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2014 DIGILAW 858 (PAT)

Leyaquat Hussain v. Nalmullah Ansari

2014-08-07

KISHORE KUMAR MANDAL

body2014
JUDGMENT : The defendants-appellants have filed the present appeal aggrieved by the judgment and decree dated 26.06.2010 and 16.07.2010 respectively passed by the Addl. District Judge-cum-F.T.C.5, Motihari in T.A. No. 42/03/22/07 affirming the judgment and decree dated 28.02.2003 passed by the Munsif, Motihari in T.S. No.125/96. 2. For the sake of convenience this Court would refer the parties hereto by their status at the trial. 3. The plaintiff (respondent herein) filed the suit for declaration of his right, title and interest over the suit land appended at schedule-II of the plaint. He also sought recovery of possession and mesne profit in respect thereof. According to the plaintiff, the ancestor of the vendors of the suit land Late Eqbal Ahmad @ Eqbal Hussain died leaving behind two sons namely Afak Akhtar and Jamal Akhtar (defendant nos. 6 & 5 respectively) who came in joint possession of the suit land measuring a total area of 02 katha 10 dhurs set out in schedule-I of the plaint. An oral partition had taken place between the two sons in which vendor of the plaintiff was allotted land on eastern side whereas the vendor of the defendant was given land on western side. Those brothers accordingly came in separate and exclusive possession thereof. On 06.07.1994 Afak Hussain (D.W.6) sold his share of land measuring 01 katha 04 dhurs to the plaintiff whereafter he came in possession thereof. The defendant claiming purchase of the said land from another brother namely Jamal Akhtar (defendant no.5) dispossessed the plaintiff leading to filing of the suit. 4. Defendant no.5 (vendor of the contesting defendants) in his written statement supported the case of the plaintiff. The defendant 1st party (appellants herein) actually contested the suit by filing written statement stating therein that Eqbal Hussain had got only 02 katha 04 dhurs of land under khata no.1871 and not 02 katha 10 dhurs, as alleged by the plaintiff. After his death the said land/property was equally partitioned between the two sons namely Afaq Akhtar and Jamal Akhtar. A Panchayati partition was made and a Yaadasht memo was drawn in the year 1991 between the two brothers wherein half of the estate of Ekbal Hussain on eastern side was given to defendant no.5 (vendor of the defendant 1st set) and similarly western half was allotted to defendant no.6 (vendor of the plaintiff). Ext. 6 is such memorandum of Panchayati partition. Ext. 6 is such memorandum of Panchayati partition. The defendant 1st set purchased 01 katha 04 dhurs of land from Jamal Akhtar for which sale deed was executed on 06.07.1994 and registered on 08.07.1994 (Ext. B). The defendant got the land mutated and was paying rent to the State of Bihar. The sale deed executed in favour of the plaintiff remained on paper and was never acted upon. The story of dispossession was also denied. Defendant no. 6 filed written statement and supported the case of the plaintiff. 5. The learned trial court considering the rival pleadings of the parties framed diverse issues. This Court would, however, notice only the relevant issues being issue nos. III, V and VI which are as under:- “III. Has the plaintiff got the title over the suit land? V. Whether Ekbal Hussain was allotted 2 katha 10 dhur land of plot no.1871 by virtue of partition and the land allotted to Ekbal Hussain is detailedin plaint schedule I? VI. Is the sale deed dated 6.7.94 executed by Afak Akhtar in favour of the plaintiff valid, genuine and operative? 6. The trial court considered the evidence on record and answered issue no. V in favour of the plaintiff holding that Ekbal Hussain had 02 katha 10 dhurs of land in plot no. 1871 and identity of the said land was established on the basis of the evidence on record. Similarly issue nos. III and VI were considered conjointly and answered in favour of the plaintiff holding that the sale deed dated 06.07.1997 executed by defendant no. no.6 in favour of the plaintiff was valid, genuine and operative which conferred him valid right and title over the suit land. The trial court while considering the issue relating to the case put up by the plaintiff regarding his possession and subsequent dispossession therefrom again concluded that the case put up by the plaintiff in this regard was proved by cogent and reliable evidence. Accordingly, the suit was decreed. Aggrieved thereby, the defendant 1st set filed appeal. The learned lower appellate court apprised itself of the case of the parties and considered the ground on which the judgment of the trial court was attacked in the light of evidence on record and the relevant findings recorded by the learned trial court on the core issues. Aggrieved thereby, the defendant 1st set filed appeal. The learned lower appellate court apprised itself of the case of the parties and considered the ground on which the judgment of the trial court was attacked in the light of evidence on record and the relevant findings recorded by the learned trial court on the core issues. Finding no infirmity in the conclusions arrived at by the learned trial court the appeal was dismissed. Aggrieved thereby the present appeal has been filed. 7. While admitting the appeal the following substantial questions of law were framed:- 1. Whether the judgment of the first appellate court failed to satisfy the requirements of Order XLI, Rule 31 of the Code of Civil Procedure? 2. Whether in view of the pleadings of the parties, the manner of partition between the vendors of the plaintiff and defendant was an important issue which was required to be framed and in the absence of such issue the findings of the courts below are vitiated? 8. Heard Mr. Binod Kumar Singh in support of the appeal and Mr. Shrinandan Pd. Singh appearing for respondent no.1. 9. It has been contended by learned counsel for the appellants that the partition between the two sons of Ekbal Hussain was not in dispute. Only the manner in which the property left behind by him was partitioned was the real dispute. The total area of land available for partition amongst the two sons is disputed but the same would delve into insignificance since the plaintiff or the contesting defendants are claming purchase of lessor area by their respective sale deeds. The plaintiff claimed purchase of 01 katha 04 dhurs of land by a sale deed (Ext.2) from defendant no.6 (Afak Hussain) whereas the defendant claimed purchase of 01 katha 02 dhurs by sale deed (Ext.B) from another son. The plaintiff claimed to have purchased the land on the eastern side of the plot whereas the defendant also claimed the land purchased by him from another son of Ekbal Hussain on the eastern side itself. It has thus been submitted that the manner in which the partition had taken place between the two sons of Ekbal Hussain was the relevant issue for resolution of dispute between the parties. It was, therefore, incumbent upon the court below to frame specific issue in this regard and record a finding thereon. It has thus been submitted that the manner in which the partition had taken place between the two sons of Ekbal Hussain was the relevant issue for resolution of dispute between the parties. It was, therefore, incumbent upon the court below to frame specific issue in this regard and record a finding thereon. The learned trial court having not done so has committed a serious illegality which has gone unnoticed by the learned lower appellate court. 10. Arguing in support of substantial question no.1 it has been submitted that the appellate court ought to have formulated points for consideration and resolution of the dispute. No such point was formulated and answered rendering the judgment and decree under appeal bad in law as the same does not satisfy the requirement of XLI, Rule 31 of the Code of Civil Procedure (for short ‘the Code’). 11. In the context of the substantial questions framed at I, it is necessary to consider the legal parameters set in this regard. Order XLI, Rule 31 of the Code provides the manner of disposal of appeal. The Apex Court in H. Siddiqui (dead) by LRs. Vs. A Ramalingam, AIR 2011 SC 1492 held as under:- “18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate courts judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must be record mere general expression of occurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Being the final court of fact, the first appellate court must be record mere general expression of occurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions” 12. It is thus seen the judgment of the appellate court must reflect its conscious application of mind to the controversy and recording findings supported by reasons on all relevant issues put forth and pressed by the parties for decision of the appeal. Keeping abreast the said legal principle this Court, on scrutiny, finds that while pressing the appeal both the parties addressed the appellate court on the issue whether the suit land was identifiable or not and the decree passed by the learned lower appellate court was executable or not. The appellate court considered the finding of the trial court on the said point under issue no. V and thereafter referred to relevant documents filed in support of their respective cases only to conclude that the findings of the learned trial court in the light of the evidence on record on the said issue did not require interference. The appellate court thereafter adverted to the question of possession over the suit land. Referring to the various documents and the oral evidence it was held that the story of ‘Panchnama’ was although propounded but the same was not proved by cogent evidence. The evidence led by the defendant to demonstrate continued possession was found not reliable whereas the story of possession and subsequent dispossession of the plaintiff was found fully supported from the evidence of P.W. 2, 3, 4, 5 and 7. It thus appears that the appellate court was fully conscious of the point/issue on which the parties were at variance and considered the relevant evidence. The requirements of law contemplated under XLI, Rule 31 of the Code have therefore been met. In fact, the evidence both oral and documentary received appropriate consideration at the hands of the appellate court. 13. It thus appears that the appellate court was fully conscious of the point/issue on which the parties were at variance and considered the relevant evidence. The requirements of law contemplated under XLI, Rule 31 of the Code have therefore been met. In fact, the evidence both oral and documentary received appropriate consideration at the hands of the appellate court. 13. Adverting to the next substantial question of law this Court finds that although an issue in this regard was not framed but the appellate court was conscious of the implication. The appellate court referred to the evidence of the plaintiff (P.W.8) and the defendant (D.W.10) in the light of the report of the Advocate Commissioner. The oral evidence adduced by the parties did indicate that the suit land was the same as detailed in schedule-1 of the plaint. The appellate court in para 9 clearly held that the land in dispute was adjacent west to the land of Manaur Hussain. Both the parties, however, were claiming the same. The evidence led by the plaintiff fully corroborated the case put up by the plaintiff in respect of the location or identity of the land. The judgment and decree under appeal therefore cannot be said to be inexecutable. In that view of the matter, the aforesaid issue, in my view, was of primal importance for resolution of the claim and counter claim of the parties which has been considered and decided by the lower appellate court. Both the questions are, therefore, answered against the appellants. 14. No other legal contention has been raised by the appellants. 15. The appeal fails and is accordingly dismissed.