Gajendra Nath Mahanta and Another vs Pranpati Choudhury

A.P. Singh, J.—Present second appeal has been filed by the Defendant against concurrent judgment and decree passed both by the trial Court and the lower appellate Court decreeing Plaintiff-Respondent''s suit for the grant of declaration of title and for delivery of khas possession and further for payment of mesne profit of Rs. 240/- for the year 1381 B.S.

Title Suit No. 34 of 1975 was filed by Plaintiff-Respondent Sri Pranpati Choudhury on the following facts. The suit land belonged to his father late Dharma Kanta Choudhury who had admitted the Defendant No. 1 as his adhiar in the land in suit. The Defendant transferred his possessory right by executing registered sale deed on 25th February, 1954 in favour of Anandi Ram Choudhury after receiving consideration for the said sale. Shri Anandi Ram Choudhury became adhiar by virtue of transfer in his favour of vide Ext. 2. After his death, his son Kanak Choudhury came into possession over the suit land as adhiar. While he was in possession of the suit land, Kanak Chandra Choudhury released the suit land in favour of the Plaintiff by an unregistered deed executed by him on 30.1.1974 (Ext. 4). By virtue of the deed of release executed by Kanak Choudhury the Plaintiff came into possession of the suit land and subsequently admitted Defendant No. 3 as adhiar of the suit land. He was thus in exclusive possession with title over the suit land through proforma Defendant No. 3 as adhiar. It was further alleged by the Plaintiff-Respondent that the Defendant No. 1 forcibly cut and removed the paddy from the suit land on 1.1.1974 which gave rise to a criminal case which was filed against the Defendant-Appellant. The criminal case however, ended in the acquittal of the Defendant. The Defendant No. 3 grew Sali paddy in the land in suit as adhiar. But he did not give the Plaintiffs share in the said Sali paddy on the advice/influence of the Defendant No. 1. Hence, the suit. Apart from seeking declaration of right and title over the suit land, the Plaintiff also claimed delivery of khas possession in case he is not possessing the said suit land and the payment of mesne profit of Rs. 240/- in regard to the 1373 B.S. The suit was contested only by Defendant No. 1, the Appellant herein. Other Defendants though filed written statement separately but supported the case of the Plaintiff.

In his written statement the Appellant asserted that he was in possession of the suit land for a long time without any interruption from anyone. He denied that be had executed sale deed (Ext. 2) or that Anandi Ram Choudhury even came into possession of the suit land as adhiar or Ors. wise. He also denied execution of deed of surrender by Kanak Choudhury, son of Anandi Ram Choudhury whose possession was also denied. The Appellant thus challenged the execution of Ext. 2 and Ext. 4 and also denied his signature on Ext. 2 and maintained that he was in exclusive possession over the suit land since long time. Apart from the above, the Appellant further claimed that for some time he paid rent to Dharma Kanta. But after sometime he stopped paying rent and was in exclusive possession of the land in his own right. He, therefore, denied the claim of title over the suit land which was set up by Plaintiff-Respondent. The suit was decreed by the trial Court on the ground., inter alia, that the Appellant had admitted execution of sale deed, Ext. 2 in favour of Anandi Ram Choudhury based on the above statement of admission by the Appellant the trial Court further presumed genuineness of the transfer deed/surrender deed. Ext. 4 which was allegedly executed by Kanak Choudhury in favour of the Plaintiff. The judgment and order dated 7.9.91 passed by the trial Court was challenged by the Appellant by filing appeal u/s 96 of the Code of Civil Procedure. The learned Assistant District Judge, who decided the appeal, except for expressing his disagreement with some of the findings recorded by the learned Munsiff dismissed the appeal upholding the judgment and decree passed by the trial Court. Hence, the present appeal.

I have heard Shri Satyen Sarma, learned Counsel on behalf of the Appellant and Shri B.K. Goswami, learned Senior Counsel on behalf of the Respondent. The learned Counsel for the Appellant has confined his argument in support of the appeal on the sole ground that the Courts below misread the statement on oath made by the Appellant to infer his admission regarding execution of sale deed dated 25.2.1954 (Ext. 2). Mr. Sarma persuaded the Court to test the findings and observations of the Courts below on the question of alleged admission by the Appellant of the execution of sale deed in favour of Anandi Ram Choudhury by reading the statement of the Appellant which was available on the record. This prayer of Mr. Sarma was however, opposed by Mr. B.K. Goswami, learned Counsel for the Respondent. According to Mr. Goswami, the High Court while deciding second appeal has to confine itself to the substantial questions of law if found involved in the appeal. It however cannot interfere with findings of fact howsoever erroneously recorded those findings be. Mr. Goswami however, fairly conceded that if a finding of fact has been recorded by a fact finding Court without there being any evidence to support such finding then the High Court would be justified in interfering with such finding. At the same time, Mr. Goswami contended that it is for the Court of fact to read the statement of a witness one way or the Ors. for arriving at a particular finding of fact. The findings of fact recorded by Court of fact even by erroneous appreciation of evidence, according to Sri Goswami, would not fall in the category of no evidence so as to justify interference by the second appellate Court against such finding.

Having heard the arguments of the learned Counsel for the parties on principle, In find myself in total agreement with the contention of Mr. Goswami, however, I do not agree with his contention that the present is a case of recording finding on the appreciation of evidence by the Courts below. As the contention of Mr. Sarma goes, there seems to be no statement by the Appellant which may lead to the inference of admission of the fact of execution of sale deed, Ext. 2 by him. Therefore, the inference of admission drawn by the Courts below against the Appellant on which the suit has been decreed is totally misplaced requiring interference by this Court in exercise of its second appellate jurisdiction.

Where Courts of fact record finding of fact, which is of crucial importance having material bearing on the fate of the suit, on the basis of an alleged admission of that fact by a witness in his statement made on oath then it will be open for the High Court exercising second appellate power u/s 100 of the Code to see whether the statement of the witness in question does or does not amount to admission of that crucial fact. It is therefore within High Courts power to ensure that the Courts of fact have rightly construed admission from the statement of the concerned witness. Such exercise by the High Court would not fall within the domain of re-appreciation of the evidence. The job of the High Court becomes more pressing when such admission of the fact, which is attributed to the witness is denied in the appeal. The High Court thus has the power to see the evidence of the witness so as to see for itself whether or not he has made admission of the fact in question. Such exercise by the High Court is within the purview of its power u/s 100 of the Code.

If the High Court finds that the alleged admission has not been made then it have to set aside the finding, finding which is based on non-existent admission of the witness becomes a finding without the support of evidence.

In above stated legal background it seems necessary to read the statement of the Appellant on basis whereof the finding regarding execution of the sale deed, Ext. 2 by the Appellant has been arrived at by the Courts below. A perusal of the impugned judgments passed by the trial Court as well as by the lower appellate Court would show that there is unanimity between them on the finding on that issue. Both the Courts below have observed that the Appellant had admitted execution of sale deed. Ext. 2 at a later stage though initially he had denied its execution. Appellant examined himself as D.W. 1. His statement has been recorded in the Assamese language. It was, therefore, necessary to translate the said statement in the English language as the Court was not acquitted with Assamese language. The learned Counsel for the parties were, therefore, required to bring the translated version of the statement of D.W. 1 recorded on oath as also the translated version of the plaint and written statement which too were in the Assamese language. The learned Counsel for the Appellant produced before me the translated version of the three documents. Mr. B.K. Goswami, learned Counsel for the Respondents agreed with the correctness of the translated text of the statement of D.W. 1 as also of the plaint and written statement.

In the written statement filed by the Appellant there is unequivocal denial of the plaint case by the Appellant. The Appellant had categorically denied Respondent''s title over the suit land and asserted, inter alia, that he possessed exclusive right over the suit land by virtue of his possession for a long time without any interference from any side. He also denied possession of Defendant No. 3 and Anandi Ram Choudhury and his son Kanak Choudhury over the suit land at any point of time. He also categorically denied execution of sale deed, Ext. 2 by him in favour of Anandi Ram Choudhury or execution of Ext. 4 by Kanak Choudhury in favour of Plaintiff. Thus so far as the plea taken by the Appellant in his written statement is concerned there is no scope whatsoever of any doubt regarding admission by the Appellant of the title of the Plaintiff Respondent over the suit land. Appellant''s statement on oath as D.W. 1 is to my mind strictly in keeping with the stand taken by him in his written statement. There is absolutely no deviation in his oral deposition from his stand as taken in the written statement.

Mr. Goswami, however, tried to place reliance on the statement of D.W. 1 (the Appellant) made in the cross-examination to the following effect so as to inter admission of the factum of execution of sale deed, Ext. 2 by him in favour of Anandi Ram Choudhury:

I sold rioty land to Anandi Choudhury.

This reading of the statement of D.W. 1 to the exclusion of the context in which those words had been altered by the witness may no doubt can be taken as admission of execution of the sale deed Ext. 2 by the witness but any part from the statement of witness cannot be read in isolation of its context in which the statement in question was made by the witness. The above quoted statement of D.W. 1 if read in the context as a whole then by no stretch of imagination it can be construed to be by way of a admission of the execution of Ext. 2 by the witness in favour of Anandi Choudhury. Complete statement of the witness in this context is as follows:

I am possessing the land purchased by Dharam as his riot. I am possessing about 1 Bigha 4 Kathas of land under Dharam as riot. Anandi Choudhury did not purchase any rioty land from me. I did not execute any deed (Dalil) on 25.2.54.

Thereafter again the witness states as follows:

The land which I sold earlier to Anandi Choudhury is not his disputed land. I sold my rioty land.

It was after the above quoted statement of the Appellant that the statement regarding the sale of rioty land to Anandi Choudhury occurs in the deposition of D.W. 1. Thereafter the witness has consistently reiterated his possession over the suit land till date. His statement in this regard may be quoted as follows:

The statement that after the death of Anandi, Kanak sold the disputed land to Pranpati is false. I paid the land revenue to Pranpati. Till the year 1373 I paid the land revenue to Pranpati. From the year 1373 I have not paid the land revenue to Pranpati.

He again states:

It is not a fact that disputed land was possessed by Kanak and Ors. s for many days after I sold the same. And Kanak and Ors. s delivered the possession to Pranpati after selling the same.

In the later part of his statement the witness asserted as follows:

It is not a fact that I sold the disputed land in favour of Anandi by executing deed (Dalil) and since then I do not have any possession over the disputed land. It is not a fact that I never paid land revenue of the disputed land, paid land revenue for separate plot of land.

Apart from the above in his principal deposition, the witness has asserted as follows:

I did not sell the disputed land to Anandiram Choudhury. I am possessing the land since last 50/60 years. This land belongings to Parbatia Gohain. I. possessed the land by cultivation the same. I paid the land revenue.

He further asserts as follows:

Exhibit ''Ka'' (1), ''Ka'' (2) are the land revenue paying receipt. I am possessing the disputed land as my own land. The statement of Anandi Choudhury that he has been possessing the land is false. The statement that we evicted Sri Pranpati Choudhury from possession is false.

From reading of above statements made by the witness (Appellant) on oath before trial Court, there is hardly any scope for any one to infer admission by the witness of transfer of his adhiar right in the suit land in favour of Anandiram Choudhury. The Courts below thus were absolutely wrong in inferring admission by D.W. 1 (the Appellant) about execution of Exbt. 2 in favour of Anandi Ram Choudhury. The finding of fact to the effect that Appellant executed sale deed Exbt. 2 in favour of Anandiram Choudhury recorded by the trial Courts and affirmed in first appeal by the lower appellate Court is therefore, vitiated as the finding is not at all supported by any evidence present on the record.

Crucial question which fell for consideration in the suit by the Courts below was whether or not Anandiram Choudhury acquired adhiar rights in the suit land and whether such acquisition of adhiar right by Anandi Choudhury was from the transfer deed having been executed in his favour by the Appellant. The finding on this question acquired great importance as the title on the suit land was claimed by the Respondent to the exclusion of the Appellant. On the plea that by virtue of sale deed Exbt. 2 Anandiram Choudhury and then his son Kanak became adhiar of the suit land in place of the Appellant and thereafter Kanak surrendered his adhiar right in the suit land in Respondents favour by means of Exbt. 4. In the light of the Respondents plea to the above effect acquisition of adhiar rights by Anandiram and by his son after Anandi''s death and by the Respondent on the basis of the surrender deed Exbt. 4 would stands only if execution of Exbt. 2 by the Appellant in favour of Anandi is proved by cogent evidence. If the execution of Exbt. 2 is not established by evidence then the question of acquisition of Appellants adhiar rights over the suit land by Anandiram and after his death by his son Kanak Chandra Choudhury and then by the Respondent by virtue of the surrender deed Exbt. 4 would not arise nor would def. No. 3 come in the picture as newly admitted adhiar by the Respondent. Thus acquisition of Appellants adhiar right in the suit land by Anandiram Choudhury by virtue of Exbt. 2 was the main and crucial question on which depended entire case of the Respondent. On which depended the fate of the suit as a whole.

The crucial issue involved in the case, as seen above, was decided by the Courts below in favour of the Respondent and against the Appellant on the basis of a non-existent evidence of admission by the Appellant. Therefore the finding recorded by the Courts below that Appellant executed sale deed Exbt. 2 in favour of Anandiram Choudhury is vitiated by grave error of law. The finding is therefore set aside.

No Ors. evidence is available on the record to substantiate Respondent''s plea that the Appellant executed sale deed Exbt. 2 in favour of Anandiram for transfer of his Adhiar rights in the suit land. On the contrary the Appellant had denied his signature on the said sale deed. In view of the denial of his signature by the Appellant it was necessary to prove the signature by tendering evidence. The Courts below could also have compared Appellants signature on the sale deed (Exbt. 2) with his admitted signature on the written statement and Vakalatnama both of which he had admittedly signed. Instead of doing so or requiring the Respondent to adduce evidence to prove Appellants signature on Exbt. 2, the Courts below culled out a convenient short cut in Respondents favour to uphold his claim on the suit land by erroneously reading admission of execution of Exbt. 2 by the Appellant from his oral deposition. Seen from every angle plea of the Respondent regarding execution of sale deed Exbt. 2 by the Appellant in favour of Anandiram has not at all been proved. In absence of proof of Respondents plea to the above effect his subsequent story of acquisition of adhiar rights in the suit land by Anandi and then by his son Kanak and thereafter by himself and lastly by Defendant No. 3 automatically falls to the ground like ninepins.

There is an Ors. aspect of the matter. Ext. 4 happens to be unregistered document of surrender of the adhiar rights of Kanak Choudhury in the suit land. As per Respondent''s own version though the initial transfer deed, Ext. 2 which was allegedly executed by the Appellant in favour of Anandi Choudhury was a registered sale deed the surrender deed which was executed by Kanak Choudhury in Respondent''s favour was however an unregistered document. The Courts below have committed grave illegality in holding that the surrender deed, Ext. 4 did not require registration for the reason that it was of the nature of partition deed. It is strange that although no case either of partition or of family arrangement was set up by the Respondent in his pleadings still the Courts below culled out the theory of partition between Kanak Choudhury and the Respondent only to save Ext. 4 which under the law was not admissible in evidence.

Section 17(1)(b) of the Registration Act, 1908 requires compulsory registration of every document whereby conveyance of right, title and interest in any immovable property is effected either by sale or by any Ors. mode of transfer (including by surrender) or by relinquishment of title or right or interest provided the value of the land involved in the transfer exceeds a sum of Rs. 100/-. Again Section 49(C) of the Act provides that a document of title which requires registration u/s 17 cannot be received in evidence for proof for any transaction effecting any property in respect whereof transaction is recorded in the said document of title.

In view of above provisions of the Registration Act, the unregistered deed of surrender Exbt. 4 allegedly executed in favour of the Plaintiff-Respondent by Kanak Choudhury for surrender of his adhiar rights in the suit land could not have been admitted in evidence nor the Courts below could place reliance thereon to uphold the plaint version of the Respondent. The Courts below were, therefore, wrong in decreeing Plaintiffs suit on the basis of Exbt. 2 and Exbt. 4 both of which were not proved.

In view of the above discussion, I am of the view that the judgment and decree of the Courts below is vitiated by law. The Courts below have committed grave illegality in decreeing Respondents suit. The appeal is accordingly allowed with costs. The decree and judgments passed by the trial Court and also by the lower appellate Court are set aside. The suit of the Plaintiff Respondent is dismissed with costs throughout.