Nathuram vs Babulal and Others

Alok Aradhe, J.—This appeal has been filed by the plaintiff. This Court vide order dated 06.5.1997 while admitting the appeal had formulated the following substantial question of law:-- Whether the Court below wrongly interpreted Ex.P-1?

Facts giving rise to filing of the appeal, briefly stated, are that the plaintiff filed the suit on the ground that he was allotted a land admeasuring 10 dismil by order dated 03.2.1953 (Exhibit-P1) passed by the ''Naib Tahsildar''. On the part of aforesaid land the plaintiff constructed a courtyard and the remaining part of the land was kept open. However, on or about 21.4.1988 the defendant Nos. 1 & 2 started construction on the vacant land. Thereupon, the plaintiff filed the suit seeking relief of declaration that he is the owner of the land covered by order (Exhibit-P-1) and sought permanent injunction restraining the defendants from raising construction on the land in question. The defendants filed written statement in which, inter alia, it was pleaded that the land was not allotted to the plaintiff. It was further pleaded that construction has been made on the land which belongs to the defendants and the construction which has already been made is in existence for past about 20 years.

The trial Court vide judgment and decree dated 30.4.1991, inter alia, held that the plaintiff in paragraph 5 of his cross-examination has admitted that the land was not allotted to him by the State Government and that no application for mutation in respect of the land in question was made by the plaintiff. From perusal of Exhibit-P-1 (order-sheet dated 03.2.1953) it was held by the trial Court that the land in question has not been allotted to the plaintiff. The aforesaid finding was affirmed by the appellate Court in appeal.

Learned counsel for the appellant submitted that if the documents produced by the plaintiffs, namely, Exhibits-P-1, P-3 & P-4 are read in entirety it is apparent that the land admeasuring 10 dismil forms a part of Plot No. 1 which was allotted to the plaintiff. However, neither the trial Court nor the lower appellate Court has considered the documents Exhibits-P-3 & P-4 and have misinterpreted the document-Exhibit-P-1. It was further submitted that the courts below ought to have appreciated that terms of grant were reduced in writing and, therefore, the oral evidence, if any, in this regard could not have been looked into.

I have considered the submissions made by learned counsel for the appellant and have perused the record. The jurisdiction of this Court to interfere with the findings of fact u/s 100 of CPC is limited to the case where the finding is either perverse or based on no evidence. It is well settled in law that if the finding of fact has been reached in ignorance of material evidence available on record, the same would render the finding perverse and this Court in exercise of powers u/s 100 of the CPC would be well within its right to interfere with such a finding of fact [See: Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, Deva (Dead) thr. Lrs. Vs. Sajjan Kumar (Dead) by Lrs., Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, Deena (Dead) through LRs. Vs. Bharat Singh (Dead) thr. LRs. and Others, Yadarao Dajiba Shrawane (Dead) by LRs. v. Nanilal Harakchand Shah (Dead) and others Yadarao Dajiba Shrawane (dead) by Lrs. Vs. Nanilal Harakchand Shah (dead) and Others, Neelaknatan and others v. Mallika Begum Neelakantan and Others Vs. Mallika Begum, Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., , M.S.V. Raja and Another Vs. Seeni Thevar and Others, r, Saraswathi and Another Vs. S. Ganapathy and Another, , Deena Nath Vs. Pooran Lal, (2003) 9 SCC 245, Hafazat Hussain v. Abdul Majeed and others , Shri Hafazat Hussain Vs. Abdul Majeed and Others, and Vishnu Prakash and Another etc. Vs. Smt. Sheela Devi and Others, From perusal of the judgment and decree passed by the trial Court as well as lower appellate Court, it is apparent that courts below have not taken into account the following material evidence on record while recording the finding that the plaintiff has failed to prove the grant in his favour:--

(i) Exhibit-P-3 i.e. the application filed by the plaintiff dated 27.1.1953 for allotment of land in his favour;

(ii) Exhibit-P-4 i.e. the application filed by Ms. Girja Bai in which she has stated that the plaintiff has the right in respect of plot No. 1 and he should be allotted the land out of Plot No. 1 and she should be allotted Plot No. 48/4; and

(iii) On the basis of aforesaid applications, a revenue case, namely, Case No. 5-5/11 of 1952-53 was registered by Naib Tahsildar, Khurai. In the aforesaid proceedings, an order dated 03.2.1953 was passed and the land in question was allotted to the plaintiff;

However, the aforesaid material piece of evidence, namely, Exhibits-P-1, P-2 & P-3 were neither considered by the trial Court nor by the lower appellate Court.

The trial Court as well as lower appellate Court have relied upon the admission of the plaintiff contained in paragraph 5 of the cross-examination to the effect that he has not been allotted the land in question by the State Government. The relevant extract of Section 91 of the Indian Evidence Act, 1872 provides that when the terms of a contract, or of grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Similarly, the relevant extract of Section 92 of the Indian Evidence Act, 1872 provides that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.

However, the trial Court as well as the lower appellate Court have failed to take into account the provisions of Sections 91 and 92 of the Indian Evidence Act. The findings recorded by the trial Court as well as the lower appellate Court that from perusal of Exhibit-P-1 it is not proved that the land in question was allotted to the plaintiff, cannot, but be said to be perverse. For the aforementioned reasons, the substantial question of law framed by this Court is answered in the affirmative and in favour of the plaintiff. The judgment and decree passed by the trial Court as well as lower appellate Court are hereby set aside. In the result, the claim of the plaintiff is decreed. The appeal succeeds and is hereby allowed with costs.