Amarendra Kumar Das and Others vs Ireshlal Das

N.S. Singh, J.—This is the Defendants-Appellants'' Second Appeal u/s 100 of the CPC from the judgment and decree dated 22.8.1989 and 28.8.1989 respectively passed by the learned Additional District Judge, Dharmanagar, North Tripura District, in Case No Title Appeal 10 of 1988 thereby affirming the judgment and decree of the learned Munsiff, North Tripura, Dharmanagar, passed in Title Suit No. 13 of 1984.

The facts of the case in a short compass are as follows:

Shri Ireshlal Das as the Plaintiff filed a suit as against the Defendants, the Appellants herein for a decree of permanent injunction restraining the Defendants-Appellants from disturbing the peaceful possession of the Plaintiff Respondent over the suit land. According to the Plaintiff Respondent, he purchased the suit land from the Defendant-Appellant No. 1, Shri Amarendra Kumar Das by a registered deed of sale dated 26.12.1980 A.D. and since then he has been possessing the suit land. The f Defendant-Appellant Nos. 2 and 3 we the sons of the Defendant-Appellant No. 1 and the Defendant-Appellant No. 4 is the wife of the Defendant-Appellant No. 1. The further case of the Plaintiff-Respondent is that on 3.6.1984 A.D. at about 8 O''clock in the morning when the Plaintiff-Respondent along with his people were cultivating inside the suit land, the Defendants-Appellant No. 1, 2 and 3 came there with lathi etc. and threatened the Plaintiff-Respondent that he should leave the suit land immediately and he should never come again to the suit land otherwise the Defendants-Appellants will kill the Plaintiff-Respondent. And according to the Plaintiff-Respondent, the Defendants-Appellants threatened him saying that they will by force dispossess the Plaintiff-Respondent and if the Plaintiff-Respondent does not pay any heed to their threat then they will kill the Plaintiff-Respondent and bury him in the suit land, Hearing their voice the adjacent people came there for saving the, life of the Plaintiff-Respondent and his people and then and there the Defendants-Appellants left the place by threatening the Plaintiff-Respondent that they will dispossess him by force from the suit land. Hence, the suit.

The Defendants-Appellants contested the suit by filing written statement and contended, inter-alia, that the suit land was not sold actually, but it was mortgaged to the Plaintiff-Respondent as the Defendant-Appellant No. 1 was in need of money for the marriage of his daughter. According to the Defendants-Appellants, the Plaintiff-Respondent is the cousin brother of the Defendant-Appellant No. 1 and as such the suit land was given in mortgage by a sale deed in good faith and belief. It Is also the case of the Defendants Appellants that a verbal agreement was there; amongst the parties to the extent that the Defendant-Appellant No. 1 will possess the suit land and cultivate it and in lieu of his money, the Defendant-Appellant No. 1 will give four (sic) of paddy per kani per year to the Plaintiff-Respondent and if the mortgaged money is returned within the stipulated period, then the suit land will be returned to the Defendant-Appellant No. 1.

On the basis of the pleadings of both the parties, the learned trial Court framed as many as six issues for just determination the real points in controversy between the parties of the case. Those issues are quoted below:

(i) Whether this suit is maintainable in its present form?

(ii) Whether the Plaintiff has any cause of action in the suit?

(iii) Whether the Plaintiff has right, title, interest and possession over the suit land?

(iv) Whether the Plaintiff was in possession at tile time of institution of suit

(v) Whether the Plaintiff is entitled to get the decree as prayed for? (vi) What relief/reliefs the Plaintiffs are entitled to get?

After hearing the parties, the learned trial Court decree the suit and held that the Plaintiff-Respondent is the owner and the possessor of the suit land and ordered that the Defendant-Appellant Nos. 1, 2 and 3 are restrained to disturb the peaceful possession of the Plaintiff-Respondent over the suit land.

Being dissatisfied with the judgment and decreed passed by the learned trial Court in Title Suit No. 13 of 1984, the Defendants-Appellants preferred an appeal under Case No. Title Appeal 10 of 1988 in the Court of the learned Additional District Judge, Dharmanagar, North Tripura District. The learned first appellate Court after hearing the panics affirmed the judgment and decree of the learned trial Court under the impugned judgment and decree. Being aggrieved by the impugned judgment and decree, parsed by the learned Additional District Judge, Dharmanagar in Case No. Title Appeal 10 of 1988, the Defendants-Appellants preferred this Second Appeal.

Mr. A.M. Lodh, the learned senior counsel for the Defendants-Appellants submits that the learned first appellate Court decided and gave a finding to the effect that the Plaintiff-Respondent is the owner and the possessor of the suit land without framing a specific issue of it. It is also submitted by Mr. Lodh that there is no specific issue as to whether the said transaction between the Plaintiff-Respondent and the Defendant-Appellant No. 1 is a sale or a mortgage. Mr. Lodh went on to contend that the important evidence of P.W. No. 3, which support the case of the Defendants-Appellants, were not at all examined or considered by the learned trial court as well as by the learned first appellate court while passing the impugned judgments and decrees. Relying upon the evidence of P.W.3, Mr. Lodh submitted that there was a meeting for settlement of dispute between the parties, whereby the Plaintiff-Respondent demanding the suit land, and the Defendant-Appellant No. 1 urging that he will give the paddy as agreed. It is also submitted by Mr. Lodh that the possession of the suit land was not delivered or given to the Plaintiff-Respondent by the Defendant-Appellant No. 1, though he sold the suit land to the Plaintiff-Respondent. This fact is supported by the evidence of P.W.3. and this important aspect was not at all considered by the learned first appellate court and as such the finding of the learned first appellate court is perverse and the same is liable to be set aside, Mr. Lodh contended.

In reply Mr. S. Chakraborty, the learned Counsel for the Plaintiff-Respondent s submitted that from the evidence of P.W.3, it is established that the Defendant-Appellant No. 1 did not plough the suit land and the Plaintiff-Respondent always ploughed the suit land. Mr. Chakraborty further contended that from the evidence of P.W.3, it is also established that there were land measuring 76 satak but no cultivation was done there. The evidence of P.W.3 established only the fact that the Plaintiff-Respondent demanded the suit land, but the Defendant-Appellant No. 1 urged that he will give the paddy as agreed, Mr. Chakraborty contended.

A counter reply has been advanced by Mr. Lodh, the learned senior counsel for the Defendants-Appellants as this stage that a meeting was held in which the Plaintiff-Respondent demanded the possession of the suit land and as such this prima-facie shows that the Plaintiff-Respondent was never in possession of the suit land.

On the other hand, Mr. Chakraborty, the learned Counsel for the Plaintiff-Respondent submitted that the learned trial Court examined the material evidence on record and gave a finding for possession of the suit land by holding that the D.W.2 did not dispose (sic) that the Defendant-Appellant No. 1 is possessing the suit land and there is also no evidence for establishing the factum of possession of the suit land by the Defendants-Appellants, From the evidence of P.Ws. 1, 2, 3 and 4 the learned trial court as well as the learned first appellate court found that the Plaintiff-Respondent is possessing the suit land since the purchase of the suit land by him from the Defendant-Appellant No. 1.

Now, this Court is to examine as to whether the learned first appellate court passed the impugned judgment arid decree illegally or with material irregularity or not and whether the issues as framed in the suit were maintainable in view of the payer made in the plaint.

It is well settled that the findings without proper pleadings and necessary issues are not binding on the parties to suit. This principle of law finds its place in a case between Mohammad Mustafa Vs. Sri Abu Bakar and Others, It is also established principle of law that the finding which is not based on pleading or evidence is not justified and should be declared as illegal. This principle of law finds its place in a landmark judgment of the Apex Court, rendered in a case between Deoki Nandan Vs. Murlidhar,

Now, coming to the case in hand, there is a pleading as well as the evidence on record of both the parties that "the Defendant No. 1 sold the suit land to the Plaintiff as per pleadings of the Plaintiff and whereas "the said transaction" is not a sale deed, but a mortgage deed and that there was an agreement (verbal) between the parties that the Defendant-Appellant No. 1 shall resume the land as per pleading of the Defendants in the instant case. Both the parties led extensive evidence on the basis of their pleadings and as such in my considered view, the findings of both the learned courts below with regard to the matter relating to the factum of either sale or mortgage could be arrived by the learned courts below without framing a specific issue in this regard. I hereby made this observation relying upon the decision of the Apex Court rendered in Deoki Nandan Appellant v. Murlidhar and Ors. Respondents (supra). Therefore the contention of Mr. Lodh on this aspect has no force.

The next point to be considered is as to whether for suit for a decree of permanent injunction restraining the present Defendants-Appellants from entering into the suit land is maintainable or not a view of the fact Unit the Plaintiff Respondent did not make any relief for declaration of title in the suit. It is well settled by the Apex Court in a case between Corporation of the City of Bangalore Vs. M. Papaiah and Another, that though the relief of declaration of title not specifically mentioned in relief portion of the plaint, the suit for decree of perpetural injunction restraining the Defendants from, interfering with the possession of the Plaintiff could not be dismissed on that ground. Therefore, I can not agree with the submission of Mr. Lodh on this point of law.

Now, according to the Defendants-Appellants there was a verbal agreement that the Defendant-Appellant No. 1 will possess the suit land and cultivate the same and in lieu of his money, he will give four "pali" of paddy per kani per year to the Plaintiff-Respondent and if the mortgaged money is returned within the stipulated period then the suit land will be returned to the Defendants-Appellants. This is a specific pleading of the Defendants-Appellants. But nowhere in the pleadings of the Defendants-Appellants it is found that within what period the Defendant-Appellant No. 1 will return the mortgaged money to the Plaintiff-Respondent. Moreover, there is no evidence on record for establishing the fact that the Defendant-Appellant No. 1 had always been ready and willing to resume the mortgaged property and to perform such terms of the said verbal agreement which are to be performed by him. So, I am of the view that such specific performance pf in agreement which is also verbal can not be enforced in favour of the Defendant-Appellant No. 1 in view of the provisions of law laid down u/s 16 of the Specific Relief Act, 1963.

Now, the point for determination which has been placed by Mr. Lodh before-this Court is whether the findings of the learned first appellate court with regard to the possession of the suit land is perverse, despite the existance of the admission of the P.W.3 with regard to the possession of the suit land by the Defendant-Appellant No. 1, From the evidence of P.W.3 it is found that a meeting was held and in the said meeting the Plaintiff-Respondent demanded the possession pf the land, but the Defendant-Appellant No. 1 claimed that he will give paddy as greed between themselves.

Now, another question arises whether this Court has jurisdiction to re-apprise or re-appreciate the evidence by exercising its power u/s 100 CPC for interfering with the concurrent finding of facts of both the learned courts below in this case. From the records, it has been revealed that there is a concurrent findings with regard to the possession of the suit land in favour of the Plaintiff-Respondent.

It is well settled that the High Court is not empowered to interfere with a finding of facts in Second Appeal on the ground of its being erroneous unless there is substantial error or defect in the procedure prescribed by law; which may have produced error or defect in the decision of the case upon merits. In a case between Deity Pattabhiramaswamy Appellant v. S. Hanymayya and Ors. Respondents reported in AIR 1959 SC 57, the Apex Court held that the learned Judge of the High Court had no jurisdiction to interfere in Second Appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant Evidence. Similarly, in the instant case, the learned first appellate court gave the findings with regard to the possession of the suit land in favour of the Plaintiff-Respondent by appreciating the relevant evidence on record.

In view of the above position, I Can not interfere with the said finding of facts of both the learned courts below as there is no substantial error or defect in the procedure prescribed by law in the impugned judgment and decree.

For the reason stated above, no case has been made out by the Defendants-Appellants to justify the interference of the concurrent findings of facts of both the learned courts below. In the result, this Second Appeal has no merit and the same stands dismissed. No costs.