T.N.K. Singh, J.
1. The present second appeal filed by the appellant-plaintiff against the judgment and decree 2.3.2000 passed by the learned Civil Judge (Senior Division), Darrang, Mangaldoi in Title Appeal No. 8 of 1998 dismissing the appeal and affirming the judgment and decree dated 31.3.1998 passed by the learned Civil Judge (Junior Division) No. 2, Mangaldoi in Title Suit No. 11 of 1987 had been admitted for hearing on the substantial questions of law:
(i) Whether the learned courts below were justified in holding that Ext. 4 the sale deed was not proved, merely because the executant of the deed was not examined?
(ii) Whether the learned courts below failed to consider some relevant materials such as Ext.2, Ext.-5 and whether non-consideration of such material has vitiated the judgments?
(iii) Whether the learned trial court was justified to brush aside the examination commissioner's report by observing that it was incomplete and biased?
2. Heard Mr. B.K. Goswami, learned senior counsel assisted by Mr. T. Islam, learned Counsel appearing for the appellant-plaintiff and also Mr. C.K. Sarma Baruah, learned senior counsel assisted by Miss B. Mahanta, learned Counsel appearing for the respondents-defendants.
3. The appellant filed the Title Suit No. 11 of 1987 against the respondent-defendant No. 1 in the Court of the Civil Judge (Junior Division) No. 2 for declaration of title in respect of 1 Katha 16 lechas of land covered by Dag No. 52/575 of P.P. No. 960 situated in village Mangaldoi gaon (described in Schedule-1 to the plaint) and also for recovery of khas possession of the suit land (i.e., land in described in Schedule-2 which is a part of the land in Schedule-1) by demolishing the house of the respondents-defendant No. 1 and also permanent injunction restraining the respondent-defendants, their workmen & agent from raising new constructions and the sanitary latrine on the suit land.
4. The short pleaded case of the plaintiff in the plaint is that the appellant-plaintiff purchased 1 Bigha of land (scheduled-1) from one Mukta Ram Saikia under registered sale deed dated 12.7.1977 (Exhibit-4) and the possession also was delivered to him by said Mukta Ram Saikia. Mukta Ram Saikia purchased the said land (land described in Schedule-1) from one Naginarayan Konwar under registered sale deed dated 17.3.1964. But Mukta Ram Saikia did not mutate his name in the revenue record of the said land (Schedule-1) as he did not take steps for mutation. Naginarayan Konwar purchased 2 Bighas 3 Kathas 1 Lechas of land which include the said land i.e., 1 Bigha of land (Schedule-1) from one Bati Ram who as owner possessed the land measuring 7 Bighal Katha 11 Lechas of land covered by Dag No. 314 of P.P. No. 85, Mangaldoi gaon Mouza Chapai. The appellant-plaintiff, after purchasing the said land (Schedule-1) from said Mukta Ram Saikia under Registered sale deed dated 12.7.1977, mutated his name in the revenue record. In the last re-settlement, a patta (exhibit-5) of the said land (i.e., Schedule-1) was also prepatred in the name of the appellant-plaintiff and in the revenue records of the said land name of the appellant-plaintiff had been recorded as pattadar. In the last survey/resettlement, the area of the land purchased by the appellant/plaintiff had been reduced to 4 Kathas 14 Lechas and as such the area of the land described in the Schedule-I is only 4 Kathas 14 Lechas.
5. The respondent-defendant No. 1, Smti. Saraswati Devi also purchased 1 Bigha of land from the said owner Shri Bati Ram to the adjacent northern portion of the appellant-plaintiff land (Schedule-1) and she was in possession of the said land. The appellant-plaintiff was employed as a mechanic in the Irrigation Department and as such he was to reside at Mangaldoi town at Ward No. 1. It was not possible for him to look after the said land (Schedule-1) for some period. In November, 1978, the respondent-defendant No. 1 constructed a thatched house measuring by 20 x 10 ft. with an attached ekchali thatch. As the appellant-plaintiff had suspicion that the respondent-defendant No. 1 encroached some portion of his land (Schedule-1), he measured his land in December, 1978 and found that respondent-defendant No. 1 had encroached the said land (Schedule-1 to the plaint) to the extent of 1 katha 16 lechas which is described in Schedule-2 to the plaint.
6. The respondent-defendant No. 1, Smti. Saraswati Devi filed written statement contesting the suit. She also pleaded in the written statement that she purchased 1 Bigha of land including the suit land (i.e. Schedule-2 to the plaint) from the said Shri Bati Ram on 4.8.1955 and took delivery of possession. Since then she has been in possession of the land by constructing thatch house. In the last re-settlement the revenue authority issued a patta to her and she has been paying revenue to the Government. She did not dispossess the appellant-plaintiff from his land i.e. Schedule-1 to the plaint nor encroached the suit land i.e., Schedule-2 to the plaint.
7. Respondent-defendant No. 2 Mukta Ram Saikia impleaded himself as defendant No. 2 in the Title Suit No. 11/97 and filed his written statement. He took the plea identical with the respondent-defendant No. 1 in his written statement that the defendant No. 2 purchased 1 Bigha of land (Schedule-1) from the said Naginarayan Konwar on 17.3.1964 under registered sale deed and took delivery of possession. During the last re-settlement operation, the defendant No. 2 applied for mutation of his name in the revenue record and gave the registered sale deed to the local Lat Mandal. Lat Mandal, later on, told him that the original sale deed dated 17.3.1964 was lost. The defendant No. 2 in his written statement asserted that he never sold the said plot of land (Schedule-1 to the plaint) to the appellant-plaintiff and also that the said sale deed dated 12.7.1977 is a forged one.
8. The respondent-defendant No. 2 also filed a counter claim seeking declaration of title and recovery of possession of the said land (Schedule-1 to the plaint) by demolishing the appellant-plaintiff's houses. The appellant-plaintiff also filed written statement against counter claim and contested the counter claim by raising the objection. The appellant-plaintiff in his written statement specifically pleaded that the respondent-defendant No. 2 is a fictitious Mukta Ram Saikia and not the real Mukta Ram Saikia and also that counter claim is filed by the respondent-defendant No. 2 in collusion with the respondent-defendant No. 1.
9. The learned trial Court have framed 17 issues. Issue Nos. 4, 5, 6, 7, 8, 9 and 10 reads as follows:
4. Whether the plaintiff has has any right, title interest on the land measuring about 4 Katha 14 Lechas covered by Dag No. 52/575 under P.P. No. 960 (i.e. the land described in the Schedule-I) or not?
5. Whether the registered deed being No. 4269 registered on 12.7.1977 is a fraudulent and forged document?
6. Whether the defendant No. 2 sold and delivered his land measuring one bigha including suit land to the plaintiff as alleged in the plaint?
7. Whether the defendant No. 1 is in possession in excess more than that of her own land as alleged in the plaint?
8. Whether the defendant No. 1 has constructed the houses including sanitary latrine on the suit land as alleged in the plaint long before the institution of the suit?
9. Whether the suit land is dispossessed by defendant No. 1 as alleged in the plaint.
10. Whether the defendant No. 2 is the real person who purchased one bigha of land including the suit land from Naginarayan Konwar by registered sale deed No. 732 dated 17.3.1964?
10. The appellant-plaintiff examined as many as 6 PWs including himself and produced as many as 22 documents, which are all exhibited in support of the case of the appellant-plaintiff. Exhibit-2 is the certified copies of the registered sale deed dated 17.3.1964 by which said Mukta Ram Saikia purchased the said 1 Bigha of land (Schedule-1 to the plaint) from one Naginarayan Konwar. Exhibits is the patta of the land (Schedule-1 to the plaint) in favour of the appellant-plaintiff. The defendant also examined 6 DWs including the respondent-defendant No. 1 and the respondent-defendant No. 2.
11. The appellant-plaintiff in order to prove the registered sale deed dated 12.7.1977 (Exhibit-4) basing on which the appellant-plaintiff claimed title over the land (Schedule-1) had examined PW-1, Shri Phanidhar Kalita (appellant-plaintiff himself), PW-2, Mahendra Deka (attesting witness) and PW-3, Raghunath Talukdar (scribe). The registered sale deed dated 12.7.1977 (Exhibit-4) is not a document required to be compulsorily attested by the attesting witness. The document which is required to be attested compulsorily by the attesting witness is required to be proved in compliance with the procedures contemplated in Section 68 of the Indian Evidence Act, 1872. The proof of signature and hand-writing of a person alleged to have signed or written document produced can be made by taking recourse to Section 67 of the Indian Evidence Act, 1872. The Apex Court in Mobarik All Ahmed v. The State of Bombay reported in held that the proof of genuineness of the document is proof of the authorship of the document and is proof of a fact like that of any other fact. It may consists of direct evidence of a person who saw the document being written or of the signature being affixed. It may be proof of the handwriting of the contents, or/signature by one of the modes provided in Section 45 and Section 47 of the Evidence Act. The scribe could prove the contents of the document. The Bombay High in Sir Mohammed Yusuf and Anr. v. D. and Anr. reported In held that the evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. An attempt to prove the contents of the document by proving the signature or the handwriting of the authorship is to set at naught the well-recognized rule that hearsay evidence cannot be admitted. The Bombay High Court in Sir Mohammed Yusuf and Anr. (supra) had followed the ratio laid down by the Apex Court in Mobarik Ali Ahmed (supra). This Court is of the similar view in Lourembam Heramot Singh v. Laisram Angahal Singh and Ors. reported in AIR 1979 Gauhati 68.
12. Keeping in view of the above discussion it is required to see as to whether the appellant-plaintiff could prove the sale deed dated 12.7.1977 (Exhibit-4) in the instant case. PW-1 (appellant-plaintiff) in the course of examination before the Court he exhibited the registered sale deed dated 12.7.1977 by identifying the signatures of the executants Shri Mukta Ram Saikia signature as Exhibit 4(1) to Exhibit 4(IV) and he also exhibited the signature of the deed writer/scribe (PW-3) of the sale deed dated 12.7.1977 (Exhibit-4) as Exhibit 4(V) to 4(VII). PW-1 also stated that the executant was identified by one Mahendra Deka who put his signature on the sale deed dated 12.7.1977 and he identified the signature of the identifier as Exhibit-4(IX). The deed writer as PW-3 (Shri Raghunath Talukdar) also deposed that he saw the executant Mukta Ram Saikia at the time of writing sale deed Exhibit 4 and on his dictation he drafted the sale deed. The scribe/deed writer PW-3 also deposed that the executant Mukta Ram Saikia was identified by Mahendra Deka (attesting witness) and he further deposed that he had been to the house of the executant Mukta Ram Saikia at village Narnjalah. The statement of P.W. No. 2 Mahendra Deka (attesting witness) also corroborated the statements of the P.W. No. 1 (appellant-plaintiff) and the P.W. No. 3 (scribe). The appellant/plaintiff had proved the execution of the registered sale deed dated 12.7.1977 by the executant in his favour in the manner prescribed by law. But the learned Civil Judge (Junir Division) on the sole ground held that the appellant-plaintiff had failed to prove registered sale deed dated 12.7.1977 (Exhibit-4) as the appellant-plaintiff did not produce the executant Mukta Ram Saikia as PW. As discussed above, the examination of the executant is not compulsory for proving the registered sale deed. The registered sale deed could be proved in the manner discussed above. The learned Civil Judge (Junior Division) after such finding held that the appellant-plaintiff has no title over the land (Schedule-1) by deciding the issue Nos. 4, 5 and 6 against the appellant-plaintiff and dismissed the Title Suit No. 11 of 1987 by passing judgment and decree dated 31.3.1998.
13. Against the judgment and decree dated 31.3.1998 for dismissing the Title Suit No. 11 of 1987, the appellant plaintiff preferred an appeal being Title Appeal No. 8 of 1998 before the Civil Judge (Senior Division), Darrang at Mangaldoi. The learned 1st appellate Court is duty found to display conscious application of mind to all the issues by carefully dealing with the oral evidence as well as documentary evidence and the record its finding supported by reasons. The 1st appellate Court cannot mechanically affirm finding of trial Court without due and proper application of mind. In this regard we may recall the decision of the Apex Court in State of Rajasthan v. Harphool Singh reported in . But the 1st appellate Court had passed the impugned judgment and decree dated 2.3.2000 by simply and mechanically affirming the finding of the trial Court i.e., the learned Civil Judge (Junior Division) that the appellant-plaintiff had failed to prove the registered sale deed dated 12.7.1977 (Exhibit-4) by simply endorsing the view of the trial Court that on non-examination of the executant of the sale deed dated 12.7.1977 by the appellant plaintiff as PW, the registered sale deed dated 12.7.1977 (Exhibit 4) had not been proved.
14. The power of this Court in a second appeal are expressly provided under Section 100 of the CPC and if the High Court is satisfied that the case involved substantial question of law, the power under Section 100 of the CPC could be exercised. This Court has still the power to hear any other substantial questions of law not formulated earlier in the course of final hearing of the second appeal.
15. Mr. C.K. Sarma Baruah, learned senior counsel appearing for the respondents made an illuminating submissions about the meaning of 'substantial question of law' as occurring in the amended Section 100 of the CPC, by referring to the decisions of the Apex Court--
1. : Hero Vinoth Seshammal
2. : Santosh Hazari v. Purushottam Tiwari
3. : Rajeswari v. Puran Indoria
4. : Pachngopal Barua and Ors. v. Umesh Chandra Goswami and Ors.
16. This Court is not disputing the meaning of 'substantial question of law' propounded by Mr. C.K. Sarma Barua, learned senior counsel but the court is construing the meaning of 'substantial question of law' in the context of the particular facts and circumstances of the case inasmuch as there is no straight jacket formula about the meaning of 'substantial question of law'. To the contra, Mr. B.K. Goswami, learned senior counsel appearing for the appellant by referring to the decision of the Apex Court reported in the case (State of Rajasthan v. Harphool). (Santa Kumari v. Lakshmi Amma) (Is war Doss Jain v. Sohanlal) (2001) 4 SCC (Kulwant Kaur v. Gurdial Singh), also interpreted the substantial question of law which would be required to decide in the present appeal.
17. The Apex Court in State of Rajasthan v. Harpool (supra) held that the High Court has the power of interfering the finding based on surmise and conjectures and the perverse finding not based on legally acceptable evidence as well as the finding which are patently contrary to law declared by the Supreme Court inasmuch as it would be a substantial question of law. The Apex Court in Kulwant Kaur and Ors. v. Lakshmi Amma (supra) held that the question whether the finding a lower court is perverse would come within the meaning of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show compliance with the provision of Section 100 CPC.
18. Para 34 of Kulwant Kaur and Ors. (supra) is quoted as follows:
34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is. however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication--what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--
(a) Which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) Which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.
19. The Apex Court in Ishwar Dass Jain (supra) held that substantial question of law arose when vital evidence which would have lead to different conclusion was omitted or when inadmissible evidence which relied upon if omitted or have difference conclusion.
20. Para 10, 11, 12 and 13 of Iswar Dass Jain (supra) is quoted are as follows:
10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai punjabi v. Sharad Chandra while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981, L.M. Sharma, J (as he then was) observed that: (SCC pp 712-13, para 5)
The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding. This is the situation in the present case.
In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as 'owner' of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagadish Singh v. Natthu Singh with reference to a second appeal of 1978 disposed of on 5.4.1991, Venkatachaliah, J, (as he then was) held SCC p. 652. para 10).Where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar it was held that where certain vital documents for deciding the question of possession were ignored--such as a compromise, an order of the Revenue Court--reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari arising out of second appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15.1.1996.
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh it was held that the High Court was right in interfering in second appeal where the lower appellate court relied upon an admission of a third party treating it as binding of the defendant. The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed of on 24.9.1985.
13. In either of the above situations, a substantial question of law can arise. The substantial question of law that arises for consideration in this appeal is:
Whether the courts below had failed to consider vital pieces of evidence and whether the courts relied upon inadmissible evidence while arriving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant?
21. Keeping in view of the ratio laid down by the Apex Court in the cases discussed above, this Court is of the considered view that finding of both the trial and 1st appellate court that the appellant plaintiff had failed to prove the registered sale deed dated 12.7.1977 are perverse inasmuch as the vital evidence i.e., the statement of the PW-1 (appellant-plaintiff) himself, PW-2, Mahendra Deka, (attesting witness) and PW-3 Raghunath Talukdar (scribe) had been neglected and also had their statement been taken in consideration according to the ratio laid down by the Apex Court in the above cases, there would have been a different conclusion. The omission of such vital evidence in the peculiar circumstances of the present case would call for an interference of this Court under Section 100 CPC. This Court, for the reasons discussed above, is of the considered view that the appellant plaintiff had proved the execution of the registered sale deed dated 12.7.1977 as a result thereof the appellant plaintiff has successfully established his title as owner over the land described in Schedule-1 to the plaint. Accordingly, this appeal is partly allowed by setting aside the portion of the impugned judgment and decree dated 2.3.2000 passed in Title Suit No. 8 of 1998 and the judgment and decree dated 31.3.1998 in the Title Suit No. 11 of 1997 that the appellant/plaintiff has no right and title in respect of the land described in Schedule-1 to the plaint.
22. For the reasons discussed above, the Appellant/Plaintiff has the right and title being the owner in respect of the land described in Schedule 1 to the plaint.
23. Accordingly the Appeal is partly allowed. The parties are to bear their own cost.