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2015 DIGILAW 1147 (GAU)

Prodip Kumar Roy v. Legal Heirs of Jayanta Das

2015-09-07

SUMAN SHYAM

body2015
JUDGMENT : Suman Shyam, J. 1. Heard Mr. N. Dhar, learned counsel appearing for the appellant. Also heard Mr. B.R. Dey, learned senior counsel representing the respondents. This Second Appeal has been preferred against the concurrent judgment and decree dated 21.05.2005 passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 80/2003 dismissing the appeal thereby, affirming the judgment and decree dated 16.08.2003 passed by the learned Civil Judge (Junior Division) No. 1, Karimganj decreeing the Title Suit No. 74/2002 filed by the respondent/plaintiff. 2. This Second Appeal was admitted to formal hearing by framing the following two substantial questions of law:- "1) Whether on the proved facts the suit land is held to be covered by sale deed dated 6.3.1971 (Exhibit-2) and sale deed dated 6.3.1974 (Exhibit-3) and identity of the suit land could be established by plaintiff. 2) Whether the Exhibits-2 and 3 are duly and legally admitted and exhibited in the suit." 3. The plaintiff's case, in brief, is that the Schedule-I land originally belonged to his father Late Jagindra Charan Das. In the year 1949, Jagindra Charan Das died leaving behind his three sons, viz., Jagadish Chandra Das, Jyotish Chandra Das and the plaintiff Jyotirmoy Das as surviving legal heirs. The three sons had inherited the properties of Jagindra Charan Das including the suit land in equal proportions thereby, acquiring one-third share each in the property left behind by Jagindra Charan Das. Subsequently, Jyotish Chandra Das had sold his one-third share to the plaintiff by executing registered deed of sale dated 06.03.1971 and legal heir of Jagadish Chandra Das, viz., Smt. Snehalata Das and others had also sold the remaining one-third share to the plaintiff by means of registered deed of sale dated 13.06.1974. In the above manner, the plaintiff had become the absolute owner of the entire Schedule-I land and has been possessing the same along with other land belonging to Jagindra Charan Das as the sole owner. It is the case of the plaintiff that in November, 1994, the defendants had trespassed into a part of the Scheduled land and forcibly constructed a temporary house thereupon. It is the case of the plaintiff that in November, 1994, the defendants had trespassed into a part of the Scheduled land and forcibly constructed a temporary house thereupon. Gradually, they have encroached that part of the land described in Schedule-II to the plaint in a most illegal manner as a result of which the plaintiff was compelled to institute a proceeding under Section 145 Cr.P.C. before the Court of Additional District Magistrate, Karimganj registered and numbered as Misc. Case No. 770(M)/94. In connection with the said proceedings defendants had appeared and submitted a written objection whereby, it had been mentioned that they had purchased the land from Sri Jyotsna Bikas Das alias Nepal Das on 26.07.1994. Jyotsna Bikas Das is the son of Late Jyotish Chandra Das. The learned Magistrate had dropped the aforementioned proceeding on 13.12.2001 directing the plaintiff to seek redressal of his grievances before the Civil Court as a result of which the plaintiff had been compelled to institute the instant suit. 4. The defendant No. 1 had entered appearance and contested the suit whereas the suit proceeded ex parte against the defendant Nos. 2, 3 and 4. In his written statement the defendant No. 1, while questioning the maintainability of the suit, has admitted that the suit land originally belonged to Jagindra Charan Das but has also stated that the same had been amicably partitioned along with the entire property left behind by him amongst the three sons, viz., Jagadish Chandra Das, Jyotish Chandra Das and Jyotirmoy Das. On the basis of such partition Jyotish Chandra Das had become the absolute owner of the suit land. During the lifetime of Jyotish Chandra Das an amicable family arrangement has been made amongst his wife, sons and daughters, in accordance with which, Jyotsna Bikas Das alias Nepal Das had become the owner of the suit land along with other immoveable properties and that the said Jyotsna Bikas Das had been possessing the suit land as its exclusive owner. Subsequently, Jyotsna Bikas Das had sold the same to defendant No. 1 by executing registered kebala dated 20.07.1994 which was registered on 22.07.1994. Accordingly, the defendant has been possessing the said plot of land. 5. Based on the pleadings of the parties learned trial Court had framed the following issues including one additional issue:- "1. Whether there is any cause of action for the suit? 2. Accordingly, the defendant has been possessing the said plot of land. 5. Based on the pleadings of the parties learned trial Court had framed the following issues including one additional issue:- "1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in its present form and manner? 3. Whether the plaintiff has right, title, interest over the suit land? 4. Whether the defendants are liable to be evicted? 5. Whether the plaintiff is entitled to the decree as prayed for? 6. Whether the suit land is correctly described in the schedule of the plaint?" 6. Both parties had led evidence during the course of trial. Upon perusal of the evidence on record and after hearing the parties, the learned trial Court had decreed the suit filed by the plaintiff. 7. Being aggrieved the defendant No. 1 as appellant had preferred Title Appeal No. 80/2003 before the Court of Civil Judge (Senior Division), Karimganj which was also dismissed by the impugned judgment and decree as a result of which the defendant No. 1 had to approach this Court by preferring the instant Second Appeal. 8. Mr. N. Dhar, learned counsel for the appellant, at the very outset, submits that although a specific plea was taken in the written statement to the effect that the registered deed of sale dated 06.03.1971 (Ext-3) does not attract the suit land described in scheduled of the plaint thereby denying the assertion made in the plaint to the effect, the learned trial Court below had neither framed any issue on the said disputed question of fact nor has the said aspect of the matter been addressed by the Court below while discussing any other issue. A determination of the aforesaid fact being crucial in the outcome of the suit, an issue on the aforesaid point ought to have been framed by the Court below as the answer to the same would have a key bearing on the outcome of the plaintiff's suit. According to him, the same not having been done, the Courts below had misdirected the proceeding inasmuch as there is no evidence on record to show that the Exts-2 and 3 sale deeds does actually relate to the suit land as claimed by the plaintiff. 9. Mr. According to him, the same not having been done, the Courts below had misdirected the proceeding inasmuch as there is no evidence on record to show that the Exts-2 and 3 sale deeds does actually relate to the suit land as claimed by the plaintiff. 9. Mr. Dhar further submits that the plaintiff had also failed to prove Exts-2 and 3 sale deeds in accordance with the provisions of Section 67 of the Indian Evidence Act. However, ignoring the aforesaid aspect of the matter, both the Courts below have concurrently recorded findings in respect of the issues in favour of the plaintiff in a most illegal manner. 10. Although no specific substantial question of law had been framed by this Court while admitting this appeal, yet, with the leave of this Court, Mr. Dhar, learned counsel for the appellant, urged that a mere perusal of the judgment passed by the learned Lower Appellate Court would go to show that the judgment and decree passed by the trial Court had been upheld by the First Appellate Court merely by referring to the lacuna in the evidence led by the defendant without there being any whisper about the plaintiffs evidence. Drawing the attention of this Court to the point No. 3 framed by the Lower Appellate Court Mr. Dhar submits that the aforesaid point was an important point for decision by the Lower Appellate Court. However, while deciding the said point the learned Lower Appellate Court neither considered the evidence adduced by the plaintiff nor gave any reason as to the basis of the conclusion that was drawn by the Lower Appellate Court. In such view of the matter, the judgment and decree passed by the Lower Appellate Court is not sustainable being in contravention with the requirement of Order XLI Rule 31 CPC. 11. Mr. B.R. Dey, learned senior counsel appearing for the respondents, fairly submits that the learned Lower Appellate Court, in fact, did not discuss the issues on the basis of evidence recording an independent finding nor has the Court below considered the evidence available on record on behalf of the plaintiff so as to arrive at conclusion as regards the issues framed in the suit. He, however, submits that if the judgment and decision of the Lower Appellate Court is held to be vitiated due to contravention of the requirement of Order XLI Rule 31 CPC then also the course of action required to be followed by this Court would be to remand the matter back to the Lower Appellate Court for a fresh decision of the Title Appeal on the basis of evidence available on record. 12. I have considered the submissions made by learned counsels for the parties. It is no more res integra that the First Appellate Court is the final Court of fact which is also empowered to address questions of law. The first appeal being a valuable right, the parties are entitled to an independent assessment of the evidence on record by the Lower Appellate Court for the purpose of recording findings of fact as well as law. There is no dispute at the bar that the learned Lower Appellate Court had upheld the decree passed by the trial Court without properly discussing the evidence on record nor has the Lower Appellate Court recorded any independent finding of facts addressing the plea raised by the defendant/appellant. Therefore, the judgment and decree passed by the learned Lower Appellate Court, being in contravention with the provisions of Order XLI Rule 31 CPC, is not sustainable in the eye of law and the same is accordingly set aside on such count alone. Having regard to the ground on which the impugned judgment and decree has been set aside, I am of the opinion that this is a fit case for remand of the Title Appeal for a fresh decision by the Lower Appellate Court after discussing the evidence available on record. The Title Appeal No. 80/2003 will now stand revived in the file of learned Civil Judge (Senior Division), Karimganj. Parties to appear before the learned First Appellate Court on 05.10.2015. Since this order has been passed in presence of both the parties, no further notice for appearance on 05.10.2015 will be called for. The parties would be entitled to raise all objections as may be permissible under the law during the course of hearing of the Title Appeal. Parties to appear before the learned First Appellate Court on 05.10.2015. Since this order has been passed in presence of both the parties, no further notice for appearance on 05.10.2015 will be called for. The parties would be entitled to raise all objections as may be permissible under the law during the course of hearing of the Title Appeal. The learned Lower Appellate Court will dispose of the appeal on merit by scrupulously adhering to the mandate of Order XLI Rule 31 CPC, without being influenced by any observations made by this Court in this order. There would be no order as to cost.