9911796707
TMI Blog2021 (6) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit land vide registered sale deed No. 240/1985 from one Jagannath Paul and delivered with the possession thereof which continued till dispossessed by the defendant respondent. The name of the plaintiff appellant was mutated in respect of the suit land vide order dated 30.5.1985 of the concerned Circle Officer. In the month of July 2004 the representatives of the plaintiff appellant came to learn that the defendant respondent mutated his name over the suit land as per the order of the Circle Officer, Tinsukia Revenue Circle in place of the plaintiff appellant. A separate patta was also issued in favour of the defendant respondent on revenue partition of the suit land. The representatives of plaintiff appellant were obstructed by the defendant respondent in the month of August 2004 when the said representatives visited the suit land. 5. The plaintiff appellant filed an appeal before the Addl. Deputy Commissioner, Tinsukia challenging an order dated 2.1.1997 passed by the said Addl. Deputy Commissioner affirming the mutation of the defendant respondent. Though the same was registered as Revenue Appeal No. 6/2004 but the Addl. Deputy Commissioner refused to interfere and dropped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue Officials partitioned the suit land and the entire suit land was brought under Patta No. 62 with various Dag numbers and to that effect a separate patta was issued to him on 13.01.2000. In July 2000 he availed a bank loan by mortgaging the suit land from the Punjab National Bank. The defendant also took the plea that the suit was barred by law of limitation. Accordingly the defendant appellant sought for dismissal of the suit. 8. On the basis of the aforesaid pleadings the learned court of Munsiff, Tinsukia framed the following issues: (1) Whether the suit is maintainable in law and facts ? (2) Whether the plaintiff has right, title and interest over the suit land ? (3) Whether the plaintiff is entitled to recover the possession of the suit land from the defendant ? (4) Whether the plaintiff is entitled to the reliefs prayed for? (5) To what other reliefs (if any) the parties are entitled to ? 9. The plaintiff appellant company adduced its director, PW-1 as the only witness and exhibited various documents as exhibits. Ext.1 is the certificate of incorporation of the plaintiff company, Ext.2 certified true copy of the resolution passed in meeting of Board of Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in (2006) 5 SCC 353. Defendant respondent failed to dislodge such presumption and as the defendant in his cross examination as DW 1 deposed that he had no document of purchase of the suit land from its owner i.e. plaintiff, the learned trial court came to the finding that the defendant admitted the ownership of the plaintiff company over the suit land. Further as the defendant claiming adverse possession of the suit land failed to mention the name of the true owner nor the specific date of entry over the suit land and the manner in which he came into possession of the suit land coupled with the fact that the defendant paid the land revenue of the suit land in the name of the plaintiff appellant as such the issue was decided in favour of the plaintiff appellant. But as the suit was not maintainable the plaintiff appellant was not entitled for the reliefs. Accordingly the trial court dismissed the suit vide judgment and decree dated 22.3.2016. (13) Being aggrieved, the plaintiff appellant preferred T.A.No. 10 of 2016 in the court of learned Civil Judge, Tinsukia challenging the judgment and decree dated 22.3.2016. The learned first appellate court vide the judgment and decree da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit was filed within the stipulated period of limitation. On the other hand, the first appellate court reversed the finding of the trial court in the issue No. 2.The first appellate court held that though DW 1 (defendant respondent) admitted the ownership of the plaintiff appellant as held by the trial court but the same cannot dispense with the proof of execution of the sale deed by the vendor. Under such circumstances the evidence of the scribe and the attesting witnesses of the sale deed were vital in the light of Section 68 of Indian Evidence Act. Regarding the decision of the trial court taking the aid of mutation of the name of the plaintiff company over the suit land while deciding issue No. 2, the first appellate court held that entries in Jamabandi of the name and the mutation of the plaintiff does not help in declaring the right, title and interest. The first appellate court did not accept the submission of the plaintiff appellant for drawing the presumption u/s 90 of the Evidence Act in respect of the sale deed and accordingly reversed the finding of the trial court. Thus the T.A. No. 10/2016 was dismissed. (17) The plaintiff appellant filed this Second appeal chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Ext. 2 did not bear signature of other directors of the company alongwith the common seal of the company and held that unless a power to institute a suit was specifically conferred on a particular director passing a valid resolution in the meeting of Board of Directors, the suit could not be held to be instituted by a properly authorised person. The trial court was of the same view concurred by the first appellate court. Further the first appellate court rightly held that none of the other directors deposed before the court ratifying the act of the PW 1 in filing the suit representing the appellant company. 21. Mr. Choudhury submitted further that the suit was filed on 17.1.2008 whereas Ext HH supported the fact that the name of the company was struck off from the register of the ROC on 30.10.2007 which shows clearly that on the date of filing the suit, the plaintiff company was no longer a juristic person and not in existence legally. No evidence was put on record to show that the company revived its 'active' status prior to filing of the suit. The order dated 4.10.2010 passed by this court in Co.Pet. No. 5/2010 was placed before the first appellate court during the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore it as the same had its fundamental impact on the right to relief of the plaintiff appellant. Substantial Question No. A. Whether the learned first appellate court while arriving at the finding that the suit has not been instituted by authorized person of the company overlooked the provisions of Order VI Rule 14 as well as the provisions of Order XXIX Rule 1 CPC ? 23. I have considered the submissions of the learned counsel and perused the LCR. The plaintiff appellant is a company registered under the Companies Act, 1956. Order XXIX Rule 1 of the CPC stipulates , in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or principal officer of the corporation who is able to depose to the facts of the case. This requirement is for the satisfaction of the provision under Order VI Rule 14 of the CPC which stipulates that every pleading shall be signed by the party and his pleader. The word 'party' in the case of a corporation must satisfy the criteria stipulated in Order XXIX Rule 1 CPC. In the present case in hand, one Sri Suresh Kumar Jain had signed and verified the pleadings as the directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the director does not arise. There was no specific defence that the director, Suresh Kumar Jain was not authorized by the Board of Directors to institute the suit by signing the pleadings and verification nor any other defence except the one referred above . On the basis of the pleadings the issue was framed whether the suit is maintainable under the facts and law. The director, PW 1 in order to establish the fact that he is a director of the company exhibited the certificate of incorporation and the Memorandum of Association as Ext.1 and the certified true copy of resolution of the meeting of Board of Directors dtd. 3.11.2008 authorizing the said Suresh Kumar Jain to file the suit as Ext. 2. The learned first appellate court verified the Memorandum of Association and recorded its finding that the name of Suresh Kumar Jain was shown as director alongwith two others. Accordingly the fact that Suresh Kumar Jain was one of the directors of the company was established. But as the Ext. 2 does not bear the signatures of other directors and the common seal of the company coupled with there being no witnesses ratifying the act of the said Suresh Kumar Jain in filing the suit so the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of filing decided the issue on some grounds not even pleaded in the written statement. The first appellate court cannot do that affecting the right of the plaintiff appellant. (30) The first appellate court was satisfied that the said PW 1 was one of the directors of the company. Vide the resolution dated 3.11.2008 in the meeting of Board of Directors, the PW 1 was authorized to take legal action against the defendant respondent with further authority to sign and verify the plaint, give evidence etc on behalf of the appellant company. Accordingly the PW 1 representing the appellant company satisfied the requirement of Order XXIX Rule 1 and Order VI Rule 14 of the CPC. The first appellate court failed to substantiate its findings that there was non compliance of any substantive law for which the PW 1 could not be held to be authorized by the appellant company. The reasons cited while coming to the conclusion in the said issue of maintainability were not specifically pleaded and as such the findings are liable to be interfered inasmuch as it is reiterated that the director Suresh Kumar Jain fulfilled the criteria as required under Order XXIX Rule 1 CPC. If upon consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lis has come to the court and has a fundamental impact on the right to relief, or manner of moulding the relief the court cannot blink at it. (32) The trial court decided the suit vide judgment and decree dated 22.3.2016. The order satisfying the criteria stipulated in Section 560(7) of the Companies Act, 1956 was passed on 4.10.2010 and on the strength of the said order the company received its 'active' status w.e.f. 30.10.2007 prior to the date of filing the suit on 17.12.2008. Accordingly the first appellate court rightly took note of the subsequent development and correctly held that company was in existence on the date of filing the suit. The appellate court has the power under Order XLI Rule 33 CPC to pass such order which ought to have been passed by the trial court on the basis of Section 560(7) Companies Act, 1956 which is the mandate of the law. The power under Order XLI Rule 33 CPC of the appellate court is wide in order to do complete justice to the parties in a lis and the first appellate court is well within its power which requires no interference. Substantial Question No. B. Whether reversal of the finding of issue No. 2 is proper on the face of the pleading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Anil Rishi vs Gurbaksh Singh reported in (2006) 5 SCC 558. (35) Mr. Roy also referring to the records of T.S. 44/2008 submitted that the plaintiff appellant vide its petition 1453/09 prayed before the trial court to call official witnesses from the office of Sub Registrar, Tinsukia in order to proof the execution and registration of Ext. 3 which the learned trial court decided to take up for hearing after completion of the evidence of the witnesses not required summoning by the court. But as the DW 1 admitted the ownership of the appellant company over the suit land, the court below did not call for official witnesses. Thus as the Ext. 3 was not disputed in respect of its execution by the executor as such the same does not fall within the sweep of Section 68 of the Evidence Act. Accordingly on the aforesaid submissions Mr. Roy urged the second substantial question of law required to be decided in favour of the appellant reversing the finding of the appellate court in issue No. 2. (36) Mr. Choudhury , the learned Senior counsel for the defendant respondent made a reference to the pleadings in the plaint wherein it was pleaded that the plaintiff appellant acquired ownership ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to prove the execution of the Ext. 3 by its executant Jagannath Paul. In his cross examination he stated that Tarachand Agarwal and Smti Rita Dutta, D/O Jagannath Paul were the witnesses in Ext. 3 but he does not know where they reside. The PW 1 exhibited the signatures of the executant Jagannath Paul as Ext. 3(1) to 3 (10). (40) The trial court held that Ext.3 being a registered document so it was presumed that the Ext.3 was validly executed. The defendant respondent failed to dislodge the said presumption. Then the trial court referred to a particular statement made by the defendant respondent as DW 1 in his cross examination that he had no document of purchase of the suit land from its owner i.e. plaintiff and on the basis of the said deposition held that the defendant respondent admitted the ownership of the plaintiff appellant over the suit land. The trial court also came to the finding that the defendant respondent denied that the plaintiff was the owner of the suit land and totally silent in the written statement as to the identity of the true owner of the suit land on the face of his plea of adverse possession over the suit land. The trial court considered the mutatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the present case in hand and the pleadings, apparently, the PW 1 , Suresh Kumar Jain failed to discharge the onus put on him by the defendant respondent u/s 102 of the Evidence Act. Moreover the trial court was wrong in putting the burden on the defendant respondent to dislodge the presumption which the registered document carry u/s 114(c) of the Evidence Act . Admission of the defendant respondent of the title of the plaintiff appellant cannot discharge the onus of plaintiff appellant to prove the execution of Ext. 3 moreso when the plaintiff appellant failed to prove its possession over the suit land since the date of purchase. There is no specific mention in regard to the date of dispossession of the plaintiff appellant from the suit land by the defendant respondent who enjoyed the status of 'land holder' under the Land Revenue Regulation after being granted the kheraj periodic patta to him. (43) From the records it is found that there is no denial of execution of the sale deed by the executant, Jagannath Paul . It is not mandatory that a sale deed requires attestation by witnesses and as such the manner and proof of execution of the sale deed does not fall within the swee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
