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2006 DIGILAW 1034 (GAU)

Sailendra Ch. Kar v. Kandarpa Mohan Adhikari

2006-11-22

R.B.MISRA

body2006
1. The present regular second appeal has been preferred by the defendant/appellant against the judgment and order dated 29.11.1997 passed by the learned Additional District Judge, North Tripura, Dharmanagar in Money Appeal No. 4 of 1993 (Shri Kandarpa Mohan Adhikari v. Sri Sailendra Chandra Kar and Others) upsetting the judgment and order dated 30.6.1993 passed by the learned Assistant District Judge, North Tripura, Dharmanagar in Money Suit No. 3 of 1990 which was filed by the plaintiff/respondent herein. While admitting the second appeal on 31.3.1998 this court has indicated the following substantial questions of law for adjudication of the appeal: - (1) whether the time was essence of the contract ? (2) whether oral evidence considered by the courts below was barred by the provisions of sections 91 and 92 of the Evidence Act ? and (3) whether the first appellate court ignored the points raised before him in passing the judgment after about 9 months of the closure of the arguments ? 2. In order to deal with and adjudicate the present second appeal it is necessary to narrate the facts as below: - There was an agreement executed by the appellant principal-defendant No. 1 Sailendra Chandra Kar on 21.12.1988 in favour of the respondent plaintiff Kandarpa Mohan Adhikari for sale of some land as described in the schedule to the plaint against the stipulated consideration of Rs. 95,000 representing that the principal-defendant was exclusive owner and possessor of the land by amicable partition with the other co-sharers (pro forma defendant Nos. 2 to 4). It was also settled in the agreement that the principal defendant No. 1 would take an amount of Rs. 30,000 in advance towards the consideration money from the plaintiff and would execute and register the lawful sale-deed in favour of the plaintiff within two months from 21.12.1988 on receiving the balance amount of Rs. 65,000 from the plaintiff. A "Bainapatra" was, thus, executed on 21.12.1988 by the principal-defendant No. 1 in favour of the plaintiff after taking payment of Rs. 30,000 as advance under the above terms/conditions. 65,000 from the plaintiff. A "Bainapatra" was, thus, executed on 21.12.1988 by the principal-defendant No. 1 in favour of the plaintiff after taking payment of Rs. 30,000 as advance under the above terms/conditions. Subsequently, it came to the knowledge of the plaintiff that there was no registered partition deed of the common property including the land for sale of the principal defendant No. 1 and the other co-sharers and the principal-defendant No. 1, was, thus found to be not in lawful and exclusive owner and possessor of the land so as to convey appropriate title/possession thereof to the plaintiff by any sale, and the other co-sharers had actually raised objection to any such transaction to be given effect to. The plaintiff was, thus, put to serious prejudice whereas he was always ready and willing to get the lawfully registered sale deed from the principal-defendant No. 1 provided that latter could procure marketable title/possession on the land by way of a registered partition deed between him and co-sharers which he could not do. When the period of said "Bainapatra" was coming to the close because of the failure of the principal-defendant No. 1 to perform his part of obligation the plaintiff issued a lawyer's notice on 14.2.1989 on the principal-defendant No. 1 asking him to perform his part of the obligation within the period of agreement or else to be liable to repay the amount of Rs. 30,000 to the plaintiff with interest at the rate of 18 per cent per annum till realization and it was also mentioned in the .said notice that in the event of failure on the part of the'defendant No. 1 to complete the formalities the agreement shall be treated as revoked on the ground of fraud. The copies of the notices were sent to the pro forma-defendant by registered post. Having come to know the contents of the notice the defendant No. 1 with an ulterior motive to grab the amount of Rs. 30,000 taken by him as advance from the plaintiff managed to get a registered partition deed on 21.2.1989 in collusion with pro-defendants of the common property including land proposed for sale and instituted a false criminal case against the plaintiff in the Court of learned Sub-Divisional Judicial Magistrate, Dharmanagar under section 420/427, IPC which registered as C.R. Case No. 27 of 1989. The plaintiff, however, took the said case in Revision before the Sessions Court in Criminal Motion No. 4(2) of 1989 which was allowed and the cognizance in the original C.R. Case No. 27/89 was quashed. In view of the alleged collusive and inoperative partition between the defendant, the plaintiff did not find it expedient to purchase the land from the defendant No. 1 and so decided to get back the amount of Rs. 30,000 which was taken from him by the defendant No. 1 as advance against consideration money and for this the plaintiff brought Money Suit No. 3 of 1990 before the court of the learned Asstt. District Judge, Dharmanagar. 3. On receipt of summons from the Court the defendant appeared and contested the suit by filing written statement. The main contention of the defendant was that the plaintiff failed to tender the balance mount towards settled consideration money within the stipulated period, whereas, the defendant was otherwise fully ready to comply the transaction by way of executing and registering the sale deed the same could not ultimately be done. The defendant No. 1, therefore, claimed that the plaintiff was not entitled to get any relief. 4. The following issues were framed by the learned first appellate court for determination in the Money Suit: - (i) Is there any cause of action for the suit ? (ii) Whether the plaintiff made repeated demands to the defendant No. 1 within the time limit as written in "Bainapatra", i.e., Deed of Agreement to get the lawful registration of the Sale Deed on payment of balance consideration money ? (iii) It the defendant No. 1 is liable for non-performance of his any obligation as per terms, conditions and within the period as written in the Deed of Agreement ? (iv) Is the plaintiff entitled to get decree as prayed for ? (v) To what relief/reliefs the parties are entitled ? 5. After appraisal of the evidences and materials available on record, the learned trial court/Assistant District Judge, North Tripura, Dharmanagar has answered issue No. 1 in favour of the plaintiff (respondent herein) and issue Nos. 2, 3 and 4 against the plaintiff. In issue No. 4 it was indicated that he is not entitled to get refund of Rs. 30,000 with interest. In respect of issue No. 5 it was indicated by the learned trial court/Asstt. 2, 3 and 4 against the plaintiff. In issue No. 4 it was indicated that he is not entitled to get refund of Rs. 30,000 with interest. In respect of issue No. 5 it was indicated by the learned trial court/Asstt. Sessions Judge that since the defendant/appellant had suffered a loss of Rs. 30,000 but he cannot be allowed to recover the said amount from the plaintiff/respondent as there is no counter claim for compensation. 6. The first appellate court/Additional District Judge, North Tripura, Dharmanagar while adjudicating Money Appeal No. 4 of 1993 has not specifically dealt with the findings arrived at on each issues by the learned trial court and has altogether taken two different points for determination in the first appeal, namely, whether the plaintiff-appellant (vendee) was willing and in readiness to perform his part of the contract and whether the defendant (vendor) suffered loss ? 7. On appraisal of evidences of witnesses and materials on record, the first appellate court took endeavour to answer and deal these above two points and has indicated that there is nothing to indicate that there was absence of willingness/readiness on the part of the plaintiff (respondent herein) to discharge the contractural obligations has also dealt with in the facts and circumstances by indicating that the defendant (appellant herein) had not sustained loss from non-fulfilment of contractual obligation by the plaintiff/respondent herein. Apart from making this observation and arriving at such findings, on additional points, the learned First Appellate Court has set aside the order dated 30.6.1993 passed by the learned Assistant District Judge, North Tripura, Kailashahar. 8. During the course of argument, several points have been agitated and from pleadings and materials available the following two substantial questions of law have been framed for consideration: - "(i) whether alleged imperfect title can be a ground to a void contract of sale ? (ii) whether the first appellate court was legally justified to set aside the judgment and order of the learned trial court without analyzing and giving its own findings on the issues and findings of trial court on appraisal of the evidences, witnesses, and materials on record ? 9. Mr. A.M. Lodh, learned senior counsel assisted by Mr. (ii) whether the first appellate court was legally justified to set aside the judgment and order of the learned trial court without analyzing and giving its own findings on the issues and findings of trial court on appraisal of the evidences, witnesses, and materials on record ? 9. Mr. A.M. Lodh, learned senior counsel assisted by Mr. M. Dutta, learned counsel for the appellant has referred and relied upon following decisions: - (a) AIR 2006 (NOC) 497 (A.K. Lakshmipathy and Others v. Rai Sheb Pannalal Hirlala Lahoti Charitable Trust, Hyderabad and Others) where it has been observed as follows: - "Afraudulent contract or a contract obtained by fraud is void. Avoid contract cannot be specifically enforced. However, a contract of sale of immovable property with allegedly imperfect title in the seller is neither void nor voidable per se. An allegation of imperfect title in the property, which is subject-matter of contract of sale by itself cannot be a ground for the buyer to avoid the contract and postpone his performance on grounds of purported material defects in seller's title to the property. It is the prerogative of the buyer to raise a reasonable doubt and seek reasonable information which is within the knowledge of the seller and also recognized principle of law that buyer can always compel the vendor/vendors to rectify the defects and pass on unencumbered title to the buyer in which event the contract is not rendered voidable." It was also observed that regarding readiness and willingness to perform contract by the plaintiff purchaser when he is insisting upon incorporating new terms and execution of another agreement by raising objections also one after other regarding various stages in completion of sale transaction, such attitude of plaintiff is indicative of that there is no readiness and willingness and the Court cannot lean its discretion in their favour of plaintiff (b) In AIR 1952 Punjab, 380 (Ruldu Ram and Others v. Bhuri Lal and Another) it has been held that in the matter of contract for sale in respect of part of property destroyed by fire in such condition when vendee was not prepared to take sale is not entitled to return of earnest money. It has been observed as below: - "A agreed to purchase'from B three items of property and paid certain sum as earnest money. It has been observed as below: - "A agreed to purchase'from B three items of property and paid certain sum as earnest money. A day prior to the date when the sale was to be completed one of the items of property was destroyed by fire. A return of earnest money:" Held that as under section 13, Specific Relief Act, the contract could be specifically performed at the instance of either party, A in refusing to take a sale was guilty of breach of contract and as such was not entitled to refund of earnest money." (c) In (2001) 5 SCC 705 (Deena Nath v. Pooran Lal) it has been observed by the Hon'ble Supreme Court as below: - "If in recording a finding the court does not bear in mind the statutory mandate, such finding would not be a mere finding of fact; such ' erroneous finding illegally arrived as would be vitiative of the entire judgment - Such findings can be set aside in second appeal preferred under section 100 of CPC, even if concurrently made by lower courts." "Regarding 1908 - Sections 100,9.6 and 115 -Appeals and Revision -It was observed that there should be application of mind to statutory mandate - The appellate and revisional court, must ascertain whether the judgment of the lower court or authority (for eviction of a tenant in this case) shows that such court or authority has applied its mind to the statutory requirements for arriving at their findings of fact -A judgment which does not show such application of mind, held, cannot be sustained and a superior court would be justified in setting it aside in first or second appeal or revision." 10. It has also been argued by Mr. Lodh, learned senior counsel for the appellant that the property devolved to the defendant/appellant and was in his possession since beginning, even at the time of entering into the agreement for sale/deed of advance dated 21.12.1988 as the appellant herein settled out the land amicably amongst the brothers and sisters and as such was enjoying the possession and ownership of the properties. The two brothers of the appellant had already sold out their shares to different persons and in terms of the deed of advance the plaintiff/respondent was to pay the remaining amount of Rs. The two brothers of the appellant had already sold out their shares to different persons and in terms of the deed of advance the plaintiff/respondent was to pay the remaining amount of Rs. 65,000 within 2 (two) months-, i.e., before 21.2.1989 for which information had already been conveyed to him. However, the plaintiff/respondent by its noticed dated 14.2.1989 had demanded the registered partition deed which was also materialized and got registered on 21.2.1989 itself i.e. within the time for finalizing the registration of sale of the property in question. Any slackness on the part of the defendant/appellant in giving prompt response to the notice of the plaintiff/respondent should not be taken adverse to the bona fide willingness of the defendant/appellant to sell out the property since the appellant has suffered loss of Rs. 30,000 and he has been forced to sell out the property to some other party within a few months after the stipulated period mentioned in "Bainapatra". The findings of the learned trial court on issues since have not been upset specifically by the first appellate court, therefore, the decision of trial court is to be taken as correct. 11. On the other hand, Mr. D.K. Biswas, learned counsel for the plaintiff/respondent has submitted that no clause specifically regarding forfeiture of the advance money in case of non-materialization of the sale deed was mentioned in the "Bainapatra" dated 21.12.1988 and when suspicion had arisen that the properties proposed to be sold out by the defendant/appellant were not amicably settled amongst the shareholders in those circumstances notice dated 14.2.1989 was served and it was not promptly and bona fidely responded and even up to the end of the day, i.e., upto the last date 21.2.1989 of the expiry of period he was not informed in writing in what way the title and ownership of the properties in the share of the defendant/appellant has been asserted. There was slackness on the part of the defendant/appellant mitigating his bona fide. Hardly any time was left to come forward to finalize the sale dead in terms of deed of advance after 21.1.1989. The findings of the trial court were not based on correct appraisal of evidences or the witnesses. There was slackness on the part of the defendant/appellant mitigating his bona fide. Hardly any time was left to come forward to finalize the sale dead in terms of deed of advance after 21.1.1989. The findings of the trial court were not based on correct appraisal of evidences or the witnesses. It was based on conjectures and surmises and according to the learned counsel for the plaintin7respondent even if the first appellate court has not dealt with each issues and the findings of the trial court on issues separately, however, the gist of the decision of the first appellate court is that the finding of the trial court is legally not correct and in addition the first appellate on two important points has very categorically indicated that there was willingness on the part of the plaintiff/respondent to finalize the sale deed and it was the defendant/appellant who has failed in his duties. In these circumstances, the proposed questions of law at the admission stage indicate by this court are not substantial questions of law, therefore the present Second Appeal is to be dismissed on this aspect alone and the entire money advanced in terms of the advance deed is to be returned to the plaintiff/respondent with interest as the defendant/appellant did not suffer any loss in view of the findings arrived at by the first appellate court. 12. The learned counsel for the respondent has referred and relied on the decision of the Supreme Court 2001 AIR SCW 723 (Santosh Hazari v. Purushottam Tiwari (Dead) where detailed aspects of section 100 of CPC has been dealt with. The important pars are quoted as below: - "The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on court. The existence of substantial question of law, is the sine qua non for the exercise of the jurisdiction under the amended section 100 of the Code. The existence of substantial question of law, is the sine qua non for the exercise of the jurisdiction under the amended section 100 of the Code. [See Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 : AIR 1997 SCW 2459 : AIR 1997 SC 2517 , Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 : AIR 1997 SCW 1035 : AIR 1997 SC 1041 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 : AIR 1999 SCW 2240 : AIR 1999 SC 2213 ) (para 91. "At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal by only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction." (para 10) "Even under the old section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in second appeal. However the Law Commission noticed a plethora of conflicting judgments. It noted that in dealing with second appeals, the courts were devising and successfully adopting several concepts such as, a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the courts below. This was creating confusion in the minds of the public as to the legitimate scope of second appeal under section 100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such question of law is a substantial one. (See Statement of Objects and Reasons.) The Select Committee to which the Amendment Bill was referred felt that the scope of second appeals should be restricted so that litigations may not drag on for a long period. Reasons, of course, are not required to be stated for formulating any question of law under sub-section (4) of section 100 of the Code; though such reasons are to be recorded under proviso to sub­section (5) while exercising power to hear on any other substantial question of law, other than the one formulated under sub-section (4)." (para 11) "The phrase "substantial question of law", as occurring in the amended section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as section 109 of the Code or article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Dutta v. T. Ram Dutta, AIR 1928 PC 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing section 110, CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning, and Manufacturing Co. Ltd., 1962 Supp. (3) SCR 549: AIR 1962 SC 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, ILR (1952) Madras 264: AIR 1951 Madras 969 (at p. 1381; para 5 of AIR):" (para 12) "....when a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well-settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial (at p. 1318, para 6 of AIR) (para 12) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." (para 12) 13. It was observed by Hon'ble Supreme Court in Santosh Hazari (supra) as below: - "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." (para 14) "A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers frbm a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai, AIR 1983 SC 114 ). The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one." (para 15) "Reverting to the facts of the case at hand, prima facie we find that the first appellate court did not discharge the duty cast on it as a court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub­section (3) of section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his default. That was not done. In our opinion the following substantial question of law does arise as involved in the case and worth being heard by the High Court:" (para 16) 14. I have heard the learned counsel for the parties. That was not done. In our opinion the following substantial question of law does arise as involved in the case and worth being heard by the High Court:" (para 16) 14. I have heard the learned counsel for the parties. It appears that the first appellate court did not deal with each and every finding of the learned trial court who arrived at on each issues on the basis of the facts, evidence or on the basis of statements witnesses and materials of record, rather the first appellate court has framed additional points which have been dealt with by him. Therefore, it is clear that the statutory obligation cast upon the first appellate court has not been carried out properly. It is difficult to know the fact findings arrived at by the first appellate court on the issues in question. In these circumstances, the decision of the first appellate court cannot be said to be legally sustainable, since any issue or any point before the trial court was not framed regarding avoiding the contract of sale for finalization of the sale in question due to imperfectness of title, therefore, such issue also cannot be allowed to be taken for consideration at this stage. In the facts and circumstances of the case the second substantial question of law framed by this court is dealt with accordingly as the first appellate court was under the legal obligation to deal with each and every finding on issues and decision arrived at by the trial court while upsetting the decision of the trial court. 15. Accordingly the judgment and order dated 29.11.1997 passed by the learned Additional District Judge, North Tripura, Dharmanagar in Money Appeal No. 4 of 1993 is set aside and the matter is relegated back to the learned Additional District Judge, North Tripura, Dharmanagar to adjudicate the Money Appeal No. 4 of 1993 expeditiously, preferably within a period of 4 (four) months from today in view of the guidelines given by the Supreme Court in the decision of Santosh Hazari (supra) as well as observations made above. The records are also to be relegated back to the court of learned Additional District Judge, North Tripura, Dharmanagar and the first appellate court shall have to issue notice to the respective parties in addition to the information to be given to them by their respective parties.