Ghar Singh Tamang vs Tularam Damai

A.M. Bhattacharjee, J.—The suit giving rise to this second appeal before this Court, preceded by a first appeal before the learned District Judge, was instituted by the plaintiff-respondent against the defendant-appellant in the Court of the Civil Judge, West Sikkim at Gyalshing, for declaration of title and recovery of possession of the suit land on the allegation that the defendant encroached upon the suit land belonging'' to the plaintiff and planted cardamom plants thereon,

The learned trial Judge dismissed the suit on the finding that "the plaintiff has never had possessory right over the-suit-land and that the defendant has established his adverse possession, over the suit-land as the same has been in his possession for the last many years." On appeal, however, the learned District; Judge has reversed the judgment of the trial Court and has decreed the suit as according to him the evidence on record, clearly proved that the plaintiff was the owner of the suit land and that though the defendant was in possession of the suit land, the neither having pleaded nor having proved adverse possession for the requisite period, such possession could not ripen into any right or title to defeat plaintiff''s claim for title and possession.

I am afraid that the finding of the learned District Judge that "the evidence on record clearly proves that the plaintiff is the owner of plot No. 332 measuring 5.32 acres as per revenue record" is clearly erroneous and is based on no evidence to that effect, and" will, therefore, irresistibly warrant our interference with the said finding. I have reminded myself about the grave concern expressed by the Supreme Court in Deity Pattabhiramaswamy v. S. Hanymayya AIR 1959 SC 57 at p. 59 to the effect that "notwithstanding clear and Authoritative pronouncement on the scope'' of Section 100, CPC some learned Judges of the High Court are disposing of second appeals as if they were first appeals"; but I have not doubt that we shall not be acting as a first appellate Court in interfering with the aforesaid finding in this case, because, as already stated, the said finding, is not based on any evidence and that would beyond doubt justify and necessitate our interference in this case according to the "clear and authoritative pronouncements" of the Supreme Court in; Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, and the aforesaid Deity Pattabhiramaswamy''s case. In the Meenakshi, Mills case, the Supreme Court while considering : similar question u/s 66 of the Income Tax Act, 1922, has elaborately reviewed the case-law u/s 100 of the CPC and has held (at 65) that, a finding on a question of fact is open to attack in second, appeal as, erroneous in law when there is no evidence to support it. That apart, a finding as to ownership is , not a pure question, of fact when such a finding is to be based on legal inference to be drawn, from, the facts proved or admitted. As I shall presently show, nothing has been proved or admitted in this case from which any inference in law can be drawn as, to the, ownership of the plaintiff and the, learned District Judge made an error of law in coming to such a finding and his finding is, therefore, "contrary to law" within the meaning, of Section, 100, Civil Procedure Code.

I have gone through the deposition of the witnesses and have found that none of the five witnesses for the plaintiff, including the plaintiff; himself, figuring as P. W. 2 ever; whispered that the suit-land belonged to the plaintiff or that he ever did or could possess it but, on the other hand, it has been stated by all the witnesses that the suit-land was all along in the possession of the defendant. Reference in particular'' may be made to the plaintiff''s own evidence as P. W, 2 where he stated that, he did not know the plot number of, the suit land and that so far he had never "enjoyed" the disputed cardamom field and that the defendant had been "enjoying it so far.

As already, noted, the learned District Judge has found, the plaintiff to be owner of the; suit-land "as per revenue, record" and has further observed; that "this, fact is not disputed". But no copy of any such revenue-record, is to be found in the record of this case and, there is nothing before us to show what, was the nature and contents of any such record, if there was any and what presumption, if any, can arise therefrom and what weight, if any, can be attached thereto. It is no, doubt true that in paragraph 1 of the plaint the plaintiff has; Alleged that the suit-land bears plot No. 332 and that the defendant in paragraph No. 1 of his written statement has, admitted, this allegation. But there being no allegation in paragraph 1 of in plaint to the effect that the suit-plot stands recorded in the name of the plaintiff in the relevant revenue-record, it cannot be said that it is admitted or it "is not disputed" by the defendant that the "suit plot was recorded in" the name of the plaintiff "as per revenue-record". It is also true that an Amin was deputed by the trial Court to ascertain whether any boundary mark existed on the suit-land and that in the report of the Amin it was mentioned that the suit plot was recorded; in the -name of the plaintiff. Assuming that the import was otherwise-admissible in evidence, in accordance with the provisions of Order XXVI, Rule 10, Civil Procedure Code, even though the Amin was not examined and his report was not formally made an exhibit, the rending of the Amin as to the suit-plot being recorded in the name of any party was not and could not-be within the terms of the Commission and subject-matter of a local investigation and cannot be taken into consideration as a piece of evidence therefor. A revenue-record of such a nature is a public document and under the provisions of Section 65, Evidence Act, the only secondary evidence admissible to prove the same is a certified copy and no other evidence. The finding of the Amin, therefore, that the suit-plot was recorded in the name of the plain tiff is no evidence to prove such Record. It is also true that in that paragraph 1 of the plaint, the plaintiff claimed ownership of the suit-plot as his ancestral property and the contents of this paragraph 1 of the plaint having been admitted by the defendant in paragraph 1 of his written statement probably led the learned District Judge to hold that the title of the plaintiff was clearly proved arid was "not disputed". If there was such an admission, it would not be open to us in this second appeal to consider , whether the learned District Judge should have or should not have relied. On such admission in pleading, knowing them, as he must, to be generally drafted to ordinary people without any knowledge in law. But I am afraid that the learned District Judge made an error of law, in reading the written statement in the way he did and in dissecting the alleged admission out of context. It is settled law that admission in pleading must be read as a whole and in its proper context and when so read it will appear that the defendant could not regarded to have made by any admission of the plaintiff''s title, in respect of the disputed cardamom field as his definite case in paragraph 2 of the written statement was that he got the disputed cardamom filed as his ancestral property on partition and the plaintiff, who has a separate and adjacent cardamom field, was wrongly claiming the disputed cardamom field as his own. I am of opinion that, reading the, written statement as one should in accordance with the well-established principles of law, it cannot be said that the defendant made any such admission as the learned District Judge thought him to have made.

My conclusion, therefore, is that the finding of the learned District Judge as to the title of the plaintiff in respect of the suit and is based on no evidence and is, therefore, "contrary to law" within the meaning of Section 100 of CPC and must be reversed, if there was any evidence to support the finding of title in favour of the plaintiff, I would not have, as I could not have, considered the question of the adequacy or sufficiency of such evidence in this, second appeal; but there being no evidence to that effect, the judgment of the learned District Judge must" be set aside.

The appeal is therefore, allowed and the suit is dismissed on the ground that the plaintiff not having been able to prove any" title or prior possession cannot maintain the suit. The judgment of the learned District Judge decreeing the suit is set aside and the judgment of the learned trial Judge dismissing the suit is restored. It is, however, made clear that this shall not mean confirmation of the finding of the learned trial Judge as to the adverse possession of the defendant in respect of the suit-land as that, apart from being not pleaded by the defendant, does not fall for consideration in this appeal. There will, however, be no order as to costs.

Man Mohan Singh Gujral, C.J.

I agree