that without deciding the substantial question of law framed at the time of admission of the second appeal, the High Court in exercise of jurisdiction under Section 100 CPC cannot set aside the findings of the subordinate court by re-appreciating the evidence."
29. Coming back to our case, we have found that there is no dispute over the fact that the original owner of the land was one Lt. Punya Prabha Hazarika (since deceased). It is also not in dispute that the plaintiff No. 1 is not the natural brother of Dr. Bani Hazarika. There is no controversy over the fact that despite the land in suit patta being mutated in favour of plaintiff No. 1 and a part of the land in the aforesaid patta, same being 4 Ks 4 Ls having been sold to the plaintiff No. 2 by plaintiff No. 1 on the basis of Power of Attorney, said to be forged, no civil suit has ever been initiated against the plaintiff No. 1 and 2 by said Dr. Bani Hazarika.
30. So situated, let as first consider once again whether the suit is bad for non-joinder of necessary parties since it has serious implications on the outcome of the appeal. We have found that in their plaint, plaintiffs claim that they are the owners and possessors of the plot of land in Schedule B and C to the plaint. But the defendant, who is merely a tenant on the land under Dr. Bani Hazarika, tried to erect permanent structures on such 13 land, clouding their right, title and interest and possession thereon. They, therefore, had approached the civil court by the way of T.S. No. 5 of 2004.
31. We have already found that the defendant claimed that after the death of her mother, Dr. Bani Hazarika becomes the owner of the entire plot of land measuring 2 Bs 4 Ks 10 Ls in dag No. 797 Patta No. 340 (old)/343 (new). But then, though the plaintiff No.1 claims to be the owner of half portion of such land, though a part of the land of said Dr. Bani Hazarika , same being 4 Ks 4 Ls was sold by plaintiff No.1 to plaintiff No. 2 allegedly on the basis of forged power of attorney and although names of plaintiff No. 1 and 2 were found mutated in the record of rights in respect of aforesaid land, said Dr. Bani Hazarika did nothing to protect her right, title and interest over the land in Schedule B and C to the plaint.
32. Since Dr. Bani Hazarika did nothing to protect her property, since there is nothing on record to show that Dr. Bani Hazarika had ever authorized the defendant to take up her case and since the defendant, and not said Dr. Bani Hazarika, came in the way of enjoyment of plaintiffs right title and interest over the land aforesaid, in my opinion, Dr. Hazarika cannot be said to be necessary party. She can at best be a proper party in whose presence suit is desired to be heard and decided. As such, for not making Dr. Bani Hazarika a party, the suit does not suffer from any non-joinder of necessary parties and therefore, the court below has rightly answered the said question in favour of the plaintiff No. 1 and plaintiff No. 2.
33. So situated, let us consider the first substantial question of law which deals with if Power of Attorney (Ext. 10) is admissible in law since it was allegedly not executed in accordance with prescription of Section 85 of the Evidence Act and also without following the prescription of Sections 32 and 33 (c) of the Registration Act as well as Section 3 (c) and 18 and Schedule 1 at Sl. No. 48 of the Stamp Act which is also said to be rendered in violation of Order VII Rule 14 of CPC. It has been alleged that under the aforesaid Power of Attorney, the plaintiff No. 1 was authorised to receive patta and sell some property belonging to Dr. Bani Hazarika which are situated at Shillong in the State of Meghalaya. However, forging the signature of Dr. Bani Hazarika and her lawyer Mr. Turner, the plaintiff No. 1 sold the property in Schedule C to the plaint to the plaintiff No. 2.
34. It may be noted here that the only person who could have validly questioned the power of attorney aforesaid is one Dr. Bani Hazarika and her lawyer Mr. Turner since 14 allegation was that their signature (s) were forged by the plaintiff No. 1 and having done so, he sold out the land in Schedule C to the plaint to the plaintiff No. 2. Unfortunately, said Dr. Bani Hazarika/Mr. Turner chose not to question the authenticity of Ext. 10. Since those two persons never questioned the authenticity of Ext. 10, it is beyond the competence of the defendant who is admittedly a tenant under Dr. Bani Hazarika to make complaint against such power of attorney. In the face of such revelations, the court cannot take cognizance of the contention of the defendant that said power of attorney was never executed in accordance with prescription of law or that said power of attorney was forged one.
35. It has also been contended that the learned court below had placed enormous reliance on the 'Jamabandi' in coming to the conclusion that the plaintiff No. 1 is the owners of the land in Schedule B to the plaint. However, such reliance is impermissible in law since the record of rights do not establish the title of the person in whose favour the entry in records is made. Nobody questions the aforesaid proposition of law.
36. But the arguments aforesaid cannot be accepted for reasons more than one. Though record of rights (Jamabandi) do not establish the title of the person in whose favour such document exists, yet, such document also cannot be thrown away straightway. Rather, as held in Mukut Adhikari and Ors. (supra), entries in record of rights cannot be brushed aside easily. Under certain circumstances ,it need to be treated with proper respect too..
37. In the case at hand, in my considered opinion, such ratio applies more and more since the person who is stated to be the original owner of the land of the patta in question had chosen not to dispute the entries in record of rights although there are materials on record to show that Dr. Bani Hazarika had the knowledge about the name of plaintiff no. 1 being mutated along with her in respect of half of the land in the suit patta. Being so, the allegation that the learned trial court had placed undue reliance on the Jamabandi aforesaid in holding the plaintiff No. 1 to be the owner of the land is found to be without any substance.
38. The learned counsel for the appellant further submits that though the plaintiff No. 1 did not utter a single word about he being an adopted son of the parents of Dr. Bani Hazarika,yet, he led evidence to show that he was adopted by the parents of Lt. Punya Prabha Hazarika. Since the plaintiffs gave evidence on some matters which they did not 15 incorporate in their plaint, such evidence needs to be rejected since it is a settled proposition that the evidence beyond pleadings is not permissible under the law---argues learned counsel for the appellant.
39. Learned counsel for the appellant further submits that since it is a settled law that before a person could adopt someone as daughter or son, certain formalities need to be followed. But in the present case, there is absolutely nothing on record to show that the plaintiff No. 1 had ever been adopted by the parents of Dr. Bani Hazarika in accordance with the prescription of law. Being so, the claim of the plaintiff No. 1 that he is an adopted son of the parents of Dr. Bani Hazarika is without any substance and on this count too, the plaintiffs' case needs to be rejected.
40. However, such an argument holds no water. The plaintiff No. 1 filed the suit aforesaid claiming to be son of Late Dibakar Hazarika and Lt. Punya Prabha Hazarika. But such fact was disputed by the defendant in its written statements contending that the plaintiff No. 1 was an orphan and out of humanitarian consideration, he along with his sister was given shelter by the parents of Dr. Bani Hazarika. In order to refute such a claim from the side of the defendant, I find, the plaintiff No. 1 had to lead evidence to show that he was adopted by Dr. Dibakar Hazarika.
41. One may note here that the principle that one cannot lead evidence beyond pleadings is founded on well recognised conception that nobody should be taken by surprise so as to defeat his genuine interest. But such principle has no application to the case in hand since such a plea was invented, not by the plaintiffs, but by the defendant which is, however, vehemently disputed by the plaintiffs. Being so, the question of defendant being taken by surprise by the plea aforesaid does not arise at all. In the face of such revelations, it needs to be concluded that the plea that the plaintiff case needs to be dismissed for his travelling beyond the pleadings does not survive for consideration.
42. This apart, the claim of the defendant that the plaintiff no. 1 is not the adopted son of the parents of Dr. Bani Hazarika needs to be rejected on other ground as well. The person who could have disputed the claim of plaintiff No. 1 that he was not the adopted son of the parents of Dr. Bani Hazarika would be none other than Dr. Bani Hazarika. However, Dr. Hazarika, as stated above, never questioned the status of plaintiff No. 1 as the son of her parents.
1643. Since Dr. Hazarika never chose to question the status of the plaintiff No. 1 as the son of her parents, the defendant only being the tenant under Dr. Hazarika without being specifically authorized (record reveals nothing about the defendant being authorized to take up the case on behalf of Dr. Hazarika) cannot do so. Being so, we have no hesitation in holding that the claim of the defendant that the plaintiff No. 1 led evidence beyond the pleadings is found to be without any substance.
44. The defendant claims that the sale deed under which the land in Schedule 'C' was transferred by plaintiff No.1 to plaintiff No.2 was not proved in accordance with law. However, such plea too is found without any substance. We have found that transaction aforesaid was between plaintiff No.1 and plaintiff No.2. When they have no problem in regard to aforesaid sale deed, the defendant, an outsider cannot question the same.
45. We have found that the scope of Court in Second Appeal is extremely limited unless certain conditions are fulfilled, as held in Ramanuja Naidu (supra). In the Second Appeal Court cannot reverse the finding of the Court below even if there are some infirmities in the judgment in question. In the instant case, I did not notice any infirmity whatsoever, in the judgment in question requiring this Court to interfere with the judgment under challenge.
46. Being so, none of the substantial questions survives for consideration of this court in second appeal.
47. In view of what I have discussed hereinabove and what have emerged there-from, I am of the clear opinion, that the present appeal lacks merit and same is liable to be dismissed.
48. Accordingly, the appeal is dismissed, however with cost.
JUDGE arup