Manindra Deb Barma vs Aurabinda Paul

N.G. Das, J.—This second appeal is directed against the judgment and decree dated 16.7.92 passed by the learned Additional District Judge/West Tripura, Agartala reversing the judgment and decree of the learned Subordinate Judge, West Tripura, Agartala dated 24.1.92 in T.S. No. 2 of 1989 whereby learned trial Court dismissed the suit of the Plaintiff who is the Respondent in this second appeal.

I have Heard Mr. S. Deb the learned senior Counsel appearing on behalf of the Appellant and Mr. D.K. Biswas, the learned Counsel appearing on behalf of the Respondent.

The case of the Plaintiff was that his father Anil Chandra Paul who died on 9.7.80 purchased a plot of land measuring 1.70 acres appertaining to C.S. Plot Nos. 2009 and 2011 (old Plot No. 201) of Khatian No. 166 under Mouja East Kalyanpur as described in para 3 of the plaint. The further case of the Plaintiff was that by dint of an unregistered deed of sale his father purchased the aforesaid land in the year 1967 A.D. and also got possession thereof and thereafter he had been possessing the land by cultivating it. But in the year 1981 the present Appellant filed a petition before the Sub-Divisional Officer, Khowai under Sections 4(2) and 5(1) of the Tripura Agricultural Indebtedness Relief Act, 1979 (hereinafter referred to as the ''Relief Act'') contending, inter alia that the suit land was mortgaged by him to the father of the Plaintiff on 6th of Pous, 1379 B.S. on taking a loan of Rs. 3 500/- and therefore he prayed for an order u/s 3 of the Relief Act for redemption of the loan and restoration of the suit land to him. The Sub-Divisional Officer i.e. Tribunal of the Relief Act rejected that prayer. But subsequent to rejection of this prayer the Appellant filed a second application which was, however, allowed. Aggrieved by that order, the Plaintiff of the aforesaid suit preferred an appeal before the Collector, West Tripura and this appeal was numbered as Revenue Appeal No. 2 of 1982 (under Section 6 of the Relief Act). Collector, after hearing the appeal, disposed it of by remanding the case to the Sub-Divisional Officer (Tribunal) for re-examining the case on certain points.

Aggrieved by this order the Plaintiff filed Civil Rule No. 162 of 1982 challenging the order of the Collector but the Division Bench of this Court dismissed that petition by its judgment dated 19.9.88 and also vacated the interim stay order. After dismissal of the writ petition the Plaintiff filed the present suit viz. T.S. 2 of 1989 for a decree declaring the impugned deed (Annexure-4) as void and ineffective against the Plaintiff and his co-sharers. He also prayed for a decree declaring him that he has good title and possession over the suit land.

The present Appellant resisted the suit by filing a written statement denying all the material averments of the plaint, it was contended that the suit was not maintainable as the Plaintiff was not authorised by the other heirs of Late Anil Chandra Paul to file the suit on their behalf. It was further averred that the Hon''ble Court in Civil Rule No. 162 of 1982 decided the material points upholding the order of Collector remanding the case to the Tribunal and as such the Plaintiff is not entitled to re-agitate the matter by filing the present suit. It was also pleaded that the suit was not only barred by the law of limitation but it was also barred by the principles of res judicata.

Upon the pleadings, learned trial Court framed three issues including an issue namely, whether the suit was maintainable in its present form. Under this issue No. 1 viz. whether the suit was maintainable in its present form the learned trial Court dealt with the question of limitation and made the finding that the suit was bared by limitation. Learned trial Court also held that in view of the provisions laid down u/s 187 of the Tripura Land Revenue and Land Reforms Act, 1960 the suit was not maintainable. With the above findings the learned trial Court dismissed the suit. But the learned appellate Court reversed the findings of the learned trial Court and allowed the appeal partly. It was declared by the first appellate Court that the document i.e. the alleged deed of mortgage marked as Annexure-4 was void and accordingly he cancelled it. The first appellate Court did not grant any other relief to the Plaintiff. Hence this second appeal.

The first point of criticism advanced by Mr. S. Deb, the learned senior Counsel appearing on behalf of the Appellant is that the finding of the learned first appellate Court that the suit is not barred by law of limitation is grossly erroneous view of the admitted fact of the Plaintiff. It is, submitted by Mr. Deb that the learned first Appellate Court determined the question of limitation ignoring the evidence of the Plaintiff who was examined as P.W. In this context it is submitted by Mr. Deb that since the Plaintiff prayed for a decree declaring his alleged deed of mortgage as void and inoperative the suit, in view bf Article 58 of the Limitation Act, 1963, is required to be filed within a period of 3 years. Mr. D.K. Biswas, the learned Counsel appearing on behalf of the Respondent has, on the other hand, contended that the finding of the first appellate Court in this regard cannot be said to be erroneous as he dealt with the points in details and gave the reasons why the suit was not barred by limitation. It was also contended by Mr. Biswas that learned first Appellate Court clearly made the finding that the suit was not barred by initiation as the Plaintiff filed the suit within 3 years from the date of his knowledge of the alleged deed of mortgage (Annexure-4). It is, however, not in dispute that such a suit is required to be filed within a period of 3 years from the date when the right to sue accrued. It has already been stated above that the Plaintiff filed the suit for a decree declaring the alleged deed of mortgage (Annexure-4) as void, inoperative and illegal. I, therefore, find that such a suit is required to be filed within a period of 3 years from the date when the right to sue accrued.

In this context it has been further argued by Mr. Biswas that so far as question of fact is concerned, the decision of the first appellate Court is final and as such the High Court in exercise of its jurisdiction u/s 100 of CPC cannot interfere with such finding of fact. Mr. Deb has, on the other hand, contended that since the findings are not concurrent, the High Court, in exercise of its jurisdiction u/s 100 of CPC can very well interfere with the findings of the first appellate Court if the findings of the first appellate Court are found to be vitiated in law by reason of any illegal omission, error or defect. Mr. Biswas contends that while admitting the appeal the High Court virtually did not frame any substantial question of law as contemplated u/s 100(4) of CPC and hence in absence of any substantial question of law this Court has no jurisdiction to entertain this second appeal. The relevant order whereby this appeal was admitted by the learned Single Judge may, therefore, be quoted as under:

Heard Mr. S. Deb, learned Counsel for the Appellant and Mr. D.K. Biswas, learned Counsel for the Respondent.

I have perused the petition u/s 5 of the Limitation Act for condonation of delay in filing the appeal and taken a note of statement of facts and grounds made therein. I am satisfied that the Petitioner has made out a prima facie case for condonation of delay and, accordingly, the delay is condoned.

The appeal will be heard on the substantial question of law as stated in ground Nos. 9.10,11, 16 and 18 of the Memo of Appeal.

The Appellant may raise any other substantial questions of law at the time of hearing.

Let the records be called for and issue usual notice.

This order clearly indicates that learned Single Judge perused the memo of appeal and considered the ground Nos. 9, 10, 11, 16 and 18 of the memo of appeal as substantial questions of law. Ground No. 9 of the memo of appeal reads as under:

For that the learned Court below committed manifest error of law in interpreting Section 3 of the Tripura Agricultural lnditerness (sic) Relief Act. 1979 and he ought not have held that the deed was not a mortgage within the meaning of the said Act of 1979.

This ground, in my opinion, is a substantial question of law. That apart, ground (sic) 16 which learned Single Judge also considered as a substantial question of law be quoted as under for better appreciation. Ground No. 16 of the memo of (sic) reads as under:

For that the Plaintiff-Respondent having filed Civil Rule No. 162 of 1982 way back in 1982. The suit is barred both under the Law of Limitation as well as under the principle of resjudicata and in no way ought the Learned First Appellate Court to have granted the relief in favour of the Plaintiff-Respondent.

This ground is also, in my opinion, a mixed question of law and facts.

Mr. Biswas, in support of his contention, has however placed reliance upon decision of the Supreme Court rendered in foe caw of Dr. Ranbir Singh Vs. Asharfi Lal, . But on going through the judgment I find that this judgment so far is the above point is concerned, is not relevant as in the aforesaid judgment of the Supreme Court it is found that the High Court in second appeal formulated no question of law as contemplated u/s (4) of Code of Civil Procedure. In the present case it is clear from the two grounds as quoted above that those are questions of law. I am, therefore, unable to accept the contention of Mr. Biswas that no substantial question of law as contemplated u/s 100(4) of CPC was framed.

Mr. Biswas has, however, quite strenuously argued that so far as finding of facts is concerned, the finding of the first appellate Court is final and as such the High Court cannot interfere with the finding of the first appellate Court. As already stated, Mr, Deb has very much disputed about this contention of the learned Counsel for the Petitioner. Mr. Deb has quite vehemently argued that the High Court can very well exercise its jurisdiction u/s 100 read with Section 103 of CPC to reverse the findings of the first appellate Court if the findings of the first Appellate Court are found to have been made by illegal omission, error or defect.

It may, therefore, be advantageous at this stage to look into the grounds contemplated by Section 100(1), (a), (b) and (c) of Code of Civil Procedure.

In the Bill which substituted a new section for Section 100 of Code of Civil Procedure, so as to restrict the scope of second appeals die original Clause was 39 which reads-

Clause 39. Section 100 of the Code provides that a second appeal may lie to the High Court from a decree passed in appeal by any Court subordinate to the High Court on any of the following grounds namely:

(a) the decision being contrary to law or some usage having the force of the law;

(b) the decision having failed to determine some material issue of law or usage having the force of law; and

(c) a substantial error or defect in procedure provided by the Code or any other law for the lime being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

The above clauses have been inserted in Section 100 of CPC to provide that the right of second appeal should be confined to cases where question of law is involved and such question of law is a substantial one. In view of the above clauses a second appeal will lie merely on the ground of error on a question of law only. As already stated, the question of limitation is a mixed question of law and facts and hence generally such a question of law, is dependent upon examination of the evidence on record and hence if a finding based on evidence but perverse in the sense that no normal person could arrive at that finding, a finding based on no legal evidence or without judicial consideration of the evidence on record or that misconstruing of evidence, in my opinion, amounts to substantial question of law. In the instant case learned trial Court made the finding that the suit was barred by limitation in view of Article 58 of the Limitation Act, 1963. The appellate Court reversed the finding on re-appreciation of the evidence.

The contention of Mr. Biswas is that the finding of the first appellate Court being made on re-appreciation of the evidence is final and as such it was neither contrary to law nor to some usage having the force of law. Therefore, the High Court, in view of the clauses of Section 100 of Code of Civil Procedure, has no jurisdiction to interfere with the finding.

In support of his contention Mr. Biswas has placed reliance upon a decision of the Supreme Court rendered in the case of Ram Das alias Ram Suraj Vs. Smt. Gandiabai and others, . This judgment related to a suit which was filed for partition. The Plaintiff''s case was that his father Ram Prasad and the Defendant Prayag were sons of one Balbhaddar Teli. The Plaintiff''s father and the Defendant had joint interest in the suit properties which were inherited by their father from his ancestor. That as there was no partition of these properties during the life time of his father on the one hand and Defendant on the other he had acquired one-half undivided share in these properties along with the Defendant who had the other half share. He, therefore, filed the suit. The defence of the original Defendant was threefold. Firstly it was contended that the Plaintiff''s mother after the death of the Plaintiff''s father Ram Prasad remarried one Ram Charan and before the remarriage with Ram Charan she gave the Plaintiff in adoption to Ram Charan and consequently Plaintiff had ceased to belong to the family of the Defendant and his deceased father Prasad and consequently he had no right, title or interest in the suit properties. The second defence was that in the life time of Plaintiff''s father Ram Prasad there was partition of properties and Ram Prasad was given his share in co-ownership properties and other movables and therefore also, Plaintiff hid no right, title and interest in the suit properties which on partition fell to the exclusive share of the original Defendant. The third defence was that in any case the Defendant had become owner of suit properties by adverse possession.

The learned trial Court after recording the evidence came to the conclusion that all the three defences put forward by the original Defendant were worth acceptance. The learned first appellate Court on reappreciation of evidence came to the conclusion that there was no partition between Plaintiff''s father on the one hand and the Defendant on the other during Plaintiff''s father''s life time and, therefore, the finding of the trial Court on the issue was reversed. The learned appellate Court also held that the Defendant had failed to prove his defence that the Plaintiff was given in adoption by his mother before her remarriage with Ram Charan. However, the learned appellate Court confirmed the decree of dismissal of suit on the third ground, namely, that the Defendant had become owner of suit properties by adverse possession. Thus out of the three grounds the Plaintiff succeeded on two grounds before the appellate Court but lost on the last ground. It was argued before the Supreme Court on behalf of the Appellant that once the two defences of the original Defendant were held to be not sustainable by the learned Single Judge his appeal should have been allowed and could not have been dismissed by die High Court by interfering with a pure finding of fact reached by the final Court of facts on the question of adoption as such an exercise was not permissible u/s 100 of Code of Civil Procedure. In this connection case of Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, was relied on. Their Lordships of the Supreme Court while examining the scope of Section 100(1)(a), (b) and (c) held that to interfere with the findings of the first appellate Court it has to be demonstrated that the finding of fact reached by the first appellate Court was affected by any of the errors as contemplated by provision of Section 100, Sub-sections (1) (a), (b) and (c) of Code of Civil Procedure. It was also held by their Lordships that in that case no material evidence having a direct impact was ignored by the first appellate Court. This observation indicates that if any material evidence having a direct impact on the decision of the case on merits is ignored then the High Court is emitted to interfere with such finding.

In the instant case, as already pointed out, the finding of the learned trial Court in respect of die question of limitation was reversed by the first appellate Court. Mr. Deb has quite vehemently argued that the first appellate Court made the finding on the question of limitation ignoring the material evidence of Plaintiff who was examined as a witness in the case.

There is no dispute that the document in-question. namely, the mortgage deed (Annexure-4) which the Plaintiff wanted to be declared as void, inoperative and illegal was executed on 6th of Paush, 1379 B.S. and on going through the records I find that this document was marked as Ext. ''A'' on admission of Plaintiff. The Plaintiff in his plaint stated under para 23 that he, for the first time, came to know about this deed when his counsel showed the impugned deed in original in the office of the High Court sometime before 19.9.88. The statement which was made in the plaint reads as under:

That the cause of action for this suit arose when the Plaintiff for the first time was shown by his counsel the impugned deed in original in the office of the High Court sometime before 19.9.88 when the records were lying there having been called for under orders of the Hon''ble High Court.

The learned trial Court made the finding that the present Appellant filed a case being No. 308 of 1982 before the Tribunal under the provisions of the Relief Act and the Tribunal having decided the case in favour of the present Appellant the Respondent herein i.e. the Plaintiff preferred an appeal before the Collector who after hearing both sides remitted the case to the Court of Tribunal for retrial on certain points. It was also found by the learned trial Court that the Plaintiff i.e. the present Respondent got the certified copy of the order on 31.8.82. In view of this fact it was held by the learned trial court that the Plaintiff came to know about the existence of the alleged document (Ext.8) on 31.1.82. The first appellate Court reversed this finding of the learned trial Court on the ground that the Collector did not say that Annexure-''A'' was submitted by the Respondent and hence it was possible that the Plaintiff did not have sufficient knowledge about the existence. Learned first appellate Court, however, stated that the Appellant made the statement that the Plaintiff came to know about existence of Annexure-''A'' only some days before 19.9.88 and this statement having not been denied the finding of the learned trial Court is erroneous. But on going through the evidence of the Plaintiff I find that Plaintiff made a categorical statement in his examination-in-chief that he saw this document for the first time when his petition was pending before the Hon''ble High Court. The Civil Rule which the Plaintiff, (Respondent herein) filed before the High Court was numbered as Civil Rule No. 162 of 1982. This number very well indicates that the Civil Rule was filed sometime in the year 1982. This Civil Rule was disposed of by a Division Bench of this Court by its judgment dated 19.9.88. The Plaintiff who was examined as P.W. 1 in Case No. T.S. 2 of 1989 made a statement which may be quoted as under:

I have seen the said document of the Defendant for the first time when my petition was pending in the Hon''ble High court.

The Plaintiff also stated that he perused the photo copy of this document. The judgment of Division Bench dated 19.9.88 passed in Civil Rule No. 162 of 1983 shows that the proceeding was started under Sections 4(2) and 5(1) of the Relief Act, 1979 and the prayer was for releasing the mortgage made in favour of the Petitioner. The records of the aforesaid Civil Rule have been made available before this Court and it show that the Plaintiff annexed so many documents including the order of the Tribunal and his applications. The order dated 20.5.82 passed by the Tribunal (S.D.O., Khowai, West Tripura) clearly indicates that the agreement was executed in the year 1979 B.S. In this order it was mentioned by the Tribunal that land measuring 1.40 acres was transferred to the first party. The certified copy the order dated 20.5.82 which was annexed with the writ petition may be extracted as under:

***it appeal that the land measuring 1.40 acres of land was transferred to the 1st party for Rs. 3,500/- on condition to return the land on payment of the consideration money by 1385 B.S. The agreement executed in the year 1979 B.S. But the 1st party could not repay the money within stipulated time.

The 2nd party could not produce any document to prove that it is case of transfer without any condition. There is reason to believe that it is a case of debt on mortgage of land.

Therefore, all the facts as discussed above taken together clearly establish the fact that the Plaintiff i.e. Respondent herein was quite aware of the Ext. ''A'' deed at the time of filing the Civil Rule No. 162 of 1982.

l am, therefore of opinion that all these facts clearly demonstrate that the findings of fact reached by the first appellate Court in respect of the question of limitation was erroneous for having ignored the material evidence which has a direct impact on the question of limitation, I, therefore, set aside the finding of the first appellate Court on question of limitation and restore the finding of the learned trial Court.

Now the next question which was agitated by the learned Counsel for the Appellant is that all the necessary parties were not made parties in this case. The first paragraph of the plaint is relevant in this regard. The first paragraph reads as under:

That having same and equal interest the Plaintiff files this suit for himself and other legal representatives of late Anil Paul namely, (1) Smti. Bina Rani Paul (widow) (2) Sri Sanjit Paul (minor son) and (3) Sri Sujit Paul (minor son).

The above statement clearly indicates that all the heirs of late Anil Paul have equal interest in the suit property. Therefore, as per the provisions of Order 1 Rule 8 of CPC all the persons having the same interest in a suit, one or more of them may, with the permission of the Court, sue or be sued. But in the instant case no permission was taken from the Court for filing the suit. Therefore, in view of the provisions of Order 1 Rule 8 of CPC the Plaintiff was also dis-entitled to file the suit.

The other question i.e. whether the deed in-question (Annexure-4) is a mortgage deed or not, does not call for any decision.

For the reasons stated above, the judgment of the first appellate Court is set aside and that of the learned trial Court is restored. The appeal is allowed. Consequently the suit of the Plaintiff stands dismissed with costs.