TMI Blog2017 (3) TMI 1853X X X X Extracts X X X X X X X X Extracts X X X X ..... he execution of the Sale Deed(Exhibit-3). The Sale Deed exhibit-3 did not complete 30 years on the day it was filed in Court and even on the day it was tendered as evidence. Even otherwise, the presumption under section 90 Evidence Act does not absolve the plaintiff of his burden to prove title over the suit land on the strength of the Sale deed, as required under the law - the learned Trial Court in Issue No.2 is accordingly set aside and it is held that the plaintiff has no right, title and interest over the suit land. Uninterrupted continuous peaceful possession and occupation of the suit land - HELD THAT:- The defendant Sri Parag Gogoi as DW1 has exhibited the certified copy of Jamabandi of P.P No.21 dated 03.02.2000 as Ext.A, the possession certificate dated 07.02.1996 in respect of the suit land as Ext.B, the land revenue receipts w.e.f 1995 to 2009 as Ext. Nos.J to U, construction permission of TDA dated 07.03.2000 as Ext.X. The possession of the defendant over the suit land has been admitted by the plaintiff also. As the plaintiff has failed to prove his right, title and interest over the suit land and as the instant suit is not maintainable, he is not entitled to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f company came to know that the defendant had got his name mutated in respect of the suit land in place of the plaintiff and that the Circle officer, Tinsukia Revenue Circle illegally granted mutation in the name of the defendant in respect of the suit land. Thereafter the Addl. Deputy Commissioner vide order dtd.02.01.1997 approved the said mutation mechanically. In August 2004, the plaintiff s representative made physical land verification when the defendant restrained them from entering into the suit land and claimed his possession over the land. On 02.09.2004, the plaintiff filed a Revenue Appeal before the Addl. Deputy Commissioner, Tinsukia for setting aside the order dtd. 02.01.1997 being Revenue Appeal no.6/2004 and vide order dtd.15.09.04, the Addl. Deputy Commissioner, Tinsukia refused to interfere in the Order and dropped the proceeding. The plaintiff filed Revenue Appeal being R.A.(Tin) no.23/2005 before the Assam Board of Revenue Guwahati against the order dated 15.09.04 arising out of order dtd.02.01.1997. The Assam Board of Revenue, Guwahati vide judgment dtd. 19.12.2007 dismissed the appeal by holding that the plaintiff had challenged only the order dtd.15.09.04 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo entrance gates made of iron. It has been contended by the defendant that he has been in exclusive possession of the suit land from 1990 and his possession is open, wide and adverse and hostile to the true owner and in continuity and accordingly, has acquired title over the suit land by way of adverse possession. Mutation of the suit land was granted in his name vide order dated 02.01.1997 on the basis of his exclusive possession over the suit land. On his application for perfect partition, the revenue department made partition of the suit land and accordingly, the suit land was brought under patta No.62 and Dag Nos.16, 17/187, 40 and 44 and patta also issued in the name of the defendant on 23.05.2000. Accordingly, prays for dismissal of the suit. 5. Upon the pleadings of the parties, the learned Trial Court vide order dated 10.06.2009 framed the following issues :- 1. Whether the suit is maintainable? 2. Whether the suit is barred under section 154 of the Assam Land and Revenue Regulation, 1886? 3. Whether the plaintiff is entitled to sue in the name and style of M/s Kamakhya Coal Pvt. Ltd. ? 4. Whether the suit is bad for non-joinder of necessary part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs company showing therein as active , but learned Trial Court without going through the materials on record erroneously dismissed the suit. (v) For that the learned Trial Court committed serious illegality in deciding the issue No.1 in negative and basing of which, also decided the issue Nos.3, 4 and 5 in negative and as such, the impugned judgment and decree is liable to set aside. 9. The respondent in respect of the issue No.2 of the impugned judgment preferred Cross Objection/Cross Appeal on the following grounds:- 1. For that the decision of the learned Trial Court in issue No.2 is bad in law and liable to be set aside. 2. For that the appellant did not produce any other evidence to substantiate that the company was in existence at the time of filing the suit. 3. For that the learned Trial Court has failed to appreciate the pleading of the defendant, whereby the defendant has specifically denied that the plaintiff is the absolute owner of the suit land by way of purchase and also denied the execution of the sale deed. 4. For that the learned Trial Court failed to consider the evidence of PW1, who did not depose that he was present at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a winding up proceeding, a jurisdic person cannot be said to be non-existent and that merely striking off the name of the company is not sufficient. That the strike off status does not reflect the jurisdictional status of the company. 12. Learned Counsel for the respondent submitted that the order of Hon ble High Court was not bought to the knowledge of the trial Court and neither was there any prayer for amendment of plaint and to adduce evidence. That no petition has been filed before this Court also to adduce additional evidence. 13. DW1 Sri Parag Gogoi in his evidence on affidavit stated that his Advocate sent a registered letter dated 23.03.2009 to the Registrar of Companies, Shillong to verify the existence of the plaintiff company and in response to the said letter the Registrar of the Companies, Shillong vide letter dated 03.04.2009 intimated that the name of the plaintiff s company has been struck off from the Register of the Registrar of Companies under section 560(5) of the Companies Act on 31.10.2007. DW1 has exhibited the letter of the Registrar of Companies as Exhibit-HH. In the decision relied upon by the learned Trial Court in the case of M/S Sri Ramdas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of Amar Nath Agarwalla Vs Dhillon Transport Agency reported in (2007)4 SCC 306 wherein it has been observed that- In our view those documents cannot be looked into since they were not put in evidence and the defendant had no opportunity of replying to those documents. 18. Now, the appellant side has produced before this Court an Order of Hon ble Gauhati High Court dated 04.10.2010 whereby directions have been issued by the Hon ble High Court to revive the status of the Kamakhya Coal Pvt Ltd. to Active status from the strike off status Although the order dated 04.10.2010 was not placed before the learned Trial Court, but this Court is bound to take notice of the said order of Hon ble Gauhati High Court. Because decisions which have been taken by a Higher Court are binding on the lower Court and the same cannot be altered and overlooked. The decision of Hon ble Supreme Court in Amar Nath Agarwalla (supra) relied upon by the respondent side is not applicable in our case at hand because, the document the appellant side wants to introduce at this stage is not just a document but it is an order of Hon ble Gauhati High which this Court is bound to act u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the company. Needless to say that, such a power can be conferred by the Board of Directors only by passing a resolution to that effect. The decision of Hon ble Calcutta High Court in the case of Al-Amin Seatrans Ltd(supra) has been relied upon by the respondent side also. 22. In our case at hand, Sri Suresh Kumar Jain has not been vested with the power by the Memorandum and the Articles to institute a suit. Also the Resolution exhibit-2 does not bear the signature of any other Director except Suresh Kumar Jain himself. Under the circumstances it cannot be held that the suit has been validly instituted. 23. Hon ble Supreme Court in the case of United Bank of India Vs Naresh Kumar held that- in absence of any resolution or power of attorney, a corporation can ratify the action of its officer in signing the pleadings. The Court can on the basis of evidence on record and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it s officer. 24. In our case at hand, however the Memorandum and Articles of the Company are on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden of proving the same lies on the defendant. The defendant as DW1 did not state specifically that his possession of the suit land since the year 1990 was known to the plaintiff company. DW1 stated that representatives of the plaintiff company visited the suit land in the year 1991 but he failed to specify their names or even their status in the plaintiff company. DW2 Bhanwar Lal Prajapati and DW3 Bijoy Urang also did not state that the possession of the defendant in respect of the suit land was to the knowledge of its true owner. Defendant by their evidence failed to prove that his possession over the suit land was known to the plaintiff company since the year 1990/1991, specially when, in his pleadings he has denied the ownership of the plaintiff over the suit land. The case of the plaintiff is that only in the year 2004 they came to know that the defendant has been in possession of the suit land. The defendant side failed to bring on record any evidence to the contrary so as to tilt the balance of probability in their favour. It is held therefore that the plaintiff came to know about the possession of the defendant over the suit land in the year 2004. So the suit being filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our case at hand. 31. Hon ble Supreme Court in the case of Anil Rishi Vs- Gurbaksh Singh on 02.05.2006 discussed thus in terms of Section 101 of the Evidence Act, the burden of proving the fact rests on the party, who substantially asserts the affirmative issues and not the party who denies it. The role may not be universal in its application and there may exception thereto .The elementary rule is Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In the said case, reliance was placed upon another decision of Hon ble Supreme Court in the case of R.V.E. Venkatachala Gounder Vs- Arulmigu Viswesaraswami and V.P. Temple and another reported 2004 (6) SC 442, wherein the law stated in following terms- In a suit for recovery of possession based on title, it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff that the land belongs to the plaintiff. Although, DW1 can be said to have admitted the ownership of the plaintiff over the suit land, but it does not amount to proof of execution of Ext.3. Under the circumstances, the examination of the scribe and the attesting witness are considered necessary to prove the execution of the sale deed Ext.3 as laid down in section 68 of the Evidence Act. Examination of the scribe and of the attesting witnesses have become more necessary as Ext.3 does not bear the signature of the purchaser. The plaintiff has therefore failed to prove the execution of the Sale Deed No.240/1985. Also, as submitted by the learned counsel for the respondent, plaintiff has failed to prove that he has in any point of time had possession over the suit land. 33. Learned Trial Court had observed that as mutation of the suit land stands in the name of the plaintiff, his right, title and interest over the same is further strengthened. However, as the plaintiff failed to prove his right, title and interest over the suit land through Ext.3, the entries in the Jamabandi and the mutation in the name of the plaintiff does not help him in any way in asserting his right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1999/2000, he has constructed residential pucca houses on the western side of the suit land and in the year 1994 has constructed pucca boundary wall on the entire front portion of the suit land keeping two entrance gate made of iron. The defendant Sri Parag Gogoi as DW1 has exhibited the certified copy of Jamabandi of P.P No.21 dated 03.02.2000 as Ext.A, the possession certificate dated 07.02.1996 in respect of the suit land as Ext.B, the land revenue receipts w.e.f 1995 to 2009 as Ext. Nos.J to U, construction permission of TDA dated 07.03.2000 as Ext.X. The possession of the defendant over the suit land has been admitted by the plaintiff also. As the plaintiff has failed to prove his right, title and interest over the suit land and as the instant suit is not maintainable, he is not entitled to recover the possession of the suit land from the defendant. Decision:- The decision of the learned Trial Court in Issue No.3 is affirmed. Point For Determination no.3-Whether the learned Trial Court has rightly decided the issue nos.4 and 5 ? 37. As the suit of the plaintiff is held to be not maintainable and as the plaintiff has failed to prove his right, title and in ..... 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