Calcutta High Court (Appellete Side)
Manik Lal Jaiswara And Others vs Smt. Monju Devi @ Manju Devi And ... on 8 April, 2021
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE KAUSIK CHANDA
S.A.T. 250 OF 2019
WITH
C.A.N. 2 OF 2020
C.A.N. 3 OF 2020
Manik Lal Jaiswara and others.
Vs.
Smt. Monju Devi @ Manju Devi and another.
Mr.Samiran Giri, Adv.
Mr.Abhijit Laik,Adv.
For the Appellants...
Mr.Subhasish Pachhal, Adv.
For the respondents...
Judgment On: 08.04.2021
Harish Tandon, J.:
The instant second appeal arises from a judgment
and decree dated 28th February, 2019, passed by the
learned Additional District and Sessions Judge, 1st
Court, Serampore, Hooghly in Title Apeal No. 90 of
2016 reversing the judgment and decree dated 7th
May, 2016 passed by the learned Civil Judge, Junior
Division, 1st Court, Serampore in Title Suit No.
21/2014.
The parties are related to each other which is
discernible from the facts pleaded in the plaint. The
plaintiff no. 1 is the father of the defendant no.1 and
father-in-law of the defendant no. 2 whereas the
remaining plaintiffs are the sons and daughters of the
plaintiff no. 1. The plaintiffs jointly filed a suit for
declaration that the deed of conveyance being no. 1774
for the year 2009 registered with Additional Registrar
of Assurances III in favour of the first defendant is
fraudulent, invalid and inoperative. The second relief
claimed in the plaint further relates to a declaration
that the defendants did not acquire any right, title and
interest on the basis of the purported deed of
conveyance.
The facts pleaded in the plaint are that the
plaintiffs along with one Ramrati Devi were the owner
of the property being the subject matter of the suit.
The defendant no. 1 being the daughter of the plaintiff
no. 1 is all along residing in her matrimonial house.
There was no intention on the part of the plaintiffs to
transfer and/or alienate the property as they were all
along residing therein, but a proposal was made from
the defendants where the defendant no. 2 intended to
secure a loan from the bank and requested the
plaintiffs along with the Ramrati Devi to execute the
deed of sale with clear stipulation that after such crisis
is over they would revert the said property by
executing a deed of gift. Since, the relation between the
parties were cordial and they never sensed any foul
intention, executed a purported deed of sale in favour
of the defendant no.1. Subsequently, the plaintiffs
wanted the execution and registration of the deed of
gift by the defendant no. 1 who refused to honour such
stipulation and tried to sell the property to the third
party.
The moment the refusal to execute and register
the deed of gift was sensed and realised the plaintiffs
filed a suit for declaration that the purported deed of
sale was obtained by practising fraud and
misrepresentation and, therefore, does not convey any
right, title and interest in defendant no. 1.
The defendants entered appearance and contested
the suit by filing the written statement along with the
counter claim. All the facts pleaded in the plaint have
been denied. It is specifically contended that the
plaintiffs wanted to sell the property to a third party
and the moment such intention was made known to
the defendants, the defendant no. 1 offered to
purchase the said property at the market price upon
consensus/agreement having arrived in this regard,
the plaintiffs along with Ramrati Devi voluntarily
executed the said deed of conveyance and got the same
registered with the registering authority.
Since the relation between the parties were cordial
they were permitted to stay in the property as a
licensee and on being asked to vacate the premises
they flatly refused to do so and thereafter the
defendants revoked the licence and seek for a decree
for recovery of possession by way of counter-claim.
The Trial Court though returned the finding on
the issues but the main focus was made on the
jurisdiction of the Court to entertain the suit.
Ultimately, the Court held that the suit is not
maintainable for want of pecuniary jurisdiction and
dismissed the suit. So far as, the finding on the
counter-claim is concerned the Trial Court held that
despite having no doubt over the ownership of the
defendants in respect of the suit property it does not
instil any confidence pertaining to the revocation of
licence after a gap of nearly five years. The Trial Court
proceeded to dismiss the counter-claim as well.
Curiously enough the plaintiffs did not prefer an
appeal immediately after the passing of the
judgment/decree dismissing the suit, but the appeal
was preferred by the defendants against the judgment
and decree dismissing the counter-claim. The reason
is obvious that a person who emerged successful in
getting the suit dismissed shall not be considered to be
an aggrieved person entitling them to file an appeal.
The First Appellate Court reversed the judgment
and finding made on the counter-claim on the
categorical findings that once the person has
established the title over the suit property and the
plaintiff was unsuccessful in getting away with the
deed of conveyance executed and registered by him, it
was inconsequential that the revocation of license was
made after a gap of five years.
The plaintiff/appellants have filed the instant
second appeal before this Court and urged a point that
the Court of Appeal below failed to consider that the
purported execution of deed of conveyance was a
conditional one in the sense that it was agreed to
execute a deed of reconveyance and, therefore, not an
absolute sale. It is further submitted that the
purported deed of conveyance was managed to be
executed as the defendant no. 2 intended to secure a
loan from the bank and, therefore, the deed is illegal,
inoperative and void on the ground of fraud and
misrepresentation. It is thus, submitted that in fact it
was not an absolute sale but the plaintiffs
accommodated the defendant no. 2 to secure the loan
on the promise that a deed of gift would be executed
subsequently the moment the said defendant
overcome with the financial crisis.
Though the respondents have no right of audience
at the stage of admission of an appeal under Order 41
Rule 11 of the Code, but, considering the gamut of the
controversy we digress from such proposition of law
and invited the respondents to address us as we feel
that it is required for ends of justice. The facts as
enumerated herein above are the reflection of the
respective stands of the parties projected in the
pleadings filed before the Court. What can be deduced
therefrom is that there was the execution of the deed
of conveyance by the plaintiffs along with Ramrati Devi
divesting of right, title and interest in respect of the
suit property in favour of the defendant no. 1 for the
considerations mentioned therein.
Both the Courts have recorded the evidence of the
first witness of the plaintiff that the transaction was
fixed at a consideration of Rs. 4,00,000/- (four lakhs)
and such consideration was in fact the highest market
value of the suit property at that relevant point of time.
The admitted position is, thus, that the deed of
conveyance was executed in favour of the defendant
no. 1 upon receipt of the consideration money and the
challenges thrown over the same on the ground of
fraud and misrepresentation. The deposition of the
first witness of the plaintiff is categorical that the
consideration mentioned in the purported deed of
conveyance was received through an account payee
cheque and it is nobody's case that the said cheque
was dishonoured or the money did not pass on to the
plaintiffs.
It is a mandate under Order 6 Rule 4 of the Code
of Civil Procedure to plead the particulars of fraud
and/or misrepresentation.
It is thus axiomatic to exclude the unnecessary
details and the facts which are essential to clearly
make out the case of fraud and/or misrepresentation
must be pleaded to prevent the surprise and to make
the adversary aware of the real point of dispute. All
particular details pertaining to fraud and
misrepresentation must be averred and pleaded in
details so as to enable the defendants to raise the
defense on the basis thereof.
The aforesaid provision does not invite mere user
of the expression "fraud or misrepresentation" but the
averments must be set up in the plaint with clear
precision and what constitutes the fraud and/or
misrepresentation must be apparently discernible
therefrom.
It is no gain saying that the fraud unravels all act
and a perpetrator of fraud should not be allowed to
reap the benefit therefrom. Although "fraud" and
"misrepresentation" are cognate vices and sometimes
may overlap but they are still considered to be of
distinct categories and, therefore, the separate
incidents of fraud and misrepresentation should be
pleaded with all precision. The fraud and
misrepresentation are two distinct concepts and,
therefore, the onus lies heavily upon the person
seeking a particular act to have founded thereupon
must adduce a strong evidence and should not be
permitted to take advantage of the weakness of the
defense case.
In the instant case, the plaintiffs admitted to have
executed the purported deed of conveyance voluntarily
but sought for declaration of such deed to be void on
the ground of fraud and misrepresentation. Both
appears to have been interlined when they pleaded
that such execution and registration of the purported
deed of conveyance was on the promise/assurance to
secure a loan from the bank with further stipulation
that it would be returned by executing a deed of gift.
The misrepresentation appears to have taken a front
seat and the fraud ancillary thereto. It is not in dispute
that the consideration mentioned in the purported
deed of conveyance was received by the plaintiffs and a
logical inference can be drawn that the same was duly
appropriated in due course. Neither of the witnesses
cited by the plaintiffs could depose that they offered
the return of the money rather it came at the bar at
the time of hearing of the instant appeal for admission
that they are agreed to return the consideration price.
The evidence is lacking on the alleged fraud or
misrepresentation which can be deciphered from the
findings recorded by both the Courts below. However,
the facts which swayed the mind of the Trial Judge
appears to be misplaced when the entire focus was
laid on the jurisdiction of the Court taking shelter
under the Bengal Agra and Assam Civil Courts Act,
1887. The Trial Court held that the relief claimed in
the plaint seeking declaration that the purported deed
of conveyance is void on the ground of fraud and
misrepresentation should be valued on the basis of the
consideration price mentioned therein. The Trial Court
further proceeded to hover around the pecuniary
jurisdiction of the Court enshrined in the said Act and
ultimately held that a suit with such relief is not
maintainable.
No doubt the said Act defines and limits the
jurisdiction of the Court both on a territorial and
pecuniary aspect. The distinction is sought to be made
by the Trial Court that once the said Act limits the
pecuniary jurisdiction the provision contained in the
Code of Civil Procedure cannot override the same as it
does not contain any provision limiting the jurisdiction
of the Court both on pecuniary and territorial.
There is no quarrel to the proposition of law that
the aforesaid Act not only defines and limits the
jurisdiction of the Court on pecuniary and territorial
aspect but the moot question which appears to us is
whether it impinges upon the root of the jurisdiction
and under no circumstances the Court can entertain
the proceeding exceeding pecuniary or territorial
jurisdiction. It is one thing to say that by an advent of
the statute defining and limiting the pecuniary and
territorial jurisdiction it is absolutely different when
the Court proceeds to decide the dispute without
having any objection from the defendant relating to
pecuniary or territorial jurisdiction and inviting the
court to decide the matter on merit.
The pecuniary and territorial jurisdiction can be
waived by the defendant and, therefore, there is no
fetter on the part of the Court to proceed and decide
the matter on merit. Ordinarily, the jurisdiction of
Court is divided into three categories namely I)
Territorial II) Pecuniary and III) plenary. Section 21 of
the Code of Civil Procedure laid down the exposition of
law pertaining to waiver of the territorial and
pecuniary jurisdiction by the defendant. The matter
decided by a Court even lacking territorial and
pecuniary jurisdiction cannot be assailed on the
ground of such jurisdiction unless the parameters laid
down therein are satisfied. It is ardent duty of the
defendant to take the plea of territorial and pecuniary
jurisdiction at an earliest preferably before the
settlement of issue and not at the latter stage. More
particularly, the restrictions are envisaged at the stage
of appeal or revision under the said Section. However,
the jurisdiction relating to subject dispute which
strikes at the root of the competence or the jurisdiction
of the Court can neither be waived nor acquiesced by
the defendant. Even the plenary jurisdiction cannot be
conferred upon a Court lacking it by an agreement or
the consent of the parties. If, the Court is competent to
decide a subject dispute had it been within its
pecuniary or territorial limits it cannot refuse to decide
the same in absence of any objection raised by the
defendant at an earlier stage or before the settlement
of issue of its own. There is no hesitation in our mind
had the consideration money reserved in the purported
deed of conveyance is below the pecuniary limit, the
Trial Court was competent to decide the matter on its
merit and, therefore, it does not fall within the third
category of jurisdiction i.e., the plenary jurisdiction.
The Apex Court in case of Koopilan Uneen's
Daughter Pathumma -Vs- Coopilans uneen's Son
Kuntala reported in 1981 SC 1683 propounded the
exposition of law on the applicability of Section 21 of
the Act. It is held that there are three essential
conditions namely I) the objection must be taken at
the first instance II) it must be taken at an earliest
opportunity and in all cases at/or before the
settlement of issues and III) there has been a
consequent failure of justice.
It is further held that all three conditions must co-
exists in order to attract Section 21 of the Code. In the
present case, the plaintiffs themselves approached the
Court claiming a relief which was otherwise within the
competence of the said Court thought ought to have
been valued beyond the pecuniary limits but if there is
no consequent failure of justice it ought not to have
been decided in such way. At any rate the aforesaid
observations have been made to clarify the
applicability of the provisions contained in the Bengal
Agra and Assam Civil Court Act vis-à-vis the Code of
Civil Procedure.
The Trial Court dismissed the counter-claim solely
on the ground that it is improbable that a prudent
man would wait more than five years and then revoke
the license. As indicated above, the parties are related
to each other and it is not unusual that the permission
was given for such occupation. However, the Appellate
Court reversed the finding on the counter-claim solely
on the ground that the moment the Court finds the
transaction i.e., the deed of conveyance is legal, proper
and valid, the plaintiffs cannot be said to have
acquired any title or right to remain in possession
except under the permissive occupation. There is a
vast distinction between an occupation as licensee and
the occupation on the basis of some other rights. The
permissive occupation does not create any right in the
property and runs counter to the concept of exclusive
possession. Furthermore, Section 5 of the Specific
Relief Act entitles the title holder of the property to
recover the possession from a person in wrongful
occupation. The counter-claim was based on title
being conferred by virtue of the deed of conveyance
executed by the plaintiffs along with Ramrati Devi
which has not been denied nor any cogent evidence
was adduced by the plaintiffs/appellants to declare
such deed to be void or inoperative. The moment the
title to the property is established without conceivable
doubts the title holder enjoys all the incidents of
ownership including the power to recover possession.
There is no absolute rule for serving a notice revoking
the license. The suit itself is a notice and the intention
to revoke is manifested therein.
The possession is an incident of the ownership
and is capable of being transferred to any person and
such possession does not create a right but the
constructive possession remains with the owner. In
case of a license the occupation in the property is on
behalf of the owner. The possession is relevant if there
is no title in support thereof but once the title is
established which is to be given a due weightage and,
therefore, the possession cannot be considered in
vogue. There may be cases where the presumption of
possession of a person other than the owner is found
but such possession remains permissive in absence of
any document and is regarded as permissive. The
possession in the past is one thing and the possession
if continued in future is another. The real trouble
starts when the possession is continued in future
without any support of title. A suit for recovery of
possession based on title has two distinct facets.
Firstly, adjudication on the title and secondly,
adjudication on possession. Once the cloud over the
title is removed the possession of a person is regarded
as a possession on behalf of the title holder.
The aforesaid observation shall get impetus from
the observations of the Apex Court in case of Maria
Margarida Sequeria Fernandes and Others Vs
Erasmo Jack de Sequeria (Dead) through L.Rs.
reported in 2012 (5) SCC 370 wherein it is held
"67. In an action for recovery of possession of
immovable property, or for protecting possession
thereof, upon the legal title to the property being
established, the possession or occupation of the
property by a person other than the holder of the
legal title will be presumed to have been under
and in subordination to the legal title, and it will
be for the person resisting a claim for recovery of
possession or claiming a right to continue in
possession, to establish that he has such a right.
To put it differently, wherever pleadings and
documents establish title to a particular property
and possession is in question, it will for the
person in possession to give sufficiently detailed
pleadings, particulars and documents to support
his claim in order to continue in possession."
Mere possession in the property how long it may
be does not ipso facto establish a right into a person
allowed to continue in possession by a title holder
except a case of adverse possession is claimed and
proved by cogent evidence. The relationship of the
plaintiff with the defendant/appellant is also one of
the relevant factor when the permission to continue in
possession is evident and the moment such
permission is revoked no impediment can be seen
against the title holder to recover the possession.
It is beyond cavil of further discussion that the
title over the property has been established and proved
by production of the sale-deed which the appellant
could not get away therewith as they claim that the
same was to secure the loan and it was intended that
the title holder would revert the title by executing a
deed of gift in future is failed.
We, thus, do not find that the findings of the
Appellate Court can be faulted with warranting
interference by us in the instant second appeal.
The appeal is thus dismissed having not involved
any substantial question of law.
No order as to costs.
Urgent certified website copies of this judgment, if
applied for, be supplied to the parties upon compliance
with all requisite formalities.
I agree,
( Kausik Chanda, J.) ( Harish Tandon, J.)
