Gauhati High Court
Smt. Anjali Debi Thapa And Ors. vs Smt. Sandhya Debi Thapa on 27 February, 2004
Equivalent citations: AIR2004GAU145, AIR 2004 GAUHATI 145, (2004) 24 ALLINDCAS 114 (GAU), 2004 (24) ALLINDCAS 114, (2005) 3 CIVLJ 224
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. Both these Second Appeals filed by the same appellants and directed against the same judgment and decree dated 17-1-2000 passed by the Ld. District Judge, West Tripura in Title Appeal No. 31 of 1998 are heard together and are being disposed of by a common judgment.
2. The materials facts relevant for disposal of the appeals may be briefly stated. The plaintiff respondent (hereinafter referred to as "the respondent"), namely, Smt. Sandhya Devi Thapa filed title Suit No. 38/ 95 in the Court of the Civil Judge (Jr. Divn.), Court No. 2, Agartala for a declaration that the suit land (described in Schedule 'A(3)' to the plaint) was given to her as her share by way of a family arrangement with effect from 1985 and also for mandatory injunction directing the defendant-appellants (hereinafter called "the appellants") to remove the structure standing on the suit land. It is the case of the respondent that she is the daughter of Smt. Janaki Debt Thapa, the original Defendant No. 1 and the elder sister of the appellants herein. The predecessor-in-interest of the appellants and the respondent died on 18-9-1971 leaving them behind him. The appellants and the respondent inherited the properties described in Schedule 'A' to the plaint. It is the further case of the respondent that in the year 1975 the appellants sold the land described in Schedule-A(1) to the plaint in favour of her husband, namely Dal Bahadur Thapa by means of a registered sale deed for a consideration. The respondent's husband thereafter got the said land mutated in his name and constructed a house thereon.
It is the case of the respondent that in the year 1984, the appellants and the respondent jointly sold another plot of land described in Schedule -'A'(2) to the plaint to one Uma Dutta by the registered sale deed dated 16-10-1984. According to the respondent, the remaining land of Schedule 'A' to the plaint was then partitioned amongst them by family arrangement, for which a sketch map was drawn indicating their respective shares therein. It is the case of the respondent that the suit land was given to her pursuant to the said family arrangement. It is also averred by the respondent that the appellants sold some land described in Schedule - 'A'(4) to the plaint to one Sabita Saha by the registered sale deed dated 7-2-1987. According to the respondent in terms of the said family arrangement, the appellants agreed to remove a portion of the house standing on the suit land under their occupation as and when she required them. But in December, 1994 when she asked them to quit the suit land and remove the said house standing thereon, the appellants refused to do so. Hence, she had to institute the suit.
3. The appellants resisted the suit and filed their written statement submitting inter alia therein that there was no cause of action; the suit was barred by limitation. According to the appellants, in the year 1975, the land described in Schedule 'A'(1) was not actually sold by them. On the contrary, it is contended by the appellants, since the respondent's husband, a retired army personnel, was getting loan facilities for house building and as proposed by the respondent, the land in Schedule A(1) was transferred to her husband by family arrangement by executing the registered sale deed dated 11-12-1975. It is asserted by the appellants that apart from the aforesaid land, the respondent has no other share in the remaining portion of the land described in Schedule 'A' and as such the suit is liable to be dismissed.
4. Ld. Civil Judge proceeded with the trial and from the pleading of the parties, he framed the following issues :--
"(1) Whether the suit is maintainable in its present form and nature?
(2). Whether the land of Schedule 'A' alleged to have been purchased by the husband of the plaintiff is the land of the share of the plaintiff within the inherited property of the plaintiff and the defendants?
(3) Whether the land shown in Schedule 'A'(1) was purchased by the husband of the plaintiff?
(4) Whether the plaintiff remained the co-owner of the residual land in Schedule 'A' land after the Schedule 'A'(1) land was sold out to the husband of the plaintiff?
(5) Whether an amicable family settlement was made in January, 1985 by which the land shown in Schedule 'A'(3) was agreed to be the share of the plaintiff?
(6) Whether the plaintiff wanted to demarcate her share and asked the defendants to vacate the possession in Schedule 'A'(3) land?
(7) Whether the plaintiff is entitled to the reliefs as prayed for?
And in the course of the trial, the respondent examined three witnesses in support of her case and adduced some documentary evidence. The appellants examined two witnesses on their behalf and also adduced some documentary evidence. On the conclusion of the trial, the Court by the judgment and decree dated 16-8-1996 decreed the suit. Aggrieved by the same, the appellants preferred an appeal before the Ld. District Judge in title Appeal No. 66/96, which was dismissed on 20-6-1997 by upholding the judgment and decree of the trial Court.
5. The appellants again preferred a Second Appeal i.e. S. A. No. 26 of 1997 before this court assailing the appellate judgment and decree dated 20-6-1997. This court by the Judgment dated 4-12-1997 set aside the Judgment and decree of the appellate Court on the ground that one vital issue on the point of limitation was not framed and accordingly remanded the suit to the trial Court with a direction for readmitting the suit in its original number and directed that the suit be determined on the question of limitation. Thereafter, the trial Court framed an additional issue, namely, whether the suit is barred by limitation. It would appear that the trial Court tried the suit afresh and allowed the parties to adduce further evidence. In this trial, the plaintiff respondent gave her evidence while the defendant-appellant No. 3 gave evidence on behalf of the defendants. On the conclusion of the trial, the trial Court passed the judgment and decree dated 27-5-1998 decreeing the suit i.e. by declaring that the appellants and the respondent were the co-owners of the suit land and that the appellants could not be directed to vacate the suit land until and unless the suit land was partitioned between the appellants and the respondent. It further held that since no amicable family arrangement had been proved to the effect that the suit land fell within the share of the respondent, no declaration could be made in that behalf. The trial Court also directed the respondent to put her signature on the sketch map which was annexed to the plaint. It is against the judgment and decree that both the parties preferred the appeals. Title Appeal No. 30/ 1998 was preferred by the respondent plaintiff whereas Title Appeal No. 31/98 was preferred by the appellants defendants. By the common judgment and decree dated 17-1-2000, the appellate Court allowed title Appeal No. 30/98 and dismissed Title Appeal No. 31/98.
6. Aggrieved by the aforesaid judgment, the appellants filed these two Appeals. One of the appeals i.e. RSA No. 15/2000 is directed against the decreeing of the suit by reversing the judgment and decree dated 27-5-1998 passed by the trial Court while RSA No. 16/2000 is directed against the dismissal of the appeal filed by the same appellants. While admitting R.S. A. No. 15 of 2000, this Court formulated the following substantial questions of law :--
(1) Whether the suit filed by the plaintiff was barred by limitation?
(2) Whether the appellate Court erred in awarding recovery of possession where the plaintiff has no possession over the suit land?
(3) Whether the plaintiff got the land on the basis of oral or family settlement?
In the other appeal i.e., R. S. A. No. 16 of 2000, this Court formulated the substantial question of law as under :--
Whether the suit of the plaintiff is barred by limitation?
7. The trial Court held that the cause of action for the suit arose in the month of December, 1994 when the respondent requested the appellants to vacate the suit land and when the appellants refused to do so. According to the trial Court, when the family partition was made in January, 1985 declaring and indicating the share of the respondent, for which she was not aggrieved, the cause of action could not have arisen then and there since the suit was filed on 6-5-1995, i.e. within 3 years from which the cause of action /the right to sue accrued, as per Article 58 of the Limitation Act, 1963, the suit was not barred by limitation. The above finding of the trial Court was duly considered by the appellate Court towards the end of the judgment and was concurred by it. It is, however, submitted by the learned counsel for the appellant that the said finding is perverse. According to him, the right of the respondent to sue the suit arose in January, 1985 when the alleged family settlement by preparing a sketch map took place and that the suit having been instituted only in 1995, the suit was, therefore, hopelessly time barred under Article 58 of the Limitation Act.
8. A perusal of the plaint will show that the suit filed by the respondent was for declaration with consequential relief and not a declaration simpliciter. Even if it is accepted that the suit was for a decree of declaration simpliciter, for which Article 58 of the Limitation Act is applicable, the limitation period of three years prescribed therein to obtain any declaration commences from the date when the right to sue first accrues. There can thus be no right to sue until the right to sue has accrued and asserted. According to the concurrent findings of both the Courts below, the cause of action for the suit could not have arisen in January, 1985 when family partition was made, for which the respondent did not have any cause for grievance. Both the Courts below are thus of the identical view that the cause, of action for the suit arose only in the month of December, 1994, when the respondent required the appellants to quit the suit land and when they refused to do so. I have carefully gone through the evidence on record to satisfy myself that the above findings of the Courts below are not perverse. The respondent examined herself as P. W. 1 on 14-5-1998 in which she deposed that in the year 1994, she requested the appellants to vacate the suit land but they refused to do so and that she became the owner of the suit land on the basis of amicable partition in between the family members which took place in the year 1985. In the face of this evidence, can it be said that the concurrent findings of both the Courts below are perverse?
9. At the cost of repetition, it may be reiterated that in Second Appeal, the High Court's jurisdiction being confined to substantial question of law, it is well settled that a finding of fact is not open to challenge even if the appreciation of evidence is palpably erroneous and the findings of fact recorded is grossly erroneous, i.e., however, gross or inexcusable the error may seem to be, and sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of a Court of fact but where there is no evidence at all on which a finding of fact can be based, it raises a question of law (See Ramachandra v. Ramalinga, AIR 1963 SC 302). On the evidence available on record, I am of the considered view that the above findings and conclusions of the Courts below that the cause of action arose in the month of December, 1994 and that the suit is not time barred are reasonable and based on evidence, which are not liable to be interfered with in a second appeal.
10. It is next contended that the lower appellate Court erred in decreeing recovery of possession in favour of the respondent when she has no possession over the suit land. Recovery of possession can be granted only to a person out of possession. Obviously, if a person is in possession of the suit land, the question of seeking a relief of possession will not arise. No question of law, much less, substantial question of law, can arise on this point. Therefore, this contention of the learned counsel of the appellant is noted only to be summarily rejected.
11. On the question of whether the plaintiff got the land on the basis of oral or family arrangement, it cannot be said that this point involves a substantial question of law inasmuch as this question is in the realm of appreciation of evidence. However, it is submitted by Mr. A.M. Lodh, the learned senior counsel for the appellants that the Ld. District Judge, in reversing the finding of the trial Court and in coming to the conclusion that there was a family settlement amongst the appellants and the respondent in which the respondent was allotted the suit land, has committed perversity. Though this point was not formulated this Court as one of the substantial questions of law at the time of admission of the appeal, in view of the fact that such question of law is patent on the face of the record and grave injustice is likely to result thereby, I proceeded to hear both the parties on this point in the course of the hearing. No serious objection in this behalf was raised by Mr. A.K. Bhowmik, the learned senior counsel of the respondent.
12. It may be recalled that the suit was remanded to the trial Court by this Court for determination on the question of limitation. But the trial Court proceeded to try the suit afresh. The finding of the trial Court is that there was no family arrangement between the parties in the year 1985 effecting partition in which the respondent plaintiff was allotted the suit land i.e. the land shown in Schedule 'A'(3) to the plaint. The Ld. District Judge after elaborately reappreciating the evidence on record noted the following features :--
(1) In respect of the sale of other land constituting the joint family property in October, 1984, the appellants and the respondent jointly executed the sale deed.
(2) However, when another land was sold on 7-2-1985 to one Sabita Saha, the signature of the respondent was not taken in that sale deed.
(3) In the year 1994, another land forming a part of the land in Schedule "A" was sold by the appellants in which the signature of the respondent was not taken.
(4) The sketch map at Exbt. 'A'(3) also indicated the share of the respondent, which is contiguous to the land of Schedule 'A(1)1 purchased by her husband in the year 1975.
13. It was on the basis of the above evidence that the Ld. District Judge held that it could be safely presumed that by way of family arrangement made between October, 1984 and February, 1987, the respondent was allotted the suit land. The appellate Court also took into consideration the fact that the trial Court by its first judgment discussed this point threadbare while deciding Issue No. 5 and found that an amicable settlement was made in 1987 wherein the suit land was given to the respondent. In this connection, the conclusions of the Ld. District Judge at Para 16 may be reproduced as under :--
"16. It has already been discussed earlier that all the issues framed by the Ld. Court below were decided by its first judgment dated 27-5-1998 and that judgment was upheld in first appeal by this Court and findings of all issues were not interfered by the Hon'ble High Court and subsequently on the point of limitation Ld. Court below gave findings that it was well within the time, and since it is found that findings of the Ld. Court below were based on evidence and on proper reasonings there should not be any decision otherwise in contrary to the earlier decision. In view of that it is found that the subsequent decision of the Ld. Court below should not differ from that of earlier decision."
14. It is strenuously urged by Mr. A.M. Lodh, the learned senior counsel for the appellant that apart from the perversity in the findings of the Ld. District Judge pointed out above, the findings and conclusions extracted hereinabove cannot be sustained in law inasmuch as the earlier judgment of the trial Court has already been set aside by this Court in RSA No. 26 of 1997. Once a judgment and decree is quashed and the matter remanded by the appellate Court for fresh trial by the trial Court, according to the learned counsel for the appellant, all the findings given by the trial Court on all the issues framed in the earlier trial were also set at naught and the same cannot be used for arriving at a decision in the new trial. On the other hand, it is contended with equal force by Mr. A.K. Bhowmik, the learned senior counsel for the appellant contended that since the High Court, while remanding the suit for trial on the question of limitation, did not upset the findings of the trial Court, no impropriety or illegality has been committed by the Ld. District Judge in acting upon the findings of the earlier trial Court.
15. The core issue for decision in this appeal, in my considered view, is whether the findings of the first appellate Court is based on the evidence findings in the subsequent trial after remand by this Court or whether those findings are based on the evidence and findings in the earlier trial. I have already noted the basis on which the Ld. District Judge came to the conclusions that there was a family arrangement effecting partition of the land in Schedule "A" by which the suit land was allotted as the share of the respondent. A closer scrutiny of his impugned judgment at Para 16 extracted above will show that his findings aforesaid are not really based on the above conclusions. All that he observed is that the subsequent decision of the trial Court should not differ from that of the earlier decision. He may or may not be correct in making this observation but that cannot detract from the fact that he has arrived at that decision on the basis of the evidence adduced and found on the record of the subsequent trial and is independent of the findings made in the earlier trial.
16. On the available materials on record, I am of the considered opinion that the view held by the Ld. District Judge is a possible and reasonable view. In a Second Appeal, it is a settled law that where there can be two possible views, this Court cannot interfere on the sole ground that the other view should have been a better view, for that would amount to substituting the view of the first appellate Court. Similarly, it is also a settled law that if there is some legal evidence which can reasonably support the conclusions of the first appellate Courts, this Court cannot interfere in a second appeal, after all the first appellate Court is the final Court of fact. In the result, I hold that the impugned judgment and decree does not suffer from perversity so as to warrant the interference of this Court. As I have held the view that the conclusions of the Ld. District Judge are not based on the findings of the earlier trial Court, I do not find it necessary to examine the admissibility or otherwise of such findings.
17. The offshoot of the aforesaid discussion is that both the appeals are devoid of merits and are liable to be dismissed. They are accordingly dismissed. However, there shall be no order as to costs.