In the present case, as discussed above, even though the
scribe and attesting witnesses were not examined, there were other
evidence to show that the said document Ext.2 was executed. Therefore,
mere non-examination of the scribe and attesting witness would not
render the said document, Ext.2 to not have been proved in view of the
fact that there are other evidence on record to prove its execution.
IN THE GAUHATI HIGH COURT
PRINCIPAL SEAT
RSA NO.42 OF 2002
Smt. Jina Gohain Vs Shri Puspadhar Baruah,
BEFORE
THE HON’BLE MR.JUSTICE N.KOTISWAR SINGH
Date of judgment;
24.7.2012
The present second appeal has been preferred against the
judgment and decree dated 12.9.2001 passed by the learned District
Judge, Tinsukia, in Title Appeal No.3 of 2000 dismissing the appeal and
upholding the judgment and decree of the Title Suit No. 8/94 passed by
the learned Civil Judge (Junior Division), Tinsukia.
[3]
The facts of the case as may be relevant for the purpose of
the present second appeal may be stated as follows.
[4] The plaintiffs, namely, Shri Puspadhar Baruah ( plaintiff
No.1) and Smt. Niroda Gogoi, ( plaintiff No.2) had filed
a suit for
declaration of right, title and interest over the suit land and for
confirmation of possession over the suit land alternatively for delivery of
khas possession.
[5]
The plaintiffs state that the plaintiff No.1 had purchased the
suit land from one Sri Siba Nath Sharma ( proforma Defendant No. 2) by
a registered sale deed on 22.8.77 after obtaining necessary permission
from the authorities and took possession thereafter. The said Sri Siba
Nath Sharma had purchased the said suit land from Smt. Jina Gohain, the
proforma Defendant No. 3 and appellant herein vide registered sale deed
in the year 1975 and thereafter, he was in possession of the suit land till
he sold the same to the plaintiffs, as stated above.
[6]
The plaintiffs state that they continued to be in peaceful
possession of the suit land having a kutcha construction and some trees
standing thereon and by paying land revenues. After purchasing the said
suit land from Sri Siba Nath Sharma as stated above, the plaintiffs got the
suit land mutated in their names in the records of right. Smt. Jina Gohain
(the proforma Defendant No. 3) retained possession of the land on the
east of the suit land and her father, the Defendant No. 1 stayed with her
in the said eastern portion of the land to the suit land. The plaintiffs
claimed that on 18.5.87 in the night, the Defendant No.1 ( father of Smt.
Jina Gohain) trespassed into the suit land and removed the four concrete
posts standing on the boundary of the suit land and planted banana
plants and started fencing the suit land with old bamboo sticks. When the
plaintiff No.1 came to see the suit land, seeing the illegal activities of
3
Defendant No.1, she reported the matter to the Tinsukia Police Station
and the police after registering a case, arrested the Defendant No.1. The
plaintiff also instituted a case u/s 141 Cr.P.C. on 20.5.87 and the
Additional District Magistrate promulgated order prohibiting the Defendant
No.1 from entering the suit land. The Defendant No.1 filed a revision
petition being Criminal Revision No.64(2)87 before the learned District &
Sessions Judge, which was also dismissed. However, inspite of the
prohibitory
order, the Defendant No. 1 did not refrain from his illegal
activities and again on 8.6.87 obstructed the plaintiffs from entering the
suit land and on 4.7.87. The plaintiffs also found that the strip of little
high land demarcating the boundary of the suit land from the land
belonging to the Defendant No.3 was removed without any trace by the
Defendant No.1 and the Defendant No.1 threatened them with dire
consequences if they visited the suit land again, which led to
certain
proceeding before the S.D.M(E) Tinsukia. Subsequently, the plaintiffs
were compelled to file the present suit to claim their title over the suit
land and for khas possession and permanent injunction.
The Defendant No. 1, the father of Smt. Jina Gohain and the
Defendant No. 3, Smt. Jina Gohain, separately contested the suit by filing
their respective written statements. The Defendant No. 1 resisted the suit
by stating that the suit is barred by limitation and denied that the suit
land was ever sold to Defendant No. 2 (Siba Nath Sharma) by Smt. Jina
Gohain and that the Defendant No.1 had been in possession of the suit
land for more than 15 years without interference from any quarter. The
Defendant No. 1 also denied that the Defendant No. 2 (Siba Nath
Sharma) was in possession of the suit land at any point of time.
[7]
Defendant No. 3, Smt. Jina Gohain, in her written statement
denied the execution of the aforesaid registered sale deed in favour of the
Defendant No. 2, Siba Nath Sharma and stated that the registered sale
deed No.1771 of 1975 was false and fabricated. The Defendant No. 3 also
stated that in the year 1975, her father had forcibly trespassed and dis-
possessed her from the suit land and inspite of her request, did not
vacate the land. However, she did not take any action against him as he
was her father. Accordingly, she prayed for dismissal of the suit and to
declare the registered sale deed No.1771/1975 purportedly executed in
favour of the Defendant No. 2 and the subsequent registered sale deed
4
No.1311/1977 executed by the Defendant No. 2 in favour of the plaintiffs
as null and void.
As many as 10 issues were framed, of which Issue Nos. 6
and 7 are relevant for the purpose of the present appeal and reproduced
hereinbelow:-
“6. Whether the defendant No.3 sold the suit land to defendant
No.2 vide sale deed No.1771 of 1975 and if so, whether the
plaintiff acquired ownership over the suit land by the sale deed
No.1311 of 1977?
7.
Whether the defendant No.1 is in continuous possession of
the suit land since 1975 and whether he has right to posses the
suit land?”
[8]
record, held
The learned Trial Court, after considering the evidence on
that the suit land was sold by Smt. Jina Gohain, the
Defendant No. 3 to Sri Siba Nath Sharma, the Defendant No.2 in the year
1975 by a registered sale deed. The learned Trial Court also held that the
Defendant No.2, who was in possession of the suit land since 1973 till
1979 and was the lawful owner of the suit land, after purchased by
registered sale deed from the Defendant No.3 and mutated his name in
the records of right. The learned Trial Court also held that subsequently
the said suit land was sold by Defendant No. 2, Sri Siba Nath Sharma to
the plaintiffs in the year 1977 by a registered sale deed and accordingly,
decreed the suit by holding that the plaintiffs are entitled for declaration
of rights and title and decreed the suit in favour of the plaintiffs in the
said Title Suit No.8 of 1994 vide judgment and decree dated 24.1.2000.
[9]
Against
the
aforesaid
judgment
and
decree
dated
24.1.2000 passed by the learned Trial Court, the Defendant No.3 filed an
appeal before the learned District Judge, Tinsukia. The learned Appellate
Court dismissed the appeal and affirmed the judgment and decree dated
passed by the learned Civil Judge (Jr.Divn.), Tinsukia, vide judgment and
order dated 12.9.2001 passed in Title Suit No.8/94.
[10]
Against the aforesaid dismissal order dated 12.9.2001, the
Defendant No. 3 has filed the present second appeal. This Court while
admitting the second appeal had framed three substantial questions of
law on 03.4.2002 as follows :-
“i) Whether the finding of the learned Courts below that
the sale deed Ext.2 was shown to have been proved was
correct in law when Defendant No.3 had denied the
5
execution of the sale deed and the scribe and the
attesting witness had not been examined on behalf of
any of the parties?
(ii) Whether from the mere fact of registration of the
sale deed, Ext. 2, the Court can on the basis of the
provision of Section 60 of the Registration Act, 1908
treat the sale deed Ext. 2 as proved?
(iii) Whether the learned courts below have ignored
altogether the material facts relating to proceeding
U/s.447 IPC and U/s. 145 Cr.PC involving the plaintiff
and the defendant No.1 while recording the finding that
the defendant No.1 was not in adverse possession in
respect of the suit land for 12 years?”
[11]
Learned counsel appearing for the appellant submits that
the execution of the registered sale deed (Ext.2) by which the suit land
was said to have been sold by the appellant in favour of the Defendant
No. 2 in the year 1975 cannot be said to have been proved in absence of
examination of either the scribe or the attesting witness in view of the
fact that the appellant had specifically denied the execution of the same
as required under Section 67 of the Evidence Act.
In this connection,
learned counsel appearing for the appellant had relied on the following
judgments rendered in Lourembam Heramot Singh -vs- Laisram
Angahal Singh & ors, reported in AIR 1979 Gauhati 68, Bhaiyalal –
vs- Ram Din, reported in AIR 1989 Allahabad 130, Bhutkani Nath
& ors. -vs- Mt. Kamaleswari Nath & anr. reported in AIR 1972
Assam and Nagaland 15 (V.59 C6), P.G.D’ Ombrain & ors. etc., -
vs- Collector of Kamrup Gauhati & anr. etc.. reported in AIR 1980
Gauhati 55 Bhaskar Sahu–v- Anama Swara & ors. reported in AIR
1987 Orissa 138.
[12]
The appellant therefore submits that in the present case,
since neither the scribe nor the attesting witness of the aforesaid sale
deed executed in the year 1975 was examined, it cannot be said that the
aforesaid sale deed allegedly executed by the Defendant No. 3 in favour
of the Defendant No.2 has been proved.
[13]
The learned counsel appearing for the appellant, therefore,
submits that in view of the fact that the said registered sale deed stated
to have been executed by the appellant in favour of the Defendant No.2
was not proved, the Defendant No.2 had no right and title over the suit
land and could not have sold the same to the plaintiff and as such, the
sale deed executed by the Defendant No.2 to the plaintiff cannot be acted
upon.
[14]
As regards this sale deed executed in 1975 by the appellant
in favour of the Defendant No.2 which is the bone of contention between
the rival parties, we may refer to the observations and findings as regards
the same by the learned Trial Court.
[15]
The learned Trial Court referred to the documents in the
Criminal Revision No.64(2) of 1987 filed by the Defendant No. 1 before
the District & Sessions Judge challenging the order dated 25.5.87 and
6.3.87 passed by the SDM, Tinsukia in Misc. Case No.147/87 prohibiting
the defendant from entering into the suit land. In the said Cril. Revision
No.64(2)/87, the Defendant No.1 himself had exhibited a number of
documents. It has been observed by the learned Trial Court that in one
such documents, petition dated 26.5.87, it appears that the Defendant
No.1 and the proforma Defendant No. 3 admitted the sale of the suit land
to Sri Siba Nath Sharma, Defendant No.2 by Smt. Jina Gohain in 1975
though the delivery of possession was denied. Thus, according to the
learned Trial Court, this express admission of Defendant Nos.1 and 3
admitting the sale of land to Sri Siba Nath Sharma in the said document is
a strong substantive evidence regarding the execution of sale deed
No.1771/1975 by Smt. Jina Gohain, the Defendant No.3 in favour of the
Sri Siba Nath Sharma, Defendant No. 2. The learned Trial Court also
noted the answer given by Smt. Jina Gohain during her cross-examination
that she had no knowledge whether at the time of execution of the Exht.-
2 (i.e. the
sale deed of 1975), the Sub-Registrar took her thumb
impression or not, which impliedly means that she had exhibited the sale
deed. The learned Trial Court also observed that the answer given by
Smt. Jina Gohain that, it was not a fact that when she went to the Sub-
Registrar Office to sell the land, her father also went with her, also implies
that she had sold the land to Sri Siba Nath Sharma. The learned Trial
Court also observed that Smt. Jina Gohain denied her own signature in
the written statement which was filed by her, which clearly indicates that
she was a tutored witness to deny the signature in the Exbt.-2. The
learned Trial Court also observed that Nilakanta Gohain, the Defendant
7
No. 1, in his written statement did not specifically deny the averment of
the plaint in para No.3 that he witnessed the execution of the
sale deed
executed by his daughter, Smt. Jina Gohain and that he identified Smt.
Jina Gohain before the Sub-Registrar. He merely gave his reply in para
No.3 of the written statement that the statement made in para 3 of the
plaint is not within his knowledge. The learned Trial Court held that it was
not a total specific denial but rather an evasive denial and held that as
provided under Rule 5 of Order VIII of CPC , if averments are not
specifically denied, they must be deemed to have been admitted and to
say that the Defendant No.1 did not have any knowledge of the fact
regarding his presence at the time of execution and identification does
not amount to denial of the aforesaid particular fact averred in the plaint
and accordingly, the learned Trial Court was of the view that the aforesaid
fact pleaded in para No.3 of the plaint must be deemed to have been
admitted by the Defendant No.1.
[16]
We will now examine what the Appellate Court had stated
regarding the aforesaid issues.
The learned Appellate Court, as regards the execution of the
aforesaid sale deed of 1975 observed and held as below.
The learned Appellate Court observed that the Defendant
No. 2 as a purchaser of the suit land was present at the time of execution
of the sale deed/ document which the Defendants No.1 and 3 did not
deny. The P.W. No. 2 (Defendant No.2, Siba Nath Sharma) had testified
to the presence of Defendant Nos. 1 and 3 before the Sub-Registrar and
proved their signatures, which were exhibited as Ext.2(1) to 2(9). The
Ext. 2(12) and 2(14) were the signatures of the attesting witnesses as
well as the scribe who was an advocate of repute and the Appellate Court
held that even if the scribe and attesting witnesses were not examined, in
view of the evidence of the P.W.No.2, the purchaser, as stated above, the
sale deed can be said to have been proved in accordance with the
provisions of Section 67 of the Evidence Act.
[17]
The learned Appellate Court also referred to the findings of
the learned Trial Court regarding the document i.e. petition dated 26.5.87
filed by the Defendant Nos. 1 and 3 in the Cril. Revision No.64(2)/87 in
which it was stated in para no.3 of the said application that though the
land was sold in 1975 to Sri Siba Nath Sharma, possession of the same
was not delivered to him. Therefore,
the learned Appellate Court also
held that since the said document was filed by the Defendant Nos. 1 and
3 themselves, there is at least admission to the extent that the land was
sold in 1975 to Sri Siba Nath Sharma, the Defendant No.3 though delivery
of possession was denied. The learned Appellate Court also
that when the Ext.2 was exhibited in evidence
observed
as Ext.2 through
Defendant No. 2, no objection was raised by any of the Defendants,
therefore, since the document was admitted, its content also would stand
admitted. It was never suggested to PW-2, Sri Siba Nath Sharma during
the cross-examination by the PW-1, the Defendant No.1 that the Ext.2 is
a forged document. Accordingly, the learned Appellate Court also held
that the execution of the Ext.2 is proved and consequently, the good title
passed through Ext.2 in favour of the Defendant No. 2 and consequently,
through Ext.1, the Defendant No.2 Sri Siba Nath Sharma transferred his
title over the suit land in favour of the plaintiffs.
[18]
As regards the third substantial questions of law framed
regarding the issue of adverse possession claimed by the Defendant No. 1
in respect of the suit land, we may refer to the observations and findings
of the learned Trial Court in this regard.
The learned Trial Court observed that after the Defendant
No. 2 purchased the suit land from the Defendant No. 3, he dug up a
boundary drain between the suit land and the land belonging to
Defendant No.1, which was admitted by the Defendant witness, DW-2.
(i)
The learned Trial Court also observed that the
statement of the DW-2 in the cross-examination that he did not know
when the house which was constructed over the suit land broke down and
also he did not know who resided in the house, would indicate that there
was a house over the suit land.
(ii)
The learned Trial Court also found that the land
revenue documents Ext.11-15 showed that the land revenue for the
period 1972-1977 regarding the suit land was paid by the Defendant No.
2, Sri Siba Nath Sharma and his name was mutated in the records of right
on 5.8.87 and a copy of the Zamabandi was exhibited as Ext.4. The
learned Trial Court also observed that even though the Defendant No. 1
9
claimed possession of the suit land since 1975, not a single revenue
receipt was produced by him to show that he had paid the land revenue.
(iii)
The Defendant No. 3, during the cross-examination,
admitted that she does not know who is in possession of the suit land and
also which one is the suit land.
(iv)
The learned Trial Court also pointed out to certain
contradictions and inconsistencies. Defendant No. 1 in the written
statement claimed that he was in possession of the suit land since 1975
by planting trees but in his evidence, claimed that he was in possession of
the suit land since 1970 after the date of purchase from the original
owner.
Though the Defendant No. 3 states in her written statement
that in the year 1975 her father had forcibly dispossessed her from the
suit land, in her testimony, she states that after her marriage, which was
performed in 1973/74, her father kept the land for himself.
In view of the above evidence and other evidence on record,
the learned Trial Court held that the claim of the Defendant No. 1 that he
was in possession of the suit land since 1975 is not proved.
[19]
We may now refer to the findings of the learned District
Judge in this regard.
The Defendant No. 2 after purchase of the suit land from
the Defendant No. 3 lived there with his family and in 1977 because of his
shifting to Guwahati, he sold the land
to the plaintiffs
and delivered
possession to them. The plaintiffs also adduced evidence through PW
Nos. 3 and 4 to the effect that PW-4 lived in the suit land for 6 years and
PW-4 is a tenant in one part for one year. PW-2 also had divulged that he
had seen one boundary drain dug in between the compound of the
Defendant No. 1 and the suit land which proves the case of the plaintiffs.
[20]
As regards the claim of adverse possession, the claim is to
be against the true owner but the title in respect of the suit land was
denied in the year 1987 when litigation started between the parties and
the Defendant No. 1 had nothing to establish that he had been possessing
the suit land adversely against the interest of the true owner. The learned
Appellate Court also observed that there is no material to find that the
mutation of the suit land in favour of the Defendant No. 2 or the plaintiffs
10
was challenged by the Defendant No. 1 and the registered sale deed was
also never challenged by the Defendant No. 3 and accordingly, the
learned Appellate Court was
also of the view that the claim of the
Defendant No.1 for adverse possession is not proved.
[21]
Heard the learned counsel appearing for the parties. The
main contention of the appellant is that the documents exhibited as Ext.2,
the sale deed, which was executed by the Defendant No. 3 in favour of
the Defendant No.2 was not proved inasmuch as neither the scribe nor
the attesting witnesses were examined and merely because of the fact
that the said document was a registered will not, ipso facto proved in
view of the specific denial by the Defendant No.3.
[22]
To press home his arguments, the learned counsel
appearing for the appellant has relied on the judgments as mentioned
above.
In the case of Lourembam Heramot Singh (supra) , this
Court had held that though the certified copy of a document is as good as
the original and correctness of a certified copy is presumed, mere
registration is not a proof of its execution. Execution and contents of a
certified copy must be proved according to law in the ordinary way. The
mere proof of admission of execution before the Registrar does not satisfy
the requirements of Section 67 of Evidence Act which requires that the
signature of the executant must be proved in his handwriting. More than
a mere admission of a signature is needed to amount to admission of
execution of a document.
However, the Court also held that there must be some
evidence to show that the execution and genuineness of a document
were proved.
In the present case, as discussed above, even though the
scribe and attesting witnesses were not examined, there were other
evidence to show that the said document Ext.2 was executed. Therefore,
mere non-examination of the scribe and attesting witness would not
render the said document, Ext.2 to not have been proved in view of the
fact that there are other evidence on record to prove its execution.
In the case of Bhaiyalal
(supra), the Court held that
merely because of fact that the document had been exhibited, it does not
11
follow that the Court stands precluded from examining the question on
the basis of the evidence led by the parties whether the document in
question was executed by the party by which it purports to have been
executed. The fact that document is exhibited only establishes that it has
been formally proved. But where the execution of the document is
challenged, a Court of fact is clearly entitled to weigh the evidence led by
the parties to find out whether the document was really executed by the
party who is alleged to have executed the same. The lower appellate
Court was, therefore, entitled to draw adverse inference against the
plaintiff-appellant from his failure to examine the scribe and the witnesses
of the deed.
In the present case, as discussed above, even though the
scribe and attesting witnesses were not examined, there are other
evidence on record, as discussed above, to show that the said document
was executed.
Coming to the case of Bhutkani Nath (supra), this Court
held that when the execution of a document is challenged, the certificate
of registration alone will not be sufficient to proof of the due execution of
the document.
In the present case, there are other admissible evidences on
record other than the registration.
In the case of P.G.D’ Ombrain (supra) , the Court in the
said case was dealing with a case where no witness was examined for
examination of proof of document relied by the claimant and accordingly,
held that mere marking of an exhibit does not dispense with the proof of
documents, which, however, is not the case in the present case, as there
are other evidence on record, as discussed above.
As regards the case of Bhaskar Sahu (supra), the Court
observed that from the evidence on record the Court did not find that
plaintiffs had adduced any evidence explaining the reasons for non-
production of the original sale deed, even though objection was taken to
its admissibility at the time when the certified copy is sought to be
introdcued in evidence. In the said case, the certified copy of the
sale
deed was tendered in evidence through P.W.-1 and in the deposition
recorded, the certified copy of the
been marked as Ext.1 with objection.
sale deed was mentioned to have
12
In the present case, position was different. When Ext.2, the
sale deed of 1975, was exhibited through PW-2, the same was not
objected to, as already observed by the learned Appellate Court below.
[23]
It would have been entirely different matter if there were
no other evidence. Apart from the production of the certified copy of the
sale deed, Ext.2 and in absence of any other evidence to support the
execution of the same, without examining the scribe or attesting
witnesses, the Court perhaps could have come to a conclusion that the
sale deed was not executed. However, in the present case, as discussed
above, there were other evidences which would show the execution of the
said sale deed.
[24]
Both Courts below had, on the basis of the petition dated
26.5.87 filed by the Defendant No. 1 in connection with Criminal Revision
proceeding before the court of Sessions Judge, had taken due note of the
averments made by the Defendant No. 1 in para No.3 of the said petition
that the suit land was sold to Sri Siba Nath Sharma, Defendant No.2,
though denying delivery of possession to him. The aforesaid petition
dated 26.5.87 was a document exhibited by the Defendant Nos. 1 and 3
themselves which was filed by the Defendant No.1 before the Sessions
Court in the aforesaid proceedings which shows clear admission on their
part that the land was sold to Sri Siba Nath Sharma in 1975.
“.......... The Court below has also discussed the other
circumstances
and consideration of the material on
record, I find one such circumstance relevant to be
mentioned here. Admittedly the parties fought several
criminal proceedings of 144, 145 Cr.P.C. and 447 I.P.C.
and the defendant No.1 with prayer in the trial Court, got
one such record called from criminal Court and made the
whole record as Ext.Sha. This is the record of the Criminal
Revision No.64(2)87. Since the defendant No.1 himself
brought the said record and made whole record as Ext.Sha
in this case, the Court below has rightly considered the
said record and found one petition dated 126.5.87 filed by
Smt.Jina Gohain (Defendant No.3) and Nilakant Gohain
(defendant No.1) in Case No.147/87 and in the said
petition, it was stated in paragraph 3 that though the land
was sold in 1975 to Siba Nath Sharma, the possession of
the same was not delivered to him. So in the said petition
the sale was admitted and I also find some supportive
argument from the Ld. Advocate for the appellants,
submitting that sale deed even if proved, there is proof of
Delivery of possession and as such it can not be accepted
13
that the plaintiffs ever exercised possession over the suit
land. The Court below has rightly considered the matter
found in Ext. Sha (case record) and accepted this as
circumstantial evidence which clearly establish that the suit
land was sold by Defendant No.3 in favour of Siba Nath
Sharma.”
In the teeth of such document by which the Defendant No.1
had stated to have sold the suit land to the Defendant No. 2, the absence
of examination of the scribe and attesting witnesses may not be fatal.
[25]
It may be also observed that the Defendant No. 2 who
purchased the land from the Defendant No. 3 was examined and perusal
of his deposition before the Court does not indicate that his statement
before the Court was not reliable or untrustworthy when he had clearly
stated about the execution of the
sale deed by Defendant No. 3 before
the office of the Registrar and also the presence of Defendant No. 1 who
identified the Defendant No.3 at the time of execution of the sale deed.
No attempt was made in the cross-examination of the Defendant No. 2 by
the Defendant Nos. 1 and 3 to discredit the evidence about the execution
of the said sale deed in 1975.
[26]
Section 67 does not lay down any particular mode of proof
for proving that a particular writing or signature is in the hand of a
particular person. Thus, the signatures may be proved in any one or more
of following modes:-
(i) By calling the person who signed or wrote a document;
(ii) By calling a person in whose presence the documents are
signed or written;
(iii) By calling handwriting expert;
(iv) By calling a person acquainted with the handwriting of the
person by whom the document is supposed to be signed or
written;
(v) By comparing in Court, the disputed signature or
handwriting with some admitted signatures or writing;
(vi) By proof of an admission by the person who is alleged to
have signed or written the document that he signed or wrote it;
14
(vii) By the statement of a deceased professional scribe, made
in the ordinary course of business, that the signature on the
document is that of a particular person:
A signature is also proved to have been made, if it is shown to
have been made at the request of a person by some other
person, e. g. by the scribe who signed on behalf of the
executant;
(viii) By other circumstantial evidence.
[See Rami Bai vs. Life Insurance Corportion of India, AIR
1981 MP 89 and Manindra Kr. Dey Another vs. Mahendra
Suklavaidya and Ors., 1999 (1) GLJ 220: (1999) 2 GLR
219].
[27]
In the present case, the Defendant no.2, in whose presence
the sale deed was executed by the Defendant no.3 and who was
identified by the Defendant no. 1, was examined. As stated above, this
Court also does not find the testimony of the Defendant no.2 shaken,
doubtful or unreliable. No attempt was made by the appellant to question
the veracity of the presence of the Defendant No.2 at the time of
execution of the sale deed in 1975 or his statement about his witnessing
of the execution of sale deed by the Defendant No.3 on being identified
by the Defendant No.1 and presence of the other witnesses. Thus, the
finding of the Court below that the sale deed had been duly proved on the
basis of the evidence of the Defendant no.2 along with other
circumstantial evidence does not require any interference by this Court.
[28]
It is not the mandate of law as contended by the appellant
that a disputed document can be proved only by examining the scribe or
the attesting witnesses. As discussed above, if there be other evidences,
failure to examine the scribe or the attesting witness would not be fatal in
proving any document.
[29]
Learned counsel appearing for the Respondents have also
strenuously argued that it is now well settled principle of law that the
Court exercising jurisdiction u/s 100 CPC ought not to re-appraise
evidence and come to a different conclusion on finding arrived at by the
Courts below, more particularly, the concurrent findings of facts unless
15
such findings is perverse and has relied on the judgment rendered by this
Court in Md.Majibur Rahman vs. Md.Sabed Ali and 42 ors. reported
in 1996 (1) GLT 272.
This Court is also of the view that the finding as regards the
execution of the sale deed in 1975 to have been proved, both by the
learned Trial Court as well as by the learned Appellate Court, are based
on certain evidences, even though neither the scribe nor the attesting
witnesses have been examined. The learned Trial Court as well as learned
Appellate Court have arrived at findings based on other reliable evidence
on record, as stated above. This Court does not find the aforesaid
concurrent findings of facts to be perverse or patently illegal and as such,
this Court is not inclined to interfere with such concurrent findings of fact.
[30]
As regards the contention of the appellant that the
Defendant No. 1 was in adverse possession of the suit land since 1975,
the learned Trial Court as well as the learned Appellate Court on the basis
of the other evidence on record had come to a conclusion that his
occupation of the suit land since 1975 is not proved. The plea of the
appellant that in ignoring the material facts relating to the proceeding u/s
447 IPC and u/s 145 Cr.P.C. involving the plaintiffs and the Defendant
No.1, the finding arrived at by the Courts below is vitiated cannot be
accepted. This Court on examination of the evidence on record is also of
the view that inspite of the aforesaid materials which the appellant had
tried to relied upon, there are sufficient evidence on record to dispel the
plea of the Defendant No. 1 that he was in adverse possession of the suit
land since 1975. However, by referring to the aforesaid materials relating
to the proceedings u/s 447 IPC and 145 Cr.P.C., the appellant would like
this Court to reappreciate the evidence by taking into consideration the
aforesaid materials and substitute with our own opinion, which in the view
of this Court, is not permissible while exercising powers u/s 100 of CPC.
[31]
As we come to our conclusions, we may remind ourselves of
the decision of the Supreme Court rendered in
Kondiba Dagadu
Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722:
“4. ............... 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
16
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
howsoever 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. This Court in Sir Chunilal V. Mehta and
Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1 held that:
“The proper test for determining whether a
question of law raised in the case is substantial
would, in our opinion, be whether it is of general
public importance or whether it directly and
substantially affects the rights of the parties and if so
whether it is either an open question in the sense
that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative
views. If the question is settled by the highest court
or the general principles to be applied in determining
the question are well settled and there is a mere
question of applying those principles or that the plea
raised is palpably absurd the question would not be a
substantial question of law.”
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 court 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
17
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 or 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 vest 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 Morey2 held that whether the trial court
should not have exercised its jurisdiction differently is not a
question of law justifying interference.”
1. AIR 1962 SC 1314: 1962 Supp (3) SCR 549.
2. (1976) 1 SCC 803 : AIR 1976 SC 830
[32]
Keeping the aforesaid dictum in mind, this Court is of the
view that the concurrent findings of facts by the learned Trial Court as
well as by the learned Appellate Court as regards the execution of the
sale deed in 1975 and also as regards the claim of adverse possession by
the Defendant no.1 do not seem to be perverse or unwarranted. It is not
a case where the findings were erroneous being contrary to the
mandatory provisions of law applicable or was based on inadmissible
evidence or was arrived at without evidence. Therefore, this Court sitting
in second Appeal would not interfere with the aforesaid concurrent
findings of facts.
Further, the substantial question of law raised by the
appellant in the present second appeal regarding the requirement of
examining the scribe or the attesting witnesses to a disputed document
has been already settled by a decision of this Court as well other High
Courts which do not require any reconsideration and decided accordingly
holding the execution of the sale deed in question to have been proved.
[33]
In view of the above, this Court is of the view that present
second appeal is devoid of merit and accordingly, stands dismissed.
JUDGE
No comments:
Post a Comment