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Ors vs Birendra Nath Das on 21 April, 2014

Kolkata High Court (Appellete Side) Ors vs Birendra Nath Das on 21 April, 2014Author: Debangsu Basak

IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction

Appellate Side

Before:

The Hon’ble Justice Debangsu Basak

S.A. No. 86 of 1998

C.A.N. No. 7819 of 2012

Bhringuram Mondal & Ors.

Vs.

Birendra Nath Das & Ors.

For the Appellants : Mr. Gopal Chandra Ghosh, Advocate Mr. Kapil Chandra Sahoo, Advocate

For the Respondents : Mr. Sadananda Ganguly, Advocate Mr. Soumen Kumar Dutta, Advocate

Mr. Subhas Jana, Advocate

Heard on : March 26, 2014

Judgment on : April 21, 2014

DEBANGSU BASAK, J.

The second appeal was directed against a judgment of affirmation. The appellants’ suit for declaration and permanent injunction was dismissed by the Courts below.

The second appeal was admitted by an order dated January 4, 1999. Substantial questions of law were framed by an order dated April 16, 2013 which were as follows:-

(a) whether the learned Courts below substantially erred in law by holding that the suit was not maintainable in view of the provisions of Benami Transactions (Prohibition) Act, 1988 without applying the correct legal test;

(b) whether the learned Courts below substantially erred in law by holding that the Defendant No. 3 Sourendra Nath Giri was the real owner of the suit property without applying correct legal test; (c) whether the judgment of the learned Courts below were perverse being not based on the evidence on record.

The suit was for declaration and injunction. One Haro Charan Giri was the owner of the suit property. By a registered deed of sale dated June 24, 1954 Haro Charan Giri sold the suit property in favour of Surendra Nath Giri. The appellants claimed that, Surendra Nath Giri was the son-in-law and the benamder of Niranjan Maity. On October 6, 1959 Surendra Nath Giri executed a Nadabi deed (deed of relinquishment) in favour of Niranjan Maity. On October 10, 1975 Niranjan Maity executed a registered Nirupan Patra in favour of the appellants. The appellants, according to them, were therefore the owners of the suit property. On July 11, 1984 Surendra Nath Giri executed registered sale deeds in favour of the Respondent Nos. 1 and 2 in respect of the suit property. According to the appellants, disputes arose between the appellants and the Respondent No. 3. Out of grudge to the appellants, the Respondent No. 3 taking advantage of the fact that the suit property stood in his name prior to the deed dated October 6, 1959, the Respondent No. 3 in collusion with the Respondent Nos. 1 and 2 executed two sale deeds dated July 11, 1984. The respondents, thereafter, threatened the appellants with dispossession forcing the appellants to file the suit. The appellants claimed that they acquired title to the suit land on the basis of the deed dated October 10, 1975 and for permanent injunction and other reliefs.

The Respondent Nos. 1 and 2 contested the suit and filed written statement. The Respondent Nos. 1 and 2 claimed title on the basis of the registered deeds dated July 11, 1984. The Respondent Nos. 1 and 2 claimed that, the Nadabi deed dated October 6, 1959 was a fraudulent document and was never acted upon. Consequently, Niranjan Maity did not have the right to transfer the suit property on October 10, 1975 in favour of the appellants.

The Respondent Nos. 3 did not contest the suit.

Five issues were framed at trial. Issue no. 2 was whether the suit was barred by the Benami Transactions (Prohibition) Act, 1988. The learned Trial Court considering such issue held that, the suit was barred under Section 4 of the said Act of 1988. The Trial Court found that, the appellants tried to enforce claims against the respondents in respect of an immovable property which was stated to be held in Benami. It was held that, past Benami transactions were within the sweep of Section 4 of the said Act of 1988. The provisions of the Act of 1988 were held to be retroactive. On appeal, the lower Appellate Court was of the view that, the spirit and principles of the said Act of 1988 had retrospective effect. The lower Appellate Court concurred with the finding of the Trial Court that the subject matter of the suit was barred under the provisions of the said Act of 1988.

Mr. Gopal Chandra Ghosh learned Advocate for the appellant contended that, the Courts below misconstrued and misapplied the provisions of the Benami Transactions (Prohibition) Act, 1988 in the facts and circumstances of the instant case. He submitted that, the suit was filed on February 3, 1988. Sections 3, 5, 8 of the Benami Transactions (Prohibition) Act, 1988 came into effect on September 5, 1988 and the other provisions of the said Act of 1988 came into force on May 15, 1988. He contended that, the Courts below applied the provisions of the said Act of 1988 erroneously to the suit when such provisions were not attracted. He relied upon All India Reporter 2011 Supreme Court page 773 (Samittri Devi & Anr. V. Sampuran Singh & Anr.) in support of his contention that suits filed prior to the coming into effect of the Act of 1988 would not be hit by the prohibition under Section 4 of the said Act of 1988. He relied on 1995 Volume 2 Supreme Court Cases page 630 (R. Rajagopal Reddy v. Padmini Chandrasekharan). He submitted that, R. Rajagopal Reddy (supra) reversed the ratio of 1989 Volume 2 Supreme Court Cases page 95 (Mithilesh Kumari v. Prem Behari Khare). He also relied upon 1988 West Bengal Law Reporter (Supreme Court) page 319 (Sankara Hall & Sankara Institute of Philosophy & Culture v. Kishori Lal Goenka & Anr.) with regard to the provisions of the Act of 1988. He submitted that, the suit was not barred under the said Act, 1988. The suit being filed prior to the Act of 1988. Coming into effect the suit was maintainable. The appellants derived valid title through the deeds dated October 6, 1959 and October 10, 1975. All the aforesaid deeds were registered documents. Surendra Nath Giri did not have any right, title and interest in respect of the property when he executed the two deeds dated July 11, 1984 and, therefore, the Respondents Nos. 1 and 2 did not derive any title in respect of the suit property. He relied on an unreported decision of a Division Bench of this Hon’ble Court dated September 23, 2009 passed in F.A. No. 227 of 1999 with regard to Nadabi deed. He cited 2006 Volume 1 Supreme Court Cases page 168 (Ramlal v. Phagua) and All India Reporter 2013 Supreme Court page 2088 (M. B. Ramesh (D) by Lrs. v. K.M. Veeraje Urs (D) by Lrs. & Ors.) for the proposition that, on second appeal concurrent finding of fact could be interfered with. He contended that, the appellants were entitled to the reliefs as claimed in the plaint. Mr. Sadananda Ganguly learned Advocate for the Respondent Nos. 1 and 2 contended that, the suit was barred by the laws of limitation. He was contended that, the suit was filed on February 3, 1988 by which a question of validity of a deed registered on July 11, 1984 was raised. He relied on Article 58 of the Limitation Act, 1963 and submitted that, the suit was barred by limitation. It was contended that, the plea of limitation was taken in the written statement. It was incumbent upon the Courts below to dismiss the suit in view of Article 58 and Section 3 of the Limitation Act, 1963. He submitted that, relying upon All India Reporter 1977 Supreme Court page 5 (Gurucharan Singh v. Kamla Singh & Ors.) that the respondents were entitled to raise the plea of limitation as it went to the root of the case based on undisputed and proven facts.

He submitted that, the onus was on the appellants to prove Benami. The appellants could not establish that case. He submitted that, the deed dated October 6, 1959 was never acted upon. No title could pass through the deed dated October 6, 1959. He submitted that, the suit property stood in the name of the Respondent Nos. 1 and 2 in the record of rights. He relied upon All India Reporter 1956 Calcutta page 669 paragraph 17 (Sm. Pankajini Debi & Ors. v. Sudhir Dutta & Ors.) and contended that there was presumption of correctness in the record of rights. It was claimed that, the transfer of the suit property in favour of the Respondent Nos. 1 and 2 by the conveyance dated July 11, 1984 was valid. The name of the Respondent No. 3 was recorded in the record of rights. Therefore the Respondent No. 3 was entitled to transfer the property in favour of the Respondent Nos. 1 and 2. On the scope and ambit of Section 100 of the Code of Civil Procedure, 1908 reliance was placed on All India Reporter 2005 Supreme Court page 1777 (Manicka Poosali (deceased by L.Rs.) & Ors. v. Anjalai Ammal & Anr.), 2009 Volume 4 Supreme Court Cases page 244 (Koppisetty Venkat Ratnam v. Pamarti Venkayamma) and All India Reporter 2001 Supreme Court page 2920 (Veerayee Ammal v. Seeni Ammal).

I have considered the respective submissions of the parties, the pleadings and the evidence on record. The suit was for declaration and injunction. The appellants sought a declaration that, the Respondent Nos. 1 and 2 did not have any right, title and interest in respect of the suit property. The appellants claimed title to the suit property by virtue of the deed of relinquishment dated October 6, 1959 executed by Surendra Nath Giri and the deed dated October 10, 1975 executed by Niranjan Maity. The Respondent Nos. 1 and 2 claimed right to property by virtue of sale deeds dated July 11, 1984 executed by Surendra Nath Giri. The Respondent Nos. 1 and 2 claimed that, the suit was not maintainable in view of the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988. An issue whether the suit was barred under the provisions of the Benami Transactions (Prohibition) Act, 1988 was framed. Both the Courts below found in favour of the Respondent Nos. 1 and 2 on this issue. The Trial Court relied on Mithilesh Kumari (supra) in returning such finding. The judgment of the Trial Court was dated July 8, 1994. The Appeal Court affirmed the judgment of the Trial Court on this issue. The judgment of the lower Appellate Court was dated September 9, 1994. The decision of Mithilesh Kumari (supra) was reversed in R. Rajagopal Reddy (supra) on January 31, 1995 and the same was reported in 1995 Volume 2 Supreme Court cases page 630 (R. Rajagopal Reddy v. Padmini Chandrasekharan). The Courts below relying upon Mithilesh Kumari (supra) was of the view that, the provisions of Section 4 of the Benami transactions (Prohibition) Act, 1988 barred the suit since the provisions of the said Act of 1988 was retrospective and retroactive. In R. Rajagopal Reddy (supra) the Apex Court held that, the said Act of 1988 or for that matter the Act as a whole was not a piece of declaratory or curative legislation. It created substantive rights in favour benamidars and destroyed substantive rights in favour of the real owners. It created a new offence of entering into Benami transactions. It did not have retrospective operation. Section 4 of the said Act would not apply to pending suits which were already filed and entertained prior to the said Act of 1988 coming into force. In Sankara Hall (supra) the Supreme Court held that any transaction entered into prior to the coming into force of the Benami Transactions (Prohibition) Act, 1988 between the ostensible owner and the real owner was not void under any provisions whatsoever. In Samittri Devi (supra) the Supreme Court considered Mithilesh Kumari (supra) and R. Rajagopal Reddy (supra) and found that Mithilesh Kumari (supra) was reversed by R. Rajagopal Reddy (supra). It held that, suits filed prior to the application of the Act of 1988 would not be hit by the prohibition under Section 4 of the said Act of 1988.

In the instant case the suit was filed on February 3, 1988. Section 4 of the said Act of 1988 came into effect on May 19, 1988. The suit was, therefore, filed prior to the coming into effect of the said Act of 1988 and was pending when the said Act of 1988 came into effect. Applying R. Rajagopal Reddy (supra) and Samittri Devi (supra) it must be said that the suit was maintainable.

Once the suit was held to be maintainable, the relief claimed therein required a revisit. On behalf of the appellants Ramlal (supra) and R. P. Desai (supra) were cited for the proposition that, there was no prohibition to entertain a second appeal even on question of fact, provided the Court was satisfied that the findings of the Courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. Interpretation of a document was a question of law. In this case the deed of relinquishment dated October 6, 1959 required consideration in view of the law laid down in R. Rajagopal Reddy (supra) and Samittri Devi (supra). The interpretation of such document gave rise to a substantial question of law as the answer to the question of interpretation of the deed dated October 6, 1959 would vitally affect the rights of the parties to the suit property. On behalf of the respondents it was submitted that, concurrent findings of fact ought not to be interfered with on second appeal. Reliance was placed on Veerayee Ammal (supra), Mantoo Sarkar (supra) and Manicka Poosali (supra) in that regard. In Veerayee Ammal (supra) it was held that, the High Court on second appeal could not go into questions of facts howsoever erroneous the findings may be. Koppisetty (supra) held that, it was not permissible in second appeal to interfere with concurrent finding of facts of the Courts below without framing a substantial question of law arising out of the substantiated facts. In Manicka Poosali (supra) it was held that, the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure, 1908 was limited to a substantial question of law framed at the time of admission of the appeal or at the subsequent stage if the High Court was satisfied that, a substantial question of law arose from the facts found by the Courts below. On facts of that case, it was found that, the genuineness of the Will was not challenged either in the pleadings or in the evidence or in the memorandum of grounds of the second appeal. No substantial question of law was framed on the genuineness of the Will on second appeal. In such a case, the High Court did not have the jurisdiction to set aside findings recorded by the Courts below regarding the validity and genuineness of the Will.

In Ramlal (supra) it was held that, the High Court was at liberty to reappreciate the evidence and record its own conclusion for reversing the judgment of the Courts below when the Courts below erred in not appreciating the oral and documentary evidence properly. M.B. Ramesh (supra) quoted from paragraph 67 of 2012 Volume 8 Supreme Court Cases page 148 (Union of India v. Ibrahim Uddin). Their Lordships were of the view that, there was no prohibition to entertain a second appeal even on a question of fact, provided the Court was satisfied that, the findings of the Courts below were vitiated by non consideration of relevant evidence or by showing erroneous approach to the matter and the findings recorded in the Courts below were perverse. In M.B. Ramesh (supra) it was held that, the High Court in second appeal rightly interfered with the concurrent findings of the facts by the Courts below as they were bad in law, perverse and contrary to the evidence on record.

In the instant case three substantial questions of law were framed by the Order dated April 16, 2013. The first substantial question of law related to the applicability of the provisions of the Benami Transactions (Prohibition) Act, 1988 to the suit. The suit was filed prior to the coming into effect of the said Act of 1988 and, therefore, the suit must be held to be maintainable. The next two substantial questions of law framed by the Order dated April 16, 2013 embraced within its wake the interpretation of the deed of relinquishment dated October 6, 1959 and the effect of the Nirupan Patra dated October 10, 1975 and their combined effect on the title to the suit property. The Courts below applied Mithilesh Kumari (supra) and I am required to apply to R. Rajagopal Reddy (supra) to the facts of this case. That would require the 2nd Appeal Court to delve into the evidence adduced at trial. The authorities cited before me, to my understanding, laid down that, for the High Court in second appeal to assume jurisdiction, must find a substantial question of law to arise out of the substantiated facts. The High Court was required to frame the substantial questions of law arising out of the substantiated facts of the case. In absence of a substantial question of law being framed and considered the High Court would be acting illegally and in abdication of duty cast on Court. Interpretation of a document was a question of law. But it would not suffice under Section 100 of the Code of Civil Procedure, 1908 to be a question of law alone for the 2nd Appeal Court to assume jurisdiction. The question of law must be substantial. The word substantial used in Section 100 of the Code of Civil Procedure, 1908 was explained by the Supreme Court to mean that, a question of law which arose from substantiated findings of facts arrived at by the Courts below and was necessary to be decided for a just and proper decision of the case. The word substantial used in Section 100 meant having substance, essential, real, of sound worth, important or considerable. It was to be understood as something in contradistinction with technical, of no substance or consequence, or merely academic. What would be a substantial question of law would depend upon the facts and circumstances of each case. The Supreme Court was also of the view that, there was no prohibition to entertain a second appeal even on a question of fact, provided the Court was satisfied that the findings of the Court below were vitiated by non-consideration of relevant evidence or by adopting an erroneous approach.

Adverting to the facts of the instant case, the Courts below proceeded on the basis of Mithilesh Kumari (supra) which was subsequently reversed in R. Rajagopal Reddy (supra). It could not be said that the Courts below approached the issues erroneously since Mithilesh Kumari (supra) was reversed subsequent to the judgment of the lower Appellate Court. However, R. Rajagopal Reddy (supra) was binding upon me. Therefore, after finding the suit to be maintainable, the question of the effect of the two documents dated October 6, 1959 in October 10, 1975 required consideration.

The interpretation of these two deeds gave rise to a question of law. These two deeds affected the rights of the parties. According to me, they gave rise to substantial questions of law as they affected the rights of the parties. Moreover, substantial questions of law in that regard was framed by the Order dated April 16, 2013.

The appellants were required to establish that, the registered deed of sale dated June 24, 1954 executed by Haro Charan Giri in favour of Surendra Nath Giri was in the Benami of Niranjan Maity. Surendra Nath Giri executed the deed of relinquishment dated October 6, 1959 in favour of Niranjan Maity therein admitting and acknowledging that he held the suit property in Benami and for and on behalf of Nirajan Maity. The deed was proved and marked as Exhibit ‘3’. I have considered the contents of Exhibit ‘3’. Surendra Nath Giri in Exhibit ‘3’ stated that, he was the son-in-law of Nirupam Maity and that, the suit property was held by him in Benami of Niranjan Maity. Surendra Nath Giri was the Defendant No. 3 in the suit and the Respondent No. 3 herein. He did not contest the suit. The contents of the deed of relinquishment dated October 6, 1959 were not challenged by Surendra Nath Giri although he had ample opportunity to do so. That the suit property was held by Surendra Nath Giri in Benami was proved from the contents of the deed of relinquishment dated October 6, 1959 executed by Surendra Nath Giri. Benami was thus proved. The transaction or the suit was not barred in view of R. Rajagopal Reddy (supra) and Samittri Devi (supra).

It was contended by the Respondent Nos. 1 and 2 that, the deed of relinquishment dated October 6, 1959 was not acted upon. The executant of such document being Surendra Nath Giri himself was a party to the suit. The said Surendra Nath Giri did not state that, the deed of relinquishment dated October 6, 1959 was not acted upon. In such view, it could safely be said that, the deed of relinquishment dated October 6, 1959 was valid and was acted upon.

With the execution of the deed of relinquishment dated October 6, 1959 any clog on the title of Niranjan Maity in respect of the suit property was removed. Niranjan Maity subsequently executed the Nirupan Patra dated October 10, 1975 in favour of the appellants. This document was also not under challenge. The appellants therefore derived proper title in respect of the suit property by virtue of the documents dated June 24, 1954, October 6, 1959 and October 10, 1975.

In Smt. Sushama Nath (supra) the apparent owner itself accepted the real owner in writing. In this case the deed of relinquishment dated October 6, 1959 stated that the suit property was held in Benami. Benami was, therefore, proved. Once the documents dated October 6, 1959 and October 10, 1975 were held to be valid Surendra Nath Giri ceased to have title to the suit property thereafter. In fact he did not have any title to the suit property and he declared that to be so on October 6, 1959. Therefore, he could not have sold the suit property to the Respondent Nos. 1 and 2 on July 11, 1984. Consequently, the Respondent Nos. 1 and 2 did not derive any title to the suit property by virtue of the sale deeds dated July 11, 1984 executed by Surendra Nath Giri in their favour. The second substantial question of law framed by the Order dated April 16, 2013 was, therefore, required to be answered in favour of the appellant.

So far as entry in the record of rights was concerned it could not be said that such entries conclusively established title of the land in question in favour of the persons whose name appeared in the record of rights. In Sm. Pankajini Debi (supra) the Division Bench of this Court held that, the settlement record was not a document of title. It did not create or extinguish title to the land. At the most, it may be relevant as some evidence of title to the recorded dags and may raise a presumption by virtue of the statutory presumption of correctness attached to its entries. Such entries however were rebuttable and so also the presumption.

In the facts of the instant case, Surendra Nath Giri was the benamidar of Niranjan Maity. This fact was conclusively established. Therefore, Surendra Nath Giri did not have any title to the suit property. His name in the record or rights or any name in the record of rights through Surendra Nath Giri did not confer any title to such person in respect of the suit property.

The Respondent Nos. 1 and 2 claimed that, the suit was barred by the laws of limitation. According to the Respondent Nos. 1 and 2 the time limit for initiating proceedings of the nature as of the instant suit was guided by Article 58 of the Limitation Act, 1963 which was 3 years. The appellants in effect were seeking to declare registered deed dated July 11, 1984 invalid by filing a suit on February 3, 1980. The suit was beyond the period of 3 years from the date of the registered document dated July 11, 1984. The issue of limitation was not considered by the Courts below although they were required to do so under section 3 of the Limitation Act, 1963. The Respondent Nos. 1 and 2 submitted that, they were entitled to raise this point on second appeal and they relied upon. It was held in Gurucharan Singh (supra) that, a pure question of law which went to the root of the matter could be taken even before the Court of the last resort provided that the opposite side was not taken by surprise or otherwise unfairly prejudiced. The point of limitation raised was a mixed question of fact and law. However, Section 3 of the Limitation Act, 1963 required the Court to decide the point of limitation although not taken. Article 58 of the Limitation Act, 1963 required the suit to be filed within 3 years from the date when the right to sue accrued first. The appellants claimed that, they approached the Court by filing the suit immediately after the Respondent Nos. 1 and 2 threatened to dispossess the appellants from the suit property. Nothing was shown on behalf of the Respondent Nos. 1 and 2 that, they threatened the appellants with dispossession prior to 3 years from the date of filing of the suit. Nothing was shown that, the appellants were aware of the deeds dated July 11, 1984 prior to 3 years from the date of the filing of the suit. The appellants were within the period of 3 years from the date of such threat. The suit was not barred by limitation.

The appellants as plaintiffs, therefore, were entitled to a decree in terms of prayer (ka) or (a) and (kha) or (b) of the plaint. The judgment and decree of the Courts below are set aside.

S.A. No. 86 of 1998 is decreed accordingly. The parties will bear their respective costs.

C.A.N. No. 7819 of 2012

C.A.N. No. 7819 of 2012 was an application by the respondents for an order of injunction restraining the appellants from interfering with or disturbing the peaceful possession of the respondents in respect of the suit land.

In view of the findings that the respondents did not derive any title to the suit land the respondents were not entitled to the relief as prayed for in the application. The application is, therefore, dismissed with no order as to costs.

[DEBANGSU BASAK, J.]

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