Sehopanit Shah vs Chabilal Tewari and others

Ram Labhaya, J.—This is an appeal from the judgment and decree of the learned Additional Sub-Judge, A.V.D., dated the 31st May, 1945 by which the order of the Munsiff, Nowgong, dated the 15th September 1944 decreeing plaintiff''s suit was reversed and the suit dismissed. The plaintiff has appealed to this Court.

Plaintiff, appellant claimed to have purchased about 73 bighas of land appertaining to patta No. 11 from Shahasram by a registered sale deed dated 15th November 1940 for Rs. 500 which formed the sale consideration. His case was that he got delivery of possession from his vendor. According to him, out of the land purchased by him, 5 puras of culturable land were settled on Ramani Mohan Namasudra and he got a kabuliyat from him on 7th Baisakh 1848 B.S. On the same day another 8 puras of culturable land were said to have been settled on Binode Ram Namasudra. He also executed a kabuliyat in plaintiff''s favour. In the kabuliyats it is stated that the land which formed the subject matter of two settlements was in the possession of the plaintiff. The recital reproduced below appears in both the documents:

I take settlement of about 5/3 puras of cultivable land out of the lands of periodic patta No. 11 of Bhukau Basti in your possession by virtue of your registered deed on condition of delivering one-fourth of the crops to you.

The two kabuliyats were executed some 6 months after the execution of the sale deed in plaintiff''s favour. Both Ramani and Binode are defendants in the case (defendants 3 and 4). A few days after the execution of the sale deed in plaintiff''s favour, Jagannath Tewari, defendant, and Chabilal Tewari, defendant 2, his nephew, applied to the Sub Deputy Collector, Kamrup, for the mutation of the entire land in suit in their favour alleging that the land had been sold to them long before the alleged sale in plaintiff''s favour. The plaintiff also applied for a mutation on the basis of his registered sale deed. The two kabuliyats were executed in plaintiff a favour during the pendency of these mutation proceedings. In spite of these kabuliyats, a mutation was ordered to be attested in favour of defendants 1 and 2 by an order of the Sub-Deputy Collector dated the 23rd September, 1941. In that litigation defendants 3 and 4 repudiated the kabuliyats and deposed in favour of defendants 1 and 2 by stating that they were in occupation of the land as adhiars on behalf of the defendants. Plaintiff preferred an appeal from the order of the Sub-Deputy Collector. This was dismissed by the Deputy Commissioner by his order dated 27th February 1943.

Having failed to obtain a mutation in his favour, plaintiff sued for a declaration of his right, title and interest to the land in suit measuring 73 B. 15 L. He also prayed for its khas possession against the first four defendants. He impleaded the widow of his vendor as a pro forma defendant in the case. The basis of his title was the sale deed purporting to have been executed in his favour by Shahasram, the original owner of the land.

Plaintiff''s case was that the land in suit belonged to Shahasram and he was in enjoyment and possession thereof. There is no suggestion in para 3 of the plaint that he possessed the land through tenants. In para 3, it was expressly stated that he sold the lands to the plaintiff and delivered possession to him and that the plaintiff after taking possession of the lands had been exercising his sights as an owner. Even in this para there is no suggestion that there were any tenants in occupation of the land at the time of Bale and they attorned to the plaintiff. In para 4, it was alleged by the plaintiff that out of the Bait land he settled 19 bighas on defendant 8 and 20 bighas on defendant 4 on 7th Baisakh, 1848 R.S. and got kabuliyat from them. The allegations in paras 2 to 4 of the plaint read with the kabuliyats would show that plaintiff''s case was that at the time of the settlement of the culturable lands on defendants 8 and 4, he delivered possession of the lands settled on them. Plaintiff denied title of defendants which was claimed on the basis of an oral Bale. He treated them as trespassers and claimed declaration of title and possession.

The suit was contested. Defendants 1 and 3 raised some legal objections. On facts, they pleaded that the document of sale in plaintiff''s favour had been forged. It had never been executed by Shahasram. They themselves claimed to have purchased the land on payment of Rs. 60 about ten years before the date of the written statement. They alleged further that they got possession of the land from him (Shahasram) and had been in enjoyment thereof since then and were also paying land revenue. In regard to the kabuliyats in plaintiff''s favour, their case was that these were collusive documents which plaintiff got executed under threats and by means of coercion. They also pleaded that plaintiff had full knowledge of defendants'' title and he got the documents executed in his favour in order to cause wrongful loss to them.

Defendants 3 and 4 supported defendants 1 and 2. As regards the kabuliyats, they stated that plaintiff in collusion with some others took the police to their house and obtained their signatures on two pieces of papers under the threat of setting fire to their houses if they refused to give their signatures. The pro forma defendant supported the plaintiff.

The learned Munsiff found that the sale deed in favour of the plaintiff was not a forged document. He further found that defendants 8 and 4 had failed to substantiate their plea that the kabuliyats were executed by them under coercion or undue pressure. Having found that the kabuliyats were duly executed, he inferred, that defendants 8 and 4 attorned to the plaintiff by means of these kabuliyats at the instance of the vendor Shahasram. He construed these kabuliyats as an act of delivery of possession by Shahasram as his inference was that the attornment was at the instance of Shahasram, He further observed that it would be natural to infer in these circumstances, that defendants 8 and 4 were induced by defendants 1 and 2 to deny plaintiff''s title which they were estopped from doing unless the kabuliyats were set'' aside.

On the question of oral sale set up by defendants 1 and 2, his finding was that the sale was no more than a ''myth''. He refused to rely on the oral evidence produced by defendants in support of the oral transaction of sale in their favour. Assuming again that possession of the land had been delivered to defendants 1 and 2, though according to the learned Judge it was occupied by tenants, he further found that the occupation of land by a tenant affects a purchase of land with the notice only of the tenant''s right, but not of his lessor''s title or rights. On these findings, be decreed the claim.

The learned Sub-Judge found that on the evidence before him, it was difficult to find that the sale deed was a forged document. According to him, the plaintiff never got actual possession of the land. He merely managed to secure the kabuliyats to support his sale. On the defendants plea, his finding was that Shahasram, the original owner, had sold the land to them and they had taken possession of it under the sale. The possession of the tenants, defendants 3 and 4, was held, to be on behalf of defendants 1 and 2. According to him, the occupation of the land by defendants 1 and 2 through defendants 8 and 4 was sufficient notice of their title to the plaintiff. He, therefore, reversed the order of the Court below and dismissed the plaintiff''s suit.

Plaintiff has appealed to this Court. The case was first heard by a Division Bench of this Court. It was then ordered that the case be placed before a larger Bench of this Court. In the grounds of appeal, a number of points were raised. At the hearing of the case before the Division Bench, the Learned Counsel, faced as he was with a finding of fact in favour of defendants-respondents, urged that the finding was not binding in second appeal as the learned Sub-Judge had failed to give a definite and an express finding on the point that the sale in favour off defendants was for a consideration which was below Rs. 100. When the case was re-argued before us the Learned Counsel also urged that the finding that the oral sale was followed by delivery of possession was not warranted by evidence in the case.

I do not see any force in the 1st contention. The plea raised by defendants was that the sale in their favour was in consideration of a sum of Rs. 80. Plaintiff''s case was that there was no sale at all in favour of the defendants. The factum of sale in favour of the defendants was thus is question. The trial Court found that defendants 1 and 2 had failed to prove the sale in their favour. The appellate Judge found in favour of the defendants on this point, In coming to this finding, he relied on the evidence produced by them and also on Borne circumstantial evidence. The finding by necessary implication involves a decision on the question of consideration also. The oral evidence produced by defendants may have been rejected. But, if it is accepted without any qualification it could not be said that there is no finding on the question of consideration without which there could be no sale at all. On the question of the oral sale, the learned Judge observed as follows:

I feel little hesitation to say that the facts and the circumstances and the evidence, all taken together, have substantially proved the gale of the land to the appellants attended with delivery of possession.

At another place in the judgment he says :

As I have already stated above, a valid sale of the land in question to the appellants has been substantially proved. The appellants have been in possession of the land through their adhidars.

It is clear that the learned Judge found that the Bale as alleged was proved. He found further in express terms that the sale was attended by delivery of possession and the appellants had been in possession through the adhidars. These findings show that while the factum of sale was admittedly in dispute, its validity may be regarded as in question only on the basis that the sale was not accompanied with or followed by delivery of possession. It was never contended at any stage of the litigation by the plaintiff that the sale, if any, was invalid on the ground that its consideration was Rs. 100 or in excess of it. Such a plea would have been inconsistent with plaintiff''s case and would have raised doubts as to the truth of his contention that there was no sale at all. It was, therefore, avoided. The learned Sub-Judge, therefore, was not called upon to record a distinct finding on the question of consideration apart from a finding on the question whether an oral sale as alleged had been proved by defendants 1 and 2. It was nobody''s case that the consideration of sale was such that an oral sale could not pass title.

When an oral sale is set up, which, if proved, would be valid, its proof or a finding that it has been proved would necessarily involve a finding as to its validity. This is exactly what has happened in this case. I see absolutely no force in the contention that the finding in favour of the defendants is vitiated by the error of law suggested.

The next contention urged before us is that a finding that there was a valid oral sale followed by delivery of possession is not warranted by evidence on the record. The Learned Counsel for the respondent takes exception to the validity of this contention. He points out that the finding is on a simple question of fact, and it is not open to challenge in second appeal. He relies on two Privy Council cases namely, Venkata Kumara v. Secy. of State, AIR 1929 P.C. 152 and Ramji Patel v. Rao Kishore Singh, AIR 1959 P.C. 190. Their Lordships of Privy Council have laid down in these cases that a second appeal should not be entertained on the ground that the finding of fact is erroneous, however gross or inexcusable the error may seem to be if the Court had before it evidence proper for its consideration in support of its finding There admittedly was no evidence on which the finding has been made to rest. These authorities thus would afford a complete answer to the contention of Mr. Ghose. But we have heard the Learned Counsel on facts and we are far from, satisfied that the finding is not warranted by evidence as he contends. The rest of the judgment does not contain any point of law and hence is not reported here. Deka J. and Thadani C.J. agreed with Ram Labhaya J. Though Deka J. delivered a separate judgment, there is no new point covered by it. In the end the second appeal was dismissed as concluded findings of facts.