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2008 DIGILAW 114 (GAU)

Dambarudher Das v. Pabitra Mohan Das

2008-02-12

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The Respondents as Plaintiffs, instituted Title Suit No. 4/2003 in the court of the learned Civil Judge (Jr. Division), No. 1, Barpeta (now Munsiff), against, the present Appellant and the legal heirs of late Krishna Kanta Das as Defendants, as well as 9 (nine) others as proforma Defendants praying for declaration of right, title and interest over the land measuring 2 Bighas, 0 Kathas, 15 Lecahs described in Schedule C; for declaration that the Defendants have no right, title and interest exceeding 3 Kathas of land in Dag No. 998 described in Schedule B; for declaration, that the registered deed of sale No. 2005/2000 dated 28.8.2000 is fraudulent; for partition of the suit land described in Schedule C and to place under the exclusive khas possession of the Plaintiffs by creating separate dag and also for declaration that the Defendants may enjoy the easementry right over a passage of 6 feet by 20 feel described in Schedule D without any right, title and interest over the said plot of land and not to make any (sic) and also for permanent injunction (sic) Madhab Chandra Das, the (sic) his permanent dwelling house over (sic) 0 Katha, 16 Lechas at Galiahati, (sic) patta land measuring 2 Bighas, 1 (sic) 1142 under K.P. Patta No. 416 and (sic) Lechas out of 3 Bighas, 0 Katha, 11 (sic) under N.K. Patta No. 2 as per the (sic) settlement of 1923-28 and in another 998 (new) over the land measuring 1 (sic) Defendant Nos. 1 and 2 are residing (sic) late Dabaraj Das. That the pro forma Defendants are closely related to the Plaintiffs and they happened to be co-sharers of the Plaintiffs to share the land covered by Dag No. 700 (old) and 998 (new), similarly, the Defendants are also co-sharers of Dag No. 700 (old), 998 (new) under N.K. Patta No. 2 having title and possession over 3 Kathas of land, but unlike the pro forma Defendants, the Defendants are not related to the Plaintiffs as the father of Defendants did not have any 'bhag" 9 in the Barpeta Kirtan Ghar originally. It has further been contended that it was because the father of Defendant Nos. It has further been contended that it was because the father of Defendant Nos. 1 and 2, namely late Buduram was engaged as a servant by late Madhab Chandra Das, the predecessor-in-interest of the Plaintiffs settled a part of his land measuring 3 Kathas permanently without executing any written deed within Dag No. 700 (old)/998 (new) and got the name of Buduram entered into the revenue record prior to the settlement operation of 1958-65. The Plaintiffs further asserted that during the settlement operation of 1958-65 the land covered by Dag No. 700 under N.K. Patta No. 2 measuring 3 Bighas 0 Katha 11 Lechas was reduced to 2 Bighas 4 Kathas 19 Lechas and was placed under the new Dag No. 998. So, after leaving 1 Katha, 4 Lechas of land belonging to the father of pro forma Defendant Nos. 1 and 2 and 3 Kathas of land belonging to late Buduram, remaining land measuring 2 Bighas, 0 Katha, 15 Lechas of land belonged to late Madhab Chandra Das, the predecessor-in-interest of the Plaintiffs, which has been fully described in Schedule C of the plaint and called the suit land. The further case of the Plaintiffs is that they are possessing the suit land with their homestead thereon, but on 5.5.2000, the Defendants surrounded the major portion of the land shown in Schedule D of the plaint, through which they used to pass through, with a view to expand their land as well as to consolidate their right, title and possession in excess of their land measuring 3 Kathas and again, in the first week of June 2000, the Defendants pushed away their eastern boundary fencing by 10 feet further eastward and in that way, they have made encroachment of 106 Feet x 10 Feet of land forcibly. According to the Plaintiff the Defendant Nos. 1(b), (c), (d) and (e) executed a registered deed of gift No. 2005 dated 28.8.2000 in favour of Defendant No. 2 gifting 4 Kathas 19 2/3, Lechas of land from Dag No. 998 when they had right, title and interest over 3 Kathas of land only. 2. According to the Plaintiff the Defendant Nos. 1(b), (c), (d) and (e) executed a registered deed of gift No. 2005 dated 28.8.2000 in favour of Defendant No. 2 gifting 4 Kathas 19 2/3, Lechas of land from Dag No. 998 when they had right, title and interest over 3 Kathas of land only. 2. (sic) main Defendants, on receipt of the summons, entered appearance (sic) the suit, by filing written statement and raising the plea (sic) cause of action, non maintainability of the suit, limitation, (sic) of the suit as well as non-joinder of necessary parties (sic), contending who are the necessary parties who (sic) as parties to the suit. Denying the claim of the Plaintiffs, the main Defendants in the written statement has contended that in the patta issued in the year 1923-28 the land was covered by Dag No. 700 measuring an area of 3 Bighas, 0 Katha, 11 Lechas and at that time the pattadar was Madhab Ram Doctor, Buduram Das and Purusottam Das and by an order of SDC dated 24.6.1935 the name of Debraj Das was mutated as late Madhab Chandra Das donated his share to Debraj. Similarly by an order of SDC dated 1.5.1942 the name of Madhab Chandra Das was mutated in art area of 2 Bighas, 1 Katha 7, Lechas in place of Purusattam Das, who had interest and possession over 1 Bigha, 2 Katha, 1 Lecha of kind. However, late Buduram Das, the predecessor-in-interest of Defendants was possessing his share, of 1 Bigha 2 Kathas, 1 Lecha from the eastern part by raising permanent boundary post and bamboo fencing. The possession of the Defendants is still continuing which is from the days of Late Buduram, which the Defendants are possessing by constructing their homestead thereon. The Defendants further averred that after the death of Buduram Das, his son Krishna Kanta Das got mutation in the Dag in place of Budu Ram Das. Late Budu Ram had four sons - (i) Krishna Kanta Das, (ii) Bipin Das, (iii) Parbanananda Das and (iv) Dambarudhar Das. Except Dambarudhar Das all other sons of Budu Ram Das left the paternal basti and constructed their own homestead in different places. Late Budu Ram had four sons - (i) Krishna Kanta Das, (ii) Bipin Das, (iii) Parbanananda Das and (iv) Dambarudhar Das. Except Dambarudhar Das all other sons of Budu Ram Das left the paternal basti and constructed their own homestead in different places. The contesting Defendants further averred that as Dambarudhar Das had no mutation over the suit land the pattadar Krishna Kanta Das's brother of Dambarudhar Das, executed one Deed No. 2005/2000 dated 28.8.2000 in order to facilitate Defendant No. 2 in getting mutation thereon. According to the answering Defendant, the Plaintiffs have brought the suit by false statement of facts and hence, they prays for dismissal of the suit with cost. 3. The learned trial court on the basis of the pleadings of the parties initially framed six issues and, thereafter, an additional issue being issue No. 7, relating to the non-joinder of necessary parties, was also framed, which are as follows: 1. Whether there is any cause of action for the suit? 2. Whether the Plaintiffs have right, title and interest over the suit land? 3. Whether the Defendants have any rights, interest exceeding three Kathas in Dag No. 998 of 'B' schedule land? 4. Whether the Defendants have illegally erected bamboo fencing upon the suit land? 5. Whether the registered Deed No. 2005/2000 dated 28.8.2000 of Barpeta Sub-Registrar Office is fraudulent? 6. What relief or reliefs the parties are entitled to? Additional Issue No. 7 Is the suit bad for not-joinder of necessary parties? 4. The learned trial court, on appreciation of the evidences on record, vide judgment and decree dated 6.8.2003 dismissed the suit of the Plaintiffs by holding that the suit is bad for non-joinder of necessary party, i.e., Nani Das, the minor daughter of Bibhuti Bhusan Das, and also by holding that the Plaintiffs have no right, title and interest on the entire suit land measuring 2 Bighas, 0 Kathas, 15 Lechas described in Schedule C as the themselves admitted the subsisting right of the principal Defendants over 3 Kathas of land within Schedule C land. It has further been held by the learned trial court that in view of such admission and the admission that the predecessor-in-interest of the principal Defendants are co-pattadars alongwith another, namely Purusottam Das, they shall have the equal shares over 2 Bighas 4 Kathas 19 Lechas of land (Schedule A land) and, therefore, the gift of land measuring 4 Kathas, 19 2/3 Lechas, of land from suit Dag No. 998 by the principal Defendant Nos. 1(b) to 1(e) in favour of the principal Defendant No. 2 is not unlawful. 5. Being aggrieved, the Plaintiffs preferred Title Appeal No. 22/2003 in the court of the learned Civil Judge, (Senior Division), Barpeta (now Civil Judge), which was decided in favour of the Plaintiffs vide judgment dated 14.5.2004 and accordingly decreed the suit by setting aside the judgment and decree passed by the learned trial court, by holding that the suit cannot be dismissed on the ground of non-joinder of necessary parties as the Defendants in the written statement have taken up a vague plea of non-joinder of necessary party without mentioning as to how the suit is bad and also relying upon the affidavit of Smt. Manju Das (pro forma Defendant No. 4), widow of late Bibhuti Bhusan to the effect that they do not have any daughter by the name of Nani. The learned First Appellate Court relying on the Exhibit-1 and Exhibit-B and also the deposition of DW-1 (Plaintiff No. 2) has held that Buduram Das, the father of Defendant No. 2 and grand-father of Defendant Nos. 1(a) to 1 (c) had interest over 3 Kathas of land only. 6. Being aggrieved, the Defendant No. 2 preferred the present appeal against the Plaintiffs as Respondents. This Court vide order dated 1.12.2004 admitted the appeal on the following substantial question of law: Whether the findings of the First Appellate Court are perverse in view of the evidence of PW-1 in the case records? 7. During the course of hearing of the appeal, the following substantial question of law was also formulated: Whether the learned Appellate Court being the final court on facts as well as of law is required to discuss the entire evidence on record, both oral and documentary, while reversing the judgment and decree passed by the learned trial court, as the second appeal can be maintained only on substantial question of law? 8. I have heard Mr. 8. I have heard Mr. N. Dhar, the learned Counsel for the Appellant and Mr. K.N. Choudhury, the learned senior Counsel for the Respondents on the aforesaid substantial questions of law. 9. Mr. Dhar, the learned Counsel for the Appellant referring to the first substantial question of law formulated by this Court while admitting the appeal for hearing as well as the deposition of the Plaintiffs witness No. 1, Hironmoyee Das, [Plaintiff No. 3(b), has submitted that Bibhuti Bhusan Das admittedly left behind another heir being the minor daughter, namely, Nani Das, aged, about 9 (nine) years, who has not been impleaded as party in the suit, though she is a necessary party, in the absence of whom, the suit as framed cannot be decreed. Hence, according to the learned Counsel, the learned trial court has rightly dismissed the suit of the Plaintiffs on the ground of non-joiner of necessary parties. Mr. Dhar has further contended that the suit is also not maintainable on the ground of not making Barpeta Kirtah Ghar, the landlord, as party, as the suit land belongs to Barpeta Kirtan Ghar, in the absence of which the suit of the Plaintiffs cannot be decreed. 10. Relating to the second substantial question formulated by this Court, it has been contended by Mr. Dhar that the learned First Appellate Court being the final court on facts as well as on law, it is duty bound to discuss all the evidences on record, both oral and documentary. According to the learned Counsel, the burden of the learned First Appellate Court is more and it has to discuss all the evidences on record in detail and also to give reason why the judgment and decree passed by the learned trial court cannot be maintained, in case the learned First Appellate Court reverse the finding recorded by the learned trial court. In the instant case, according to Mr. Dhar, the learned First Appellate Court has set aside the judgment and decree passed by the learned trial court without discussing the evidences on record and as such, it is a fit case where it is required to be remanded to the learned First Appellate Court for giving a fresh decision in accordance with law. In support of his contention Mr. Dhar has placed reliance on the decision of the Apex Court in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 . In support of his contention Mr. Dhar has placed reliance on the decision of the Apex Court in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 . 11. The learned Counsel for the Appellant has further contended that the present suit being a suit for partition, a preliminary decree as required under Order 20, Rule 18, Code of Civil Procedure is to be passed, which has not been done by the learned First Appellate Court while decreeing the suit of the Plaintiffs. It has further contended that in a partition suit, all the pattadars are required to be made parties and the court while granting partition is required to ascertain the shares of each of the pattadars who are the parties of the suit. But in the instant case, all the pattadars are not the parties to the suit and the learned First Appellate Court while decreeing the suit of the Plaintiffs has not ascertained the share of each and every pattadars as required under the law. Mr. Dhar has further contended that the learned First Appellate Court while decreeing the suit has ignored the description of the land given in Schedule C, i.e., the land measuring 2 Bighas, 0 Katha, 15 Lechas, which according to the Plaintiffs, includes the land measuring 35 feet by 247 feet belonging to the answering Defendants and, therefore, the right, title and interest of the Plaintiffs in respect of entire 2 Bighas, 0 Katha, 15 Lechas land as described in Schedule C to the plaint cannot be decreed and accordingly the same was not decreed by the learned trial court but the learned First Appellate Court ignoring the description given in the Schedule C of the plaint has declared the right, title and interest of the Plaintiffs over the entire 2 Bighas, 0 Katha, 15 Lechas of land, which is contrary to the pleaded case of the Plaintiffs. Referring to the deposition of the witnesses of the parties, it has further been contended that the Plaintiffs have failed to prove their title on the land in question. 12. Mr. Referring to the deposition of the witnesses of the parties, it has further been contended that the Plaintiffs have failed to prove their title on the land in question. 12. Mr. Dhar relying on the decision of the Apex Court in Nagar Palika, Jind v. Jagat Singh Advocate (1995) 3 SCC 426 has also contended that a suit cannot be decreed on the basis of the entry of the revenue records but the learned First Appellate Court has decreed the suit of the Plaintiffs on the basis of the entry of the revenue records and as such, the judgment and decree passed by the learned First Appellate Court is liable to be set aside. 13. Mr. Dhar in support of his contention that in a suit for partition all the pattadars are required to be made parties and the court while decreeing the suit is required to ascertain the shares of all of the pattadars and, thereafter, to pass a preliminary decree, has placed reliance on the decisions of this Court in Md. Makbul Hussain and Anr. v. Must. Zubeda Khatoon and Ors. AIR 1990 Gau. 33 ; Rajiba Khaton v. Rafiqul Hussain Bhuyan (1998) 4 GLT 464 as well as of the Apex Court in R.B.S.S. Munnalal v. S.S. Rajkumar AIR 1962 SC 1493 ; in Rachakonda Venkat Rao v. R. Satya Bai (2003) 7 SCC 452 . Mr. Dhar has also placed reliance on the decision of the Apex Court in Kanakaratha Inammal v. V.S. Loganatha Mudaliar AIR 1965 SC 271 in support of his contention relating to the non-maintainability of the suit on the ground of non-joinder of necessary parties. 14. Mr. Choudhury, learned senior Counsel appearing on behalf of the Respondents/Plaintiffs referring to the provision of Order 6, Rule 4, Code of Civil Procedure has contended that the contesting Defendants in the written statement filed except taking a very vague plea of non-joinder of necessary parties have not stated as to how the suit of the Plaintiffs is bad for non-joinder of necessary parties. According to Mr. According to Mr. Choudhury, when the suit of the Plaintiffs is resisted by the Defendants on the ground of non-joinder of necessary parties, the Defendants are required to give the particulars of the necessary parties, who are not added in the suit and in case the Plaintiffs in spite of giving such particulars have failed to add such parties to the suit, such suit can be dismissed. But in the instant case, it has been contended by Mr. Choudhury that though the Defendants in the written statement have not given any particulars of such persons, the learned trial court has dismissed the suit on the basis of the evidence of PW-1 to the effect that Bibhuti Bhusan Das had another minor daughter and she has not been added as party in the suit, without considering the fact that her interest in the suit land has been adequately protected by her mother, namely, Smt. Manju Das, (pro forma Defendant No. 4) as well as the fact that no decree has been passed against the interest of Smt. Manju Das or the minor daughter. Mr. Choudhury, therefore, submits that the learned First Appellate Court has rightly set aside the finding of the learned trial court relating to the non-maintainability of the suit on the ground of necessary party. Referring to the provision of Order 32, it has been submitted by Mr. Choudhury that in the instant case, as the suit has not been filed by the minor daughter of Bibhuti Bhusan Das or any relief has been claimed against such minor, the suit cannot be dismissed for non-joinder of necessary parties more so, when her interest has been protected by her mother, who is the natural guardian and who has been arrayed as pro forma Defendant No. 4. It has further been submitted by Mr. Choudhury that plea of non-joinder of Barpeta Kirtan Ghar as party has neither been taken by the Defendant/Appellant in the written statement nor during the hearing of the suit and, therefore, such plea cannot be allowed to be taken in the second appellate stage. In support of his contention Mr. Choudhury has placed reliance on the decision of the Apex Court in Bishundeo Narain v. Seogeni Rai AIR 1951 SC 280 as well as on a full bench decision of Punjab and Haryana High Court in Amrik Singh and Anr. v. Karnail Singh and Ors. In support of his contention Mr. Choudhury has placed reliance on the decision of the Apex Court in Bishundeo Narain v. Seogeni Rai AIR 1951 SC 280 as well as on a full bench decision of Punjab and Haryana High Court in Amrik Singh and Anr. v. Karnail Singh and Ors. AIR 1974 (P&H) 315 . 15. Relating to the second substantial question of law formulated, it has been contended by Mr. Choudhury that the learned First Appellate Court while setting aside the judgment and decree passed by the learned Trial Court and decreeing the suit of the Plaintiffs has discussed the Exhibit-1/Exhibit-B as well as the deposition of the Defendants' witness, who has admitted that the Defendants have right, title and interest in respect of 3 Kathas of land only as well as discussed the evidences relating to the non-joinder of necessary parties and, therefore, it cannot be said that the learned First Appellate Court did not discuss the evidences on record at all. Referring to the provision of Section103 Code of Civil Procedure, it has been contended by Mr. Choudhury that in any case even if the evidences on record have not been discussed by the learned First Appellate Court fully while decreeing the suit of the Plaintiffs, the Second Appellate Court can, if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal, if such issue has not been determined by the learned First Appellate Court or by both the First Appellate Court as well as by the learned trial court or which issue has been wrongly determined by such court by reason of a decision on such question of law formulated by the Second Appellate Court. Mr. Choudhury, therefore, referring to the evidences available on record has contended that the Plaintiffs could prove the title in respect of the Schedule C land being 2 Bighas, 0 Katha, 15 Lechas and their title has been admitted by the Defendant in his deposition before the court and also by deposing that the Defendants claim is in respect of 3 Kathas of land only. Mr. Choudhury, therefore, submits that the decree passed by the learned First Appellate Court is not required to be interfered with by this Court. 16. Mr. Mr. Choudhury, therefore, submits that the decree passed by the learned First Appellate Court is not required to be interfered with by this Court. 16. Mr. Choudhury in support of his contentions has placed reliance on the decisions of the Apex Court in Jadu Gopal Chakrawarty (dead) by his L.Rs. v. Pannalal Bhowmick (1978) 3 SCC 215 ; in Achintya Kr. Saha v. Nanee Printers (2004) 12 SCC 368 and in Leela Soni v. Rajesh Goyal (2001) 7 SCC 494 . 17. Relating to the submission of the learned Counsel for the Appellant for passing of a preliminary decree as required under Order 20, Rule 18 of the Code of Civil Procedure, it has been contended by Mr. Choudhury that the decree, which has been passed by the learned First Appellate Court is to be treated as preliminary decree and the share of the Plaintiffs, main Defendants and the pro forma Defendants having been pleaded in the plaint, which has been admitted by the main Defendants in his deposition and having not been denied by the pro forma Defendants by filing any written statement, their shares are ascertained. Mr., Choudhury further contends that it is evident from Schedules A, B and C to the plaint that Schedule C land comprises of 2 Bighas, 0 Katha, 15 Lechas of land over which the Plaintiffs claimed title and which land is not inclusive of the land described in Schedule B over which the Defendants have title and, therefore, the learned trial court has wrongly held that the Plaintiffs have admitted the title of the Defendants over part of Schedule C land. 18. Relating to the submission of the learned Counsel for the Appellant to the effect that as all the pattadars are not made parties, the suit is not maintainable, it is being a suit for partition, Mr. Choudhury has further submitted that such plea has not been taken by the Defendants in the written statement and, therefore, they cannot be allowed to raise such plea for the first time in the second appellate stage, the same having not been raised before the learned courts below. According to Mr. Choudhury, in the present case, all the pattadars having been the parties to the suit, it cannot be said that the suit of the Plaintiffs is not maintainable. 19. According to Mr. Choudhury, in the present case, all the pattadars having been the parties to the suit, it cannot be said that the suit of the Plaintiffs is not maintainable. 19. I have considered the submissions of the learned Counsel for the parties and also perused the judgments and decrees passed by the learned courts below as well as the materials available on records. 20. Section 96 of the Code of Civil Procedure provides that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court, however, such appeal is not maintainable from a decree passed by the court with the consent of the parties. A decree passed in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed 10,000 rupees, also does not lie except on a question of law. The First Appellate Court, therefore, except on an appeal from a decree in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject matter of the original suit does not exceed 10,000 rupees, is to decide both the question of fact as well as the question of law. The First Appellate Court is the final court on facts as well as on law, unless of course when a substantial question of law involves so as to enable the Second Appellate Court to hear an appeal under Section 100 of the Code of Civil Procedure. 21. The phrase "substantial question of law" occurring in Section 100 of the Code of Civil Procedure has not been defined. The Apex Court in Santosh Hazari (supra) has observed that the word "substantial" as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable and it is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. The Apex Court in Santosh Hazari (supra) has observed that the word "substantial" as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable and it is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. It has further been observed that 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 and whether a question of law is a substantial one and involved in the case, or not, depends on the facts and circumstance of each case; the paramount overall consideration being the need for striking judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 22. In Santosh Hazari (supra) the Apex Court has further observed as: ...the 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 appellate court must, therefore, reflect its conscious application of mind and record finding 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.... 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.... The Apex Court, however, sounded a note of caution by observing that 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 and 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 learned 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, which certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse the finding of fact arrived at by the learned trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from 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. 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. 23. Section 100 of the Code of Civil Procedure empowers the Second Appellate Court to hear an appeal from every decree passed in appeal by any court subordinate to it provided the case involves a substantial question of law. The High Court under Section 100 of the Code of Civil Procedure is not bound to confine the decision to deal only with the substantial question initially framed by it and may hear the appeal on any other such substantial question of law, so long as the High Court is satisfied that the cast' involves the substantial question of law and records its reasons for such satisfaction. At the same time, the Respondents in the appeal is also at liberty to show that the question formulated was not involved in the case. At the same time, the Respondents in the appeal is also at liberty to show that the question formulated was not involved in the case. Section 103 of the Code of Civil Procedure further empowers the Second Appellate Court to determine any issue necessary for disposal of the appeal, if the evidence on record is sufficient - (a) which has not been determined by the lower appellate court or both by the court of first-instance and lower appellate court or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100of the Code of Civil Procedure. It is, therefore, not that when the court of first instance and the First Appellate Court have not determined any issue, which is necessary for disposal of the second appeal or wrongly determined any issue either by the court of first instance or by the First Appellate Court, the Second Appellate Court has to remand the case either to the court of first instance or to the First Appellate Court, for giving decision on such issues. The Second Appellate Court can determine any such issue, which is necessary for disposal of the appeal, provided the evidence on record is sufficient. 24. The Apex Court in Jadu Gopal Chakravarty (supra) has observed that the High Court while dealing with the second appeal is entitled to exercise its power under Section 103 of the Code of Civil Procedure to go into a question of fact as to whether a compromise decree is obtained by practising fraud or not, which question, the court of first instance as well as the First Appellate Court did not pointedly addressed themselves. In Leela Soni (supra), the Apex Court relying on its earlier decision in Jadu Gopal Chakravarty (supra) case has also observed that Section 103 of the Code of Civil Procedure authorizes the High Court to determine any issue, which is necessary for disposal of the second appeal, provided the evidence on record is sufficient, when (i) that issue has not been determined by both the trial court as well as by the Lower Appellate Court or by the Lower Appellate Court; (ii) when both the trial court as well as the Lower Appellate Court or the Lower Appellate Court have wrongly determined any issue on a substantial question of law, which can properly be a subject matter of the appeal under Section 100 of the Code of Civil Procedure. The same view has also been taken by the Apex Court in Achintya Kr. Saha (supra). 25. In the instant case, though the court of first instance vide judgment and decree dated 14.5.2004 dismissed the suit of the Plaintiffs/Respondents, the learned First Appellate Court set aside the judgment and decree passed by the learned trial court and decreed the suit of the Plaintiffs/Respondents, however, without discussing the evidences on records issue wise, Which necessitated this Court to look into the evidence for the purpose of ascertaining as to whether the decision of the learned First Appellate Court is correct or not. Such course of action has been adopted as permissible under Section 103, Code of Civil Procedure and also with a view to avoid prolongation in the life the dispute between the parties. 26. The first substantial question of law formulated by this Court while admitting the appeal for hearing relates to the maintainability of the suit filed by the Plaintiffs/Respondents for non-joinder of one, Nani Das, the minor daughter of late Bibhuti Bhusan Das and Smt. Manju Das (pro forma Defendant. No. 4), in view of the deposition of PW-1, who stated about her. To appreciate the said substantial question of law as formulated, it requires to see the plea of the Defendant/Appellant in the written statement in that regard. In the said written statement filed by the main Defendant, which includes the present Appellant, it has been pleaded in paragraph-6 as follows: 6. That the suit is bad for non-joinder and mis-joinder of necessary parties. In the said written statement filed by the main Defendant, which includes the present Appellant, it has been pleaded in paragraph-6 as follows: 6. That the suit is bad for non-joinder and mis-joinder of necessary parties. The main Defendants except taking such vague plea about the non-joinder and mis-joinder of necessary parties have not given the necessary particulars as to how and in what manner and for whose non-joinder and mis-joinder the suit is bad. The Plaintiffs for being non-suited on the ground of non-joinder of necessary parties the Defendant must plead, who is the necessary party but has not been impleaded in the suit. The court can decide the question of the necessary party only if such necessary particulars are pleaded by the Defendant in the written statement. The court, on being satisfied that the necessary parties are, left out by the Plaintiffs in the plaint has to give an opportunity to the Plaintiffs to implead such party in the suit and in the event of failure to implead such party in the suit, in spite of the opportunity given by the court, the suit can be dismissed and not otherwise. In the instant case, as discussed above, it is evident from the pleadings of the main Defendants, which includes the present Appellant, no material particulars have been given by the Defendants relating to the necessary party as discussed above. From the deposition of PW-1 Plaintiff No. 3(b), it is, however, clear that Bibhuti Bhusan Das, one of the pattadars of the suit patta died living behind his widow Smt. Manju Das and a minor daughter, namely, Nani Das. Smt. Manju Das has been arranged as pro forma Defendant No. 4 in the suit, who in the affidavit filed before the learned First Appellate Court, however, has denied that no female child by the name of Nani Das was born out of her wed lock with late Bibhuti Bhusan Das. But in the said affidavit, it has not been disputed that she did have a female child and what was disputed is about the name of the female child only. Therefore, it is evident that late Bibhuti Bhusan Das, apart from Smt. Manju Das (pro forma Defendant No. 4), left behind another minor female child, whose name may not be Nani. Therefore, it is evident that late Bibhuti Bhusan Das, apart from Smt. Manju Das (pro forma Defendant No. 4), left behind another minor female child, whose name may not be Nani. The question arises for consideration, in view of the aforesaid position, is whether the Plaintiffs can be non-suited on the ground of non impleadment of the said minor female child as party to the suit. 27. Order 32 of Rule 1 of the Code of Civil Procedure provides that every suit by a minor shall be instituted in his name by a person, who in such suit shall be called the next friend of the minor. Rule 2 of Order 32 provides that where a suit is instituted by or on behalf of a minor without a next friend, the Defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Rule 3 of Order 32 requires appointment of a guardian for minor Defendant by the court. The purpose of the provisions contained in Order 32 of the Code of Civil Procedure is to protect the interest of minors and persons of unsound mind. A decree obtained in a suit, in the absence of the minor as a party, would not bind such minor. 28. In the instant case, the Plaintiffs/Respondents did not claim any relief against the minor or against her parents, namely, Bibhuti Bhusan Das and Smt. Manju Das. More so, the mother of the minor daughter, as discussed above, is already a party Defendant in the form of pro forma Defendant No. 4, who is naturally representing the interest of her daughter. The Defendants neither pleaded in the written statement nor led any evidence to demonstrate that the mother of the minor, Smt. Manju Das, acted against the interest of her minor daughter. The Plaintiffs, in the plaint, has specifically pleaded about the share of the pro forma Defendants in the patta in question and such claim of the Plaintiffs has not been contested by either of the pro forma Defendants by filing any written statement. Be that as it may, if the minor's interest is anyway affected, she can very well challenge the decree passed after attaining the majority as the decree passed in a suit where she has not been arrayed as party is not binding on her. Be that as it may, if the minor's interest is anyway affected, she can very well challenge the decree passed after attaining the majority as the decree passed in a suit where she has not been arrayed as party is not binding on her. 29. The Full Bench of Punjab and Haryana High Court in Amrik Singh (Supra) has observed that the object of Order 32, Rule 3 is not to pass a decree against minors where they are not effectively represented and where a minor is represented by a guardian ad-litem and the interests of the other major Defendants are identical with him and those Defendants are effectively prosecuting the litigation it can hardly be said that a minor is not effectively represented, as too much insistence on technical provisions of a procedural law can at times lead to absurd results and cause injustice to parties. It has further been observed that it is only where a court comes to the conclusion that the minor was not effectively represented and thus he was in fact not a party to the proceedings, the decree passed would be null and void but where the minor is effectively represented, the same necessarily would not be the result. The Apex Court in Bishundeo Narain (supra) while dealing with the provisions of Order 32, Rule 7 of the Code of Civil Procedure has observed that when the mandatory provisions of Sub-rule (1) of Rule 7 have been ignored, the resultant agreement or comprise is not to be held nullity, as the same is only voidable and, therefore, it is good unless the minor chooses to avoid it. It has further been observed that a decree and order is based on the agreement is also good unless the minor chooses to challenge it. 30. In the instant case, the suit is basically against the main Defendants, which includes the present Appellant, wherein the mother of the minor child has been arrayed as pro forma Defendant No. 4. Hence the contention of the learned Counsel for the Appellant in that regard cannot be accepted. That apart the pro forma Defendants did not contest the suit, wherein the land fell in the share has specifically described. In any case, if the minor considers the decree to be against her, she can challenge the same in due course. Hence the contention of the learned Counsel for the Appellant in that regard cannot be accepted. That apart the pro forma Defendants did not contest the suit, wherein the land fell in the share has specifically described. In any case, if the minor considers the decree to be against her, she can challenge the same in due course. The contention as raised by the learned Counsel for the Appellant relating to maintainability of the suit in view of not impleading Barpeta Kirtan Ghar as party to the suit, also cannot be accepted in view of the fact that such plea has not been taken in the written statement and no evidence was led by the Defendants to that effect. That apart, such plea was also not raised either before the court of first instance or before the First Appellate Court. The Apex Court in Kanakarathanammal (supra) has observed that if the parties, who are not joined in the suit but not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. There is no dispute to the said proposition of law. However, in view of the aforesaid discussion, the said principle of law can not be applied in the case in hand. 31. In view of the aforesaid position, the suit of the Plaintiffs cannot be regarded as not maintainable as held by the court of first instance. Hence, the learned First Appellate Court has rightly decided the said question in favour of the Plaintiffs/Respondents. This answers the first substantial question of law framed. 32. The issue Nos. 2 and 3 as framed in the suit are the vital issues, decisions on which, would decide the respective claim of the parties as well as necessary for the disposal of this appeal, which are also the basis of the second substantial question of law formulated. This answers the first substantial question of law framed. 32. The issue Nos. 2 and 3 as framed in the suit are the vital issues, decisions on which, would decide the respective claim of the parties as well as necessary for the disposal of this appeal, which are also the basis of the second substantial question of law formulated. As noticed above, issue No. 2 relates to the Plaintiffs' right, title and interest over the suit land, i.e., the land described in Schedule C to the plaint, and issue No. 3 relates to the Defendants' rights over the land described in Schedule B to the plaint, land measuring 3 Kathas in Dag No. 998 The learned trial court mainly in view of the description given in Schedule C to the plaint has held that the Plaintiffs cannot have right, title and interest over 2 Bighas, 0 Kathas, 15 Lechas of land and the main Defendants being the pattadars in respect of the suit patta have equal shares, without, however, referring to the materials available on record. The learned First Appellate Court has decided both the issues in favour of the Plaintiffs mainly on the basis of Exhibit-1, proved by the Plaintiffs and which has also been exhibited as Exhibit-B by the Defendants. 33. The Plaintiffs in the plaint has made a categorical assertion that though originally the land covered by Dag No. 700 under old N.K. patta was 3 Bighas, 0 Katha, 11 Lechas but during the settlement operation of 1958-65, the same was reduced to 2 Bighas, 4 Kathas, 19 Lechas and a new Dag number being Dag No. 998 was allotted, out of which 1 Katha, 4 Lechas belong to the predecessor-in-interest of the pro forma Defendants, who was one of the co-pattadars and 3 Kathas, of land was given to late Buduram Das, the predecessor-in-interest of the main Defendant Nos. 1(a) to 1(e) and 2, i.e., the father of late Krishna Kanta Das and late Dambarudhar Das, as described in Schedule B to the plaint and the remaining 2 Bighas, 0 Katha, 15 Lechas belong to the predecessor-in-interest of the Plaintiffs as described in Schedule C to the plaint. It has further been averred in the plaint that the Defendant Nos. It has further been averred in the plaint that the Defendant Nos. 1(b), 1(c), 1(d) and 1(e) executed a registered deed of gift in favour of Defendant No. 2 gifting 2 Bighas, 4, Kathas, 19 Lechas of land from Dag No. 998 though they do not have any right, title and interest except over 3 Kathas of land given to Buduram Das. As discussed above, the pro forma Defendants did not contest the suit by filing written statement or by participating in the proceeding. The main Defendants, however, though in the written statement denied the Plaintiffs' claim and contended that Buduram Das had interest and possession over 1 Bigha, 2 Kathas, 1 Lecha of land and after whose death, Krishna Kanta Das, the predecessor-in-interest of the Defendants Nos. 1(a) to 1(e) got the mutation though he had four sons including the Defendant No. 2, and Krishna Kanta Das on 20.8.2000 by registered deed gifted the said land to the Defendant No. 2, no evidence was led in support. The main Defendants in the written statement has also admitted the share of the predecessor-in-interest of the pro forma Defendants in the suit patta to the extent of 1 Katha, 4 Lechas as pleaded by the Plaintiffs in the plaint. 34. The Defendant No. 2, in his deposition as DW-1 during cross-examination has specifically stated that he supports the contents of Exhibits-A and B and on the basis of such exhibits he claims his right. He has further deposed that except those documents he does not have any documents relating to claim over the land. The Plaintiffs/witnesses being PWs-1, 2 and 3 have narrated how they acquired right, title and interest over C Schedule land measuring 2 Bighas, 0 Katha, 15 Lechas and also about the right, title and interest of their predecessor-in-interest over the entire A Schedule land. During cross-examination by the Defendants nothing could be brought out contrary to what has been asserted by the Plaintiffs/witnesses in their examination-in-chief. The Defendants also did not deny the title of Madhab Chandra Das over the Schedule A land either in the written statement or while cross-examining the Plaintiffs' witness. On the other hand, the Defendants claimed title over the land measuring 1 Bigha, 2 Kathas, 1 Lecha. That being the position, the burden lies to the Defendants to prove title in respect of the land, which the Defendants have failed to discharge. On the other hand, the Defendants claimed title over the land measuring 1 Bigha, 2 Kathas, 1 Lecha. That being the position, the burden lies to the Defendants to prove title in respect of the land, which the Defendants have failed to discharge. The Defendant No. 2 in his deposition, as discussed above, on the contrary, has stated that he supports contents of Exhibits-A and B, i.e., the revenue records wherefrom it appears that the land measuring 3 Kathas only mutated in the name of Buduram Das, his father. From Exhibit-1, the revenue Record, which has been exhibited by the Plaintiffs and has also been exhibited by the Defendants as Exhibit-B, it also reveal that the name of the predecessor-in-interest of the Plaintiffs, namely, Madhab Chandra Das, was mutated in respect of 2 Bighas, 0 Katha, 15 Lechas of land as described in the Schedule C. There is no dispute to the proposition of law as observed by the Apex Court in Nagar Palika, Jind (supra) that no title can be declared merely on the basis of the entries in the revenue records. However, the said decision, in view of the aforesaid discussion, is not applicable in the case in hand. 35. The learned trial court has rejected the claim of the Plaintiffs basically on the ground that in Schedule C to the plaint the description of the land was given as 2 Bighas, 0 Katha, 15 Lechas and it has been mentioned that within which the Defendants' land measuring 35 feet by 247 feet (more or less 3 Kathas) is located. But from a reading of the pleadings in the plaint as well as Schedules A, B, C and D together, it is evident that the Plaintiffs claimed title in respect of 2 Bighas, 0 Katha, 15 Lechas of land, which does not including the aforesaid 35 feet by 247 feet (more or less 3 Kahtas) belonging to the main Defendants as the description of the said land has been specifically mentioned in Schedule B. 36. In view of the aforesaid discussion, I am of the view that the Plaintiffs have right, title and interest in respect of 2 Bighas, 0 Katha, 15 Lechas of land in Dag No. 998 under N.K. Patta No. 2 and the Defendant No. 2 acquires title in respect of 35 feet east-west wise, by 247 feet north south wise (3 Kathas of land within Dag No. 998) as described in Schedule B to the plaint. The Defendants would also enjoy the right of passage over 6 feet by 20 feet land as described in Schedule D to the plaint. Hence, the learned First Appellate Court has rightly decided the said issues in favour of the Plaintiffs. 37. It has further been contended by the learned Counsel for the Appellant that in a suit for partition, the court is to ascertain the shares of each of the pattadars and, thereafter, to pass a preliminary decree as required under Order 20, Rule 18 of the Code of Civil Procedure. In the instant case, as discussed above, the share of other pattadars, namely the predecessor-in-interest of the pro forma Defendants, are not in dispute. What is in dispute is relating to the share of the Plaintiffs as well as the main Defendants. It has already been held that the main Defendants has the share of 3 Kathas of land only, apart from the right of passage over the land described in Schedule D and the Plaintiffs have the right, title and interest and share in respect of 2 Bighas, 0 Katha, 15 Lechas of land described in Schedule C. That being the position, the share of each of the pattadars are ascertained. Hence, in the absence of any specific finding to that effect by the learned courts below would not render the decree passed invalid. However, since the land has not been partitioned and the Plaintiffs seek partition of the land, the learned court below is required to pass a preliminary decree under Order 20, Rule 18 of the Code of Civil Procedure, which has not been done in the instant case. The learned First Appellate Court, in view of the aforesaid finding is to draw a preliminary decree and proceed thereafter. The decisions of this Court in Md. Makbul Hussain and Anr. The learned First Appellate Court, in view of the aforesaid finding is to draw a preliminary decree and proceed thereafter. The decisions of this Court in Md. Makbul Hussain and Anr. (supra) and Rajiba Khatoon (supra) as well as of the Apex Court in R.B.S.S. Munnalal (supra) and in Rachakonda Venkat Rao (supra) in view of the aforesaid discussion have not been discussed in detail. 38. In view of the aforesaid discussion, the second appeal fails and hence, dismissed, however, with the aforesaid direction. The parties are directed to bear their own cost. Appeal dismissed.