Mantu Ghosh and Others vs Amar Chand Sharma

N.S. Singh, J.—This Defendants'' appeal under Order XLIII, Rule 1(u) of the Code of Civil Procedure, arises from the judgment and order dated 17.5.1988, passed by the learned District Judge, Goalpara, in Title Appeal No. 17 of 1987 thereby setting aside the judgment and decree, passed by the learned Munsiff No. 1, Goalpara in Title Suit No. 127 of 1982 and remanding the matter to the learned trial Court for fresh disposal under Rule 23-A of the Code of Civil Procedure.

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

The Plaintiff, Respondent herein purchased the suit land from one Shri Birendra Chandra Paul under a registered sale-deed dated 30-3-1977 and by virtue of the said sale deed, the Plaintiff took the delivery of the possession in respect of the suit land, raised boundary fencing and got his name mutated in the record of rights in respect of the suit land. For some time the Plaintiff went to his house at Rajasthan and when he came back, he found one "Kali Mandir" and one "Birendra Smriti Pathagar" over his two plots of land-suit land. It is also the case of the Plaintiff that the Defendants and the other devotees of "Kali'' of the locality have done this thing. Being dissatisfied with the action of the Defendants, the Plaintiff filed a suit against all interested persons for declaration of title and recovery of possession etc. The suit was contested by the Defendants/present Appellants by raising the following points:

(i) Shri Birendra Chandra Paul expired on 7-1-1977 and as such there arises no question of executing the sale-deed by the said Birendra Chandra Paul on 30-3-1977.

AND

(ii) The Defendants have been using one plot of the suit land for "Kalipuja" during the life time of said Birendra Chandra Pail and the "Birendra Smriti Pathagar" was stated after the death of the said Birendra Chandra Paul as per his wishes.

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

(i) Whether the Plaintiff has cause of action?

(ii) Whether the suit is maintainable?

(iii) Whether the suit is bad for non-joinder of parties?

(iv) Whether the suit is barred for limitation?

(v) Whether the Plaintiff has right, title to the suit land?

(vi) Whether the Plaintiff had possession over the suit land?

(vii) Whether the Plaintiff is disposed as alleged in the plaint?

(viii) Whether the Defendants have acquired right, title to the suit land by way of adverse possession?

(ix) To what reliefs the parties are entitled?

After hearing the parties at a length, the learned trial Court dismissed the suit of the Plaintiff. Being dissatisfied with the impugned judgment and decree of the learned trial Court, the Appellant preferred an appeal being Title Appeal No. 17 of 1987 in the Court of the learned District Judge, Goalpara. The learned first appellate Court disposed of the appeal by remanding the case to the learned trial Court with a direction to frame the following issues:

Whether Birendra Chandra Paul died on 7-1-1977 as alleged or whether he was alive till the time of execution of the sale-deed in favour of the Plaintiffs?

Whether the sale-deed of the Plaintiff is forged or fabricated?

Whether late Birendra Chandra Paul allegedly made a gift of plot No. 1 to the Defendants for constructing a Kali Mandir and whether he also made an oral will in favour of the Defendants for the plot No. 2 to be utilised as his memorial?

By virtue of the said appellate judgment and order, the parties have been allowed to adduce fresh evidence. The learned first appellate Court further directed the learned Munsiff to take the evidence and hear fresh argument and write a fresh judgment on the issues framed by the learned first appellate Court. Now the questions of determination in this appeal are as follows:

(i) Whether the Plaintiff could prove the execution of the registered sale-deed dated 303-1977, marked Ext. 5 and establish his right and title over the suit land?

(ii) Whether the learned first appellate Court erred in law in remanding the suit to the learned trial Court on the basis of the available evidence and materials on record?

(iii) Whether there is sufficient evidence on record to establish the fact that the said that the said Birendra Chandra Paul died on 7- 1-1977. If so, whether the impugned judgment and order of the learned first appellate Court in not affirming the findings of the learned trial Court, is perverse or illegal on the basis of the available materials on record?

(iv) Whether the learned trial Court can give a finding on the available materials on record without framing an issue in the matter?

Shri M.K. Choudhury, the learned Counsel for the Appellants submits that the first appellate Court is bound to write a fresh judgment on the available materials and evidence on record. In the instant case, there are sufficient materials on record for a final judgment and order and as such the impugned judgment and order of the learned first appellate Court remanding the case to the learned trial Court, is perverse and illegal. Shri Choudhury submits. It is also contended by Mr. Choudhury that it is a specific case of the Defendants that the said Birendra Ch. Paul died on 7.1.1977 and therefore, the execution of the sale-deed on 30.3.1977 by the said Birednra Ch. Paul in favour of the Plaintiff is out and out false. There is ample evidence in support of this contention and as such the learned first appellate Court erred in law in remanding the case to the learned trial Court for fresh evidence and for fresh hearing Mr. Choudhury submits. According to Mr. Choudhury, the Respondent-Plaintiff has failed to prove the execution of the sale-deed dated 30.3.1977, marked Ext.5.

On the other hand, Shri K. Basar, the learned Counsel for the Respondent submits that to meet the ends of justice, the learned first appellate Court remanded the case and directed the learned trial Court to decide the matter afresh on the issues framed by the learned first appellate Court. According to Mr. Basar unless there is an issue, the parties are not able to adduce any evidence on that point and as such the impugned order remanding the matter to the learned trial Court is just and proper and the same is tenable in the eye of law. Mr. Basar went on to contend that as the original sale-deed is lost, so there is no point in summoning the writer or the attesting witness, because if the document is shown to them, they will not be in a position to say whether they wrote or attested the document, as the case may be. It is also submitted by Mr. Basar that the Plaintiff has proved the execution of the registered sale-deed dated 30.3.1977, marked Ext.5 by secondary evidence. He further submits that the right and title of the Plaintiff over the suit land has been established and proved in as much as the suit land has been mutated in the name of the Plaintiff and the Plaintiff has been paying land revenue and the relevant sale-deed, revenue receipt and the khatian have been exhibited as Ext. 1, 2, 3 and 4 and proved the same.

It is well-settled that the "primary evidence" is oral account of the original evidence, that is of a person who saw what happened and gives an account of it recorded by the Court, or the original document itself, or the original thing when produced in Court. On the other hand, "Secondary evidence" is a report or an oral account of the original evidence or a copy of a document or a model of the original thing. Section 67 to 73 govern cases both of primary and secondary evidence. It is, therefore, necessary that when a document is produced as primary or secondary evidence, it will have to be proved in the manner laid down in Sections 67 to 73. It is a cardinal rule of evidence that where written documents exist, they shall be produced as being the best evidence of their own contents. It is also well-settled that mere marking of a document as an exhibit does not dispense with its proof. This principle of law finds its place in a case between Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya and Others,

It is the contention of Mr. Basar that the Plaintiff had proved the execution of the said registered sale-deed by secondary evidence. Not an attesting witness or any other readily available witness, who knows about the factum of the execution of the said sale-deed was produced or examined by the Plaintiff before the learned trial Court. Moreover, the relevant register maintained by the Registering Authority with regard to the execution of the said particular sale-deed dated 30-3-1977 was not made available before the learned trial Court and no attempt has been made by the Plaintiff to prove the existence of the alleged sale-deed by way of secondary evidence as required under Sections 67, 68, 69, 70, 71, 72 and 73 as stated above. Law is well-settled in this country that these evidences, which the High Court highlighted in the foregoing paragraphs should be placed and produced for establishing the case of any party in the suit. Therefore, the submissions of Mr. Basar has no substance in the eye of law. This Court answered the first point with this observation. With regard to the other questions for just determination of this case it is answered with the following observations:

The learned first appellate Court did not give any finding with regard to the non-existence of the evidence relating to the death of the said Birendra Ch. Paul, either on 7-1-1977 or on any date. This is also well-settled that the learned trial Court has ample jurisdiction and power to give any finding on a particular point or on a particular issue or on a particular matter, if the learned trial Court finds sufficient materials or evidence on record for deciding such point or issue or matter without framing a specific issue on record. From the impugned judgment and order of the learned trial Court, it has been revealed that there are sufficient materials for deciding the said matter by the learned trial Court or by the learned first appellate Court on the issue or on the matter without framing a specific issue in this regard.

I am of the view that there is substantial error and illegality in the impugned judgment and order of the learned first appellate Court and such error and illegality produced error and defect in arriving the decision of the case on its merits.

In the result, this appeal is allowed. The impugned judgment and order of the learned first appellate Court is hereby set aside and, the judgment and decree of the learned trial Court is affirmed. Interim stay order. If any, stands vacated. No costs.