Judgement & Order (Cav)
Factual Matrix
1. This appeal is preferred by the appellants Md. Mayar Uddin and Md Aftab Uddin. The respondents were initially Uday Shankar Das, Rabindra Chandra Das, Smt Jhunu Bala Das, Smt Shefali Rani Das, Smt Dipali Rani Das and the proforma respondents were initially Smt Pritibala Das, Smt Kusumanjali Das, Sri Nani Gopal Das who were arrayed as respondent Nos. 1 to 8 respectively. On death of respondent No. 1 Uday Sankar Das, he has been substituted by his following legal heirs;
Pritibala Das (sister) and
Smt Kusumanjali Das (sister) who were initially arrayed as proforma respondent Nos. 6 and 7 and on death of Smt Pritibala Das, she has been substituted by her legal heirs
Nihar Ranjan Das (son),
Nilashish Das (son), and
Rinku Rani Das (daughter)
2. On death of respondent No.4 Smt Shefali Rani Das, she has been substituted by her following legal years;
Sri Akhil Chandra Das,
Sri Prabendra Chandra Das,
Sri Paritosh Chandra Das,
Sri Alak Kanti Das,
Smt Sabita Rani Das
Smt Rati Rani Das
Smt Vijay Lakhi Das
The names of respondent No. 8 and his legal heirs have been struck off vide order of this court dated 04.03.2016. The names of respondent No.2, Sri Rabindra Chandra Das, has been stuck off vide order of this court dated 29.07.2015.
3. A title suit was initiated by Uday Sankar Das who was arrayed as respondent No.1 in this appeal which was registered as TS No.625/2006 against Md. Mayar Uddin and Md Aftab Uddin and other defendants. This suit was decreed on contest with costs vide order dated 06.12.2008. An appeal was preferred against this judgment and order by the present appellants Md. Mayar Uddin and Md Aftab Uddin which are registered as Title Appeal No.2/2009 and this appeal was dismissed vide order dated 08.02.2012.
4. Aggrieved by the impugned judgment and order, the appellants Md. Mayar Uddin and Md Aftab Uddin are before this court, whereas the other defendants are not before this court. This second appeal was admitted on the following substantial questions of law:
1. Whether the plaintiff could derive right, title and interest on the basis of Ext.-
2, i.e., the sale deed executed by Sucharu Bala Das when the plaintiff had failed to establish that she was a daughter of Nitya Charan Das?
2. Whether the learned lower appellate court was justified in decreeing the suit of the plaintiff on the basis of Ext.-1, Jamabandi?
5. The genesis of the case was that the respondent No.1 Uday Sankar Das brought up a title suit against the following defendants;
1.Md. Mayar Uddin,
2.Md Aftab Uddin,
3.Rabindra Chandra Das,
4.Smt Jhunu Bala Das,
5.Smt Shefali Rani Das,
6.Smt Dipali Rani Das
7.Smt Pritibala Das,
8.Smt Kusumanjali Das and
9.Sri Nani Gopal Das
Praying for (a) a decree declaring that the plaintiff and the proforma defendant Nos. 7 and 8 namely, Smt Pritibala Das and Smt Kusumanjali Das are the absolute owners of right, title and interest over the land described in schedule-1;
(b) a decree in the schedule-1 of the plaint and the structure thereon ;
(c) a decree declaring that the defendant Nos. 1 and 2 namely, Md. Mayar Uddin and Md Aftab Uddin did not acquire any right, title and interest over the schedule-2 premises by way of purchase vide registered sale deed described in schedule-3 of the plaint;
d) a decree for recovery of khas possession of the schedule-2 premises by evicting the defendant Nos. 1 and 2;
(e) a decree declaring the sale deed described in schedule-3 of the plaint;
(f) temporary and permanent injunction against the defendant Nos.1 and 2 restraining them from making any transfer in respect of schedule-3 premises by execution of any deed and/or to induct any person there in and/or to change the nature and feature of the Schedule-3 premises; and
(g) a decree directing correction of land revenue records in respect of 2nd R. S.Patta No. 68 of Ph. Sonapur, Mouza- Tulargram Part-1 in respect of acquiring all right, title and interest by the legal heir of Late Ujjaila Debi and Late Nitya Charan Das.
6. The appellants and the respondents will be referred according to their standing in the original case. The plaintiff is the respondent No.1 substituted by his legal heirs, whereas the appellants are the defendant Nos. 1 and 2 of the original title suit.
7. The genesis of the case was that 2nd RS Patta No. 68 Dag No. 230 comprises of the suit land admeasuring 1 Bigha 11 Katha and 7 Ch. This Patta belongs to one Luchan Moni Das and the legal heirs of late Nandalal Das, the predecessor of plaintiff and the defendant Nos. 3 to 8. Nandalal Das died leaving behind his wife Ujjala Devi and six sons and as such, the seven legal heirs were owners land of Dag No.230 in the suit patta measuring 10 kathas 8 Ch. The share of each of the legal heirs is 1 Katha, 8 Chatak. Subsequently Ujjala Devi died and the share was divided among her six sons and each son got a share of one katha, 12 Ch.
8. It is submitted that one of the son’s of Nandalal Das had no children and as per Hindu Succession Act, his share devolved upon the surviving brothers, i.e. Dwarikanath Das and Upendra Chandra Das. It is further submitted that one of the brothers, Nitya Charan Das, was survived by his only daughter, Sucharu Bala Das, but in the land revenue record, her name was illegally not included. Subsequently, Upendra Chandra Das, father of the plaintiff and the proforma defendant Nos. 7 and 8 namely Smt Pritibala Das and Smt Kusumanjali Das also passed away and as such, the plaintiff and the proforma defendant Nos. 7 and 8 jointly became owner of land admeasuring 2 Katha 10 Ch in Dag No. 230. The plaintiff also purchased land from Sucharu Bala Das and Dwarikanath Das and the plaintiff became owner of land appertaining to suit dag No. 230 of 1/3rd plot of land out of 2K 10 Ch jointly with the proforma defendant Nos. 7 and 8 along with 1K 12Ch land purchased from Sucharu Bala Das and another 2K 10 Ch land purchased from Dwarika and the share of the proforma defendant Nos. 7 and 8 in the said dag was 1 katha 12 chataks. The share of the plaintiff was 14 Chataks ( inherited) +2 katha 10 Chatak +1 katha 12 Chataks = 5 kathas 4 chataks. The total land of the plaintiff along with the share of his sisters i.e. proforma defendant Nos. 7 and 8 was 7 Kathas.
9. It is alleged by the plaintiff that on 06.11.2000, the defendant Nos. 1 and 2 taking advantage of the absence of the plaintiff, forcefully took possession of a portion of the scheduled land. The plaintiff raised objection against the illegal act of the defendants and then the defendants informed him that they had purchased the land from defendant Nos. 3 to 6. It is averred by the plaintiff that the defendant Nos. 3 to 6 namely Smt Jhunu Bala Das, Smt Shefali Rani Das, Smt Dipali Rani Das and the proforma defendant Smt Pritibala Das, have falsely claimed title over the scheduled land, as their father Late Dwarikanath Das had already sold his share of land. The plaintiff thereafter filed a title suit for right, title and interest over the suit land and khas possession and for cancellation of the sale deeds. The defendants filed written statement and contested the suit inter alia denying the contentions of the plaintiffs. The defendants bone of contention was that Nitya Charan Das died issueless and his share devolved upon the surviving brothers. The defendants have categorically denied that Sucharu Bala Das was the daughter of Nitya Charan Das. They have claimed that Dwarika Das had title over the suit land and the sale deeds executed by the defendant Nos. 3 to 6 are valid and lawful and the defendants have prayed to dismiss the suit.
Decision of the trial court:
10. It has been held by the learned trial court that Plaintiff stated that 2nd RS Patta No. 68 comprises of Dag No. 230 covering land admeasuring 1B 11K 7CH and Dag number 228 covers land admeasuring 2B 4K 12CH. The 2nd RS patta No. 68 is under the ownership and possession of Luchan Moni Das and legal heirs of late Nandalal Das who was the predecessor of the plaintiff along with defendant Nos. 3 to 8. Nandalal Das died leaving behind his wife Ujjala Devi and six sons namely Nabin, Nitya Charan, Kalachand, Nagendra, Dwarika and Upendra Das. The seven legal heirs of Nandalal inherited 1/3rd of land which is equivalent to 10 K8 Ch and the share of each legal heirs is 1K 8Ch. On the death of Ujjala Devi, her share devolved upon her six sons, and each son got a share of 4 chatak. Plaintiff submitted that Nitya Charan Das died, leaving behind his only daughter, Sucharu Bala Das. The plaintiff purchased land measuring 12K 11ch of Dag Nos. 228 and 230 of Suit patta No.68, vide sale deed dated 19.05.1973 including Sucharu Bala's share of land measuring 1K 12 CH. This sale deed has been exhibited as Exhibit- 2.
11. It was further held by the court that the evidence of the plaintiff reveals that the plaintiff purchased land by registered sale deed dated 20.08.1973 for a plot of land measuring 2K 12Ch of Dag No.230 from Dwarika Nath Das and thus the share of plaintiff in the suit Dag No. 230 was 1/ 3rd of total land inherited jointly with proforma defendant Nos. 7 and 8 measuring 2K 10 CH +1K 12 Chatka ( Purchased from Sucharu Bala) +2K 10 chatak (Purchased from Dwarika Nath). The share of proforma defendant Nos. 7 and 8 in the suit dag was 1K 12 Ch and share of plaintiff was 14 ch (inherited) +2K 10ch +1K 12 ch (by way of purchase)= 5K 4 ch and this share of the plaintiff, along with the share of proforma defendant Nos. 7 and 8 totalled to 7 Kathas.
12. The trial court has observed that the plaintiff submitted that the share of proforma defendant Nos. 7 and 8 was within exclusive possession of the plaintiff with consent. The plaintiff sold land covered by Dag No. 230 to one Dilwar Hussain and as such, the plaintiff has title over 4K 12CH 18 Gondas of land in suit Dag No. 230 and possession over 6K, 8CH, 18 Gondas of land in suit dag No. 230.
13. The plaintiff's allegation was that the sale of land made by defendant Nos. 3 to 6 to defendant Nos. 1 and 8 is illegal because the defendant Nos. 3 to 6 are legal heirs of Dwarika Das who sold his land to the plaintiff and thus Dwarika Das had no land in his share covered by suit Dag No. 230 and as such, the defendants Nos. 2 and 3 had no right, title and interest over the land they had sold to defendants Nos. 1 and 2.
14. It was observed by the trial court that the defendants through their written statements have also elaborately described the distribution and apportionment of their share of land. They have admitted that Nandalal Das was the owner of 1/3rd share of land admeasuring 15k 11ch 10 gondas and Nandalal Das died leaving behind his six sons along with his wife Ujjala Devi. The one sixth share of Dwarika Das was 13ch and 5 Gonda.
15. The learned trial court has also taken into consideration the submission of the defendants that Ujjala purchased 10K 14ch of land appertaining to R.S Dag No 189/187 which is resurveyed in Dag No. 230/228 equally. Hence, the share of Ujjala Devi in dag No 230 happens to be ½ of 10K 14Ch i.e. 5K 7Ch. After the death of Ujjala Devi, her six sons got 1/6th of 5K 7ch i.e. 14 Ch. 10 G each. Therefore, the share of Dwarika remains 13ch 15 G (inherited from father) + 14 ch 10 G (inherited from mother) = IK 12ch 5G. The defendants also claimed that on the death of Nitya Charan Das, his share devolved on Nagendra, Dwarika and Upendra and each of them got 9ch 8G and they became owner of 2K 5ch 13 G each. Late Nagendra died and his share devolved upon Dwarika and Upendra and both of them got ½ of 2K 5ch 13 G = Ik 2ch 16 gondas each. Therefore, the total share of the Dwarika was 1K 12Ch 5G +9ch 8G + IK 2ch 16G =3K 8ch. 9Gondas. The defendants also submitted that even if the sale made by Dwarika to the plaintiff is taken into consideration then also Dwarika has land under his title measuring 12K 9 gondas and thus the sale made by the successor of Dwarika i.e. the defendant no 3 to 6 is valid and legal.
16. After considering the evidence, it was held by the learned trial court that the bone of contention arose when the plaintiff claimed that the Nitya Charan Das died leaving behind him his only daughter Sucharu Bala Das and the share of Sucharu Bala was purchased by the plaintiff. On the contrary, the defendants claimed that Nitya Charan died issue less and after his death his share of land devolved upon the surviving brothers i.e.
Nagendra,
Dwarika and
Upendra
17. After scrutinizing the evidence and the pleadings, the learned trial court considered the fact that the land revenue record in respect of suit patta, reflects the name of Nagendra, Dwarika Das and Upendra Ch Das in entry no. 4 recorded as legal heirs but the name of Sucharu Bala was not recorded in the land record. The plaintiff contended that the entry was illegal but on scrutiny, it was noted by the learned trial court that the relevant entry no 4 was recorded as per order dated. 25.03.1960. The name in Sl. No. 7,8 and 9 were recorded in place of Sl. No. 5 on the basis of inheritance. Sucharu Bala Das’s name does not appear in the record relating to the suit patta. The entry in the land record were made by two L.R. Staff and the relevant entry was made way back in the year 1960. It was held by the learned trial court that the settlement officer was not impleaded as party to the suit.
18. Contrary to the allegation of the defendants that Sucharu Bala’s name was illegally excluded, the plaintiff had submitted the sale deed which reflects that he had purchased land from Sucharu Bala and this sale deed is marked as exhibit 2 reflecting the vendor's name as Sucharu Bala, wife of Lal Mohan Das. Thus, the defendant refuted the argument of the plaintiff by stating that the identity of Sucharu Bala as daughter of Nitya Charan was not asserted as she was not referred to as daughter of Nitya Charan but she was shown as wife of Lal Mohan Das.
19. It was further held by the learned trial court that during crossexaminations, PW-1 stated that he had no other document except the jamabandi, Exhibit -1 to show that Sucharu Bala is the daughter of Nitya Charan. The plaintiff did not adduce any evidence to ascertain that Nitya Charan was survived by his only daughter, Sucharu Bala.
20. Before the trial Court, the defendant No.1 as DW-1 tried to refute the pleadings and evidence of the plaintiff, whereas the defendant Nos. 3 to 6 did not adduce any evidence. The defendant Nos. 1 to 4 jointly filed a written statement, whereas the defendant Nos. 5 to 6 filed a joint written statement stating that they have accepted the written statement filed by the defendant Nos. 1 to 4 and their case may be read with the statement of defendant Nos. 1 to 4. It was also held by the learned trial court that the allegation of the plaintiff against defendant Nos. 1 and 2 are not similar to defendant Nos. 3 to 6. The main defendants are defendant Nos. 1 and 2 and DW-1 deposed that all facts prior to his purchase of the land was not within his personal knowledge. It was also taken note by the learned Trial Court that DW-1 in his cross-examination stated that he could not say anything about the corresponding CS Patta number, Dag numbers, and the area of the land. He did not know in whose name the patta was issued and he did not know who was the pattadar. DW-1 also admitted in his cross-examination that he has mentioned the name of Rote Mohan, Purna Mohan and Nandalal at paragraph-No.10 of his evidence-in-chief. He could not remember the share of land in the name of Dwarika, Nandalal, Rote Mohan, etc. in the Suit patta. Thus, it was held by the learned trial court that DW-1 could only assure that he had purchased the land but he failed to ascertain the numbers of the Dag, Patta and the area of the land purchased by him. Although he has clearly given the details of the share of land in his written statement, but in his cross-examination, he failed to substantiate his written statement. Thus, DW-1 has failed to substantiate his written statement by his oral evidence and consequentially DW-1 has failed to ascertain the contentions relating to Sucharu Bala. He could not specifically name the pattadars, the share of land in the names of Nandalal and others. DW-1 also could not recall the surviving heirs of Luchan Moni Das, and he could not recall if late Nitya charan Das was survived by any legal heir. It was observed by the learned trial court that defendant Nos. 3 to 6 claimed that their father got his share from Nitya Charan Das but they too did not come forward to substantiate their stance. It was held by the Court that the plaintiff could not prove that Sucharu Bala was Nitya Charan’s daughter, but the plaintiff through oral as well as documentary evidence led by him could establish that a vendor, Sucharu Bala executed the sale deed, Exhibit- 2. In absence of any supporting evidence by the defendant Nos. 3 to 6, and on the touchstone of preponderance of probability, it was held that the plaintiff by exhibiting the original sale deed could prove that he had purchased land from Sucharu Bala and Dwarika Das. It was also held by the learned trial court that the plaintiff through his plaint has stated that on 06.11.2000, the defendant Nos. 1 and 2 (the appellant herein) taking advantage of his absence forcefully took possession of the land described under schedule- 1 of the plaint. When the plaintiff raised objection, defendant Nos. 1 and 2 stated that they purchased the land from defendant Nos. 3 to 6. It was therefore held by the learned trial court that it is an admitted fact that the land was under the possession of defendant Nos. 1 and 2 who have claimed their ownership and possession vide registered sale deed executed by defendant Nos. 3 to 6. As it has already been held that the defendant could not establish that Dwarika Das had title over the suit land, it was decided by the learned trial court that the defendant Nos. 3 to 6 could not have inherited the suit land. Therefore, the learned trial court held that the sale deed described in Schedule-3 of the plaint is void and inoperative and the plaintiff is entitled to khas possession over Schedule -2 of the land by evicting the defendants Nos. 1 and 2. All the other issues were formulated by the learned trial court were decided in favor of the plaintiff.
Decision of the learned Appellate Court.
21. Against this judgment and order, an appeal was preferred by the present appellants, defendant Nos. 1 and 2. It was contended before the learned appellate court that the entire suit was decided by relying heavily on the cross examination of DW-1, which is bad in law. The learned appellate court then scrutinized the decision of the learned trial court and held that the plaintiff succeeded to establish his right, title and interest over the properties mentioned in Schedule- 1. It was observed by the appellate court that the plaintiff adduced his evidence as PW-1 and he stated that by Exhibit- 2, he purchased 1K 12Ch of land from Sucharu Bala and by Exhibit- 3, he also purchased 2K 12 Ch of land from Dwarika Nath Das and both the plots of land were appertaining to Dag No.230. After purchasing the suit land, PW-1 had possession over 6K 8CH 18 gondas of land in Dag No.230 including the share of 1K 12Ch land which belongs to pro forma defendant Nos. 7 and 8. PW-1 was enjoying the land belonging to his sisters, proforma defendant Nos. 7 and 8 as they have been staying in their respective matrimonial homes . It was held by the learned appellate court that the Schedule -1 land was under the possession of the plaintiff and the defendant Nos. 1 and 2 allegedly dispossessed the plaintiff from a portion of land which has been described in Schedule-2 of the plaint. The PW-1 has proved Exhibit -4 and 5 as the two documents through which the defendant Nos. 1 and 2 allegedly purchased the land in schedule -2 of the plaint from defendant Nos. 3 to 6.
22. PW-1 through his evidence and pleadings further stated that defendant Nos. 3 to 6 are the legal heirs of Dwarika Nath Das and vide Exhibit-2 Dwarika Nath Das sold his entire share of land in Dag No. 230 to him (PW-1) and thus Dwarika Nath Das had no legal rights of any land appertaining to dag No.230. It was held by the learned appellate court that the plaintiff, through his other witness Phanindra Chandra Roy could prove Exhibit- 4 and 5 which were exhibited in connection with the land and appertaining to dag No.230. It was also held by the learned appellate court that the defendant No.1 Mayar Uddin stated that the suit land falls in CS Patta No.62 and Dag No. 266 and 267 and dag No. 266 was resurveyed to Dag No. 189 of RS Patta No. 69 and it was again resurveyed to 2nd RS Patta No. 230 and 2nd RS Patta No. 68. He further stated that the 2nd RS Dag No.189/187 of RS Patta No.69 was again re-surveyed to Dag No. 230 and 228. He further stated that Dwarika Nath Das had a total share of 3K 8 CH 9 Gondas of land in his name and he purchased land admeasuring land 2 K 14 CH from the heirs of Dwarika Nath Das appertaining to Dag No.230 of 2nd RS Patta No. 68 vide deed dated 02.11.2000 and the defendant No.2 Md. Aftab Uddin also purchased 3 CH 14 Gondas of land from the heirs of Dwarika Nath Das covered by the same dag and patta. It was held that on a close scrutiny of Exhibit - 1 and the note 4,6 and 8 recorded on 27.11.1975, it is seen that the plaintiff's name was mutated in the jamabandi. It was held that the entries made in the jamabandi are presumed to be correct until the contrary is proved as per section 41 (2) of the Assam Land and Revenue Regulation, 1886. No rebuttal evidence was advanced in this aspect. On the other hand, the Jamabandi exhibited by defendant No.1 as Exhibit -Kha relates only to Dag No. 69 It was then held by the learned Court that the documents produced by the defendant No.1 could not prove that the defendant Nos. 1 and 2 accrued right over the Schedule -2 property by way of purchase from the heirs of Dwarka Nath Das.
23. The evidence of D.W.-1 was also taken into consideration and it was held that Dwarika Nath Das’s share in the suit dag was 3K, 8CH, 9G and out of this share of land, DW-1 purchased 3CH 14 Gonda land vide deed 06.12.2000 and the defendant No.2 also purchased 3CH 14 Gonda of land from the heirs of Dwarika Nath Das within the same Patta, but in his cross-examination, DW-1 failed to show the corresponding CS-Patta number and he also failed to ascertain from which RS patta and CS patta, the suit dag No.230 was resurveyed. It was held by the learned appellate Court that the Jamabandi, Exhibit-Kha, produced by DW-1, relates only to Dag No. 69, and there is no material in Exhibit Kha to show that the defendant Nos. 3 to 6 inherited land in the suit dag on the death of their father Dwarika Nath Das. It was thereby held that the Exhibit 3-4 which have been specifically mentioned in Schedule- 3 are illegal void and liable to be cancelled. The appeal was therefore dismissed without costs.
Analysis, reasoning and conclusion.
24. The learned counsel for the appellant argued that Nitya Charan Das was unmarried according to defendants, but plaintiff tried to introduce Nitya Charan Das 's daughter, Sucharu Bala Das. It was already held by the trial court that the plaintiff failed to prove that Sucharu Bala Das was the daughter of Nitya Charan Das and despite such observation of the learned trial court, the suit was erroneously decreed in favour of the plaintiff. How could Sucharu Bala Das obtain title without inheritance of the land from Nitya Charan Das. It is alleged that, this erroneous order of the learned trial court warrants interference. It has been mentioned in the paragraph- 5 of the plaint that although Nitya Charan Das died leaving behind his only daughter, Sucharu Bala Das as his only legal heir, in land revenue records in respect to suit patta in entry No.4, name of Nagendra Das, Joyita Das and Upendra Das were recorded and as such entry No. 4 is illegal. The plaintiff has failed to prove that this entry no. 4 is illegal and thus after observing the submission of the plaintiff and without any rebuttal evidence, the learned Trial Court has erroneously decreed the suit in favour of the plaintiff.
25. I have noticed that the Exhibit- 3 clearly depicts that the plaintiff purchased 2K 12 Ch of land from Dwarika Nath Das but he has mentioned he has purchased 12K 10CH from Dwarika Das.
26. While deciding the substantial question of law, it is not required for this court to scrutinize or to highlight the evidence which has been carefully and elaborately assessed by both the courts. When the sale deed has been proved as Exhibit -2 in accordance with law, there appears to be no justified ground to disbelieve the sale deed. No rebuttal evidence was led to prove that Sucharu Bala Das is not a legal heir of Nitya Charan Das. It has been correctly held by the learned Trial Court that although the plaintiff failed to prove that Nitya Charan Das has been survived by his sole legal heir, Sucharubala Das, yet the defendants failed to rebut the execution of the sale deed by Sucharu Bala Das. It is amply clear that the land was under the ownership plaintiff as DW-1 failed to identify the land which he had purchased from defendant Nos. 3 to 6. Thus, the defendants failed to substantiate their pleadings through proper evidence despite the fact they have exhibited the sale deed executed in their favor i.e in favour of defendant Nos. 1 and 2. It is also notable that no counter claim was filed by the defendants claiming their ownership over the suit land. The respondent has relied on the decision of the Hon’ble Supreme Court in the case of Kondiba Dagadu Kadam vs. Savitribai, Sopan Gujar and others reported in (1999) 3 SCC 722 wherein it has been held that;-
“5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law, Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal, The mere appreciation of the facts, the documentary evidence of the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vested in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.”
27. Thus, the learned counsel for the respondent has disagreed with the substantial question of law raised in this case stating that the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. I find force in the argument of the learned counsel for the respondent, but the document proved as Exhibit-2 supports the evidence that the plaintiffs are the owners of the suit land and they have derived their rights by the deed of transfer of i.e. Exhibit-2.
28. The appellant has relied on the decision of this court in the case of Gokul Chandra Das vs. Satish Chandra Das reported in (1995) 2 GaulJ 440 wherein it has been held in paragraph 7 as follows:
“7. In the case of Guru Amarjit Singh vs. Rattan Chand (AIR 1994 SC 226)wherein the appellant as plaintiff claimed recovery of possession claiming title on the basis of entries in the Jamabandi. The Apex Court held that it is settled law that entries in the Jamabandi are not proof of title. They are only statement for revenue purpose.
8. In the case of Nagarpalika Jind vs. Jagatsingh, (1995) 3 SCC 426 the Apex Court held that when the suit is based on title, burden to prove the same falls on the plaintiff, though the Court cannot decree a suit merely on the basis of entries in the revenue records.
9. Mr. Choudhury, learned counsel for the respondent has fairly conceded that in view of the settled law enunciated by the Apex Court in a series of decisions he is not pressing the claim of title of the opposite party/plaintiff over the suit land, but he has submitted that the suit filed by the plaintiff should be treated as a suit based on possession and dispossession in terms of section 6 of the Specific Relief Act, 1963. He has invited this Courts attention to para 8 of the plaint wherein the plaintiff prayed that he be given khas possession over the suit land upon removal of the defendant's illegal possession therefrom.”
29. Relying on this decision, the Learned Counsel for the appellant has submitted that plaintiff/respondent No.1 cannot rely on evidence of defendants. It is submitted that in this case the decision of the trial court upheld by the learned appellate court was on the basis of the defendants' failure to produce documents. This argument of the learned counsel for the appellant holds no water. The defendants have exhibited the Jamabandi, wherein the name of Sucharu Bala Das was not recorded but the plaintiff through his evidence and pleadings could prove to the satisfaction of the learned trial court as well as the appellate court that the plaintiff had title over the suit land. The appellant has also relied in another decision of this court in the case On the death of Suleiman Ali his legal heirs Ahad Ali vs. Safiya Khatoon (Musstt) reported in (2017) 6 GaulLJ 276 wherein it has been observed that:
“25. In Ram Das Vs. Salim Ahmed reported in (supra), the predecessor in interest of the respondent preferred a suit for declaration of Title and injunction contending inter-alia that the said predecessor-in-interest, Karimbux acquired title to the suit property by way of purchase from one Sarifan, who acquired title in turn from Bandijaan on the basis of a will.
The appellants denied the title of the plaintiff. The trial Court dismissed the suit as the plaintiff failed to proof the title. The First Appellate Court upheld the findings. In the Second Appeal, the High Court placing reliance on the copy of the will and as nobody objected to it, accordingly held that said Sarifan got title to the property. Thereafter on challenge being made, the Hon’ble Apex Court held as follows:-
“It, however, appears to us that although the High Court indicated in the impugned judgment that the defendant’s claim of easement right and also the claim of title by way of adverse possession could not be accepted, such weakness in the defendant’s title to the suit property cannot establish the plaintiff’s title. The High Court has failed to consider the specific finding made by the lower appellate Court that the plaintiff had failed to establish the plaintiff’s title. It may be noted that the plaintiff was not entitled to get declaration of title if such title could not be established by the plaintiff by leading convincing evidence. The lower appellate Court had considered the evidence in detail and by giving cogent reasons had come to the finding that the plaintiff failed to establish the title to the property. Such finding was not reversed by the High Court by indicating any reason for such reversal but indicating the weakness of the defendant’s title the plaintiff’s suit was decreed. Even if it is assumed that the property in question was bequeathed by Bandi Jaan by executing the Will, the title to the suit property cannot be declared in favour of the plaintiff unless the title of the executor of the Will is fully established. In the aforesaid facts, the impugned judgment of the High Court cannot be sustained and the same is therefore set aside by allowing this appeal. The judgment and decree of the lower appellate Court are restored. There will be, however, no order as to costs.”
26. Similarly in AIR 2001 Gau 181, (Supra) this Court held as follows:-
“On consideration of the entire materials/evidence on record, it appears that the title and the case of the plaintiff could not be established positively/affirmatively, Mutation of name of a person in the revenue record does not ipso facto create or extinguish the title of the person, nor does it lead to any presumptive value. The revenue records basically entitled a person to pay the land revenue. Mere entry in the revenue records does not ipso facto lead to the conclusion that the mutation in favour of the plaintiffs conveys title in their favour.”
27. From the ratio of the said decisions, it is clear that a plaintiff in a suit claiming his/her title over suit property, must prove his/her title and themanner how it devolved on the plaintiff. The submission of Mr. P.K. Kalita, the learned Senior Counsel that as the defendants/appellants did not challenge the title of the plaintiffs/respondent, so there was no duty cast upon the respondent to proof her title, cannot be accepted, if considered in the light of Section 101 of the Indian Evidence Act, 1872 which specifically cast the burden on the plaintiff/respondent to prove her title.”
30. As already held in the foregoing discussions, the plaintiff has already proved to the satisfaction of the learned trial court as well as the learned appellate court that he had title over the suit land by way of purchase of the suit land from Sucharu Bala Das and Dwarika Nath Das over a plot of land purchased through Exhibit- 2 and Exhibit- 3. The plaintiff was also in possession of the land inherited by proforma defendants Nos. 7 and 8 as they have been residing in their respective matrimonial homes. It has been proved to the satisfaction of both the courts that Dwarika Nath, and defendant Nos. 3 to 6 could not have sold their share of land to defendant Nos. 1 and 2. Vide Exhibit - 3 Dwarika Nath, sold his land of dag No. 230 in favour of PW-1. Therefore, Dwarika Nath did not have any land in his share under Dag No. 230. Against Exhibit- 4 and 5, the learned Counsel for the appellant has raised serious objections, stating that the defendant's documents have been exhibited by PW- 1 which is bad in law. It has been held by the learned trial court that although the defendant No.1 as DW -1 stated in his evidence that the suit land falls in CS Patta no. 62 and Dag Nos. 266 and 267, Dag No. 266 was resurveyed to Dag No. 189 of RS Patta No.69 and again thereafter resurveyed to 2nd RS Patta No.230 and 2nd RS Patta No. 68, he failed to identify the Dag number and Patta number of the suit land while he was cross-examined by the plaintiff's side. He has also stated in his evidence that 2nd RS Dag No. 188, 187 of RS Patta No. 69 was resurveyed to Dag No.230 and 228 and Dwarika Nath Das total interest was 3K 8 CH 9 Gonda of land and he purchased land measuring only 3CH, 14 CH from the heirs of Dwarika Nath Das in Dag No.230 of 2nd RS Patta No.68 vide deed dated 02.11.2000 and the defendant No. 2 purchased 3 CH 14 gonda of land from the heirs of Dwarika Nath Das ( Defendant Nos. 3 to 6) in the same Dag and Patta. It was thus correctly held by the Learned Trial Court and correctly upheld by the Learned Appellate Court of first instance that the jamabandi exhibited by Defendant No. 1 as Exhibit –Kha relates to dag No. 69. Thus, the defendants failed to substantiate their pleadings even through documents as well as evidence, apart from the fact that the cross-examination completely dispelled their contentions.
31. It was thus correctly held by the learned courts that the Exhibits exhibited by the defendant No.1 relates to dag No. 69 and the exhibits produced by the defendant No.1 failed to show that the defendant Nos. 1 and 2 have accrued right over the schedule to property by way of purchase from the heirs of Dwarika Nath Das. The courts below have also observed that the Exhibit -1 jamabandi pertaining to old patta No.69 and new patta No.68 reflects the name of Sucharu Bala Das showing her ownership over the suit land and she is identified as wife of Lal Mohan Das and not as the legal heir of Nitya Charan Das. This argument was correctly discarded by the courts below as the ownership of Sucharu Bala Das over the suit land has been proved by jamabandi as well as by the Exhibit-2. The defendants have also failed to prove that Sucharu Bala Das is not a legal heir of Nitya Charan Das, even on the touchstone of pre-ponderance of probabilities. The contention that Nitya Charan died issueless was not substantiated by evidence. Exhibit- 3 has been proved as a deed of purchase of land from Dwarika Nath Das by the plaintiff. Thus, the appellate court upholding the decision of the trial court was not based merely on defendant's documents i.e. Exhibit -4 and 5.
32. Both the Courts have given sound reasonings while deciding this case in favor of the plaintiffs.
33. In view of my foregoing discussions, it is hereby held that it was not necessary for the plaintiff to prove that Sucharu Bala Das inherited the land from Nitya Charan Das as a legal heir as the documents clearly establishes that she had ownership and possession over the suit land which she had transferred in favour of the plaintiff. It is also held that the learned appellate Court was justified in decreeing the suit of the plaintiff on the basis of Exhibit -1, Jamabandi. This decides both the substantial questions of law.
34. The appeal is hereby dismissed.
35. No order as to costs.
36. Send back the original records of trial court and the appellate court.
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