Barman, Ag. C.J.
1. Defendants 1, 3 and 4 are appellants. This appeal arises out of a suit filed by the original plaintiff Gopinath Sahu (deceased father of the present plaintiffs) for declaration of their title to 3.67 acres of land as described in Schedule Ka of the plaint and for recovery of possession on the same from defendants 1 to 4.
2. A genealogical table, only so far as relevant for deciding this case, is set out as follows:
| | | |
Somanath Gopinath Gadadhar Bidyadhar
(Dead) (original plff. (Dead) (Dead)
| (since deceased) |
| | Mandhata D.1
| | =Lalita D.4
| | |
| | Sachitananda D.3
| | | |
| Bhikari Minaketan Brindaban
| plff.1 ka plff.1 kha plff.1 ga
| | |
Krishna Shyama Chandra Shekhar
Narayan Sahu had two other sons Lokanath and Satyabadi who had relinquished their interest in the joint family property and went to Boudh State; so their names have not been mentioned in the genealogical table.
There is a fifth defendant in the suit namely defendant No. 5 Bhagabatia Hatua Gountia who is an outsider not belonging to the family.
3. The disputed property is suit lands comprising an area of 3.67 acres which had fallen to the share of Bidyadhar being his 1/4th share as declared by a final decree in a partition suit hereinafter stated.
4. The plaintiffs' case is stated to be this: The entire property belonging to Narayan Sahu was 14.68 acres in Khunti No. 23 of mouza Bargaon recorded in the name of Gadadhar and Bidyadhar. In 1938, after Gadadhar's death his son Mandhata defendant 1 filed a suit for partition being title suit No. 78 of 1938. There was a preliminary decree made therein on March 27, 1939 Ext. 8 and a final decree was passed on September 13, 1939 Ext. 6. It appears from the final decree in the said partition suit Ext. 6 that the lands shown in green colour (suit lands) comprising an area of 3.67 acres had fallen to the share of Bidyadhar. On March 27, 1950 Bidyadhar died. The plaintiffs' case is that Somanath and Gadadhar having predeceased Bidyadhar, the original plaintiff Gopinath became the sole heir of Bidyadhar. Defendant 1 Mandhata is stated to have taken forcible possession of the suit lands. Thereupon the original plaintiff Gopinath filed the suit on February 1, 1954 for reliefs aforesaid initially as against defendants 1 and 2. Defendant No. 2 Chandra Sekhar of Somanath's branch of the family supported the plaintiff but he was set ex parte.
5. Defendant No. 1 Mandhata filed written statement and contested the suit. In his written statement the defence taken by him was this. Defendant No. 1 Mandhata alone had taken delivery of possession of his own share of the lands in execution of the final decree in the said partition suit. It is alleged that Bidyadhar had effected a re-union with defendant No. 1 Mandhata after allotment and that they were joint in mess and estate till the death of Bidyadhar. It is further alleged that even after the final decree in the partition suit dated September 13, 1939 Ext. 6, the Gountia of the village had filed a rent suit against defendant No. 1 Mandhata and Bidyadhar for rent of the entire property of the family 14.68 acres including the disputed suit lands. The defendants' case is that on March 23, 1947 defendant No. 1 Mandhata and Bidyadhar had surrendered the entire family property including the disputed suit lands to the Gountia of the village--that the plaintiff and other co-sharers had also consented to the alleged surrender. It is then alleged that thereafter on May 4, 1948 the Gountia of the village Bhagabatia Hatua Gountia (who was later on added as defendant No. 5 in the suit) by a registered lease Ext. D leased out the entire property including the disputed lands to defendant Mandhata's wife Lalita (who was later on added as defendant No. 4) and to their son Sachidananda (who was later on added as defendant No. 3).
6. After the written statement was filed by defendant No. 1 Mandhata, his wife Lalita and son Sachidananda were added as defendants 4 and 3 respectively, and Bhagabatia Hatua Gountia was added as defendant No. 5 and made parties to the suit. The Gountia defendant 5 filed written statement supporting the case of defendant No. 1 Mandhata.
7. In view of the defence taken relying on the alleged surrender and lease as aforesaid, the plaint, was subsequently amended in that the original plaintiff and his sons were in prison for a long time as they were convicted in a criminal case under Section 353, I. P. C. and during that period defendant No. 1 Mandhata had obtained some signatures from the original plaintiff Gopinath; that such signatures might have been obtained in the surrender deed as well and as such the alleged surrender deed is not valid or binding on the plaintiff. It was also pleaded that the suit is barred by limitation.
8. The relevant findings of the Courts below are these: The trial Court found that there was no reunion as alleged between Bidyadhar and defendant. No. 1 Mandhata or his father Gadadhar ; that the alleged surrender on March 23, 1947 and the lease dated May 4, 1948 Ext. D are legal, effective and binding on the plaintiff; that the original plaintiff Gopinath being a signatory to the surrender is estopped from challenging the lease to defendants 3 and 4; that the plaintiffs have failed to prove possession, within 12 years prior to the suit and accordingly the plaintiffs' suit was dismissed. In appeal the learned lower appellate Court reversed the decision of the trial Court and decreed the suit in favour of the plaintiffs. The finding that there was no re-union between Bidyadhar and defendant No. 1 Mandhata or his father was not challenged before the learned lower appellate Court. The findings of the learned lower appellate Court on which the plaintiffs' suit was decreed are these : The alleged surrender of the suit lands in favour of defendant No. 5 in 1947 is a myth and a counter-blast put forward by the contesting defendants without any basis for the same. The lease deed Ext. D is a collusive document. In view of these findings the learned lower appellate Court concluded that the original plaintiff Gopinath being the nearest heir of Bidyadhar is entitled to the suit lands to the exclusion or all other persons.
On the point of limitation the learned lower appellate Court found that assuming that there was a surrender of Bidyadhar in 1947 as alleged even so the suit having been filed on February 2, 1954, that is within 12 years from the date of the alleged surrender was filed within time. The suit is not barred by limitation. The suit was accordingly decreed in favour of the plaintiffs. Hence this second appeal by the defendants appellants.
9. The only question is : Was there a surrender of the suit lands by defendant No. 1 Mandhata and Bidyadhar in favour of the Gountia defendant No. 5 as alleged? If the surrender to the Gountia is found to be a mere myth, then the lease by the Gountia defendant No. 5 in favour of defendants 3 and 4 cannot stand. It is significant that Gountia defendant No, 5 was not examined.
On this point the contentions on behalf of the defendants appellants are these : The Gountia defendant No. 5 having admitted in the lease Ext. D the existence of the surrender deed, the Gountia cannot say that the surrender deed was not with him. In support of their contention they rely on Section 114 of the Evidence Act, Illus.(f) and (g), which provide that the 'Court may presume the common course of business has been followed in particular cases; that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The defendants' point is that the common course would be that the surrender deed would be with the Gountia, defendant No. 5 in whose favour it was executed, and that the Courts should draw adverse inference for non-production of the surrender deed by defendant No. 5. It is said that defendant No. 5 was summoned but he did not come. It was also argued that the learned lower appellate Court had wrongly thrown the onus on the defendants appellants to prove affirmatively the existence of the alleged surrender deed and that he had wrongly drawn adverse inference against them for non-production of the surrender deed. It was also commented that the learned lower appellate Court had over-looked the admission by the Gountia defendant No. 5 of the existence of the surrender deed in his affidavit filed before the trial Court on March 26, 1955; it is said that there is a clear admission of surrender by defendant No. 5 about the existence of the surrender deed.
10. Much was harped on behalf of the defendants appellants in support of their contentions relying on the affidavit by the Gountia defendant No. 5 on March 26, 1955. In the affidavit, however, defendant No. 5 does not say that the alleged surrender deed was handed over to him nor does he even say that he saw the surrender deed. What exactly defendant No. 5 says in the affidavit is this; Defendant No. 1 Mandhata Sahu has not handed over to defendant No. 5 Bhagabatia Hatua the surrender deed in respect of the disputed property in 1947; nor is this surrender deed with defendant No. 5. It is thus clear from the affidavit that the alleged surrender deed is fictitious. Both sides relied on this affidavit by defendant No. 5 dated March 26, 1955 in support of their respective contentions in course of hearing of this appeal. The alleged surrender deed is not with defendant No. 5 nor does defendant No. 5 say that he saw the alleged surrender deed. In view of this position none of the contentions urged on behalf of the defendants appellants have any force whatsoever, The learned lower appellate Court has fully considered this aspect by reference to the evidence and his finding is this :
'It has now to be considered whether the alleged surrender of the suit lands had ever taken place so as to entitle the Gountia, (defendant 5) to grant a lease in respect thereof in favour of the defendants 3 and 4. In other words, the sine qua non of the validity of the deed of lease Ext. D would depend upon the existence and validity of the alleged surrender said to have been made by defendant 1 and bidyadhar on 23-4-1947 with the consent and signatures of the other co-sharers including the plaintiff. The deed of surrender has not been produced and has been alleged by the defendants 1, 3 and 4 to be with the defendant No 5. The defendant No. 5 in an affidavit dated 26-3-1955 (vide at page 100 of file C I) has stated that he had not been given any such deed of surrender and that any such document does not lie with him. It has been recited in Ext. D the deed of lease executed by the defendant No. 5 in favour of the defendants 3 and 4 that the defendant No. 1 had alone surrendered the entire lands (14.68 acres) appertaining to Khunti No. 23 in his (defendant No. 5's) favour and there is no mention therein that Bidyadhar or the other co-sharers of the original plaintiff (Gopinath) had joined in the deed of surrender. The lease deed Ext. D is also silent as to if there was any deed of surrender in existence at the time, it (Ext. D) was executed by the Gountia. In view of the affidavit of the defendant No. 5, as referred to earlier, it must be held that no deed of surrender was with him and that if any such deed was executed, it must be held to be with the defendant No. 1 and that an adverse inference should be drawn under Section 114(g) of the Evidence Act that this document if produced would have gone against the case of the defendants 1, 3 to 5.'
11. It is not the law that,--merely because there is a reference to a certain alleged previous document in a subsequent document,--a party relying on the previous document is absolved from his responsibility of proving its existence by independent evidence. The learned lower appellate Court has fully discussed the evidence in this context and rightly came to the conclusion that the alleged earlier surrender in 1947 referred to in the subsequent lease of 1948 is a myth. Now that the alleged earlier surrender in favour of defendant No. 5 is rightly disbelieved, the subsequent lease in favour of defendants 3 and 4 purported to have been executed by the Gountia, defendant No. 5 cannot stand, because without the surrender there was nothing which the Gountia, defendant No. 5 could lease out to defendants 3 and 4.
12. In the view that I have taken there was no surrender of the suit lands in 1947 as alleged, there is no force on the point of limitation taken by the defendants. In any event, as the learned lower appellate Court found assuming there was surrender in 1947 the suit having been filed in 1954 was within time.
13. In this view of the case, it is not necessary to deal with the other points urged by the parties in this appeal which in my opinion do not arise.
14. In the result, therefore, the decision of the learned lower appellate Court is upheld. This appeal is dismissed with costs.