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Prabhat Lal Baruah Vs. on the Death of Kanak Chandra Baruah His L/R Ila Baruah and ors. - Court Judgment

LegalCrystal Citation
Subject;Property;Civil
CourtGuwahati High Court
Decided On
Case NumberSecond Appeal No. 56 of 1990
Judge
ActsRegistration Act - Sections 16; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantPrabhat Lal Baruah
RespondentOn the Death of Kanak Chandra Baruah His L/R Ila Baruah and ors.
Appellant AdvocateC.K.S. Baruah and S. Kataki, Advs.
Respondent AdvocateA. Roy and T. Islam, Advs.
DispositionAppeal dismissed
Prior history
A.H. Saikia, J.
1. The judgment and decree dated 8.8.1990 and 2.4.1990 respectively passed by the learned Assistant District Judge, No. 2 (now re-designated as Civil Judge (Senior Division No. 2)), Guwahati in Title Appeal No. 10 of 1996 is under challenge in this Second Appeal. By the impugned judgment the appellate Court affirmed the judgment and decree dated 15.2.1986 passed by the learned Munsiff, No. 2, Guwahati in Title Suit No. 72 of 1986 by which the suit filed by the plaintiff-resp
Excerpt:
- - according to him, the plaintiff-respondents totally failed to prove his title in this case by adducing any evidence for which he is not entitled to any relief as prayed for. roy countered the submission made on behalf of the appellant to the effect that the plaintiff-respondents failed to ascertain his title in the pleadings as well as by the oral evidence, by placing reliance in the said hari singh's case (supra) wherein the apex court also held that mere lack of details in the pleadings cannot be a reason enough to set aside concurrent finding of facts. 19. accordingly, i have no good reason to interfere with the impugned judgment and decrees......the suit in question a joint family property and he is a co-sharer of the suit premises. since the suit property has not been partioned, present suit was not maintainable without partition. further he alleged that the two above mentioned documents i.e. exbt. 1 and 2are inadmissible in law and those were not binding upon him. 4. both the trail court and the first appellate court after proper appreciation of evidence and also careful consideration of the documents particularly exbt.1 and exbt.2 had arrived at the conclusion that the appellant was not a co-sharer and had got the possession over the suit property only by virtue of the exbt. 1 and 2 thereby declaring him to be a permissive occupant. the suit which was decreed by the trail court was affirmed by the first appellate court. 5. i.....
Judgment:

A.H. Saikia, J.

1. The judgment and decree dated 8.8.1990 and 2.4.1990 respectively passed by the learned Assistant District Judge, No. 2 (now re-designated as Civil Judge (Senior Division No. 2)), Guwahati in Title Appeal No. 10 of 1996 is under challenge in this Second Appeal. By the impugned judgment the appellate Court affirmed the judgment and decree dated 15.2.1986 passed by the learned Munsiff, No. 2, Guwahati in Title Suit No. 72 of 1986 by which the suit filed by the plaintiff-respondents for possession of the land and house thereon by rejecting the defendant -appellant was decreed in favour of the plaintiff-respondents.

2. The plaintiff/respondent, being the owner of the suit premises, allowed his cousin, the defendant -appellant to stay in the said suit premises free of rent with a condition of payment of Municipal Taxes, revenues and electricity charges etc. and delivery of vacant possession of the same on demand of the plaintiff. In this regard, two agreements were executed by both the parties - the first, the Exbt. 1 on 24.4.1975 and the other one, the Exbt.2 on 29.5.1977. But those documents were admittedly not registered. The defendant took over the possession of the suit premises. But the defendant defaulted in payment of Municipal Taxes etc. from 15.4.1975 to 1979. Subsequently, the plaintiff required the house for his own use and occupation and accordingly, he made the demand for vacant possession of the house to the defendant who refused to comply with the same. Thereafter, the plaintiff sent a legal notice on 15.4.1979 upon the defendant requesting him to deliver the vacant possession, but that too remain unheeded. This necessitated the plaintiff to file the Title Suit No. 70 of 1979 praying for recovery of possession, mesne profit from 15.4.1979 and also for other relief.

3. The above factual position as narrated in the plaint was rejected and denied by the defendant by filing written statement and claimed that the suit in question a joint family property and he is a co-sharer of the suit premises. Since the suit property has not been partioned, present suit was not maintainable without partition. Further he alleged that the two above mentioned documents i.e. Exbt. 1 and 2

are inadmissible in law and those were not binding upon him.

4. Both the trail Court and the first appellate Court after proper appreciation of evidence and also careful consideration of the documents particularly Exbt.1 and Exbt.2 had arrived at the conclusion that the appellant was not a co-sharer and had got the possession over the suit property only by virtue of the Exbt. 1 and 2 thereby declaring him to be a permissive occupant. The suit which was decreed by the trail Court was affirmed by the first appellate Court.

5. I have heard Mr. C.K.S. Baruah, learned Sr. Counsel assisted by Mr. S. Kataki, learned counsel for the appellant and Mr. A. Roy, learned Sr. counsel assisted by Mr. T. Islam, learned counsel appearing for the respondents.

6. The substantial question of law that arises for consideration in this Second Appeal is thus:

'Whether the finding of the learned lower appellate court that the suit property was the self acquired properly of the father of the original plaintiff, is perverse.'

7. Mr. Sarma Baruah contended that the impugned judgment suffers from extreme perversity as reflected on the face of it that it declared the suit property as self acquired property of the predecessors of the plaintiff-respondents. Since no evidence has been adduced in this regard, finding is totally perverse on the ground of no evidence. Further he contended that the Exbt. 1 and Exbt.2 which were the only basis for arriving at a decision by the lower appellate Court were inadmissible under the law inasmuch as those are not registered documents and, as such, those are lacking to have binding affect upon the defendant-appellant. According to him, the plaintiff-respondents totally failed to prove his title in this case by adducing any evidence for which he is not entitled to any relief as prayed for. Accordingly, he submitted that this Court sitting in the Second Appeal has the power to interfere with the impugned judgment though admittedly this is a case against the concurrent finding of facts of both the Court below. It is stated that there was no evidence to prove the title of the plaintiff-respondents.

8. In support of his submission, learned senior counsel for the appellant relied on the decision of the Apex Court in Ishwar Dass Jain v. Sohan Lal reported in (2000) 1 SCC 434 wherein the Apex Court held that when vital evidence which could have led to a different conclusion was omitted, or when inadmissible evidence was relied upon which if omitted would have led to a different conclusion,

interference with the finding of facts is permissible in Second Appeal.

9. In another decision in Neelu Narayani and Ors. v. Lakshmanan reported in (1999) 9 SCC 237 as relied by the learned counsel for the appellant, the Apex Court observed that a question of title arising on the basis of the interpretation of proved documents is a question of law and can be examined in Second Appeal by the High Court.

10. Countering the submission advanced on behalf of the appellant, Mr. Roy, learned counsel for the respondents, strenuously argued that since admittedly this appeal has been preferred against the concurrent finding of facts, the substantial question of law as formulated in this case is not even a question of law, not to speak of substantial question of law. Relying on the two documents i.e. Exbt. 1 and Exbt.2 learned counsel for the respondents contended that the appellant, being aware of the contentions made in those documents, accepted without protest and voluntarily executed those along with the plaintiff and when the question of demand of recovery of possession came, he had not been authorised under the law to take the plea that the suit premises was joint family property. Referring to the averment made in the written statement particularly paragraph-6 of the written statement which reads -

That the possession of the house in question is lawful as the same is the joint family property whereon the plaintiff cannot claim as right whatsoever.'

It was contended on behalf of the respondents that the appellant (defendant) had not made any categorical statement as regards his claim of being a co-sharer over the property being a joint family property as claimed by him. Referring to Order VIII Rule 4 and 5 CPC Mr. Roy contended that there must be a specific denial of certain allegation made in the plaint and evasive denial is not permissible under the law.

11. Judicial authority referred on behalf of the respondents is the decision in Hari Singh v. Kanhaiya Lal reported in (1997) 7 SCC 288. In Hari Singh's case (supra) the Supreme Court held that the existence of a substantial question of law is the sine qua non for exercise of the power under Section 100 CPC and as such, the High Court erred in interfering with the concurrent findings of the lower court without framing a substantial question of law and also by reappraising the evidence. Mr. Roy countered the submission made on behalf of the appellant to the effect that the plaintiff-respondents failed to ascertain his title in the pleadings as well as by the oral evidence, by placing reliance in the said Hari Singh's case (supra)

wherein the Apex Court also held that mere lack of details in the pleadings cannot be a reason enough to set aside concurrent finding of facts.

12. Mr. Roy vehemently urged that since the plaintiff respondent has filed the suit only for recovery of possession of the suit property which was handed over to the appellant on the strength of Exbt. 1 the agreement between the parties which was duly executed by both the parties and the appellant did not make any protest at the time of execution of the same and subsequently renewed by Exbt. 2 allowing the appellant to remain in possession, the appellant is bound by the said agreement and is not entitled to raise now the question of his share in the suit premises claiming the same to be the joint property. By Exbt. 1 and 2, the appellant has admitted his status of permissive occupant. As such, in that view of the facts and circumstances, the concurrent findings of the Court below do not deserve interference by this Court.

13. Mr. Sarma Barua on the other hand contended that the appellate Court has committed grave error of jurisdiction in holding that the suit property was a self acquired property of the father of the original plaintiff. I find no force in the said submission advanced by the learned counsel for the appellant. On perusal of the impugned judgment, it appears that the appellate Court arrived at the final conclusion purely on the basis of the evidence of P.W.-2, Sri Manilal Baruah, who was the elder brother of the appellant. He deposed in his cross-examination that after the death of Atul Baruah, who was one of the son of late Haren Chandra Baruah, the original owner of the suit property, since there was none to inherit the suit property as his successor, Chandra Kanta, the father of the original plaintiff inherited the property which was earlier got by late Atul Baruah from one Mahi Narayan Baruah. the maternal grand father of Atul Baruah. On the basis of the said evidence, lower appellate Court held that there was not an iota of evidence on record to show that Chadnra Kanta, Priyalal and Harakanta were in joint family when Chandra Kanta, the predecessor of the respondent acquired that property and accordingly, it appears that he declared this property to be a self acquired property of the predecessors-in-interest of the respondents.

14. Be that as it may, the Courts below the trial Court and the first appellate court in their concurrent findings properly appreciated the Exbt. 1 and 2 and decreed the suit and subsequently affirmed the suit of the plaintiff-respondents. The lower appellate Court repeated the contention that the Exbt. 1 and 2 were the documents which required compulsory registration under Section 17(2)(ix) of the

Registration Act. It was held that since the Exbt. 1 and 2 are mere agreement permitting the defendant-appellant only to possess temporarily to look after the suit premises, those did not create any right nor was any right transferred by those documents and registration of those deeds were held to be optional under Section 16(f) of the Registration Act. I fully agree with the said findings of the appellate Court below.

15. As regards the interference by the High Court with the concurrent finding of facts, the Supreme Court had the occasion to deal with the said issue in a series of decisions. In Saraswathi and Anr. v. S. Gangapathy and Anr. reported in (2001) 4 SCC 694. their Lordships held that concurrent findings of fact of the court below can be interfered with when those are contrary to the evidence on record. In another case in Vishnu Prakash and Anr. v. Sheela Devi (Smti) and Ors. reported in (2001) 4 SCC 729, the Apex Court held that the concurrent findings of fact may be interfered with when the Courts below have ignored evidence on record including positive statements of witnesses or findings in Judgments in earlier related cases or where the parties have made certain admission in earlier cases and have been taken a contrary stand. But this is not the position In the instant case in hand.

16. In another decision in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. reported in (1999) 3 SCC 722 the Apex Court has dealt with scope of Section 100 of the CPC after 1976 amendment. In paragraph 4, the Court has observed as follows:-

'It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the Second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The Second Appeal cannot be decided on merely equitable grounds. The concurrent findings of facts however

erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact.'

17. Having regard to the above judicial enunciations it can be safely held that the concurrent finding of fact howsoever erroneous cannot be disturbed by the High Court in exercise of power under Section 100 CPC unless those are contrary to the evidence of record but in the instant case, It has not found that the Courts below have basically Ignored the evidence on record or committed judicial error taking a contrary view to the evidence on record.

18. Since this appeal has been filed against the concurrent finding of facts and having carefully scanned and scrutinized the impugned Judgment this Court finds that the appellate Court below has rightly and justifiably taken into consideration the entire facts and circumstances of the case and arrived at final conclusion affirming and decreeing the suit of the plaintiff-respondents.

19. Accordingly, I have no good reason to Interfere with the impugned judgment and decrees. Declining to Interfere with the same, I hereby dismiss this Appeal but with no order as to costs.


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