Jaymati Talukdar and Others vs Basanti Talukdar and Others

D. Biswas, J.—This appeal has been directed against the judgment and decree dated 2.6.90 and 26.6.90 passed respectively by the leaned Assistant District Judge, Barpeta in Tide Appeal No. 35 of 1988 whereby the learned Judge dismissed the appeal and affirmed the judgment and decree dated 20.9.88 passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 172 of 1984.

Being aggrieved with the aforesaid judgment of the first appellate Court, the Defendants have preferred this second appeal on various grounds set forth in the memorandum.

This Court while admitting the appeal for hearing has formulated the following substantial questions of law:

i. Whether the Plaintiff No. 1 had subsisting title to transfer the land in favour of Plaintiff Nos. 2, 3 and 4 in view of prior transfer of the land by his father in favour of Defendant No. 1?

Whether the suit was barred by limitation?

By the same order dated 5.9.90, the execution of the judgment and decree was also stayed until further orders.

Before we deal with the above questions, it is necessary to record a few words about the scope and ambit of Section 100 of the Code of Civil Procedure. A second appeal to the High Court from a decree passed in appeal will lift for adjudication only when a substantial question of law is involved. The very purpose underlying the provisions of Section 100 of the CPC is that the questions of facts must rest after they have been decided by the Court of first appeal. There will remain no further scope for admission of second appeal by the High Court on such questions of facts. The above position before and after amendment of 1976 cannot, however, be construed too narrowly. The views of the Supreme Court and other High Courts would show that the Courts will have to be alive to the cause of justice and, for that purpose, may interfere with the finding of fact by the first appellate Court as well as the trial Court on several grounds. The Madras High Court in a recent judgment in Rajiah Nadar, Appellant v. Manonmani Ammal Respondent AIR 1999 Mad 213 dealt with the scope for interference with the finding of fact in a second appeal. The relevant observation of Madras High Court is quoted below for better understanding of the powers of the Court in Second Appeal:

The scope of interference on findings of fact in a Second Appeal and the rulings on the said issue are as old as the CPC and in the words of the Supreme Court R. Ramachandran Ayyar Vs. Ramalingam Chettiar, it is an old familiar question. The jurisdiction of the High Court u/s 100 CPC is very peculiar. It is neither as wide as u/s 96 (Appeals) nor as restricted as u/s 115, CPC (Revision).

The term ''question of law'' and ''substantial question of law'' as occurring in Section 100, CPC both prior to and after 1976 Amendment has always been understood and interpreted as to include questions of fact as concluded by the Courts below which would be vitiated if based on no evidence or on perverted appreciation of evidence resulting in conclusions which could not have been arrived at by any reasonable person or by completely ignoring the material evidence on record. The bulk of the Second Appeal litigants, belong to the middle class and poor sections of the society and it has to be borne in mind that a Second Appeal for all practical purposes would be the final stage of the litigation and interference by or even admission of any appeal by the Supreme Court as against the judgments of the High Court, is conceivable only in a very few cases. As such the Supreme Court as well as the various High Courts have always been alive to the situation that in the interest of justice it would be necessary not to ignore improper appreciation of evidence or to turn a blind eye to glaring misreading of the evidence by the Subordinate Courts. In fact in the very judgments relied upon by learned Counsel for the Respondent such as reported in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, it has been held that if a finding of fact had been recorded by the appellate Court without any evidence then such a finding can be successfully challenged in Second Appeal and if there were circumstances of compelling reasons warranting such interference. Therefore, the fact remains that a question of fact is not a taboo for Section 100, CPC It is also well settled that an appellate Court cannot interfere and set aside the findings of the trial Court which had the advantage of watching the demeanour of the witnesses, unless there are very strong and compelling reasons to reverse the judgment.

In the present case as I had already pointed out the only issue which arises for consideration is the proof of the execution of Ex. A.1 agreement and that mere is absolutely no reference in the judgment of the appellate Court to the evidence of the parties pertaining to the execution of the document, nor about the vital contradictions as between the evidence of P.W. 1 and P.W. 2. In a suit which seeks to deprive a person of his rights over his property merely on the basis of an agreement, even if the said agreement had been proved, the law requires (Section 20, of the Specific Relief Act) the courts to be ''guided by judicial principles and capable of corrections by a Court of appeal"

When the appellate Court had failed to consider vital aspects of the evidence even as regards the proof of the execution of the agreement, this Court has to step in to correct the error.

Keeping in mind that a Court has to judge itself by judicial principles in order to correct a wrong committed by the Courts below subject, of course, within the parameter of Section 100 Code Of Civil Procedure, the matter at hand is proposed to be disposed of. Before the questions formulated in this appeal are taken up for consideration, I would like first to clear the facts which eventually drove the parties to come to this Court.

The disputed land measuring 4B-4K-12L pertaining to Dag No. 222 of Patta No. 208 of village Sariakuchi was owned and possessed by Plaintiff No. 1. The Plaintiff No. 1 sold 4 bighas of land to the Plaintiff No. 2 and 3 by a registered sale deed executed on 28.11.84 for a consideration of Rs. 6,000/- and the remaining 4K-16L to the Plaintiff No. 4 by another deed of sale executed on the same day for a consideration of Rs. 1,500/-. Thus, the Plaintiff Nos. 2, 3 and 4 became absolute owners by purchase. On 13.11.84, the Defendants threatened that they would dispossess the Plaintiffs since their names were mutated in the revenue records in respect of the suit land. After obtaining certified copy of the chitha, the Plaintiffs came to know that the Defendants surreptitiously got their names mutated in respect of the suit land. This prompted the Plaintiffs to institute Title Suit No. 172 of 1984 in the Court of the learned Munsiff at Barpeta.

The Defendants, however, denying the averments made by the Plaintiffs pleaded that the land was transferred to the Defendant No. 1 by the father of the Plaintiff No. 1 before conversion to periodic patta. It was about 40 years back (approximately). Their predecessor i.e. the Defendant No. 1, since deceased, also paid the value thereof and possessed the land since then. In 1978, periodic patta was issued in favour of the Plaintiff No. 1. On 3.10.78, the Plaintiff No. 1 transferred the land in favour of the Defendant No. 1 by endorsement in the chitha and, on the strength of the said endorsement, the Defendant No. 1 got his name mutated in the revenue records on 17.1.81.

The learned trial Court framed as many as 9 (nine) issues and recorded the evidence if 8 witnesses altogether produced by both the parties. Considering the evidence on record, the trial Court declared the right, title and interest of the Plaintiffs over the suit land and confirmed their possession. The Defendants were also prohibited from interferring with the possession of the Plaintiffs. The revenue authority was directed to cancel the mutation allowed in favour of the Defendant. The learned first appellate Court affirmed the aforesaid judgment and decree by its judgment dated 2nd June, 1990. Both the Courts below rendered concurrent findings in respect of the title, possession and the question of limitation.

So far the question of title is concerned, it would appear that both the Courts below have in details examined the evidentiary value of Ext. Ka and Kha and ultimately came to the conclusion that the predecessor-in-interest of the Defendants acquired no title to the suit land by virtue of Ext. Ka and Kha. The Defendants claimed that their predecessor-in-interest purchased the said land from the father of the Plaintiff No. 1. It was annual patta land. The father of the Plaintiff, therefore, had no transferable right over the suit land. The Defendant-Appellants evinced that the father of the Plaintiff No. 1 executed a deed of transfer of his favour but no such deed could be produced before the Courts below. Oral evidence adduced in order to show transfer of title have also been rejected by the Courts below. The evidence on record was also not sufficient enough to conclude payment of consideration. I do not find any impropriety or illegality in the aforesaid findings of the Courts below regarding sale of the disputed land by the father of the Plaintiff No. 1.

The Defendant-Appellants case primarily rest on two documents, Ext. Ka and Kha. Ext. Ka is an agreement executed by the Plaintiff No. 1 on 3.10.78 agreeing to cause mutation of the name of Defendant No. 1 in respect of the suit land for a consideration of Rs. 300/- Ext. Kha are two receipts issued on 9.10.78 and 13.10.78 showing receipt of payment of Rs. 300/- in two instalments.

Ext. Ka, the agreement although provides for mutation of Defendants name, such mutation on the" strength of Ext. Ka cannot be said to be a valid transfer of title. Mutation may lead to a presumption of title but is not the conclusive proof of title. The Courts below concurrently opined that no title could be said to have been conveyed on the basis of the aforesaid two documents. An agreement to sell by an endorsement in the chitha or by mutation of the name of Defendants are not in itself a process complete for transfer of title. The payment of alleged consideration of Rs. 300/- further requires execution and registration of a deed of sale. This has not been done in the instant case. After a careful consideration of the discussion rendered by the Courts below with reference to the said two documents, this Court finds no reason but to endorse the views of the Courts below that no title passed on the basis of Ext. Ka and Kha. The claim of title by the Plaintiff No. 1 and transfer thereof to Plaintiffs No. 2, 3 and 4 by duly executed registered deeds of sale became clouded because of the claim made by the Defendants. Since the Defendants failed to establish their title, the claim of the Plaintiffs over the suit land stands established.

There is no denial to the fact that the Plaintiff is the original pattadar. It is also an admitted fact that at the time of execution of the sale deeds by the Plaintiff No. 1, the land was in possession of the Plaintiffs No. 2, 3 and 4. The conversion of the annual patta to periodic patta in the name of the Plaintiff No. 1 also shows that it was he who was in possession of the suit land. The Defendants claim of possession is through Plaintiffs No. 2, and 4 as Adhiars. But the said Plaintiffs denied the claim of the Defendants and asserted that they were in possession previously on behalf of the Plaintiff No. 1 and, after purchase, on the strength of their own title. The evidence of RW.4 also shows that presently the land is in possession of the Plaintiffs Nos. 2, 3 and 4. The Courts below, in view of the evidence as above was, therefore, correct in holding that the Plaintiffs have been in exclusive possession of the suit land.

Shri H.N. Sarma, learned Counsel for the Appellant tried to make out the case u/s 53 A of the Transfer of Property Act. He has also relied upon a decision in Ranchhoddas Chhaganlal Appellant v. Devaji Sapdu Dorik and Ors. Respondents AIR 1977 SC 1517. In that judgment, the Supreme Court while dealing with the provisions of Section 53A of the T.P. Act observed that one of the limbs of part performance is that the transferee has in the part performance of the contract taken possession of the property. The most important consideration is the contract. The true principle of the operation of the acts seems to require that the acts in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged. The doctrine of part performance is a defence. It is a sword and not a shield.

In the instant case, as discussed above, the possession of the land has always been with the Plaintiffs. Even if we construe that Exts. Ka and Kha are documents of contract for transfer of title, the defence u/s 53A would not be available to the Defendant-Appellants as they were not in possession of the land. It is also pertinent to note here that the Plaintiff''s case was for confirmation of possession and this has been upheld by both the Courts below. In my considered opinion, the doctrine of part performance has no relevance to the case at hand. Shri H.N. Sarma, learned Counsel for the Appellant also argued that the Plaintiffs are not permitted to both approbate and reprobate. They are estopped from challenging the title mutation of the Defendants in view of the execution of Ext. Ka and Kha and endorsement given in the chitha.

In R.N. Gosain Vs. Yashpal Dhir, in para-10, the Supreme Court had held as follows:

Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ''a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'' See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. Scrutton LJ. According to Halsbury''s Laws of England, 4th Edn. Vol. 16 ''After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.

Relying upon the said decision in R.N. Gosain (supra), Shri Sarma argued that the Plaintiff cannot be allowed to reprobate since they had agreed to sell the land and in terms of the said agreement received consideration amount of Rs. 300/-. But in a case where there was no valid transfer of title by way of execution of registered deeds as per law and possession not delivered in pursuance of the said contract, it would be wrong to refuse the claim of the Plaintiff to get a declaration that they are the owners of the land. This is more so when the Plaintiffs No. 2, 3 and 4 are bonafide purchasers for consideration and in possession of the land since before their purchase.

I have considered the decision rendered in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, and in Provash Chandra Dalui and Another Vs. Biswanath Banerjee and Another, In these two judgments, the doctrine of waiver has been dealt with. In Basheshar Nath (supra), the Supreme Court held that the generally accepted connotation of ''waiver'' is that to constitute ''waiver'' there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence.

Considering the above principle of law and the fact that the Plaintiff has never diverted themselves of the possession of the suit land, the question of relinquishment does not arise. There might have been an agreement to transfer the land. But no transfer in fact took place in accordance with the provisions of law. The factum of possession is determinative of the question whether the principle of waiver will apply or not. In the instant case, for the reasons stated above, I am unable to hold that the principle of waiver will operate to estop the Plaintiffs from asserting their right, tainted because of certain manifestations on the part of the Defendants.

Now, from the discussion above, it would appear that the Plaintiffs have subsisting title over the suit land and that they are in possession thereof. The decision rendered by the Courts below with regard to title needs no interference. The first question is answered accordingly.

Next comes the question of limitation. Shri H.N. Sarma, learned senior counsel for the Appellant argues that the suit ought to have been filed within a period of 3 (three) years from the date of mutation. Since the suit was filed after 3 years, it is barred under Article 58 and 113 of the Limitation Act. It would appear--that the mutation was affected on 17.2.81 and the period of 3 years ended on 16.2.84. But the suit was filed on 11.12.84. The Courts below rendered a concurrent finding that the limitation will run from the date of knowledge of mutation and according to them, the Plaintiff could come to know of the mutation on 11.12.84 after obtaining certified copy of the Jamabandi. Hence, they held that the suit was not barred so far the claim for issue of precepts for correction of revenue records is concerned. The main relief sought in this suit is a declaration of title and confirmation of possession. The mutation of Defendants name in the revenue records is the cause of action for the suit. The Plaintiffs have filed this suit within a period of 12 years from the date of alleged threat of dispossession and mutation of the name of the Defendant. If the Plaintiffs succeed in establishing their title and is found entitled to confirmation of possession, the consequential relief for deletion of Defendants'' name from the revenue records whether barred by the law of limitation or not is immaterial. It is the established principle of law that the mutation of a name does not convey title. Therefore, the mutation of the names of Defendants lost its significance in view of the declaration of title and confirmation of possession by the Courts below. The argument advanced by Shri Sarma, in my opinion, cannot be a bar in granting the reliefs as sought in the plaint.

In view of the decision as above in respect of the questions formulated, the appeal being devoid of merit, has to be dismissed.

Appeal dismissed. No costs.