Jharkhand High Court
Satyajit Banerjee vs Hira Laxmi Mehta on 1 October, 2020
Equivalent citations: AIRONLINE 2020 JHA 1435
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
S.A. No. 152 of 2016
........
1. Satyajit Banerjee
2. Subrato Banerjee Both sons of Late Nand Gopal Banerjee.
3. Smt. Uma Banerjee @ Uma Devi, wife of Late Nand Gopal Banerjee All resident of Dhobatand, P.O. - Dhanbad, P.S. - Bankmore, District - Dhanbad.
.... Defendants / Appellants / Appellants Versus
1. Hira Laxmi Mehta, wife of Late Manilal B. Mehta.
2. Rajesh Mehta, son of Late Manilal B. Mehta.
3. Jyoti Mehta.
4. Dipti Mehta.
5. Naina Mehta.
(3) to (5) All daughters of Late Manilal B. Mehta and residents of Shastri Nagar, P.O. & P.S. - Bankmore, District - Dhanbad.
... Plaintiffs / Respondents / Respondents
6. Naresh Mishra, son of not known to the appellants, resident of Mouza - Dhobatand, P.O. & P.S.- Bankmore, District - Dhanbad.
.... Defendant No.6/Respondent/Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............
For the Appellants : Mrs. J. Mazumdar, Advocate.
For the Respondents :
........
14/01.10.2020.
Heard, learned counsel for the appellants, Mrs. J. Mazumdar. Learned counsel for the appellants has submitted that the plaintiffs have filed a suit for ejectment of the tenant / defendants from the suit premises as they are the legal heirs of Nand Gopal Banerjee, who was ex- employee of the Company and also prayed for recovery of arrears of rent and damage caused to the suit property.
Learned counsel for the appellants has submitted that the trial court after framing altogether six issues, decided all the issues in favour of the plaintiffs in terms of judgment dated 17.01.2006 and decree signed on 30.01.2006 passed by learned Sub-Judge-VI, Dhanbad in Title Suit No. 108/1986.
Thereafter, the appellants / defendants have preferred an appeal before the learned appellate court, which was instituted vide Title Appeal No. 38/2006 and the learned appellate court has also dismissed the appeal 2 preferred by tenant / defendants by judgment dated 08.02.2016 and decree signed on 22.02.2016.
Learned counsel for the appellants has submitted that though the judgment of confirmation of two courts are bad in law as the learned trial court as well as learned appellate court has given more relief than what the plaintiffs have prayed.
Learned counsel for the appellants has thus submitted that this Court may admit this appeal and call for the Lower Court Records.
It appears that the original plaintiff namely, Manilal B. Mehta is one of the two partners of M/s Mehta Engineering Company, a partnership firm having its office at Shastri Nagar, Dhanbad and the other partner is the plaintiff's son Rajesh Kumar Mehta. One of the employee Nand Gopal Banerjee was allotted a quarter by the plaintiff in the premises for the office work of Mehta Engineering Company. The defendants are son of said Nand Gopal Banerjee, who died on 27.04.1982. Even thereafter on request made by plaintiff, quarter was not vacated, rather they refused to vacate the same. Thus, the plaintiff filed a suit.
It appears from the record that the learned trial court has framed as many as six issues, which are quoted hereinbelow:-
1. Whether the suit as framed maintainable ?
2. Whether the plaintiff has got any valid cause of action to institute the suit ?
3. Whether the plaintiff is entitled for a decree of Rs. 5001/- ?
4. Whether Manilal B. Mehta was the owner and the defendants are the tenant under him ?
5. Whether Bhim Mahato and others has already executed a deed of agreement for sale of suit property in favour of these defendants after receiving the entire consideration money paid by the defendants to Bhim Mahato and others ?
6. Whether the plaintiff is entitled to any other relief ?
The plaintiffs have also examined altogether eight witnesses, which are as follows :
P.W.-1 : Manilal B. Mehta who is plaintiff himself.
P.W.-2 : Rajesh Kumar Mehta, son of P.W.-1.
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P.W.-3 : Chhotu Lal Khokhani.
P.W.-4 : Bhagirath Pd. Mandal, who is advocate clerk.
P.W.-5 : Hirendra Chand Chatterjee
P.W.-6 : Amul Kumar Dutta, who is also an advocate clerk.
P.W.-7 : Bhola Pandit and last witness examined is
P.W.-8 : Ram Brichh Vishwakarma.
The plaintiffs have also exhibited following documents, which are marked as Exhibits 1 to 3, which are as follows :-
Exhibit-1 : Dhanbad Municipality receipt with respect of holding no.109 standing in the name of Manilal B. Mehta.
Exhibit-2 : Original sale deed no. 4842 dated 31.03.1965 executed by Kuar Singh in favour of Manilal B. Mehta.
Exhibit-2/A : Original sale deed dated 31.03.1965 executed by Sri Krishna Singh in favour of Manilal B. Mehta. Exhibit-2/B : Original sale deed dated 31.3.1965 deed no.4845 executed by Jag Mohan Singh in favour of Manilal B. Mehta.
Exhibit-2/C : Original sale deed dated 31.03.1965 executed by Sri Sheojee Mishra in favour of Manilal B. Mehta deed no.4843.
Exhibit-2/D : Original sale deed dated 08.07.1965 deed no.
11499 executed by Bijli Singh in favour of Manilal B. Mehta Exhibit-3 : Malgujari rent receipt standing in the name of Manilal B. Mehta for the year 1980-81, 89-90 and 88-89.
Defendants have also adduced three witnesses:
D.W.-1 : Beni Mahato.
D.W.-2 : Arjun Rai and last witness examined is
D.W.-3 : Tilak Chand Mahato
The defendants have also exhibited one map, which has been marked as Exhibit-A. 4 After due consideration by the learned trial court, the trial court has decreed the suit in favour of the plaintiffs.
The defendants have never claimed the ownership of the land, rather as per the defendants, the land belongs to one Bhim Mahato, but said Bhim Mahato or his legal heirs has not been examined, as such, the learned trial court has decreed the suit in favour of the plaintiffs.
Against the said judgment and decree by the learned trial court, the appellants have preferred an appeal and argued the case on length on factual aspect of the matter, which has been appreciated by the learned appellate court and also considered the issue with regard to law of limitation and discussed the same in the judgment passed by the learned appellate court that no such plea was taken by the defendants in the trial court. Article 65 of the Limitation Act, which is quoted below:
Description of suit Period of limitation Time from which period begins to run
65. For possession of Twelve years When the possession of the immovable property or any defendant becomes adverse interest therein based on title. to the plaintiff.
Considering the factual aspect of the matter as well as legal question, learned appellate court has dismissed the appeal and confirmed the judgment passed by the learned trial court.
Before this court in second appeal the learned counsel for the appellants has argued that the trial court has granted more relief than what the plaintiffs have prayed and the same have been affirmed.
This court is conscious of the proposition of its jurisdiction in a second appeal. The appeal under Section 100 C.P.C. is different from an appeal under Section 96 C.P.C. The Court while sitting in second appeal under Section 100 CPC can only interfere if the judgment is contrary to the mandatory provisions of law, as pronounced by the Hon'ble Supreme Court in catena of cases or if the judgment is based on inadmissible evidence, as held by Apex Court in the case of Gurnam Singh (Dead) by Lrs. Vs. Lehna Singh (Dead) by Lrs. reported in (2019) 7 SCC 641, relying upon the judgment passed by Apex Court in the case of Kondiba Dagadu Kadam Vs. Savitkibai Sopan Gujar reported in (1999) 3 SCC 722, held that the re-appreciation of evidence is not permissible in an 5 appeal under Section 100 C.P.C.
It appears from the materials brought on record that the defendants have not claimed title in themselves, rather they have claimed title to one Bhim Mahato, but said Bhim Mahato or his legal heirs have not been examined and the documents placed by plaintiffs, which have been brought on record and marked exhibits, consistently shows that the plaintiffs are the owner and defendants are the tenant of the suit property.
In the aforesaid view, paragraph-7 of the judgment passed by the Apex Court in the case of State of Andhara Pradesh & Others Vs. D. Raghukul Pershad (D) by Lrs. & Others reported in (2012) 8 SCC 584 is relevant and is quoted hereinbelow:
"7. The law is settled by this Court in D. Satyanarayana Vs. P. Jagadish that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents."
The Hon'ble Apex Court in the case of Nazir Mohamed Vs. J. Kamala and others passed in Civil Appeal Nos. 2843-2844 of 2010 [2020 SCC Online SC 676] has enumerated the principles relating to Section 100 C.P.C., which are mentioned in paragraph nos. 37, 38, 39 & 40, quoted hereinbelow:
"37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a 6 debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Curt below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (I) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
38. With the greatest of respect to the High Court, neither of the two questions framed by the High Court is a question of law, far less a substantial question of law. There was no controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law. There was no debatable issue before the High Court which was not covered by settled principles of law and / or precedents.
39. It is nobody's case that the decision rendered by the First Appellate Court on any material question, violated any settled question of law or was vitiated by perversity. It is nobody's case that the evidence taken as a whole does not reasonably support the finding of the First Appellate Court, or that the First Appellate Court interpreted the evidence on record in an absurd and / or capricious manner. It is also nobody's case that the First Appellate Court arrived at its decision ignoring or acting contrary to any settled legal principle.
40. The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant - Defendant was owner of a part of the suit premises and the Respondent- Plaintiff was owner of the other part of the suit premises. The finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant - Defendant and Respondent - Plaintiff had acquired title over the suit premises. There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted."
7It appears to this Court that no substantial question of law is made out nor the appellants have able to satisfy this Court with regard to any illegality committed with regard to finding recorded by the courts below on the mandatory provisions of law or against the judgment passed by the Apex Court or based on any inadmissible evidence.
Under the aforesaid circumstances, this Court is not inclined to interfere with the same.
Accordingly, the instant second appeal is hereby dismissed. Since, the second appeal is dismissed, I.A. No. 1096/2017 for stay of further proceedings of Execution Case No. 05/2006, pending in the court of learned Civil Judge (Sr. Division)-I, Dhanbad, is accordingly also dismissed.
(Kailash Prasad Deo, J.) Sunil-Jay/-