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DECEMBER 6, 1990
[KULDIP SINGH AND K. RAMASWAMY, JJ.]
_Civil Procedure Code,_ _1908:_ _Section 100--Concutrentfinding of_
_facts-Ignoring of in Second appeal-Issue not raised or argued before_
_Courts below-Acceptance of-Whether justified._
SMT. GITARANI PAUL
_v._
DIBYENDRA KUNDU ALIAS DIBYENDRA KUMAR KUNDU
C _West Bengal Estates Acquisition Act,_ _1953:_ _Under-Raiyats-Sale_
_of their rights-Approval of higher authorities-Whether required._
The appeUant purchased the suit land from Banries, the uoderRaiyats by way of sale deeds, after the coming into force of the West
D Bengal Estates Acquisition Act, 1953_ It was stated that defendants 1
and 2 accompanied by some Policemen had disturbed the possession of
the appellant-plaintiff by destroying the standing crop and planting
gamagrass seedlings in the land. Hence the appellant instituted a suit
for declaration of title and possession of the suit land. The trial Court
decreed the suit in favour of the appellant-plaintiff.
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On an appeal rued by the Defendants, the First Appellate Court
atrll"10ed the fmdiogs of the trial Court.
Aggrieved, Defendant No. 1 filed a Second appeal before the High
Court- Reaching a finding that the actual date of dispossession was not
F specifically mentioned in the plaint and unless the same was pleaded
and proved, the suit for possession was not competent, the High Court
allowed the appeal and set aside the judgments of the Courts below.
The appellaot-plaiotilT bas preferred the present appeal, by
special leave, against the High Court judgment.
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Allowing the appeal, this Court,
HELD: 1. The High Court fell into error in ignoring the concurrent fmdings of the Courts below and accepting the appeal on an issue
which was neither raised nor argued before the Courts below. The High
H Court misread the pleadings and the evidence on the record. [ 467B-D]
464
SMT. GITA/lANI _v._ D. KUNDU [KULDIP SINGH, J.] 465
2. In **the face** **of clear pleadings aod the evidence on record the**
**High** **Court was wrong in reaching the conclusion that there was no**
**pleadings and evidence regarding dispossession. Even otherwise in** th~
**face of the finding of the Courts below that the appeUant-plaintiff had**
**proved her title it was not necessary for the High Court to go into the**
## **question of ascertaining the date of dispossession. [ 468A-B] t**
3. **There is nothing on record** **to** **show that the Bauries could not**
**sell** **their rights as under-Raiyats without the approval** **of the higher**
**authorities. Neither there are aoy pleadings on this point nor aoy**
**evidence was led before the trial Court. [ 468C]**
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4050
of 1985.
From the Judgment and Order dated 12. 7. 1984 of the Calcutta
High Court in Appeal from Appellate Decree No. 203 of 1970.
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D.N. Mukherjee (N.P.), N.R. Choudhary and Ranjan Mukher- D
jee for the appellant.
D.P. Mukherjee and G.S. Chatterjee for the respondent.
The Judgment of the Court was delivered by
**KULDIP SINGH,** **J.** Gitarani Paul instituted a suit for declaration of title and possession in respect of thirteen plots of land in Mouza
Boinchee, Police Station Pandua, State of West Bengal. It was averred
in the plaint that the said land was under the possession of Bauries who
were under-Raiyats. The original owner of the land was Dasarathi
Dutta **but** the land has throughout been under the holding of the F
under-Raiyats. After the coming into force of the West Bengal Estates
Acquisition Act, 1953 Da.arathi Dutta ceased to have any right or
intrest in the land and the same stood vested in the State of West
Bengal. Gitarani Paul purchased the land from the Bauries by way of
sale deeds dated February 19, 20 and 26, 1960. According to her the
possession of the land was also delivered to her by the Bauries. It was G
further stated in the plaint that on June 5, 1960 one Dibyendra Kundu
armed with gun and accompanied by some police-men came to the
land in dispute and destroyed the standing crop of the plaintiff. It was
also alleged that Dibyendra Kundu ploughed the land and planted
gama grass seedlings in the land. It was on these facts that the suit was
filed. Dibyendra Kundu and Dasarathi Dutta were arrayed as defen- H
466 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
A dant 1 and defendant 2 in the suit. The Bauries were impleaded as
Proforma defendants.
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Dasarathi Dutta controverted the stand of the plaintiff. According to him, the Bauries surrendered their rights and also the possession
of the land to his father in the year 1938. He further stated that after
the death of his father he sold the land to Dibyendra Kundu on May 7,
1959 and also delivered the possession of the land to him.
The trial Court on the appreciation of oral and documentary
evidence came to the conclusion that the Bauries never surrendered
their tenancy in favour of the father of Dasarathi Dutta defendant No.
2 and also that the sale of the suit land by the Bauries in favour of
plaintiff was valid and the plaintiff had title to the suit lands. On these
findings the trial Court decreed the suit. Defendants 1 and 2 went in
appeal before the Sub-ordinate Judge, Hooghly. The learned Judge
affirmed the findings of the trial Court and dismissed the appeal.
Defendant 1 Dibyendra Kundu further filed an appeal before the
High Court at Calcutta. Without disturbing the concurrent findings of
the Courts below the High Court found that the actual date of dispossession was not specifically mentioned in the plaint and unless the date
of dispossession was pleaded and proved the suit for possession was
not competent. The High Court accepted the appeal and set aside the
judgments of the Courts below in the following words:
"It appears that the plaintiffs husband and the other
witnesses of the plaintiff have only stated that the defendants Nos. 1 and 2 in collusion with the police had disturbed the possession of the Bauries and the plaintiff and
had destroyed the crops but none of the witnesses had
stated about dispossession and/or the actual date of dispossession of the plaintiff.
In the circumstances, the plaintiff cannot get a decree
for recovery of possession unless the plaintiff can establish
that within 12 Years from the date of dispossession, the suit
had been instituted. In the absence of any proof of dispossession within the period of limitation, the prayer for
recovery of possession must fail. In the aforesaid facts, it
may not be necessary to decide the other question namely
whether or not the Bauries had, in fact, abandoned their
**tenancy."**
SMT. GITARANI _v._ D. KUNDU [KULDIP SINGH, J.[ 467
- This appeal, via special leave petition by the plaintiff Gitarani A
Paul, is against the judgment of the High Court.
"
We have heard learned counsel for the parties. The trial Court
and the lower appellate Court concurrently found that there was no
surrender of tenancy rights by the Bauries to the father of Dasarathi
Dutta defendant No. 2. It was also found by the said Courts that the
sale of the land by the Bauries to the appellant-plaintiff was valid and
binding. The title of the appellant-plaintiff to the land in dispute
having been proved she was entitled to a decree for possession. The
High Court fell into error in ignoring the concurrent findings of the
Courts below and accepting the appeal on an issue which was neither
taised nor argued before the Courts below. The High Court misread
the pleadings and the evidence on the record. Paragraphs 4 and 5 of
the plaint are as under:
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"That on the 5th day or June, 1960, the Principal defendant
armed with a gun-alone with some police men went to the
disputed !arid and destroyed the Kurma plant and gama _b_
grass and cultivation of the plaintiff, ploughed the disputed
land and planted gama grass seedlings and thereafter left
the place, It has, therefore, become necessary to institute
the suit for declatatioh of title and recovery of possession
and consequential reiief".
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"The cause of action for this suit has arisen on the 5th day
of June, 1960 the day of dispossession de diem, en diem."
The plaintiff, thus, clearly pleaded that she was dispossessed
from the iand by the defendants on Jurie 5, 1960. The evidence produced by the plaintiff amply proved that defendants 1 and 2 in collu- F
sion with the police disturbed the possession of the plaintiff. Trial
tourt noticed the evidence of P.W. 3 Narayan and P.W. 5 Lakshrilan
in the following words:
(P.W. 3 Narayan) says "that as the plaintiff's labourer he G
cultivated certain crops in the suit lands and that the defendants with police help destroyed the crop".
P. W. 5 Lakshman says "that from the doba, situated on
one of the disputed piots, he caught fish at the plaintiff's
**instance."**
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~68 SUPREME COURT REPORTf [ 1990] Supp. 3 S.C.R.
In the face of clear pleadings and the evidence on record the
High Court was wrong in reaching the conclusion that there was no
pleadings and evidence regarding dispossession. Even otherwise in the
face of the finding of the Courts below that the appellant-plaintiff had
proved her title it was not necessary for the High Court to go into the
question of ascertaining the date of dispossession. We, therefore, do
not agree with the reasoning of the High Court and set aside the same.
Mr. Mukherjee learned counsel appearing for the respondent
has, however, contended that the Bauries could not sell their rights as
under-Raiyats without the approval of the higher authorities. Neither
there are any pleadings on this point nor any evidence was led before
the trial Court. We do not, therefore, find any force in the contention.
We allow the appeal, set aside the judgment and decree of the
High Court and restore the judgment and decree of the trial Court.
The suit of the appellant-plaintiff is decreed with costs. We quantify
the costs at Rs.5,000.
G.N. Appeal allowed.
