Page No.# 1/14 vs Golapi Nessa
2021 Latest Caselaw 1539 Gua

                                                                  Page No.# 1/14

GAHC010131942013




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : RSA/232/2013

            BANIZ UDDIN @ MD. BANIZ UDDIN SK and 3 ORS.
            S/O LATE BHOMAR ALI

            2: SALAM @ MD. SALAMUDDIN SK

             S/O BANIZUDDIN SK

            3: ABDUL MOTLEB @ MD. ABDUL MOTLEB

             S/O BANIZUDDIN SK

            4: MUST. FAZILA KHATUN

             W/O MD. ABDUL MISTRI
             ALL ARE RESIDENTS OF VILL. BAMUNIRBHITA
             P.S. LAKHIPUR
             DIST. GOALPARA
             ASSAM

            VERSUS

            GOLAPI NESSA
            W/O LATE MD. ABUL HUSSAIN, D/O BANIZUDDIN SK. VILL.
            BAMUNIRBHITA, P.S LAKHIPUR, DIST. GOALPARA, ASSAM.



Advocate for the Petitioner   : Ms. R. Choudhury, Advocate.

Advocate for the Respondent : Shri J. Ahmed, Advocate.
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                                     BEFORE
                    HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                             JUDGMENT

30.04.2021

The present appeal has been preferred against a judgment and decree dated 08.07.2013 and 19.07.2013 respectively passed by the learned District Judge, Goalpara in Title Appeal No. 2/2012 partly allowing the appeal by setting aside the judgment and decree dated 17.03.2012 passed by the learned Civil Judge (Senior Division), Goalpara in Title Suit No. 2/2010. The appellants are the defendants in the suit. The suit was instituted by the plaintiff for declaration and recovery of possession. The plaintiff is the daughter of the defendant No. 1.

2. A brief narration of the facts would be necessary to appreciate the issue which has arisen for determination.

3. The plaintiff who claimed to be in possession of 1 Bigha of land (Schedule B) claimed ownership right. In the plaint it has been stated that she was in possession for about last 17 years. However, about a year back, the defendants had illegally and forcefully dispossessed her and her family. It has further been stated that a house under the IAY Scheme was constructed which was also occupied by the defendants. Accordingly, the suit was instituted with the following relief:-

"12. That under the above facts and circumstances the plaintiff prays as follows:-

(a) For a decree of declaration that the plaintiff has acquired right to possess the suit land along with its house described in the schedule 'B' of the plaint on the strength of revenue record and previous possession.

(b) For a declaration that the plaintiff has acquired right and title to the suit land described in the schedule 'B' of this plaint.

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(C) For a decree of possession of the suit land along with its house described in Schedule 'B' of this plaint by evicting the defendants and their men, women, workmen, servants etc. from the suit land.

(d) For a permanent injunction restraining the defendants from disturbing possession of the plaintiff over the suit land after its recovery of possession.

(e) For a decree directing to unlock the house illegal locked by the defendants.

(f) For cost and other reliefs to which the plaintiff is entitle to under law and equity"

4. The appellants/defendants had contested the suit by filing written statement. The claim of the plaintiff was categorically denied and it has been averred that the suit land was owned by the defendant No. 1 and the plaintiff had mislead the Revenue Department and mutated her name in the Revenue records. The defendants categorically stated that the suit land was purchased by the defendant No. 1 by way of a registered sale deed No. 3127 of 1970 whereafter the defendants had taken delivery of possession and was possessing the same illegally. The defendants accordingly prayed for dismissal of the suit.

5. The learned Court of the Civil Judge, Goalpara, after completion of the pleadings had framed the following issues:-

           "(i)         whether there is a cause of action for this suit?

           (ii)         Whether the suit is bad for mis joinder and non joinder of necessary
           party?

           (iii)        Whether according to IAY programme, Government of Assam has

allotted a house for construction on the suit land for the plaintiff. Accordingly, IAY house has been constructed over the suit land for which the value of the suit land has been increased and due to said enhancement of value of the suit land and the defendants out of greed have dispossessed the plaintiff from the suit land on the Page No.# 4/14

month of April, 2008 and then by force they have occupied the said house allotted to the plaintiff along with the suit land?

(iv) Whether the defendant No. 1 Md. Banijuddin Seikh is the owner and possessor of the suit land and defendant No. 1 has purchased the land measuring 2 kathas 5 lechas covered by Khatian No. 33, Dag No. 70 from Md. Sabed Ali by registered sale deed No. 3127 dated 1970 and accordingly the defendant No. 1 took delivery of the possession of the same?

(v) Whether the plaintiff is entitled to get the decree as prayed for?

(vi) What other relief/reliefs the parties are entitled to get?"

6. The plaintiff adduced evidence through three numbers of witnesses including herself. On the other hand, the defendants adduced evidence through himself as DW 1. The learned Court, after hearing, had passed a judgment and order dated 17.03.2012 dismissed the suit by holding that the plaintiff is not entitled to any relief. The learned Court had held that there was cause of action in the suit and the same was bad for non-joinder and mis- joinder. The Issue No. 4 relating to sale and purchase of the suit land has been decided in favour of the defendant with the conclusion that the defendant No. 1 was able to establish this issue in his favour. As regards the Issue No. 3, it has been held that the plaintiff could not establish that the price of the suit land had escalated after a construction of the IAY house and accordingly the issue was decided partly in favour of both the parties. The plaintiff was held not to be entitled to any decree as a draft chitha was not sufficient for the plaintiff to vest her right to possess the suit land.

7. The aforesaid judgment and decree was the subject matter of challenge in Title

Appeal No. 2/2012 before the Court of the District Judge, Goalpara. The learned 1 st Appellate Court vide judgment dated 08.07.2013 and decree dated 19.07.2013 had reversed the findings of the Trial Court and the suit was partly decreed holding that the dispossession of the plaintiff was not done by following the due procedure of law and she is entitled for recovery of possession.

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8. The present appeal was admitted by this Court vide order dated 11.11.2013 on the following substantial question of law:-

" Whether the plaintiff is entitled to a decree for recovery of khas possession, when she has failed to prove her title over the suit land?"

9. I have heard Ms. R. Choudhury, learned counsel for the appellants whereas Shri J. Ahmed, learned counsel has represented the respondent. The records called for vide order dated 11.11.2013 have been duly examined.

10. Ms. Choudhury, learned counsel submits that the prayer in the plaint, inter alia includes the prayer for recovery of possession. Though the plaintiff had pleaded that she is in a possession of the plot of land, such possession is admitted to be a permissive possession. The duration of possession is disputed by the defendants in their written statements and even in the evidence, the plaintiff could not prove the said statement. It is submitted that possession cannot be a source of right to claim ownership. On the other hand, it is submitted that the ownership of the defendant No. 1 over the plot of land is established by the duly

registered Sale Deed of 1970. In that view of the matter, the judgment of the 1 st Appellate Court is wholly erroneous as the learned Court has traversed beyond the issues of the case.

11. In support of her submission, Ms. Choudhury, the learned counsel has relied upon the decision Sopanrao and Anr. Vs Syed Mehmood and Ors. reported in (2019) 7 SCC 76.

12. On the other hand, Shri Ahmed, learned counsel for the respondent/plaintiff by

supporting the judgment passed by the 1 st Appellate Court submits that by dint of possession over the suit property for a long period, the title has vested upon the said respondent and in this regard, he has also referred to the records of right pertaining to the land which contained Page No.# 6/14

the name of the plaintiff. The learned counsel otherwise also submits that there cannot be any forceful eviction of the plaintiff and the same can be done only the following due process of law. He accordingly submits that the direction for restoration of possession to the plaintiff

by the 1st Appellate Court is fully justified.

13. In support of his submission, the learned counsel has placed reliance upon the following case laws:-

(i) Krishna Ram Mahale (dead) by his LRs Appellant Vs Mrs. Shobha Venkat Rao reported in AIR 1989 SC 2097

(ii) Meghmala and Ors. Vs G. Narasimha Reddy and Ors. Reported in (2010) 8 SCC 383

14. Before venturing to answer the substantial question of law, it would be fruitful to remind ourselves the guidelines laid down by the Hon'ble Supreme Court in matters of deciding an appeal under Section 100 of the Code of Civil Procedure, 1908.

15. In a recent judgment reported in AIR 2020 SC 4321 (Nazir Mohamed Vs J. Kamala & Ors.), the Hon'ble Supreme Court has held as follows:- "37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a Page No.# 7/14

material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

16. In another judgment reported in AIR 2020 SC 1912 (C. Doddanarayana Reddy (Dead) By Lrs. And Others Vs. C. Jayarama Reddy (Dead) By Lrs. and Ors.) the Hon'ble Supreme Court, after considering a number of case laws has laid down as follows:-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf vs. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343 it was held that findings of the fact could not have been interfered within the second appeal. This Court held Page No.# 8/14

as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu vs. V. Kanniah Naidu, (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal vs. Arjuna Chetty (1996 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreci-ation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

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15. And again in Secy., Taliparamba Education Society vs. Moothedath Mallisseri Illath MM. (1997 4 SCC 484), this Court held: (SCC p. 486, para

5)

"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam vs. Savitkibai Sopan Gujar & Ors., (1999) 3 SCC 722 this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which 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 had 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 tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible Page No.# 10/14

evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari vs. Purushottam Tiwari, (2001) 3SCC 179 this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any Ms."

28. Recently in another judgment reported as State of Rajasthan vs. Shiv Dayal, (2019) 8 SCC 637 it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law Page No.# 11/14

and lastly, the decision is one which no Judge acting judicially could reasonably have reached, (see observation made by learned Judge Vivian BoseJ. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

17. As has been laid down, the adjudication of the second appeal under Section 100 of the CPC is confined to only a substantial question of law which is formulated at the time of admission of the appeal. As extracted above, the only question which regards to the answer is the entitlement of the plaintiff for recovery of khas possession when she had failed to prove her title over the suit land.

18. It is a settled principle of law that mutation in the records of right cannot be a proof of title. Admittedly, the plaintiff in the instant case had tried to assert her right only on the basis that her name was appearing in the records of right, that too in the Draft Chitha. However, as rightly formulated, the substantial question of law had already made it clear that the plaintiff had failed to prove her title over the suit land. On the contrary, the defendants could relate the title to the suit land through a registered Sale Deed of 1970 in favour of the defendant No. 1 which was neither challenged nor even questioned in the Court below. It is a settled law that entry of names in the records of right do not vest any ownership over the said land and is only indicative about the possession over the suit land. The Hon'ble Supreme Court is the case of Smt. Sawarni Vs. Smt. Inder Kaur & Ors. reported in (1996) 6SCC 223 has laid down as follows:-

7. Having heard the learned counsel for the parties and having scrutinised the judgment of the trial Judge as well as that of the lower appellate Court, we find sufficient force in all the contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had filed the suit claiming half interest for herself and claiming half interest in favour of the Page No.# 12/14

husband and sons of Roori and, therefore, the learned Additional District Judge was wholly in error to hold that the plaintiff could not have filed the suit in question. In view of rival stand of the parties the main question that arose for consideration was whether Roori was daughter of Gurbax Singh or Inder Kaur, defendant No. 5 was the daughter of same Gurbax Singh? The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate Court without focusing his attention to the weighty reasons advanced by the trial Court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional District Judge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate Court was not justified in not considering the material evidence as well as reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file do not prove Roori to be the daughter of Gurbax Singh. Further, the lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. That apart, as it would be seen, the learned trial Judge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter Page No.# 13/14

of Gurbax Singh and on perusal of the same came to the conclusion that it was Roori who was the second daughter of Gurbax Singh. The Additional District Judge has not even discussed anything about the said oral evidence and the reasonings advance by learned trial Judge in coming to the conclusion that it was Roori who was the second daughter of Gurbax Singh. Non-consid eration of the oral evidence adduced by the parties, by the lower appellate Court vitiates the ultimate conclusion on the question whether Roori was daughter of Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax Singh had executed a Will in respect of the entire estate in favour of plaintiff and Roori and after death of Gurdip Kaur a succession certificate had been issued by the Civil Court under the Indian Succession Act in favour of plaintiff and said Roori. The said succession certificate and rights flowing therefrom cannot be ignored. Admittedly no attempt has been made by defendant Nos. 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the Second Appeal in limine.

19. Another significant aspect of the case needs to be looked into. Though six numbers of issues were framed for determination, there is not a single issue which deals with the aspect of restoration of possession of the suit land to the plaintiff. Therefore, the learned

1st Appellate Court had acted beyond jurisdiction in making an observation regarding entitlement of the plaintiff for restoration of possession.

20. So far as the decision of Krishna Ram Mahale (supra) is concerned, the following is laid down:-

8........................It is well-settled law in this country that where a person is in Page No.# 14/14

settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law............................................

20.1 However, the same would not be applicable in the instant case inasmuch as there was no specific issue in this regard. In any case, Issue No 4 regarding purchase of the suit land by the defendant No. 1 by registered Sale Deed and possessing thereof being answered in favour of the defendants, there was no occasion for even assuming that at one stage the suit land was in possession of the plaintiff.

21. So far as the case of Meghmala (supra) is concerned the same relates to forceful dispossession by means fraud and the same is wholly unconnected with the issue at hand.

22. In view of the aforesaid facts and circumstances, the present appeal is allowed by answering the substantial question of law in favour of the appellant by holding that the plaintiff is not entitled to a decree of recovery of khas possession. Accordingly, the impugned judgment and decree dated 08.07.2013 passed by the learned District Judge, Goalpara in TA No. 2/2012 is hereby set aside and judgment and decree 17.03.2012 passed by the learned Civil Judge (Senior Division), Goalpara is affirmed.

JUDGE

Comparing Assistant