Arijit Banerjee, J
1. These second appeals have been preferred by the defendant No. 2 in the suit against the judgement and order dated 21 July, 2017 passed by the
learned District Judge, Andaman & Nicobar Islands in Title Appeal Nos. 3 of 2016 and 4 of 2016, whereby the judgement and decree dated 31
December, 2015 passed by the learned Civil Judge, Senior Division, Mayabunder in Title Suit No. 49 of 2008 renumbered as Title Suit No. 108 of 2012
was affirmed.
2. At the time of admission of these second appeals by an order dated 10 January, 2018 this Court formulated the following substantial questions of
law:-
“(i) Whether the judgments of the Courts below have been vitiated for want of any oral and documentary evidence in support of the claim of the
plaintiffs-respondents that the suit land was settled pursuant to the colonization scheme in favour of the father of the appellant as well as the
respondents herein?
(ii) Whether the suit as filed by the plaintiff was maintainable in the absence of the Andaman and Nicobar Administration as a necessary party in view
of the claim made by the plaintiff that the lands in question were settled in his favour pursuant to the colonization scheme?
(iii) Whether the courts below had committed substantial error of law in not considering the effect of non-filing of any counter affidavit to the counter
claim filed by the appellant herein and whether the courts below were justified in rejecting the counter claim filed by the appellant herein?â€
3. The plaintiff/respondent No.1 and the appellant/defendant No.2 are brothers, both being sons of late Suren Moitra (in short Suren). The other
respondents are the wife and other children of Suren.
4. The plaintiff filed the suit essentially alleging that Suren was the original settler in the suit property and was the recorded tenant under the
colonization scheme. However, after the demise of Suren, the appellant (hereinafter referred to as Sushil) somehow got the suit property mutated in
his name as the sole tenant thereof. The prayers in the plaint are as follows:-
“a) A decree be passed declaring the suit scheduled properties initially allotted in the name of Late Suren Moitra and subsequently wrongly
recorded in the name of the defendant No.2 as the joint property of the plaintiffs and defendants;
b) A decree be passed declaring the title of the plaintiff over the suit scheduled properties as the same was initially allotted in favour of his father
under colonization scheme;
c) A decree be passed declaring the wrong entry of the suit scheduled properties in the sole name of defendant No.2 as null and void;
d) A preliminary decree be passed for partition of the suit scheduled properties among the parties and recovery of possession;
e) A commissioner be appointed for partition of the suit scheduled properties in terms of the preliminary decree;â€
5. Only Sushil contested the suit by filling written statement wherein he contended that he is the recorded tenant of the suit property and has been
paying revenue for the last few decades and he has been exercising his full ownership right in respect of the suit property. He alleged that the suit
property was never allotted to his father. Since the respondent No.1 (hereinafter referred to as Anil) has constructed a house on a part of the suit
property and is residing there, Sushil in his written statement made a counter claim for a decree of recovery of possession of the property against Anil.
It is a matter of record that Anil did not file written statement / statement of defence to the counter claim made by Sushil.
6. Essentially the suit boiled down to a fight between Anil and Sushil. Anil’s stand was and still is that the suit property was allotted to Suren as the
head of the family for the benefit of the entire family and as such upon Suren’s demise the property should be recorded jointly in the names of all
the legal heirs of Suren. Sushil’s stand was and still is that he is the sole recorded owner of the property, the original allotment having been made
in his favour and not in favour of Suren.
7. Both the parties led evidence. Anil and Sushil both deposed. Issues were framed by the learned Trial Court. The essential issue was whether or not
Anil was entitled to a decree as prayed for.
8. The learned Trial Court analysed the evidence on record extensively and came to a finding that the suit property was originally settled in favour of
Suren and the subsequent mutation of the property in the name of Sushil is wrongful. The learned Trial Judge passed a decree declaring that Anil has
right, title and interest in the suit property to the extent of 1/7th share and also that he is entitled to partition of the property. However, a decree to the
effect that entries in the record of rights are null and void was not passed since jurisdiction of the Civil Court is ousted in that regard. Sushil’s
counter claim was rejected as being not proved.
9. Two Title Appeals were filed by Sushil being Title Appeal No.3 to 2016 and Title Appeal No.4 of 2016 against the judgement and order of the
learned Trial Judge. One appeal was directed against the portion of the order decreeing the suit, albeit partly, in favour of Anil. The other Title Appeal
was filed against the portion of the judgement and order rejecting the counter claim of Sushil. After scanning the evidence on record the learned First
Appellate Court came to the finding that admittedly Sushil came to these Islands in the year 1959 as a minor child with his parents alongwith Anil and
his brother Rubin and sister Smt. Madhu. Sushil further admitted that Sunil and Sumitra Joidhar, his other brother and sister respectively, were born in
Andaman. The learned First Appellant Court further held that Suren was allotted plot No. 29 at Shantanu village where he constructed a residential
unit and at that point of time undisputedly Sushil was a minor and unmarried. The learned Judge further found that so long as Suren was alive, he and
not Sushil, was the head of the family. Hence, the question of the plot in question being allotted to Sushil did not arise. It was further found that plot
No. 29 was later renumbered as plot No. 30. The learned First Appellate Court held that the learned Trial Judge was right in declaring the share of
Anil and in directing partition of the property. As regards Sushil’s counter claim, it was held that there was no evidence in support of the same and
hence, the learned Trial Judge had rightly rejected the counter claim.
10. Being aggrieved Sushil has filed these two second appeals. I have already noted above the questions formulated by a Division Bench of this Court
at the time of admitting these appeals. I propose to take up each question of law separately and record my opinion regarding the same.
11. RE Q. 1.- i.e. Whether or not the judgements of the courts below stand vitiated for want of oral and documentary evidence in support of
Anil’s claim in the suit?
12. Before addressing the questions of law formulated at the time of admitting the second appeals, I would like to dilate briefly on the scope of a
second appeal. It is reasonably well settled that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure, to interfere with
the judgements of the Courts below, is confined to hearing the parties on substantial questions of law. Interference with finding of facts by the High
Court is not warranted if it involves re-appreciation of evidence (Ram Kumar Agarwal vs. Thawar Das (Dead) through LRs, (1999) 7 SCC 303). In
Roop Singh vs. Ram Singh, (2000) 3 SCC 708, the Apex Court reiterated that under Section 100 of the CPC jurisdiction of the High Court to entertain
a Second Appeal is confined only to such appeals which involve a substantial question of law and it does not confer jurisdiction on the High Court to
interfere with pure questions of fact while exercising its jurisdiction under Section 100 of the CPC. Such observation was extracted with approval in
the judgement in the case of CA Sulaiman vs. State Bank of Travancore, Alwayee, (2006) 6 SCC 392. In Sheel Chand vs. Prakash Chand, AIR 1998
SC 3063, the Apex Court held that the concurrent findings of the Lower Courts in an eviction suit that the need of the landlord was not bona fide was
based on proper appreciation of evidence and interference by the High Court in Second Appeal was not proper. It was held that the High Court
unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100 and it was not proper for the High Court to have
reversed the concurrent findings of fact while exercising jurisdiction under Section 100 of the CPC. In Kondiba Dagadu Kadam vs. Savitribai Sopan
Gujar, (1999) 3 SCC 722, the Apex Court observed that concurrent findings of facts however erroneous cannot be disturbed by the High Court in
exercise of the powers under Section 100 of the CPC. It is not within the domain of the High Court under Section 100 to investigate the grounds on
which the findings were arrived at by the last Court of fact, being the First Appellate Court. In a case where from a given set of circumstances two
inferences are possible, the one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is
not permissible. The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn
by the Lower Appellate Court were contrary to the mandatory provisions of law or was based upon inadmissible evidence or arrived at without
evidence. In the recent decision of Damodar Lal vs. Sohan Devi and others, AIR 2016 SC 262 the Trial Court had found as a matter of fact that the
defendants had made structural alteration in a tenanted premises. That finding was endorsed by the First Appellate Court on re-appreciation of the
evidence on record. The High Court in Second Appeal reversed such find of fact. The Hon’ble Supreme Court held that High Court was not
justified in upsetting the finding which was a pure question of fact.
13. However, there are also decisions of the Hon’ble Apex Court to the effect that interference with concurrent findings of the learned Trial
Court and the First Appellate Court by the High Court in a Second Appeal is justified when findings of fact are perverse. In Sebastiao Luis Fernandes
(dead) through LRs vs. K.V.P. Shastri (dead) through LRs, (2013) 15 SCC 161, the Apex Court upheld the intervention by the High Court in Second
Appeal when concurrent findings of the Courts below were based on wrong assumption of facts, non-appreciation of pleadings and evidence on
record and wrong placing of burden of proof on the defendant instead of on the plaintiff. In Rajasthan State Road Transport Corporation vs. Bajrang
Lal, (2014) 4 SCC 693, the Hon’ble Apex Court held that in exceptional circumstances a Second Appeal can be entertained on pure questions of
fact and there is no prohibition for the High Court to entertain a Second Appeal on a question of fact when the factual finding is found to be perverse.
14. The principle of law that emerges from the above decisions is that normally while exercising second appellate jurisdiction under Section 100 of the
CPC, the High Court cannot re-appreciate or reassess the evidence even if it appears to the High Court that the Lower Courts fell in gross error in
assessing the evidence on record. Finding of fact is not open to challenge even if the appreciation of evidence by the Lower Courts is palpably wrong.
It is not for the High Court to consider the question of sufficiency of evidence. However, in exceptional cases, findings of fact may be interfered with
in a Second Appeal where there is no evidence at all in support of the findings; where the finding of fact has been arrived at by ignoring important and
relevant evidence having considerable bearing on the issue or by taking into consideration completely irrelevant facts; where the point for
determination is one of mixed question of law and facts; where the issue involve is construction of a document which is the foundation of the rights of
the parties; where the finding of fact has been arrived at on the basis of inadmissible evidence; and, where finding of fact by the Courts below is a
result of wrong placing of onus of proof. Keeping the aforesaid principles of law in mind let me take up the first question of law indicated above.
15. Learned counsel for Sushil argued that there is no evidence at all in support of Anil’s claim in the suit. No colonisation scheme was disclosed.
There are discrepancies in the description of the suit property. There are discrepancies in the area of suit property mentioned at various places. PW2
in his evidence stated that survey Nos. 29 and 30 are different land. The Trial Court erroneously came to the conclusion that they are the same land.
Although PW3 (Tehsildar) in his evidence stated that the suit land was allotted in the name of Suren, no documents was produced in support thereof.
16. Learned counsel for Anil submitted that there is sufficient evidence on record. Both the Courts below on an analysis of the evidence have come to
the concurrent finding of fact that the land was allotted to Suren. While cross examining Anil, no suggestion was put to him by learned counsel for
Sushil that Anil is not entitled to any share in the property since the same was allotted to Sushil alone. Further exhibit 6 being the certificate of
rehabilitation loan account would show that Suren was the original settler. The loan account was in Suren’s name. The Tehsildar issued legal heir
certificate on the basis of the loan account. No suggestion was put by learned counsel appearing for Sushil while cross examining the Tehsildar (PW3)
that he was deposing falsely. Learned counsel submitted that it cannot be said that the finding that the land was allotted to Suren was based on no
evidence. The High Court as a Second Appellate Court should not reassess the evidence on record.
17. I am inclined to agree with learned counsel for Anil. My attention has been drawn to the depositions of the witnesses. It cannot be said that the
finding of the Courts below as regards the original allottee of the suit property is based on no evidence and is hence perverse warranting interference.
I have already discussed above the principles of law governing the field. Even if the Courts below erred in appreciating or assessing the evidence on
record, the finding of fact arrived at by them would be binding on the High Court hearing a Second Appeal under Section 100 since in my view, such
finding cannot be said to be perverse or has been arrived at by ignoring any important evidence having substantial bearing on the issue in question or is
based on completely irrelevant facts.
18. In view of the aforesaid, in my opinion, the answer to the first question of law must be in the negative. The judgements of the Courts below are not
vitiated for want of oral and documentary evidence in support of Anil’s claim in the suit.
19. RE Q.2.- Let us take up the second question of law i.e. whether the suit filed by Anil was maintainable in the absence of the Andaman and
Nicobar Administration as a party to the suit?
20. Learned counsel for the appellant drew my attention to Regulation 38 (1) of the Andaman and Nicobar Islands
Land Revenue and Land Reforms Regulations, 1966 (in short 1966 Regulation) which reads as follows:-
“38. (1) All land in the Union Territory of the Andaman and Nicobar Islands is vested absolutely in the Government, and save as provided by or
under this Regulation, no person shall be deemed to have acquired any property therein or any right to or over the same by occupation, prescription or
conveyance or in any other manner what so ever except by a conveyance executed by, or under the authority of, the Government.â€
21. Learned counsel submitted that since Anil prayed for declaration of right, title and interest in the suit property, in view of the aforesaid regulation
the Administration was a necessary party. He further drew my attention to Regulation 204 of the 1966 Regulation which reads as follows:-
“204. No suit or other proceeding shall, unless otherwise expressly provided in this Regulation, lie or be instituted in any civil court with respect to
any matter arising under and provided for by this Regulation.â€
22. He next referred to Regulation 155 (1) of the 1966 Regulation which provides that a tenant may sue in the Court of the Sub Divisional Officer for
partition of his share in a holding comprising of agricultural land. He submitted that Anil should have approached the Sub Divisional Officer with his
prayer for partition and the Civil Court’s jurisdiction stands ousted. The decree that has been passed purports to supersede the 1966 Regulation
and hence illegal.
23. Learned counsel for Anil submitted that Anil was not claiming to be the absolute owner of the suit property. Suren had been given the right to
occupy the suit premises as tenant. He was the original allottee. The right to occupy is transferable as is envisaged by Regulation 159. Anil did not
claim anything against the Administration. Anil only claimed a declaration that it had inherited a share of Suren’s right to occupy the suit property.
Hence, the Administration was not a necessary party. It is nobody’s case that Suren was the absolute owner of the suit property or that Anil is
claiming absolute ownership thereof. Regulation 89 provides for correction of wrong entry in land records by superior officers. Learned counsel
submitted that taking advantage of Regulation 89 Sushil somehow got his name mutated as the sole tenant in respect of the suit property. This
prompted Anil to approach the Court.
24. As regards Regulation 155 (1), learned counsel referred to the proviso to the said Regulation which states that where any question of title is raised,
no partition shall be made, until such question has been decided by a Civil Court. Hence, the suit was maintainable.
25. In my considered view the Administration was not a necessary party to the suit filed by Anil. No relief was claimed against the Administration.
Anil has no grievance against the Administration. Presence of the Administration before the Learned Trial Court was in no way necessary for the
Court to effectively adjudicate upon and decide the issues involved in the suit and to pass an appropriate decree. The dispute is between Sushil and his
siblings. The Administration is not involved at all at this stage. Denial of Anil’s right to occupy part of the suit premises prompted Anil to file the
suit for declaration and partition. Once it is established that Suren was the original allottee, it follows that his interest as a tenant devolved on his legal
heirs upon his demise. Regulation 148 of the 1966 Regulation provides that subject to his personal law, the interest of a tenant in his holding shall, on
his death, pass by inheritance, survivorship or bequest as the case may be. I have no doubt in my mind that Anil inherited 1/7th share of Suren’s
interest as tenant in the suit property alongwith the other legal heirs of Suren including Sushil. Anil would be at liberty to approach the Administration
armed with the decree passed in the suit for correcting the record of rights by removing the name of Sushil as the sole tenant. And in case Anil faces
any difficulty, he can approach the appropriate forum for an appropriate direction on the Administration, since the Civil Courts jurisdiction in this
regard stands ousted.
26. The second question of law is answered in the affirmative. I am of the firm opinion that the Administration was not a necessary party to the suit
and hence the suit was perfectly maintainable in the absence of the Administration.
27. RE Q.3- Coming to the third question i.e. Whether the Courts below erred in not considering the effect of non-filing of counter affidavit to the
counter claim filed by Sushil and whether the Court erred in rejecting the counter claim of Sushil, this question must be answered in the negative.
28. Learned counsel for Sushil submitted that the Courts below did not adjudicate Sushil’s counter claim. Since no written statement was filed to
Sushil’s counter claim, the same was uncontroverted and a decree on the same should have followed automatically. Learned counsel referred to
Order 8 Rule 5 of the CPC, sub rules 1 and 2 whereof read as follows:-
“[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
[(2) ] Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the
plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.â€
29. Learned counsel for Anil on the other hand submitted that non filing of written statement to Sushil’s counter claim by Anil did not as a matter
of course entitle Sushil to a decree on his counter claim. Even when a fact is deemed to be admitted by reason of non-traversal by the opposite party,
the Court may in its discretion require the party asserting the fact to prove such fact by adducing evidence. In this connection learned counsel relied
on a decision of the Hon’ble Supreme Court in the case of Balraj Taneja and another vs. Sunil Madan and another, AIR 1999 SC 3381.
30. I have to agree with learned counsel for Anil. The defendant in a suit who makes a counter claim is in the position of a plaintiff in so far as his
counter claim is concerned, and the plaintiff in the suit is in the position of a defendant in so far as the counter claim is concerned. The principles that
apply to the plaintiff’s claim would equally apply to the defendant’s counter claim. Sub Rule 1 under Order 8 Rule 5 is a deeming provision. If
a factual assertion in the plaint/counter claim is not specifically denied by the other party, such fact shall be deemed to be admitted. However, the
Court retains the discretion to direct the party asserting such fact to prove the same otherwise then by admission. Sub Rule 2 provides that where the
defendant has not filed a written statement, the Court may pronounce the judgement on the basis of the statements in the plaint but, again, the Court
has the power to require the plaintiff to prove the statements made in the plaint through proper evidence.
31. In the present case learned Trial Court was in seisin of Anil’s claim for declaration of share in the suit property and partition and Sushil’s
counter claim for recovery of possession from Anil who is admittedly in occupation of a portion of the suit property. The entire evidence was analysed
by the Court. The Court held that Anil was entitled to 1/7th share in the suit as also to a decree for partition. Sushil could not establish his case of
being the sole original allottee of the suit property. Hence, his claim for recovery of possession was rejected and his counter claim was dismissed.
There is absolutely nothing wrong or unlawful about the same. It is established law that the plaintiff (or the defendant in so far as his counter claim is
concerned) has to prove his case by adducing proper evidence and is not entitled to a decree only on the basis of weakness in the opponent’s case
or because the opponent has for whatever reason failed to file pleadings controverting the statements made by the claimant in his pleading. It is trite
that a defendant who has not filed written statement still has the right to cross examine the plaintiff’s witnesses and he may well demolish the
plaintiff’s case through such cross examination even in the absence of any written statement. The same principle would apply to the counter claim
of a defendant in a suit. Whether or not to pass a decree on the basis of the facts asserted in a counter claim because of the failure of the plaintiff to
file written statement to the counter claim, is a discretion of the Court, and in my view such discretion has been judiciously and properly exercised by
the Courts below in the facts of this case by not passing a decree on Sushil’s counter claim by merely relying on the principle of non-traversal of
pleadings.
32. It was observed by the Hon’ble Supreme Court in the case of Balraj Taneja (supra), the Court should not act blindly upon the admission of a
fact made by the defendant in his written statement, nor the Court should proceed to pass judgements blindly merely because a written statement has
not been filed by the defendant traversing the facts set out in the plaint. Before passing the judgement against the defendant the Court must see
whether or not even if the facts set out in the plaint are treated to have been admitted, a judgement could possibly be passed in favour of the plaintiff
without requiring him to prove the facts mentioned in the plaint. It is a matter of Court’s satisfaction and therefore, only on being satisfied that
there is no fact which needs to be proved by reason of deemed admission, the Court can conveniently pass a judgement against a defendant who has
not filed a written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case, it would not be safe
for the Court to pass a judgement without requiring the plaintiff to prove the facts so as to settle the factual controversy.
33. In view of the aforesaid in my opinion the Courts below did not commit any error of law by refusing to pass a decree on Sushil’s counter claim
just because Anil had not filed a written statement traversing the statements in the counter claim. I have no doubt in my mind that the Courts below
were entirely justified in rejecting Sushil’s counter claim.
34. The three substantial questions of law having been answered against Sushil, both the Second Appeals stand dismissed. While deciding these
completely meritless second appeals I have come to the firm conclusion that these appeals were filed by Sushil as a desperate attempt to uphold his
dishonest claim of being the original allottee and sole tenant in respect of the suit property which in reality is a joint family property after the demise of
Suren. This kind of unholy attempt ought to be strongly discouraged and deprecated. The appellant will pay costs of this proceeding assessed at Rs.
30,000/- to the contesting respondent.
