Manik Bora vs Ponaram Bora and Another

D. Biswas, J.—This Second Appeal is directed against the judgment and Decree passed by the Learned District Judge, Nagaon in Title Appeal No. 18 of 1994. The Learned District Judge, vide the impugned judgment, set aside the decree passed by the Learned Assistant District Judge, Nagaon in Title Suit No. 6 of 1991.

This Court while admitting the appeal vide order dated 10.11.95 made a mention that the appeal will be heard on the substantial question of law as enumerated in the Memorandum of Appeal. During the course of argument, as no substantial question of law was found discernible in the memorandum of Appeal, the Learned Counsel for the Appellant suggested the following questions as substantial question of law for consideration by this Court:

Whether the Learned Courts below committed illegality in dismissing the APPELLANT/PLAINTIFF''S Suit by admitting exhibit "KHA" into evidence inspite of strong objection from the Appellant/Plaintiff''s side as exhibit "KHA" was a certified copy and the original of the same was not produced before the trial Court?

Whether the Learned Trial Courts below committed illegality in dismissing the Appellant/Plaintiff''s suit after having come to a definite conclusion that exhibit "GA" is neither a Sale Deed nor a Gift Deed and as such no title can be created in favour of the Defendant/Respondents?

Whether the Learned Trial Courts below committed illegality in dismissing the Appellant/Plaintiffs suit without pursuing the original records of the Revenue Sale case and without ascertaining the outcome of the Revenue Appeal as the records of the same were lost and merely came to a conclusion that the Defendants/Appellants were in possession of the Schedule Land?

Whether the learned Lower Appellate Court committed illegality in dismissing the Appellant/Plaintiffs suit without considering the cross objection preferred by the Appellant/Plaintiff and mechanically dismissed the same without making any observation thereupon and thereby committed serious miscarriage of justice?

Section 100 of the CPC provides for appeal to the High Court from every Decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. The object behind this amendment is that of questions of facts involved in a case must rest where they lie after they have been decided by Court of first appeal and there will be no longer any scope whatsoever for admission of second appeal by the High Court on such questions of facts merely on the fact that the findings recorded are supposed to be manifestly unjust. Therefore, this Court has to see whether substantial questions of law are there to be answered in this appeal. For this purpose, it is necessary to delve deep into the controversy which led the parties to approach the Court. The admitted position as is available from the respective pleadings is that a plot of land measuring 26Bs-2Ks-3Ls pertaining to Dag Nos. 54, 58 and 99 of periodic patta No. 51 originally belonged to Bholou Koch and Takaru Koch. They were in possession of the land. For non-payment of land revenue, the entire land was sold in auction in Land Case No. 167/21/XI of 1940-41 for a sum of Rs. 70/-. One Jonaram Bora, the predecessor-in-interest of the Appellant Shri Manik Bora and 4 others, purchased the said land. He was put into possession by the revenue authorities and a sale certificate was issued to him. He also obtained mutation in respect of the said land on 31.3.1943. The dispute between the parties relates to 8 bighas of land out of the above 26 bighas and odd. Jonaram Bora as Plaintiff filed Title Suit No. 6 of 1981 before the learned Assistant District Judge, Nagaon for declaration of right, title and for recovery of possession in respect of the disputed 8 bighas of land on the ground that the Defendant by playing fraud got their name mutated in respect of 8 bighas of land and also obtained an order of partition without notice. Jonaram Bora came to know about this only when he received a notice from the Sub-Deputy Collector for demarcation of boundary of the suit land. This led him to institute the title suit before the learned Assistant District Judge, Nagaon.

During the pendency of the suit, Jonaram Bora died leaving Manik Bora and 4 others who were substituted as Plaintiffs vide order dated 15.9.1993.

The suit was contested by the Defendant No. 1 and 2. The minor Defendants No. 3 to 6 were represented by guardian-ad-litem. The suit proceeded ex parte against the Defendant No. 7 and 8.

The Defendants'' case before the trial Court in brief is that their predecessor-in-interest Kamala Kanta Bora purchased 24 bighas 3 kathas 19 lechas of land out of said 26 bighas and odd land from the original owner Bolou Koch and Takaru Koch by registered dead of sale executed in the year 1938 along with delivery of possession. But as Kamala Kanta Bora fell sick, he entrusted Jonaram Bora, the predecessor-in-interest of the Plaintiffs to make payment of the land revenue. But Jonaram Bora actuated by ill-motive defaulted in paying the land revenue and thereby allowed the land to be sold in auction. Jonaram Bora purchased the said land in the auction sale without knowledge of the Defendants. When the widow of late Kamala Kanata Bora came to know about the auction sale, she filed an appeal before the revenue authorities. The dispute was settled between the parties and Jonaram Bora, predecessor-in-interest of the Plaintiff, relinquished 4 bighas of land situated on the western portion of the entire land covered by dag No. 58. Jonaram Bora also made further promise that he would relinquish another 4 bighas of land as and when the minor Defendants attain majority. Thereafter Ext. ''Ga'' was executed conveying 4 Bighas of land. Thus, the Defendants became the owner in possession of 8 bighas of land, They got their names mutated in Mutation Case No. 1048/1953-54 in the year 1978-79. They also filed perfect Partition Case No. 44 in the year 1978-79 which was eventually allowed and separate patta No. 117 containing to Dag No. 308 and 304 were granted in the name of the Defendants. The Defendants'' case is that they are in uninterrupted possession of the suit land for more than last 40 years and, as such, the Plaintiffs claim for declaration of title and recovery of possession cannot be maintained.

The learned Assistant District Judge vide judgment dated 11th day of July, 1994 decreed the suit in part declaring right, title, interest etc. of the Plaintiff: in respect of 4 bighas of land on the strength of the compromise entered into by the parties by Ext. ''Kha'' and dismissed the suit so far the other 4 bighas of land claimed by the Defendants on the strength of promise and subsequent execution of a deed, Ext. ''Ga'' The learned first appellate Court while disposing of the appeal and cross-appeal concurred with the findings of the learned Assistant District Judge so far relinquishment of 4 bighas of land is concerned, but reversed the finding in respect of other 4 bighas of land claimed by the Defendants on the strength of Ext. ''GA'' and on the basis of uninterrupted possession for a period exceeding 40 years. The learned first appellate Court holding as above allowed the appeal and set aside the impugned judgment passed by the learned trial Court.

Shri Borkataki, learned Counsel for the Appellant argued at length in order to show that Ext. ''Kha'' and Ext. ''Ga'' which are documents of title have been misappreciated by the leaned first appellate Court resulting into serious miscarriage of justice.

It is established that misappreciation of documents of title has been regarded as substantial questions of law for the purpose of second appeal. Therefore, it has to be seen whether the Courts below misappreciated the above two documents i.e. Ext. ''Kha'' and Ext. ''Ga''.

So far as Ext. ''Kha'' is concerned, it is important to note here that both the Courts below delivered a concurrent finding holding it as a deed of relinquishment in respect of 4 bighas of land. On this finding, the Courts below held that there was relinquishment of 4 bighas of land in favour of the Defendants. Ext. "Kha'' is a copy of a compromise petition filed in Sale Case No. 167 of 1940-41. After a careful consideration of this document, I am of the opinion that there has been relinquishment of 4 bighas of land in favour of the Defendants pertaining to Dag No. 58 of periodic Patta No. 51. Therefore, there being no misappreciation of the document Ext. ''Kha'', the contention of the learned Counsel for the Appellant that it raises a substantial question of law is devoid of any substance.

So far Ext. ''Ga'' is concerned, the learned Assistant District Judge held that signature of the executor of the said deed have not been proved by the Defendants by adducing cogent and reliable evidence. According to the learned trial Judge, Ext. ''Ga'' is a deed which is the outcome of agreement between the parties made vide Ext. ''Kha''. His finding is that there was no delivery of possession of the another 4 bighas of land by the Plaintiffs to the Defendants. The learned first appellate Court dealt in details the admissibility of Ext. ''Ga'' and its evidentially value for collateral purposes although it was not regarded by the learned first appellate Court as a document conveying title. Holding thus, the learned first appellate Court dealt with the plea of adverse possession pleaded by the Defendants. According to him, the Defendants have been in continuous and uninterrupted possession of the suit land since 1941. On appreciation of both the oral and documentary evidence, specially the inspection report submitted by the learned Assistant District Judge, the learned first appellate Court found that the Defendants have been in possession of the suit land by cultivating and reaping harvests. The appreciation of the evidence made by the learned first appellate Court in details while reversing the finding of the learned trial Judge appears to be unassailable. The adverse possession being a question of fact, this Court in second appeal cannot also interference with such finding. In this connection, the decision rendered in - On the death of the sole Appellant Sarat Chandra Bora his legal heirs - Padam Chandra Borah and Ors. v. Nityananda Borah 1990 (2) GLJ 273 may be referred to. The learned Single Judge of this Court while delivering the judgment held as follows:

I may add here that adverse possession being a question of fact, the finding of the learned Courts below that the Defendant did not acquire title by tight of adverse possession is binding and as such it cannot be disturbed.

In view of this decision and considering the findings of the learned first appellate Court including appreciation of the documents, Ext. ''Ga'', I am unable to decipher any substantial question of law.

The learned Counsel for the Appellant relied on the decision in Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others, But in para-2 of the aforesaid judgment of the Supreme Court, it has been observed that/the trial Court had wrongly proceeded on the premises of burden of proof on the Plaintiff and the appellate Court although corrected it committed another error by not considering the documentary evidence on proper prospective of the respective claim of the parties. In me instant case. I do not find any such irregularity having been committed by the learned first appellate Court. The acceptance of Ext; ''Ga'' as a document for proving collateral purpose i.e. the possession has been well reasoned. That apart, the appreciation of Ext. ''Kha'' does not suffer from any vice disturbing the scale of justice. In my opinion, the decision referred to by the learned Counsel for the Appellant has no relevance because of marked difference in the background of both the cases.

The learned Counsel for the Appellant has also raised objection on the ground that the learned first appellate Court did not discuss the cross-appeal filed by the Appellant. In page 9 and 10 of the impugned judgment, the observation has been made as to the cross-appeal filed by the Appellant. In view of the exhaustive discussion on all the points , by the learned first appellate Court, the objection raised by the learned Counsel for the Appellant does not appear to be of any significance.

The objection relating to non-availability of original records of the sale case does not alter the admitted position that the land was sold in auction. The discussion on this made by the learned first appellate Court relying on the evidence of revenue official is suggestive of no aberration resulting in failure of justice. Ext. 1 is the certified copy of the order passed in the sale case and Ext. 7 is the sale certificate. The sale certificate is not in controversy. Therefore, I do not find any reason to agree with the learned Counsel for the Appellant that non-production of the original records of the sale case has vitiated the decision given by the learned first appellate Court. At any rate, this cannot be treated as a substantial question of law.

The above discussion leads to the inevitable conclusion that there is no substantial question of law involved in this appeal. Hence, this appeal has to be dismissed. In the result, the appeal is dismissed. Considering the circumstances of the case, the parties are directed to bear their respective costs.