Gauhati High Court
Shri Ravinder Singh vs Shri Ravindar Pal Singh Sahani on 13 December, 2018
Equivalent citations: AIRONLINE 2018 GAU 825, (2019) 195 ALLINDCAS 547
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/13
GAHC010169822016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 90/2016
1:SHRI RAVINDER SINGH
S/O LATE KARAM SINGH, R/O TOKOBARI, A.T. ROAD, GUWAHATI 781001,
IN THE DIST. OF KAMRUP M, ASSAM.
VERSUS
1:SHRI RAVINDAR PAL SINGH SAHANI
S/O LATE SARDAR TRILOCHAN SINGH SAHANI, R/O TOKOBARI, A.T.
ROAD, GUWAHATI 781001 IN THE DIST. OF KAMRUP M, ASSAM.
Advocate for the Petitioner : MS.B DAS
Advocate for the Respondent : MR. R K BHUYAN
Linked Case : CO 15/2016
1:SRI RAVINDER PAL SINGH SAHANI
S/O LT. SARDER TREILOCHAN SINGH SAHANI
R/O TOKOBARI
A.T. ROAD
GUWAHATI
KAMRUP
ASSAM.
VERSUS
1:SRI RAVINDER SINGH
S/O LT. KARAM SINGH
C/O HAMDARD ENGINEERING WORKS
Page No.# 2/13
TOKOBARI
A.T.ROAD
GUWAHATI
KAMRUP
ASSAM.
Advocate for the Petitioner : MR. R K BHUYAN
Advocate for the Respondent : MR.D BARUAH
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the petitioner : Mr. D. Baruah
Advocate
For the respondents : Mr. R. K. Bhuyan
Advocate
Date of Hearing : 13.12.2018
Date of delivery of
Judgment and Order : 13.12.2018
JUDGMENT & ORDER (ORAL)
Heard Mr. D. Baruah, the learned counsel for the appellant and Mr. R. K. Bhuyan, the learned counsel for the respondent.
2. The present appellant is the defendant in Title Suit No.361/2005 preferred by the plaintiff/respondent. The facts leading in filing the suit are that in July, 1994, the plaintiff/respondent purchased the suit land measuring 15 Lechas covered by Dag No.773, Part-II of Sahar Guwahait under Mauza Guwahati along with an Assam type house standing Page No.# 3/13 thereon. The said sale transaction was carried by way of a registered sale deed No.2971 dated 04.07.1994. The name of the plaintiff/respondent was mutated in the relevant land records and the holding under his occupation was corrected in his name under GMC holding No.132 of Ward No.28. The vendor of the plaintiff/respondent is one, Iftekar Rasul and the plaintiff/respondent was a tenant with respect to the suit premises standing over more or less two or three lechas of land. He pleaded that the monthly rent was paid to his landlord. Over the said land measuring 15 Lechas the defendant/appellant is running his business of repairing workshop under name and style Hamdard Engineering Workshop. Leaving aside the said portion under the possession of the defendant/appellant over the remaining 10 Lechas of vacant land the defendant raised the temporary shed in the year, 1997 with due permission from the plaintiff. The plaintiff after the purchase of the suit land informed the defendant/appellant about the said purchase whereafter he attorned the plaintiff as a landlord and agreed to pay his monthly rent in respect of the houses under his possession at the rate of Rs.1400/- per month. The defendant/appellant paid the rent to March 2004 and on receipt of the same the plaintiff/respondent issued rent receipts from the month of April, 2004 till March, 2005. The defendant/appellant failed to pay the rent and on refusal notice was issued. On receipt of the said notice demanding arrear rent of Rs.7,000/- the defendant/respondent informed that nearby to the said 15 Lechas of land he purchased land sometime in the year, 1985 and 1990 and he would be raising the construction thereon and till the completion of the construction he sought for the permission to stay over the tenanted premises. As per the promises, the defendant/appellant failed to construct the RCC building nor he vacated the suit premises and on demand he refused to pay the arrear rent and further rent rather he claimed himself to be the owner of the house denying the relationship Page No.# 4/13 of the landlord-tenant between the two. So he filed the suit for ejectment of the defendant and alternatively for declaration of his right, title and interest over the suit premises.
3. The defendant/appellant filed his written statement and leaving aside the regular plea like the suit is not maintainable, barred by limitation apart from non-joinder of necessary parties etc. took specific plea that the Schedule-A and Schedule-B land mentioned in the plaint are not identifiable with the land purported to have purchased by the plaintiff/respondent. Denying the right, title and interest of the plaintiff/respondent in defence the defendant/appellant took the plea that he purchased 1 katha 1 Lechas of land from Iftekar Rasul by way of registered sale deed bearing No.10716 dated 31.10.1985. On the strength of the said purchase, the defendant/appellant became the sole owner and possessor of the suit land with specific boundaries as per the Schedule mentioned in the sale deed. The suit land was purchased by the defendant/appellant much prior to the alleged purchase by the plaintiff/respondent and the question of derivation of right, title and interest by the plaintiff/respondent does not arise. Specifically denying the title along with the landlord tenant relationship with the plaintiff/respondent he sought for dismissal of the suit. On the basis of the said defence, the defendant/appellant sought for dismissal of the suit.
4. On the basis of the pleadings the learned trial court framed the following issues:-
1. Whether the suit is maintainable in its present form?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the suit is properly valued and proper court fee is paid?
5. Whether the plaintiff is landlord of the Schedule-B land and the structure Page No.# 5/13 standing thereon?
6. Whether the defendant is a tenant of the plaintiff in respect of the Schedule-B land and house and the temporary structure standing thereon at a monthly rent of Rs.1400?
7. Whether the defendant was ever a tenant of Ikbal Rasul so as to attorn tenancy of the plaintiff on alleged alienation of land by Ikbal Rasul in favour of the plaintiff?
8. Whether the suit is barred by the principles of res-judicata in view of the verdict of T.S. No.245/86 (T.S. 7/84)?
9. Whether the defendant is the owner, title holder, and the possessor of a plot of land measuring 1 Katha 1 Lecha of dag No. 1327 of K. P. Patta No. 840 (O) 531(N) by dint of purchase from Iftekar Rasul?
10. Whether the suit is hit by the principles of estoppels, waiver and acquiescence?
11. To what relief/reliefs the plaintiff is entitled?
5. Both the parties adduced their respective evidence and also exhibited documents. The plaintiff/respondent relied the following documents:-
a. Ext-1 is the Mutation Order dated 14.09.1994 passed in Mutation Case No.46/1994-95 by the Circle Officer of the Guwahati Revenue Circle. b. Ext.2, 2A and 2B are the Land Revenue Receipts with respect to the land covered by K.P. Patta No.421 Part-II of Sahar Guwahati.
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c. Ext.3, 3A and 3B are the Municipal Tax Paying Receipts.
d. Ext.4 is holding Extract of the GMC Holding No.132 in the name of
plaintiff/respondent.
e. Ext.5, 5(1) is the Trade Licence Fee Receipts in favour of the
plaintiff/respondent issued by the GMC.
f. Ext.6, 6(i) are the rent receipts issued in the name of the
plaintiff/respondent issued by the Ikbal Rasul, the purported landlord. g. Ext.7 is the Counterfoils of rent receipts issued by the plaintiff/respondent in favour of the defendant/appellant.
h. Ext.8 is the Mutation order dated 19.10.2006 passed in Mutation Case No.335/2005 by the Joint Commissioner, GMC.
6. The defendant/appellant also relied the following documents and marked as Exhibits:-
a. Ext.(i) the Registered sale deed bearing No.10716 dated 31.10.1985.
b. Ext.(ii-series) GMC Tax Paying Receipts.
c. Ext.(iii) Copy of the Jamabandi of K.P. Patta No.421 of village- Sahar
Guwahati Part-II, Mauza Guwahati.
d. Ext.(iv-series) Land Revenue Paying receipts issued in favour of the
defendant/appellant.
e. Ext.(v) Trade Licence issued by the GMC.
f. Ext.(vi) Electricity Bill.
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7. The learned trial court took up Issue Nos.5, 6 and 7 and held that the plaintiff/respondent failed to establish his title over the suit land and also the landlord tenant relationship with the defendant/appellant. While deciding the said Issue, the learned trial court came to the finding that the plaintiff/respondent in his cross-examination deposed that he purchased the land from Ikbal Rasul, the owner of 15 Lechas of land and further admitted that he did not submit any document to prove that he purchased the land within the boundary as described in the plaint. The said evidence was supported by the rest of the witnesses PW2 and PW3. The learned trial court further appreciated the documentary evidence exhibited by the plaintiff/respondent and came to the conclusion that the plaintiff/respondent failed to establish his title over the suit land. It was held by the learned trial court that plaintiff/respondent failed to establish the tenancy with the defendant/appellant inasmuch as the Ext.7 series does not show that rent was deposited or rent was paid to the plaintiff/respondent by the defendant/appellant inasmuch as there are no signatures of the defendant/appellant over the counterfoils of the said rent receipts.
Deciding the said 3 Issues mainly, the learned trial court dismissed the suit vide judgment and decree dated 24.08.2011.
8. Being aggrieved by the said judgment and decree dated 24.08.2011, the plaintiff/respondent preferred Title Appeal No.01/2012 in the Court of learned Addl. District Judge No.4, FTC, Kamrup (M), Guwahati. Along with the said first appeal, the plaintiff/respondent filed an application under Order XLI Rule 27 of the CPC thereby seeking the leave of the Appellate Court to allow additional evidence which includes the registered sale deed No.2971/1994, copy of the Jamabandi of K.P. Patta No.421, an affidavit sworn by Iftikar Rasul, the vendor from whom the plaintiff/respondent purchased the suit land, Page No.# 8/13 judgment passed in Case No.5RA (K)/2000 by the Assam Board of Revenue, Guwahati, land Revenue paying receipt along with another sale deed No. 165 standing in the name of Punaram Singh purportedly sold by the defendant/appellant and sale deed No.166 in favour of one Lal Singh and the name of the vendor is the defendant/appellant and a joint affidavit purportedly sworn by 5 persons. The said documents as per the petition under Order XLI Rule 27 of the CPC, the plaintiff/respondent could not produce as the plaintiff/respondent was not conversant with the law relating to the documents and the said documents were not handed over to him by his earlier conducting counsel of the suit. The said petition under Order XLI Rule 27 of the CPC was registered as Misc. (J) Case No.2/2012 and the defendant/appellant filed his written objection. Vide order dated 08.12.2014 passed in Misc. (J) Case No.2/2012, the said application was amalgamated with the connected appeal and left it to be heard at the time of hearing of the appeal.
9. The said first appeal was decided by the judgment and decree dated 11.02.2015 thereby decreeing the suit of the plaintiff/respondent. The defendant/appellant put the judgment and decree under challenge in the present second appeal which was admitted on 21.03.2016 after formulating the following substantial questions of law:-
1. Whether the learned court below was justified in granting declaration of right, title and interest in respect to the suit land in favour of the plaintiff in absence of any document to show that the plaintiff was the owner of the land mentioned in the schedule-A to the plaint?
2. Whether the learned court below was justified in passing the judgment and decree thereby granting declaration of right, title and interest in favour of Page No.# 9/13 the plaintiff without taking into consideration the provisions of Section 48 of the Transfer of Property Act, 1882?
3. Whether the judgment and decree is vitiated by perversity?
10. The plaintiff/respondent also filed cross-objection No.15/2016 which was admitted on the following substantial question of law:-
1. Whether the lower appellate court committed illegality by not allowing the respondent/appellant to prove his title in respect of schedule-A property by exhibiting sale deed through additional evidence under Order 41 Rule 27 of the Code of Civil Procedure?
11. Heard the learned counsel for the parties.
12. Upon consideration of the submissions it would be proper to examine the judgment reversing the findings of the trial court by the First Appellate Court in view of an application under Order XLI rule 27 of the CPC was filed and the same was disposed of by the First Appellate Court holding that it was not necessary to take the sale deed into consideration as prayed by the plaintiff/respondent to adduce additional evidence in the interest of just decision of the case.
13. The first substantial question of law is whether the Court can grant the relief of declaration of right, title and interest in the absence of any document to show the derivation of the ownership by the plaintiff/respondent.
14. On perusal of the application under Order XLI Rule 27 of the CPC, it is seen that the sale deed by way of which the plaintiff/respondent alleged to have purchased the suit land sought to be brought on record along with the other documents. While reversing the findings Page No.# 10/13 of the ownership of the plaintiff/respondent by the learned trial court, the learned First Appellate Court held as follows:-
"So, after perusal of evidence of plaintiff and the documents, i.e. Mutation Order, Ext-1, it is revealed that plaintiff applied for mutation of 15 Lechas of land under Dag No.773 of K.P. Patta No.421, Mauza Sahar Guwahati, 2 nd Part by purchase from Ikbal Rasul vide Sale Deed No.2971 dated 04.07.94 and his mutation was allowed by Circle Officer vide order dated 14.09.94, after perusal of Sale Deed No.2971 dated 04.07.94. On the other hand from the evidence of DW 1 and his documents Sale Deed Ext-I, it is seen that defendant purchased land from Iftikar Rasul measuring 1 Katha 1 Lecha (2.81 Are) under New Patta No.531 Old 840 and Dag No.1327, Mouza Sahar Guwahati Takobari Part. So, after perusal of Sale Deed of defendant, Ext-I, it appears that he had purchased the land from a different patta, dag than that of the suit land purchased by plaintiff from Ikbal Rasul. Though defendant asserted that his name was mutated in Jamabandi, Ext-III in respect of schedule land purchased vide Sale Deed, Ext-I, but after perusal of Jamabandi, Ext-III, it is revealed that said Jamabandi is concerned with the Dag No.773 of Patta No.421, Part-II of Sahar Guwahati Mouza which shows mutation of name of plaintiff over 15 Lechas of land by purchase vide Order dated 14.09.94. So, defendant's document i.e. Jamabandi, Ext-III has proved the fact of purchase of 15 Lechas of land by plaintiff from Ikbal Rasul i.e. suit Schedule-A land vide mutation Order, Ext-1. Further, mutation order, Ext-1 shows that Circle Officer mutated the name of the plaintiff in respect of Schedule-A land on the basis of Sale Deed No.2971 dated 04.07.94.
Page No.# 11/13 From the evidence of defendant and his sale deed, Ext-I, it is clear that defendant has not purchased that Schedule-A land and house under Holding No. 132. So, schedule land is undisputed separate land and it has no connection with the land purchased by defendant vide Sale Deed, Ext-I. So, in my view, it is not necessary to take the Sale Deed as prayed by plaintiff to adduce additional evidence in the interest of just decision of the case under Order XLI Rule 27 CPC."
15. Mr. Bhuyan on the other hand submits that the First Appellate Court failed to exercise its jurisdiction. The First Appellate Court considered the said application under Order XLI Rule 27 of the CPC to be an application under Sub-rule 1(b) wherein the discretion is given to the Appellate Court that if any evidence is required to be produced to enable it to pronounce judgment or for any other substantial question then only the Appellate Court can allow additional evidence. It is further submitted that the manner and the conclusion arrived at while disposing of the said application is sufficient to support the intention of the Court below. In fact, this application is filed in order to grant the leave for adducing additional evidence inasmuch as the plaintiff/respondent even after exercise of due diligence the same was not within his knowledge or produced by him during the trial. Accordingly, the Court below failed to exercise its jurisdiction while deciding the said application. This is a fit case for remand otherwise if the second appeal is decided on the face of the documents annexed to the petition for additional evidence much prejudice would be caused to the plaintiff/respondent.
16. Mr. Baruah submits that the finding of the First Appellate Court is totally unwarranted inasmuch as without any document of title the court cannot declare the right, title and interest merely on the basis of the mutation entry and as such Mr. Baruah sought for allowing the second appeal by answering the substantial questions of law in favour of the Page No.# 12/13 defendant/appellant.
17. I have given my considered thought and I found submission of Mr Bhuyan that the First Appellate Court failed to exercise its jurisdiction while deciding the application under Order XLI Rule 27 of the CPC has force. The First Appellate Court merely held that no further evidence of the Sale deed is required in order to decide the appeal. Thereafter without discussing on the merit of the petition under Order 47 Rule 27 CPC the same was not considered. As per the plaintiff/respondent it was not due to lack of due diligence that the relevant sale deed could not be produced before the trial court. The findings of the First Appellate Court is purely on the basis of the evidence led by the defendant/appellant. The petition for adducing additional evidence of the plaintiff/respondent requires to be decided considering the totality of the facts pleaded in the plaint vis-à-vis within the four corners of the provision stipulated under Order XLI Rule 27 of the CPC and the issues involved. The Appellate Court is authorised to examine the requirement of any evidence to decide the appeal in order to straighten up any lacuna for proper adjudication of the issues before it. Without entering into the merit of this second appeal it would be proper to set aside the judgment and decree passed by the First Appellate Court and remand the matter which I accordingly do to decide it afresh after giving due consideration of the observation made hereinabove with respect to the manner of disposal of the application under Order XLI Rule 27 of the CPC. In the event, the First Appellate Court finds merit in the application for additional evidence it is left with two options either to remand the matter under Order XLI Rule 23A of the CPC to the learned trial court to decide the matter afresh after setting aside the findings of the trial court and if required by framing additional issues. The other option is by invoking the provision under Order XLI Rule 25 of the CPC. The First Appellate Court after Page No.# 13/13 framing an issue may send it to the trial court to decide the issue/issues so framed and the trial court after sending it back on completion of trial of the issue/issues, the Appellate Court may decide the first appeal afresh on merits after giving necessary leave to bring on record additional grounds of objections by the party aggrieved.
18. Accordingly, this second appeal is disposed of alongwith the cross-objection of the plaintiff/respondent. Send back the LCR.
19. The parties to the suit shall appear before the Court on 30.01.2019. Registry to send the LCR keeping in view the date fixed for appearance of the parties before the First Appellate Court.
JUDGE Comparing Assistant