Gujarat High Court
Navinchandra Somchand, Died ... vs Heirs Of Somchand Bechardas on 7 July, 2022
Bench: A. P. Thaker
C/SA/117/1988 JUDGMENT DATED: 07/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 117 of 1988
With
CIVIL APPLICATION NO. 1 of 1988
In R/SECOND APPEAL NO. 117 of 1988
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NAVINCHANDRA SOMCHAND, DIED THROUGH HIS HEIRS & 1 other(s)
Versus
HEIRS OF SOMCHAND BECHARDAS & 6 other(s)
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Appearance:
for the Appellant(s) No. 2.1,2.2,2.3,2.4
MR MC BHATT(175) for the Appellant(s) No.
1,1.1,1.1.1,1.1.2,1.1.3,1.1.4,1.2,1.3,1.4,2
DECEASED LITIGANT for the Respondent(s) No. 1
MR H M JADEJA(2437) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,1.7
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 07/07/2022
ORAL JUDGMENT
1. The original defendants have filed the present
Second Appeal under Section 100 of the Code of
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Civil Procedure against the judgment and decree
passed by the 3rd Joint Civil Judge Junior Division,
Regular Civil Suit No.350 of 1978 which came to
be confirmed by the learned Assistant Judge,
Surat by his judgment and decree dated
28.03.1988 passed in Regular Civil Suit No.269
of 1984.
2. The appellants are original defendant and the
respondents are the original plaintiff before the
Court below. For the brevity and convenience,
the parties are referred to in this judgment as
per their status before the lower Courts i.e.
defendant and plaintiff.
3. The plaintiff has filed Regular Civil Suit No.350
of 1980 in the Court of Civil Judge Junior
Division, Surat inter alia for declaration that he
is the owner of the suit property as well as for
possession of the suit property and for
permanent injunction against the defendant. It
was contended by the plaintiff that the suit
property is self acquired property purchased
from his personal fund; that the defendants have
no right, title and interest in the suit property;
that the defendant nos.1 and 2 are the sons of
the plaintiff by the first wife; that on 15.06.1907,
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owner of the suit property Ambaram
Parshottamdas the ancestor of the plaintiff and
by Maniben, daughter of Parsottam Hirabhai also
the ancestor of plaintiff, mortgaged it with one
Vallabh Madhav.
3.1. It is also contended by the plaintiff that by
registered sale deed dated 16.12.1905, exhibit-
33, Amabaram Parsottamdas and Becharbhai
Parsottamdas, father and uncle of he plaintiff
respectively got back the suit property. That
thereafter, the property has been gifted to
Prabhu Haribhai son of Ambaram by his second
wife Maniben who sold it by sale deed dated
08.05.1926, exhibit-33, to the plaintiff.
3.2. It is also contended that the suit property was
never ancestral property and that the plaintiff
was permitting the defendants to stay in some
portion of it as the licensee and that the
defendants are harassing the plaintiff and
therefore the license was terminated by notice
dated 30.03.1977. On these grounds the plaintiff
filed the aforesaid suit for declaration, injunction
and for possession.
4. The defendants have filed their written statement
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at exhibit 10 and inter alia denied the entire case
of the plaintiff. They have contended that the suit
property is an ancestral property over which they
have got a right to stay. That in fact, the suit
property originally belonged to their ancestors
Parsottam Hirabhai. That the sale deed executed
earlier was bogus and it was executed only with
a view to defeat the creditors of Becharbhai
Parsottam. It was also contended that the
defendants have spent substantial amount in
repairing the suit property. On all these grounds,
they have prayed to dismiss the suit with cost.
5. On the basis of the pleadings of the parties, the
trial Court has framed issues at exhibit 12 to the
following effect:-
(i) Whether the plaintiff proves that he is full and
independent owner of the suit property, before
the nondh no.3181-3182 of ward no.6 in City of
Surat as alleged?
(ii) Whether the Court fees paid by the plaintiff is
proper?
(iii) Whether the defendants prove that the title
deeds as alleged by the plaintiff in respect of the
suit property are false, bogus and without
consideration in order to escape from the
creditors and the suit property is ancestral and
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they have got their shares in it as alleged?
(iv) Whether the defendants prove that they have
expanded amount for repairation, alteration and
extension of the suit property as alleged in the
para 4 and 5 of the W.S.?
(v) Whether there is any cause of action to file
this suit?
(vi) What relief the plaintiff is entitled to?
(vii) What order and decree?
6. It appears from the record that the learned trial
Court has decided the issue nos.1,2 and 5 in
affirmative and issue nos.3 and 4 in negative and
has ultimately passed the decree in favour of the
plaintiff and against the defendants.
7. Being aggrieved by this judgment and decree of
the trial Court, the defendants have preferred
Regular Civil Appeal No.269 of 1984 in the
District Court at Surat which came to be heard
by the learned Assistant Judge, Surat who by his
impugned judgment and decree dated
28.03.1988 dismissed the appeal with cost.
8. Being aggrieved and dissatisfied with both these
judgments of the Court below, the defendants
have preferred this appeal raising various
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substantial question of law, inter alia contending
that both the Courts below have not properly
appreciated the documentary evidences on
record. It is also contended that the lower Courts
ought to have held that in any case, since prior to
the year 1964, the defendants are in exclusive,
actual and physical possession of a portion of the
suit property and therefore they have become
owners by adverse possession.
8.1. It is also contended that both the Courts below
ought to have held that the documents at exhibit
29 to 34 were not genuine documents as since
the year 1901, the plaintiff and his predecessors
are in continuous possession of the of the suit
property premises. According to the defendant,
both the Courts below ought to have, in
alternative, held that defendants are the tenants
of the suit premises and they are protected
under the provisions of the Tenancy Act.
According to them, the suit property ought to
have been held as an ancestral property and the
right of the defendants to contradict the
contention of the documents ought to have been
believed by the Courts below. According to them,
the Courts below have failed to consider that the
plaintiff could not have purchased the property
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back because at that time, he was only 20 years
old and could not have his self acquired funds so
as to pay the sale consideration.
8.2. According to the defendants both the Courts
below have committed error in not considering
the facts that the defendants have repaired the
suit property and made additional construction
with the consent of the plaintiff. It is also
contended that both the Courts below have
misread and misinterpreted the Hindu Law. On
all these grounds, the defendants have prayed to
set aside the judgment and decree of the Courts
below and to allow the present appeal.
9. The present appeal has been admitted for the
following substantial questions of law by this
Court:-
(i) Whether the lower Courts have misread and
misinterpreted the documentary evidence on
record, particularly exhibit 29 to 34?
(ii) Whether the defendants have become the
owner of the suit property by adverse possession
since they are in occupation of the portion of the
suit premises prior to the year 1964?
(iii) Whether in view of the provisions of Section
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91 and 92 of the Evidence Act, it is open to the
defendants to lead oral evidence to contradict
the contents of the documents exhibit 29 to 34?
10. Heard learned advocate Mr.Robin Prasad for
the learned counsel Mr.M.C.Bhatt for the
appellants and learned advocate Mr.H.M.Jadeja
for the respondents at length. Perused the
material placed on record.
11. My findings, on the above questions of law,
for the reasons given below, are as under:-
(i) In negative.
(ii) In negative.
(iii) In negative.
REASONS
12. Since the facts and evidence on record are
interconnected in relation to all these questions
of law, to avoid repetition of the same, all are
discussed together.
13. Learned advocate Mr.Robin Prasad for the
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defendants has vehemently submitted the same
facts which are narrated in the appeal memo. He
has submitted that the heavy reliance placed
upon the documents at exhibit 29 to 34 by both
the Courts below are not proper. He has
submitted that the suit property is an ancestral
property and in the said property, the appellant
defendants have equal right. It is also submitted
that since, there is a factual dispute regarding
the nature of property, the defendants have every
right to lead evidence to contradict the averment
made in the document at exhibit 29 to 34. He has
submitted that the property cannot be treated as
a personal property of the plaintiff and
considering the facts that the defendants were
residing in the suit property prior to the year
1964 and they have incurred expenses for
repairing and making alterations, both the
Courts below ought to have considered the
property as an ancestral property. He has also
submitted that even if it is, for the sake of
arguments, believed that the property is personal
property of the plaintiff, even in that case,
considering the conduct of the deceased plaintiff
and the factum of long possession of the
defendants, the possession of the defendant
ought to have been considered as an adverse
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possession. He has submitted that both the
Courts below have committed serious error of
law in appreciating the evidence on record and
therefore, the questions raised in this Second
Appeal needs to be answered in favour of the
defendants and the suit of the plaintiff deserves
to be dismissed. He has prayed to allow the
present Second Appeal.
14. Per contra, learned advocate Mr.H.M.Jadeja
for the respondent plaintiff has vehemently
submitted that in the present case, both the
Courts below have concurrently held, on facts,
that the property was a personal property of the
plaintiff and therefore these findings of facts
need not be interfered with by this Court in
Second Appeal. He has also submitted that the
findings regarding the nature of the property
being a personal property by both the Courts
below is proper one. He has also submitted that
in the present case, the sale deed executed in
favour of the plaintiff has not been challenged by
the defendants/ appellants. He has also
submitted that finding of the facts and the
ultimate conclusion reached by both the Courts
below are in consonance with the evidence on
record and therefore this Court may not interfere
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with them. He has prayed to dismiss the present
Second Appeal accordingly.
15. As one of the substantial questions of law is
pertaining to interpretation of Section 91 and 92
of the Evidence Act. Therefore, Section 91 and
92 of the Evidence Act needs to be reproduced
which are as under:-
"91. Evidence of terms of contracts, grants and
other dispositions of property reduced to form
of documents.--When the terms of a contract,
or of a 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 evidence1 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.--When the
terms of a contract, or of a 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
evidence2 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
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contained." Exception 1.--When a public officer
is required by law to be appointed in writing,
and when it is shown that any particular person
has acted as such officer, the writing by which
he is appointed need not be proved. Exception
2.--Wills 2[admitted to probate in 3[India]] may
be proved by the probate. Explanation 1.--This
section applies equally to cases in which the
contracts, grants or dispositions of property
referred to are contained in one document, and
to cases in which they are contained in more
documents than one. Explanation. 2.--Where
there are more originals than one, one original
only need be proved. Explanation 3.--The
statement, in any document whatever, of a fact
other than the facts referred to in this section,
shall not preclude the admission of oral
evidence as to the same fact.
92. Exclusion of evidence of oral agreement.--
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: Proviso
(1) .--Any fact may be proved which would
invalidate any document, or which would entitle
any person to any decree or order relating
thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any
contracting party, 1[want or failure] of
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consideration, or mistake in fact or law: (1).--
Any fact may be proved which would invalidate
any document, or which would entitle any
person to any decree or order relating thereto;
such as fraud, intimidation, illegality, want of
due execution, want of capacity in any
contracting party, 3[want or failure] of
consideration, or mistake in fact or law\:"
Proviso (2).--The existence of any separate oral
agreement as to any matter on which a
document is silent, and which is not
inconsistent with its terms, may be proved. In
considering whether or not this proviso applies,
the Court shall have regard to the degree of
formality of the document: Proviso (3).--The
existence of any separate oral agreement,
constituting a condition precedent to the
attaching of any obligation under any such
contract, grant or disposition of property, may
be proved: Proviso (4).--The existence of any
distinct subsequent oral agreement to rescind
or modify any such contract, grant or
disposition of property, may be proved, except
in cases in which such contract, grant or
disposition of property is by law required to be
in writing, or has been registered according to
the law in force for the time being as to the
registration of documents: Proviso (5).--Any
usage or custom by which incidents not
expressly mentioned in any contract are usually
annexed to contracts of that description, may
be proved: Provided that the annexing of such
incident would not be repugnant to, or
inconsistent with, the express terms of the
contract: Proviso (6).--Any fact may be proved
which shows in what manner the language of a
document is related to existing facts.
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16. Now, in view of the aforesaid provisions of
Section 91 of the Evidence Act, it appears that it
relates to lead evidence of terms of contract,
grants and other disposition of properties, which
are reduced to form of documents. This Section
merely forbids proving the contents of writing
otherwise than by writing itself. Under this
Section, when the terms of contract, grant, or
any disposition of any property have been
reduced to form the document; or when any
matter is required by law to be reduced to form
of a document, then the document itself or
secondary evidence of its contents, must be put
in the evidence. This Section deals with the
exclusiveness of documentary evidence.
17. Now, so far as the Section 92 of the
Evidence Act is concerned, it deals with the
conclusiveness of the documentary evidence. As
per the provisions to Section 92, there are
certain explanations carved out wherein though
the document itself has been put in the evidence,
oral evidence regarding its contents can be
offered, or accepted. The six exceptions as
carved out in Section 92 of the Evidence Act, can
be enumerated as under:-
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"(1) Any fact which would (i) invalidate any
document, or (ii) entitle any person to any
decree or order relating thereto may be proved,
such as fraud, intimidation, illegality, failure of
consideration, mistake in fact or law.
(2) Any separate oral agreement (i) as to any
matter on which the document is silent, and (ii)
which is not inconsistent with its terms, may be
proved.
(3) Any separate oral agreement, constituting a
condition precedent to the attacking of any
obligation under the document, may be proved.
(4) Any subsequent oral agreement to rescind
or modify any such contract, grant, or
disposition of property, may be proved, except
when such contract or grant (i) is required to
be in writing, or (ii) has been registered.
(5) Any usage or custom by which incidents not
expressly mentioned in any contract are usually
annexed to such contracts, may be proved if
they are not repugnant to, or inconsistent with,
its express terms.
(6) Any fact which shows in what manner the
language of the document is related to existing
un facts, may be proved."
18. At this juncture, it is pertinent to note that
the Supreme Court in the case of Bai Hiradevi v/s
Official assignee of Bombay, AIR 1958 SC 448
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has pointed out the principles underlining
Section 91 and the difference between Section
91 and 92 of the Evidence Act. It was observed
therein as under:
"Section 91 is based on what is sometimes
described as the "best evidence rule". The
best evidence about the contents of a
document is the document itself and it is
the production of the document that is
required by Section 91 in proof of its
contents. It is after the document has
been produced to prove its terms under
Section 91 that the provisions of Section
92 come into operation for the purpose of
excluding evidence of any oral agreement
or statement, for the purpose of
contradicting, varying, adding to or
subtracting from its terms. Sections 91
and 92 in effect supplement each other.
Section 91 would be frustrated without
the aid of Section 92 and Section 92
would be inoperative without the aid of
Section 91. The two sections, however,
differ in some material particulars.
Section 91 applies to all documents,
whether they purport to dispose of rights
or not, whereas Section 92 applies to
documents which dispose of property.
Section 91 applies to documents which
are both bilateral and unilateral, unlike
Section 92 the application of which is
confined only to bilateral documents.
Section 91 lays down the rule of universal
application and is not confined to the
executant or executants of the documents.
Section 92 on the other hand, applies only
between the parties to the instrument or
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their representatives in interest"
19. Now, considering the provisions of Evidence
Act coupled with the material placed on record,
it clearly transpires that the documents produced
in this matter from exhibit 29 to 34 are
documents relating to disposition of immovable
property. There is no facts curved out by the
defendants to suggest that their defendant falls
under any of the exception of Section 92 of the
Evidence Act.
20. Exhibits 29 to 34 are as under:-
(1) Exhibit 34 dated 15.06.1901-Mortgage deed.
(2) Exhibit 33 dated 16.12.1905- sale deed.
(3) Exhibit 29 dated 08.01.1920- sale deed in
favour of the plaintiff for half portion.
(4) Exhibit 30 dated 27.01.1920-sale deed in
favour of the plaintiff for other half of the
property.
(5) Exhibit 31 dated 26.01.1925-Gift deed in
favour of the Prabhu Hariram.
21. The defendants have raised one of the plea
regarding them becoming owner of the property
by adverse possession as well as on the facts that
they have spend amount for repairing and
alterations of the property in question. It is
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pertinent to note that the defendants have raised
to inconsistently. At one point of time, they are
claiming the ownership over the property and in
alternative they are claiming that they are
become the owner of the property due to adverse
possession. It is pertinent to note that on one
point of time they have also stated that with the
consent of the plaintiff they have spent for
repairing and making addition and alteration in
the suit property. Thus, if the defendants have
carried out any repair work or alteration or
addition with the consent of the plaintiff, then the
possession of the defendants could not be said to
be an adverse possession against the plaintiff
who is the owner of the property. On perusal of
the evidence on record, it clearly transpires that
the defendants were permitted to use the
property by the deceased plaintiff as the
defendants are his sons. Under these
circumstances, the plea of the adverse
possession is raised by the defendants against
their own father cannot be accepted. Therefore,
in view of the facts and circumstances of this
case, it clearly appears that the point of
defendants become owner of the suit property by
virtue of the adverse possession cannot be
accepted.
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22. On perusal of the evidence on record, it
transpires that the plaintiff has examined himself
at exhibit 21 and has also produced documentary
evidence in support of his say that the suit
property has been purchased by him and it was
not ancestral property. Exhibit 34 is the deed
executed by Ambaram Parsottamdas and by Mani
Parsottam in favour of one Vallabhbhai
Madhavbhai, it is a mortgage deed by which the
suit property was mortgaged to the said
Vallabhbhai Madhavbhai on 15.06.1901 and by
the said deed, the suit property was mortgaged
for Rs.351/-. It reveals from exhibit 34 that it was
came to be mortgaged by uncle of the plaintiff
and Mani Parsottamdas. From exhibit 33, which
is dated 16.12.1905 and which was executed by
Ambaram Parsottamdas and Bechar Parsottam in
favour of Jivan Hargovandas, whereby the suit
property was sold for Rs.599/-, out of which
Rs.451/- was given to Bhula Madhav to redeem
the property, who was guardian of Chhagan
Vallabh and Ravia Vallabh and Rs.144/- was
taken by both of them and it was sold to Jivan
Hargovan, who is the brother-in-law of the
executors. Thus, from the lease deed, it reveals
that it was executed in the year 1905. According
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to the defendants these were not sale deed but
only a mortgage deed, however, the defendants
have not challenged both these documents in any
manner.
23. It is pertinent to note that regarding the
other documents, both the Courts below have
consistently held in favour of the plaintiff,
holding him, the owner of the property and
considering the facts that when the plaintiff got
it purchased the defendants who were his son
were never born. On perusal of the entire
evidence and the reasonings given by both the
Courts below, passing the impugned decree in
favour of the plaintiff and against the defendant,
it clearly transpires that they have not committed
any error of facts and law in appreciating the
documentary evidence in question. There is a
concurrent finding of facts regarding the nature
of the property and the right of the plaintiff to
get the possession thereof from his own son.
24. Therefore, considering the facts and
circumstances of the case, coupled with the legal
questions discussed herein above, it clearly
transpires that the reasonings and the
observations of both the Courts below are
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sustainable in the eyes of law. Therefore,
considering the facts and circumstances of the
case, I have decided the questions of law in
negative accordingly.
25. In view of the above, I pass the following
order in the interest of justice.
ORDER
This Second Appeal is dismissed.
The parties are directed to bear the respective
cost of this Second Appeal.
Decree be drawn accordingly in this Second
Appeal.
Along with the copy of the judgment and decree,
Records and Proceedings be sent back to the Trial
Court.
Sd/-
(DR. A. P. THAKER, J)
URIL RANA
