Shri Gouri Sankar Chakraborty and anr. Vs. the State of West Bengal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/912024
CourtKolkata Appellate High Court
Decided OnJan-21-2011
Case NumberS. A. No.446 of 1984
JudgeTarun Kumar Gupta, J.
AppellantShri Gouri Sankar Chakraborty and anr.
RespondentThe State of West Bengal and ors.
Appellant AdvocateMr. S. P. Roy Chowdhury; Mr. Sanat Roy; Mr. Kishore Mukherjee, Advs
Respondent AdvocateMs. Rina Basu, Adv
Cases Referred(Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and
Excerpt:
[r. kantha rao, j.] code of criminal procedure (cr.p.c) - sections 482, 156(3), 197(1), 198; indian penal code (ipc) - sections 166, 447, 448, 427; code of civil procedure (cpc) - order 39 rules 1, 2; a.p. charitable and hindu religious institutions and endowments act, 1987 - section 84 -- saving of inherent power of high court - this criminal petition is filed under section 482 cr.p.c. to quash the proceedings in c.c.no.395 of 2008 relating to crime no.86 of 2006, dated 06.06.2006 of station house officer, proddatur police station, kadapa district. the accused 1 and 3 are the petitioners. further, even according to the investigation conducted by the police, the order of status quo passed by the learned junior civil judge was not served on the petitioners. furthermore, since the alleged act of dispossession committed by the petitioners is not prompted by any mala fides or motives, the proper remedy, if any, available to the second respondent only lies in the civil court for breach of order granting status quo passed by the learned junior civil judge, proddatur. the criminal petition is allowed.1. this second appeal is directed against judgment and decree dated 30th march, 1983 passed by learned additional district judge, rampurhat, birbhum in title appeal no.384 of 1981 thereby setting aside the judgment and decree dated 21st of 1981 passed by learned munsif, 1st court, rampurhat in title suit no.121 of 1978 renumbered as title suit no.161 of 1981.2. the appellant plaintiffs case, in short, is that the suit plots constituting the tank fishery originally belonged to zamindars pashupati chakraborty, kamalapati chakraborty and ramapati chakraborty. in 1357 b.s. said zamindars settled the suit tank fishery with umarani devi subject to payment of an annual rent of one anna, one gonda and four pie and delivered possession to the tenant. plaintiffs purchased said tank fishery being suit property from umarani devi by a registered kobala dated 16th of january, 1962 and since then they were in possession of the same. in the revisional settlement, the suit property was wrongly recorded in the name of former zamindars. in view of said erroneous recording the state government has been threatening the plaintiffs with dispossession from the suit property for settlement of the same with third parties.3. defendant state of west bengal filed written statement denying material allegations of the plaint and contending inter alia that suit lands were originally recorded in the intermediary khatians of the concerned landlords as they did not retain the same and it accordingly vested to the state. the suit property has already been settled to one shyamapada halder for three years with effect from 1385 b.s. neither umarani devi nor plaintiff had any right, title, interest or possession in the suit property and their documents, if any, were false and fabricated. defendant nos. 2 and 3 namely pashupati chakraborty and kamalapati chakraborty being ex-landlords filed written statement in said suit supporting plaintiffs claim. their further case was that in return submitted on 30.10.1954 they showed the suit lands as settled with umarani devi with effect from 1357 b.s. and that they had no possession over the same since then.4. on the basis of the pleadings of the parties learned trial court framed several issues and came to the conclusion that plaintiffs got title over suit property from umarani devi who took settlement of the same from erstwhile zamindars and that erstwhile zamindars retained the suit plots by submitting return and that the defendant state had no authority to interfere with peaceful possession of the plaintiffs in suit plots. accordingly, he passed a decree in favour of the plaintiffs. the defendant state filed an appeal being title appeal no.384 of 1981 wherein the aforesaid judgment of learned trial court was set aside by allowing the appeal. hence is this second appeal.5. at the time of admission of second appeal ground nos. 7, 12 and 14 of the memo of appeal were identified as substantial questions of law to be decided in the second appeal. they stand as follows:-01. for that the learned court of appeal below ought to have considered that the exhibit 2 is receipt by which the lands were settled but alleged failure to produce any further rent receipts does not change the nature and character of the claim particularly in view of the fact that 5 years after the said settlement intermediary interest became vested to the state and in not doing so the learned court of appeal below acted illegally.02. for that the learned court of appeal below ought to have held that the learned trial court is justified in admitting exhibit namely copy of the return under section 6(1) of the west bengal estate acquisition act and in not doing so the learned court of appeal below acted illegally.03. for that the learned court of appeal below ought to have considered that after trial court asked the state to produce the said return, neither the state asked for further time for furnishing the original return nor submitted the same before the court and the presumption will definitely be in favour of the plaintiffs but the observation of the learned court of appeal below in that respect is wholly illegal and contrary to records and as such the said judgment and decree cannot sustain. learned lower appellate court allowed the appeal by reversing the judgment and decree of learned trial court mainly on the following grounds:-01. plaintiffs vendor umarani devi was wife of ramapati chakraborty, one of the intermediaries landlords and claimed to take settlement of the suit property from those landlords intermediaries in 1357 b.s. (1950) with yearly rent but defendant no.3 kamalapati chakraborty while deposing on behalf of self and defendant no.2 pashupati deposed that ramapati chakraborty died leaving no wife or children and accordingly those two brothers inherited his interest. this belied the story of giving settlement of suit land on yearly rent to ramapatis wife umarani devi.02. during evidence plaintiffs being purchaser of suit property from umarani devi in 1961 produced only one receipt or chek (ext.2) in support of settlement of land in favour of umarani devi in 1357 b.s., though p.w.1 deposed that umarani devi handed over all zamindary rent reciepts and settlement chek at the time of sale of suit property to the plaintiffs.03. defendant no.3 (d.w.1) while deposing produced two more receipts purportedly granted in favour of umarani devi vide ext.a and a(1) though as per evidence of p.w.1 no such rent receipt should have been with landlords. no reliance can be placed on ext.a and ext.a(1).04. defendant no.2 and 3 called upon defendant state of west bengal to produce the original return submitted by them under section 6(1) of the w.b. estate acquisition act. to call upon the state to produce some original returns submitted in 1954 i.e., some 27 years ago, in course of seven days only was rather a tall claim and that it was not a reasonable notice within the meaning of section 65 or section 66 of the indian evidence act.05. on account of non-filing of original returns by state learned trial court exhibited a copy of purported return under section 6(1) of the west bengal estate acquisition act claimed to have been furnished in 1954 (ext.b) vide the postal receipts of registration (ext.c). ext. b could have been admitted in evidence in terms of sub-section 3 of section 63 of the evidence act in the circumstances of the case treating the notice of seven days as valid only if ext.b was copy made and compared with the original but d.w.1 who was a pleader at one point of time did not say at any point of time that ext.b was a copy of the original return under section 6(1) of the act or compared with the original. ext.b also did not contain signatures of ex-landlords though return must bear signatures of ex-landlords. as such no reliance can be placed on ext.b.06. the suit property being tank fishery is admittedly non-agricultural land and for settlement of the same a registered document was required. no such registered document was executed and that alleged chek (ext.2) was the only proof of alleged creation of tenancy in favour of umarani devi, the vendor of plaintiffs.07. suit property was treated as vested in the suit in terms of r.s. records of rights prepared in 1956 and the plaintiffs, apparently not illiterate and rustic, did not take any step for some 22 years after preparation of r.s. records of rights to assert their alleged tenancy rights (the suit was filed in 1978). neither plaintiffs predecessor in interest umarani devi nor plaintiffs through umarani devi acquired any tenancy rights in the suit property.6. mr. s. p. roy chowdhury, learned advocate for the appellant plaintiffs, has submitted that one chek / rent receipt was filed by the plaintiffs to show creation of tenancy in favour of their vendor umarani devi in 1357 b.s. and that learned lower appellate court should not have disbelieved the same.7. he has further submitted that even if non-agricultural land was leased out keeping yearly rent followed by delivery of possession and receiving rent but without having any registered document, then it has to be presumed that the tenancy was from month to month. in this connection he has referred a case law reported in air (39) 1952 supreme court page 23 (ram kumar das v. jagdish chandra deo, dhabal deb and another).8. there was no case of respondent state of west bengal, he submits, that no return was filed by ex-landlords being intermediaries. according to him, notice was given to the respondent state of west bengal for production of original b-form submitted by ex-landlords under section 6(5) of the west bengal estate acquisition act and that state neither produced the same nor prayed for time for production of the same and accordingly learned lower appellate court was wrong to hold that the notice for production being short one was not a valid notice. according to him, learned trial court rightly exhibited the copy of b-form and the postal receipt of sending the same under registered post after failure on the part of respondent state to produce the original b-form. in this connection he has further submitted that even if there was non-filing of b-form by the intermediaries still the state cannot straightway vest the lands without giving a further opportunity to the concerned persons for hearing under section 6(5) of said act. in this connection he has referred a case law reported in (2004) cal lt 445 (hc) (sm. kamala rani mitra and ors. v. state of west bengal).9. mr. roy chowdhury, learned advocate for the appellant, has also referred a case law reported in 2006 (1) chn page 241 (state of w.b. v. sanjeevani projects (p) ltd.) wherein it was held that there was no ceiling in tank fishery area in the west bengal estate acquisition act.10. mr. roy chowdhury, learned advocate, has also referred a case law reported in air 1936 calcutta page 456 (kiran chandra v. tarak nath) to impress upon this court that mere wrong entry in record of right by itself may not be the cause of action for filing a suit so long the title of the party is not threatened by said wrong entry. according to him, learned lower appellate court failed to appreciate the evidence on record in proper perspective causing miscarriage of justice and that impugned judgment and decree should be set aside by this court of second appeal. ms. rina basu, learned advocate for the respondents state of west bengal, on the other hand, has submitted that learned lower appellate court has appreciated the evidence on record in proper perspective and that even if his findings are found to be erroneous still there is no scope of interference to those findings by this court under section 100 c. p. c. unless it can be shown that said decision was contrary to mandatory provisions of law applicable or based on inadmissible evidence or arrived at without evidence.11. she has further submitted that no substantial question of law is really involved in the case in hand and that on that score this second appeal should be dismissed. in support of her contention she has referred a case law reported in (1999) 3 supreme court cases page 722 (kondiba dagadu kadam vs. savitribai sopan gujar and others).12. learned appellate court below disbelieved the story of granting settlement of suit property to umarani devi, wife of ramapati chakraborty, one of the intermediaries, in 1357 b.s., with a yearly rent and possession of the same by umarani devi and subsequent possession of plaintiff on the strength of purchase of the same from umarani devi in 1961. in this connection, he observed that only one chek was produced though as per version of p.w.1 all rent receipts were handed over by the vendor of the plaintiff at the time of execution of kobala. learned lower appellate court further commented that production of two other receipts that too from the custody of defendant nos. 2 and 3 being brothers of ramapati after long 28 years without being asked was suspicious. aforesaid findings of learned lower appellate court were findings of fact involving no question of law, not to speak of substantial question of law.13. in this connection, it is pertinent to note that if a person (here plaintiff) claimed to possess suit property since 1963 after alleged purchase then it is expected that he will exercise his acts of possession by way of mutation of his name and payment of rent to the state on receipt of dakhilas. admittedly, there was no mutation in favour of plaintiff or payment of rent for even a single year though he claimed to be in possession since 1961 after purchase.14. finally published records of rights stood in the name of erstwhile intermediaries namely ramapati and his two brothers i.e., defendant nos. 2 and 3. finally published record of rights has a presumptive value of correctness. however, said presumption is rebuttable. the onus is upon the person who is challenging said presumptive value of correctness of the notings in the finally published record of rights.15. in order to rebut said presumption defendant nos. 2 and 3 filed alleged copy of b form showing suit land being settled land to tenant umarani devi. said document was marked as ext.-b and the alleged postal receipt under which said return was sent was marked as ext. c. said documents were exhibited on the ground that principal defendant state failed to produce original b form in spite of being asked to produce the same by the plaintiff.16. learned lower appellate court held that said notice of 7 days being too short for production of an old document from the custody of defendant state, cannot be said to be a good notice. he also observed that in absence of specific evidence that ext. b was a copy made from the original and compared with the original, learned trial court should not have exhibited said alleged copy of b form as ext. b for noncompliance of section 63 (3) of the indian evidence act. here again i find that the aforesaid observation of the learned lower appellate court cannot be said to be improper.17. it is true that if non-agricultural land is leased out keeping yearly rent followed by delivery of possession but there was no registered document in spite of receiving rents then it has to be presumed that the tenancy was from month to month. as such the observation of learned lower appellate court that the creation of alleged tenancy in favour of umarani devi was totally void for want of a registered document is not acceptable. but i have already stated that learned lower appellate court on scanning of evidence on record came to a finding of facts that no tenancy was created in favour of umarani devi and that no title passed to the plaintiff through umarani devi and that plaintiff failed to produce convincing documents of possession as well as for rebutting the presumptive value of correctness of the entries of finally published record of right. in kondiba dagadu kadams case (ibid) it was specifically held by the honble apex court that where the substantial question of law has already been decided by a larger bench of the high court concerned, or by the privy council, or by the federal court or by the supreme court, mere wrong application on facts of a particular case does not create another substantial question of law. it was further held by their lordships in said case that high court cannot substitute its own opinion for that of the first appellate court unless it finds that the conclusions drawn by the lower court were erroneous being (1) contrary to the mandatory provisions of applicable law; or (2) contrary to the law as pronounced by the apex court; or (3) based upon inadmissible evidence or no evidence. in the case in hand, none of the grounds justifying interference by this court in second appeal, as mentioned above, is present.18. accordingly, i find and hold that the instant second appeal has no merit. as a result, the second appeal fails.19. the impugned judgment and decree of learned lower appellate court stand confirmed.20. send down lower court records urgently along with a copy of this judgment.21. urgent xerox certified copy of this judgment be supplied to learned counsels of the party / parties, if applied for.
Judgment:

1. This Second Appeal is directed against judgment and decree dated 30th March, 1983 passed by learned Additional District Judge, Rampurhat, Birbhum in Title Appeal No.384 of 1981 thereby setting aside the judgment and decree dated 21st of 1981 passed by learned Munsif, 1st Court, Rampurhat in Title Suit No.121 of 1978 renumbered as Title Suit No.161 of 1981.

2. The appellant plaintiffs case, in short, is that the suit plots constituting the tank fishery originally belonged to zamindars Pashupati Chakraborty, Kamalapati Chakraborty and Ramapati Chakraborty. In 1357 B.S. said zamindars settled the suit tank fishery with Umarani Devi subject to payment of an annual rent of one anna, one gonda and four pie and delivered possession to the tenant. Plaintiffs purchased said tank fishery being suit property from Umarani Devi by a registered Kobala dated 16th of January, 1962 and since then they were in possession of the same. In the revisional settlement, the suit property was wrongly recorded in the name of former zamindars. In view of said erroneous recording the State Government has been threatening the plaintiffs with dispossession from the suit property for settlement of the same with third parties.

3. Defendant State of West Bengal filed written statement denying material allegations of the plaint and contending inter alia that suit lands were originally recorded in the intermediary khatians of the concerned landlords as they did not retain the same and it accordingly vested to the State. The suit property has already been settled to one Shyamapada Halder for three years with effect from 1385 B.S. Neither Umarani Devi nor plaintiff had any right, title, interest or possession in the suit property and their documents, if any, were false and fabricated. Defendant Nos. 2 and 3 namely Pashupati Chakraborty and Kamalapati Chakraborty being ex-landlords filed written statement in said suit supporting plaintiffs claim. Their further case was that in return submitted on 30.10.1954 they showed the suit lands as settled with Umarani Devi with effect from 1357 B.S. and that they had no possession over the same since then.

4. On the basis of the pleadings of the parties learned Trial Court framed several issues and came to the conclusion that plaintiffs got title over suit property from Umarani Devi who took settlement of the same from erstwhile zamindars and that erstwhile zamindars retained the suit plots by submitting return and that the defendant State had no authority to interfere with peaceful possession of the plaintiffs in suit plots. Accordingly, he passed a decree in favour of the plaintiffs. The defendant State filed an appeal being Title Appeal No.384 of 1981 wherein the aforesaid judgment of learned Trial Court was set aside by allowing the appeal. Hence is this second appeal.

5. At the time of admission of second appeal ground Nos. 7, 12 and 14 of the memo of appeal were identified as substantial questions of law to be decided in the second appeal. They stand as follows:-

01. For that the learned Court of Appeal below ought to have considered that the exhibit 2 is receipt by which the lands were settled but alleged failure to produce any further rent receipts does not change the nature and character of the claim particularly in view of the fact that 5 years after the said settlement intermediary interest became vested to the State and in not doing so the learned Court of Appeal below acted illegally.

02. For that the learned Court of appeal below ought to have held that the learned Trial Court is justified in admitting exhibit namely copy of the return under Section 6(1) of the West Bengal Estate Acquisition Act and in not doing so the learned Court of Appeal below acted illegally.

03. For that the learned Court of Appeal below ought to have considered that after Trial Court asked the State to produce the said return, neither the State asked for further time for furnishing the original return nor submitted the same before the Court and the presumption will definitely be in favour of the plaintiffs but the observation of the learned Court of Appeal below in that respect is wholly illegal and contrary to records and as such the said judgment and decree cannot sustain. Learned Lower Appellate Court allowed the appeal by reversing the judgment and decree of learned Trial Court mainly on the following grounds:-

01. Plaintiffs vendor Umarani Devi was wife of Ramapati Chakraborty, one of the intermediaries landlords and claimed to take settlement of the suit property from those landlords intermediaries in 1357 B.S. (1950) with yearly rent but defendant No.3 Kamalapati Chakraborty while deposing on behalf of self and defendant No.2 Pashupati deposed that Ramapati Chakraborty died leaving no wife or children and accordingly those two brothers inherited his interest. This belied the story of giving settlement of suit land on yearly rent to Ramapatis wife Umarani Devi.

02. During evidence plaintiffs being purchaser of suit property from Umarani Devi in 1961 produced only one receipt or Chek (Ext.2) in support of settlement of land in favour of Umarani Devi in 1357 B.S., though P.W.1 deposed that Umarani Devi handed over all zamindary rent reciepts and settlement Chek at the time of sale of suit property to the plaintiffs.

03. Defendant No.3 (D.W.1) while deposing produced two more receipts purportedly granted in favour of Umarani Devi Vide Ext.A and A(1) though as per evidence of P.W.1 no such rent receipt should have been with landlords. No reliance can be placed on Ext.A and Ext.A(1).

04. Defendant No.2 and 3 called upon defendant State of West Bengal to produce the original return submitted by them under Section 6(1) of the W.B. Estate Acquisition Act. To call upon the State to produce some original returns submitted in 1954 i.e., some 27 years ago, in course of seven days only was rather a tall claim and that it was not a reasonable notice within the meaning of Section 65 or Section 66 of the Indian Evidence Act.

05. On account of non-filing of original returns by State learned Trial Court exhibited a copy of purported return under Section 6(1) of the West Bengal Estate Acquisition Act claimed to have been furnished in 1954 (Ext.B) Vide the postal receipts of registration (Ext.C). Ext. B could have been admitted in evidence in terms of sub-Section 3 of Section 63 of the Evidence Act in the circumstances of the case treating the notice of seven days as valid only if Ext.B was copy made and compared with the original but D.W.1 who was a pleader at one point of time did not say at any point of time that Ext.B was a copy of the original return under Section 6(1) of the Act or compared with the original. Ext.B also did not contain signatures of ex-landlords though return must bear signatures of ex-landlords. As such no reliance can be placed on Ext.B.

06. The suit property being tank fishery is admittedly non-agricultural land and for settlement of the same a registered document was required. No such registered document was executed and that alleged Chek (Ext.2) was the only proof of alleged creation of tenancy in favour of Umarani Devi, the vendor of plaintiffs.

07. Suit property was treated as vested in the suit in terms of R.S. records of rights prepared in 1956 and the plaintiffs, apparently not illiterate and rustic, did not take any step for some 22 years after preparation of R.S. records of rights to assert their alleged tenancy rights (the suit was filed in 1978). Neither plaintiffs predecessor in interest Umarani Devi nor plaintiffs through Umarani Devi acquired any tenancy rights in the suit property.

6. Mr. S. P. Roy Chowdhury, learned advocate for the appellant plaintiffs, has submitted that one Chek / rent receipt was filed by the plaintiffs to show creation of tenancy in favour of their vendor Umarani Devi in 1357 B.S. and that learned Lower Appellate Court should not have disbelieved the same.

7. He has further submitted that even if non-agricultural land was leased out keeping yearly rent followed by delivery of possession and receiving rent but without having any registered document, then it has to be presumed that the tenancy was from month to month. In this connection he has referred a case law reported in AIR (39) 1952 Supreme Court page 23 (Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb and another).

8. There was no case of respondent State of West Bengal, he submits, that no return was filed by ex-landlords being intermediaries. According to him, notice was given to the respondent State of West Bengal for production of original B-form submitted by ex-landlords under Section 6(5) of the West Bengal Estate Acquisition Act and that State neither produced the same nor prayed for time for production of the same and accordingly learned Lower Appellate Court was wrong to hold that the notice for production being short one was not a valid notice. According to him, learned Trial Court rightly exhibited the copy of B-form and the postal receipt of sending the same under registered post after failure on the part of respondent State to produce the original B-form. In this connection he has further submitted that even if there was non-filing of B-form by the intermediaries still the State cannot straightway vest the lands without giving a further opportunity to the concerned persons for hearing under Section 6(5) of said Act. In this connection he has referred a case law reported in (2004) CAL LT 445 (HC) (Sm. Kamala Rani Mitra and Ors. v. State of West Bengal).

9. Mr. Roy Chowdhury, learned advocate for the appellant, has also referred a case law reported in 2006 (1) CHN page 241 (State of W.B. v. Sanjeevani Projects (P) Ltd.) wherein it was held that there was no ceiling in tank fishery area in the West Bengal Estate Acquisition Act.

10. Mr. Roy Chowdhury, learned advocate, has also referred a case law reported in AIR 1936 Calcutta page 456 (Kiran Chandra v. Tarak Nath) to impress upon this Court that mere wrong entry in record of right by itself may not be the cause of action for filing a suit so long the title of the party is not threatened by said wrong entry. According to him, learned Lower Appellate Court failed to appreciate the evidence on record in proper perspective causing miscarriage of justice and that impugned judgment and decree should be set aside by this Court of Second Appeal. Ms. Rina Basu, learned advocate for the respondents State of West Bengal, on the other hand, has submitted that learned Lower Appellate Court has appreciated the evidence on record in proper perspective and that even if his findings are found to be erroneous still there is no scope of interference to those findings by this Court under Section 100 C. P. C. unless it can be shown that said decision was contrary to mandatory provisions of law applicable or based on inadmissible evidence or arrived at without evidence.

11. She has further submitted that no substantial question of law is really involved in the case in hand and that on that score this Second Appeal should be dismissed. In support of her contention she has referred a case law reported in (1999) 3 Supreme Court Cases page 722 (Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others).

12. Learned Appellate Court below disbelieved the story of granting settlement of suit property to Umarani Devi, wife of Ramapati Chakraborty, one of the intermediaries, in 1357 B.S., with a yearly rent and possession of the same by Umarani Devi and subsequent possession of plaintiff on the strength of purchase of the same from Umarani Devi in 1961. In this connection, he observed that only one Chek was produced though as per version of P.W.1 all rent receipts were handed over by the vendor of the plaintiff at the time of execution of Kobala. Learned Lower Appellate Court further commented that production of two other receipts that too from the custody of defendant Nos. 2 and 3 being brothers of Ramapati after long 28 years without being asked was suspicious. Aforesaid findings of learned Lower Appellate Court were findings of fact involving no question of law, not to speak of substantial question of law.

13. In this connection, it is pertinent to note that if a person (here plaintiff) claimed to possess suit property since 1963 after alleged purchase then it is expected that he will exercise his acts of possession by way of mutation of his name and payment of rent to the State on receipt of dakhilas. Admittedly, there was no mutation in favour of plaintiff or payment of rent for even a single year though he claimed to be in possession since 1961 after purchase.

14. Finally published records of rights stood in the name of erstwhile intermediaries namely Ramapati and his two brothers i.e., defendant Nos. 2 and 3. Finally published record of rights has a presumptive value of correctness. However, said presumption is rebuttable. The onus is upon the person who is challenging said presumptive value of correctness of the notings in the finally published record of rights.

15. In order to rebut said presumption defendant Nos. 2 and 3 filed alleged copy of B Form showing suit land being settled land to tenant Umarani Devi. Said document was marked as Ext.-B and the alleged postal receipt under which said return was sent was marked as Ext. C. Said documents were exhibited on the ground that principal defendant State failed to produce original B Form in spite of being asked to produce the same by the plaintiff.

16. Learned Lower Appellate Court held that said notice of 7 days being too short for production of an old document from the custody of defendant State, cannot be said to be a good notice. He also observed that in absence of specific evidence that Ext. B was a copy made from the original and compared with the original, learned Trial Court should not have exhibited said alleged copy of B Form as Ext. B for noncompliance of Section 63 (3) of the Indian Evidence Act. Here again I find that the aforesaid observation of the learned Lower Appellate Court cannot be said to be improper.

17. It is true that if non-agricultural land is leased out keeping yearly rent followed by delivery of possession but there was no registered document in spite of receiving rents then it has to be presumed that the tenancy was from month to month. As such the observation of learned Lower Appellate Court that the creation of alleged tenancy in favour of Umarani Devi was totally void for want of a registered document is not acceptable. But I have already stated that learned Lower Appellate Court on scanning of evidence on record came to a finding of facts that no tenancy was created in favour of Umarani Devi and that no title passed to the plaintiff through Umarani Devi and that plaintiff failed to produce convincing documents of possession as well as for rebutting the presumptive value of correctness of the entries of finally published record of right. In Kondiba Dagadu Kadams case (ibid) it was specifically held by the Honble Apex Court that where the substantial question of law has already been decided by a larger Bench of the High Court concerned, or by the Privy Council, or by the Federal Court or by the Supreme Court, mere wrong application on facts of a particular case does not create another substantial question of law. It was further held by their Lordships in said case that High Court cannot substitute its own opinion for that of the First Appellate Court unless it finds that the conclusions drawn by the Lower Court were erroneous being (1) contrary to the mandatory provisions of applicable law; or (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible evidence or no evidence. In the case in hand, none of the grounds justifying interference by this Court in second appeal, as mentioned above, is present.

18. Accordingly, I find and hold that the instant second appeal has no merit. As a result, the second appeal fails.

19. The impugned judgment and decree of learned Lower Appellate Court stand confirmed.

20. Send down Lower Court records urgently along with a copy of this judgment.

21. Urgent xerox certified copy of this judgment be supplied to learned Counsels of the party / parties, if applied for.