Calcutta High Court (Appellete Side)
Sudhir Kumar Karmakar vs Ratan Chandra Dutta on 3 May, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. 30 of 2003
Sudhir Kumar Karmakar
Versus
Ratan Chandra Dutta
For the petitioner: Mr. Haradhan Banerjee
Mr. Amitava Pain
For the respondent: Mr. Biswajit Basu
Mr. Kaushik Chatterjee Mr. Atanu Biswas Mr. Susenjit Banik Judgement on: 3rd May, 2012 Tarun Kumar Gupta, J.:-
Defendant is the appellant in this case of judgment of reversal. The respondent / plaintiff filed said suit for ejectment with the following averments:-
The defendant was the original owner of 'Ka' schedule property. Out of 11 decimals of said land he sold out .04 decimals of land to his brothers. The defendant sold out .03 and half decimals of land out of remaining .07 decimals of land to the 2 plaintiff under registered kobala dated 1st March, 1969 which was fully described in schedule Ka-2 of the plaint. The plaintiff raised structure thereupon in 1975 and started to keep his agricultural implements, bamboo etc. The plaintiff also possessed remaining vacant portion by planting banana trees. Later on, the plaintiff permitted the defendant in October, 1983 to use said room for 2 years as his blacksmith shop as a licensee. In spite of revocation of said licence in October, 1985 the defendant did not vacate said Ka schedule land. Hence, was the suit for eviction of the licensee with other consequential reliefs.
The appellant defendant contested the said suit by filing a written statement alleging, inter alia, that he got Ka schedule property comprising of 11 decimals of land from his father through a deed of gift and later on, sold out .04 decimals of land to his four brothers. His further case is that later one of his brother Kalipada sold back .01 decimals of land to him. In 1375 B. S. he incurred some loans from the market for marriage ceremony of his daughter and that only on receipt of Rs.200/- from the plaintiff, he executed a sale deed in respect of .03 and half decimals of land at a consideration of Rs.1500/- with the understanding that plaintiff would pay back balance amount of Rs.1300/- very shortly. It is further case that as the plaintiff failed to pay said balance amount of Rs.1300/- defendant did not deliver possession of the suit property to the plaintiff and continued to possess the same as its owner. 3
It is further case that when the plaintiff tried to occupy the suit property on 22.11.1375 B. S. he was obstructed by the defendant and his men. Defendant was all along in the possession of the suit property and he also acquired a title to it by way of adverse possession.
Learned Trial Court framed several issues and dismissed the suit after contested hearing.
Plaintiff preferred an appeal and the appeal was allowed by passing a decree of eviction of the defendant. Being aggrieved, the defendant has preferred this second appeal. The following substantial questions of law were formulated for hearing of the second appeal:-
(a) For that the learned Lower Appellate Court after allowing application under Order 41 Rule 27 of the Code of Civil Procedure did not give an opportunity to the appellant to adduce rebuttal evidence thereof and, as such, the findings of the appellate court in reversing the decree of the trial court is bad in law.
(b) Whether the learned Lower Appellate Court substantially erred in law by holding that the case of the adverse possession as taken up by the defendant was not proved, though there was sufficient evidence to that effect.4
(c) Whether the learned Lower Appellate Court substantially erred in law by not dismissing the suit as barred by limitation under Article 65 of the Limitation Act.
(d) Whether the learned Court of appeal below substantially erred in law by disregarding cross-objection of the defendant that entire consideration money was not paid to the defendant by the plaintiff at the time of sale, though there was evidence in support of such claim of the defendant and that in the process judgment of the Lower Appellate Court was perverse.
Mr. Haradhan Banerjee, learned counsel for the appellant / defendant submits that learned Lower Appellate Court partly allowed the application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure filed by the appellant plaintiff by exhibiting one receipt alleged to be issued by P.W.4 without giving any opportunity to the defendant to contradict the same. According to him, on that score alone the impugned judgment is liable to be set aside and to be remanded back for giving opportunity to the present appellant to adduce evidence to contradict said document.
In support of his contention he refers case laws reported in AIR 1976 Supreme Court page 2403 (The Land Acquisition Officer, City Improvement Trust Board, Bangalore vs. H. Narayanaiah) and 2008 (4) CHN page 162 (National Film 5 Development Corporation Ltd., vs. Shantilal Bakliwal). There is no denial that if any document is admitted into evidence by allowing an application under Order 41 Rule 27 of the Code of Civil Procedure then the Court should record reasons for said admission and that too after giving opportunity to the adversary to refute said document by adducing evidence. The aforesaid case laws reiterated those settled principles of law.
Mr. Biswajit Basu, learned counsel for the respondent plaintiff, on the other hand, submits that though learned Lower Appellate Court in the judgment made observations to the effect that the application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure filed by the plaintiff was allowed in part permitting the document showing purchase of bricks by plaintiff from P.W.4 to be exhibited but there is nothing in the Lower Court record to show that said document was really exhibited and that learned Lower Appellate Court relied on said document at the time of giving his judgment, and hence no prejudice was caused to the defendant.
It appears from page 15 of the paper book that learned Lower Appellate Court passed an order of exhibiting the alleged receipt showing purchase of bricks by plaintiff from P.W.4 on the grounds mentioned therein. It is a fact that before passing said order that the document may be exhibited, no opportunity was given to the defendant to controvert and / or to counter said document. But on scrutiny of 6 Lower Court record I find that in spite of said specific order of the Court said document i.e., receipt was not made an exhibit of the case. It further appears that nowhere in the impugned judgment said document was referred or relied on to come to the final decision of the appeal. As such, said document, in effect, was neither exhibited nor relied upon causing prejudice to the defendant.
Mr. Banerjee next submits that one cross objection was filed by this defendant in the Lower Appellate Court asserting that the Learned Trial Court ought to have held that the plaintiff paid only Rs.200/- out of total consideration of Rs.1500/- for the suit plot and that remaining Rs.1300/- remained unpaid. He submits that learned Lower Appellate Court did not pass any order relating to said cross objection at the time of disposal of this appeal though both appeal and cross objection should have been disposed of by the single order and on that score also the impugned judgment is liable to be set aside.
Mr. Basu submits, in this connection, that learned Lower Appellate Court made elaborate discussions about the contention of said cross objection namely alleged non-payment of Rs.1300/- being balance consideration amount by the plaintiff to the defendant, in the judgment (page 16 of the paper book) and rejected said contention. According to him, it is true that learned Lower Appellate Court did not state in so many words that cross objection was dismissed but from the findings of the judgment it is palpable that said cross objection was considered and rejected. 7 According to him, for not writing a formal order of rejection of cross objection the judgment cannot be said to be bad in law.
It appears from the judgment impugned that learned Lower Appellate Court made elaborate discussions regarding said claim of the defendant in his cross objection about alleged non-payment of balance consideration money of Rs.1300/- by plaintiff and discarded the same. When the contents of said cross-objection were discarded after detailed discussions then it cannot be said that cross-objection was kept pending. It is true that there was no formal order of rejection of said cross- objection. But from the discussions as made in the judgment it is clear that said cross-objection was discussed and then was discarded. As such, aforesaid contention of Mr. Banerjee has no force.
Mr. Banerjee next submits that no issue was framed as to whether full consideration was paid. He further submits in this connection that the evidence of witnesses on this point of payment of entire consideration money were conflicting and not believable. According to him the learned Lower Appellate Court gave undue stress on the recitals of the kobala to discard those contradictions which came out during evidence.
Mr. Basu, on the other hand, submits that though no issue was framed as to whether full consideration was paid or not but both the parties led evidence on that issue and that on the basis of same there are findings of the Court. According to him 8 non-framing of issue did not prejudice the defendant. He next submits that both the Courts below came to concurrent findings of fact on the basis of evidence on record that full consideration amount was paid by the plaintiff to the defendant and that the defendant failed to establish his specific plea that full consideration amount was not paid to him. According to him, as those concurrent findings were based on evidence, this Court in the second appeal should not interfere with those findings of fact.
There is no denial that when parties lead evidence on an issue and the Court decides said issue on evidence on record, then it matters little whether any specific issue to that effect was framed or not. In the case in hand, both parties led evidence on the point of alleged payment / non-payment of entire consideration money at the time of execution of the kobala. On the basis of evidence on record both the Courts came to the concurrent findings of fact that entire consideration money was paid by the plaintiff to the defendant. Said findings being based on evidence does not call for any interference by this Court at the time of hearing of this second appeal under Section 100 of the Code of Civil Procedure.
In this connection Mr. Banerjee has referred case laws reported in 2000 (5) SCC page 652 (State of Rajasthan vs. Harphool Singh) and 2011 (5) Supreme page 763 (Chandna Impex Pvt. Limited vs. Commissioner of Customs) to impress upon this Court that a finding of fact may give rise to a substantial question of law if findings are based on no evidence and / or relevant admissible evidence has not been 9 taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. The above propositions of law are nothing but reiteration of the settled principles of law in this regard. But I have already stated that learned Courts below came to concurrent findings of fact on that score on the basis of evidence on record. As such, the same cannot be said to be based on no evidence or perverse. In this connection it is pertinent to note that though the defendant was illiterate but he was not a novice in the matter of dealing of properties. It came out from evidence on record that earlier he sold out four decimals of land to his four brothers under registered kobalas and later on he obtained reconveyance of one decimal of land from one of his brothers again through a registered kobala. It further appears that the deed writer of the present deed was also the deed writer of the earlier deeds executed by the defendant in favour of his brothers as well as in the deed executed by one of the brothers of the defendant in his favour. There is specific averments in the deed in question that it was read over and explained to the defendant. The deed writer also gave evidence to that effect. His evidence stood the test of cross-examination. There is nothing to show that said deed writer who wrote so many deeds for defendant in earlier occasion has any enmity towards the defendant. In this connection it is pertinent to note that even if there was scope of drawing an alternative inference regarding payment of consideration money on the 10 basis of evidence on record, still the High Court in the second appeal should not substitute the findings of learned Lower Courts by its own so long said finding was not found to be perverse. I have already stated that said findings of fact were based on evidence and hence was not perverse.
Mr. Banerjee submits that it was specific defence case that as the balance consideration money of Rs.1300/- was not paid by the plaintiff purchaser to the defendant, the delivery of the possession of the suit property was not given to the plaintiff and that defendant continued to possess the suit land as its owner by erecting a structure thereupon in 1967 and by running his business of blacksmith and that the story of giving licence to the defendant in October, 1983 or revocation of the same in October, 1985 was not at all believable. He further submits that it was also a specific defence case that on 22.11.1375 B. S. when plaintiff and his men came to take possession of the suit property they were obstructed by the defendant and since then defendant was in possession of the same openly and adversely and a title was also created by way of adverse possession.
In this connection Mr. Banerjee has referred a case law reported in 2007 (6) SCC page 59 (P.T. Munichikkanna Reddy and others vs. Revamma and others).
Mr. Basu, on the other hand, submits that though defendant claimed that no title passed to the plaintiff for non-payment of alleged balance consideration money 11 of Rs.1300/- but in view of execution and registration of the sale deed the title of the suit property passed to the plaintiff.
In support of his contention he has referred the case laws reported in AIR 1996 Orissa page 86 (Basanti Mohanty vs. Brahmanand Das), AIR 1993 Madhya Pradesh page 162 (Premnarayan and another vs. Kunwarji and another) and AIR 2003 Calcutta page 105 (Murari Ganguly and others vs. Kanailal Garai and others).
He next submits that defendant tried to make out a case that as plaintiff did not pay the balance consideration money of Rs.1300/- the title of the property remained with the defendant who continued to possess the same. According to him, if a person has to assert a title to a property by way of adverse possession he has to admit the title of another person over the property, and further to show that within knowledge of said person he was in open and uninterrupted possession of the suit property as a matter of right for over 12 years denying true owner's title. According to Mr. Basu as defendant did not recognize the title of the plaintiff for alleged non- payment of balance consideration money and claimed to be in possession of the property as owner, then this very claim gave a go-by to his further claim of title to the property by way of adverse possession.
In the case of Basanti Mohanty (supra) it was held that the payment of price is not necessarily a sine qua non to the completion of the sale. It was further held that if the intention is that property should pass on registration the sale is complete as 12 soon as the deed is registered irrespective of the fact whether the price has been paid or not. It was further held that when the recitals of the document are clear and unambiguous on the point of passing a title on executiion of the deed, and not dependent upon passing of consideration, sale transaction cannot be invalidated for non-payment of consideration. The same view was taken in the referred case of Madhya Pradesh as well as of Calcutta case. It came out from the recitals of the kobala that consideration was paid and received by the defendant vendor. As such, the sale was complete and title passed to the plaintiff.
In this connection Mr. Banerjee submits that in case of non-payment of consideration money though title passed but vendor retains the lien. Said proposition of law is not disputed but in the case in hand, I have already stated that both the Courts came to the concurrent findings of fact, on the basis of evidence on record, that entire consideration money was passed on at the time of execution and registration of the sale deed. As such the question of retaining the lien does not arise.
It was the specific case of the defendant that he constructed the 'chala' room on the suit land in 1967 and continued to possess the same as his blacksmith shop and the story of granting licence by the plaintiff to him in October, 1983 and revocation of the same in October, 1985 was false one. Admittedly, the kobala was executed by the defendant in favour of the plaintiff in 1960. From the recitals of said kobala of 1960 it appears that a 'chala' room was standing on said land. Had it been 13 a fact that there was no existence of room before construction of the same by defendant in 1967 then there was no question of incorporating existence of a room on suit land in the kobala of 1960. It is also an admitted fact that said deed was written by a deed writer who was well known to the defendant as he prepared several kobalas for the defendant on earlier occasions. It is also too absurd to believe that the existence of a room in the suit property was falsely noted in the kobala of 1960 in anticipation of a future case between the parties. So, the allegation of the defence case of erecting one 'chala' room in the suit property only in 1967 is not believable in view of the evidence on record, both oral and documentary.
In the case of Karnataka Board of Wakf vs. Government of India reported in (2004) 10 SCC page 779 Hon'ble Apex Court observed regarding adverse possession as follows:-
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his 14 favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
In the case in hand, it was the specific defence case that no title passed to the plaintiff in spite of execution and registration of the sale deed for non-payment of the full consideration money and that defendant continued to possess the same as its rightful owner and also obstructed plaintiff from taking possession in 1375 B. S. As defendant denied the title of the plaintiff on account of alleged non-payment of entire consideration money it means defendant continued to possess the same claiming to be owner. As such there was no question of denying the title of the plaintiff by said possession which is one of the essential ingredients of adverse possession. The allegation of resisting the attempt on the part of the plaintiff to take possession of the suit land in 1375 B. S. was not also proved and believed by the learned Lower Appellate Court.
I also find no infirmity in said finding of fact. It also came out from the evidence on record, as discussed above, that the claim of the defendant that he erected the room in the suit land in 1967 was not also established. Rather it came out that even at the time of purchase of said land by the plaintiff in 1960 there was existence of one room thereupon.
It is true that the specific evidence of granting licence to the defendant by the plaintiff in October, 1983 as well as revocation of the same in October, 1985 were 15 rather hazy. But a person can possess a land / property only in four capacities namely as an owner, as a tenant, as a licensee or as a trespasser. It came out from the above discussions that on the ground of execution and registration of said kobala the title passed to the plaintiff and that the defendant was no longer owner. It was nobody's case that the defendant was a tenant under the plaintiff in the suit property. If licence is not proved then the status of the defendant is nothing but that of a trespasser in the suit property. I have already stated that the claim of adverse possession as made out by the defendant in the written statement was found to be not sustainable in the facts and circumstances of the case. As such, even if the granting of licence to defendant and subsequent revocation is not proved still the plaintiff was entitled to get a decree of eviction against the defendant treating him as a trespasser.
Accordingly, I dismiss the appeal by confirming the judgment of eviction passed by learned Lower Appellate Court on the grounds as stated above.
However, I pass no order as to costs.
Office is directed to send Lower Court record along with a copy of this judgment forthwith.
Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)