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2015 DIGILAW 1152 (GAU)

Raja Ali Ahmed v. Hussain Ali

2015-09-08

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. P.S Deka, learned counsel for the appellants. Also heard Mr. J. Ahmed, learned counsel for the respondent. 2. This second appeal is preferred by the defendants/counter-claimants against the judgment and decree dated 28.03.2006 passed by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No.60/2004, setting aside the judgment and decree passed by the learned Civil Judge (Junior Division) No.1, Barpeta in Title Suit No.6/2003, whereby the suit of the plaintiff was dismissed and the counter-claim was decreed. 3. The second appeal was admitted to be heard by an order dated 19.07.2006 on the following substantial questions of law:- “1. Whether the first appellate Court correctly decided the better title of the plaintiff over the suit land without declaring that the title of the defendants set up by their counter claim was not enforceable in law ? 2. Whether the finding of the learned first appellate Court was vitiated by perversity ?” 4. The learned counsel for the parties have submitted that though an attempt to amicably settle the matter was made, the same did not yield favourable result. 5. The plaintiff and the father of the defendants, namely, Fairad Ali, are brothers. Plaintiff claimed in the suit that the Schedule A land was purchased by him and his elder brother Fairad Ali about 45 years back from joint income of the joint family and all deeds and records were in the name of Fairad Ali, he being the head of the family. 6. Mr. Deka has submitted, at the very outset, that the impugned judgment of the learned lower Appellate Court, which is a judgment of reversal, was passed without even adverting to the evidence of witnesses examined on behalf of the defendants numbering 4 and the learned lower Appellate Court, only on the basis of a voter’s list of 1966, Ext-3, held that plaintiff and the father of the defendants were living in a joint family and they purchased the land out of the income of the joint family. The learned lower Appellate Court did not indicate anything with regard to the decree which was allowed in part in the counter-claim. Aggrieved by being not granted full relief while partly decreeing the counter-claim, the appellants had also filed a cross-objection under Order 41 Rule 22 of CPC and there is no reference to the said cross-objection in the impugned judgment. Aggrieved by being not granted full relief while partly decreeing the counter-claim, the appellants had also filed a cross-objection under Order 41 Rule 22 of CPC and there is no reference to the said cross-objection in the impugned judgment. The defendants had proved the sale deeds in question in the name of their predecessor. However, although there is no concept of joint family under Mahomedan Law, the suit of the plaintiff was decreed solely relying upon Ext-3, he submits. The learned counsel has submitted that Roshanara Begum, a sister of the defendants, who was married to a son of the plaintiff, deposed as PW-2 and mother of the defendants having deposed as DW-2, in essence, all the heirs of Fairad Ali were involved in the suit and therefore, the learned Trial Court ought to have decreed the counter-claim in its entirety. 7. Mr. Ahmed, on the other hand, has submitted that although the learned lower Appellate Court only relied upon Ext-3 to come to the conclusion that the plaintiff and his elder brother Fairad Ali were living in a joint family, there are other materials on record to prove the contention of the plaintiff. The plaintiff and Fairad Ali were having good relationship. Fairad Ali had sold his share of the land leaving the rest of the land in favour of the plaintiff as his share. He submits that though the evidence of the witnesses of the defendants and the evidence of the witnesses examined by the plaintiff, barring the evidence of PW-1, was not discussed, it would appear from the aforesaid judgment and, more particularly, from paragraph 15 of the judgment, that the learned lower Appellate Court had carefully scrutinized the oral and documentary evidence of the parties. Learned counsel submits that defendants having taken their share of the property and the learned lower Appellate Court having found that the property was purchased from joint family income, rightly decreed the suit of the plaintiff and, therefore, no interference is called for in this appeal. The learned counsel also submits that it is not correct as submitted by Mr. Deka that there can be no joint family in Mahomedan Law. He asserts that a Mahomedan family can live as a joint family. It is also submitted by Mr. The learned counsel also submits that it is not correct as submitted by Mr. Deka that there can be no joint family in Mahomedan Law. He asserts that a Mahomedan family can live as a joint family. It is also submitted by Mr. Ahmed that all the legal heirs of Fairad Ali are not counter-claimants and names of defendant Nos.1 and 2 were only surreptitiously mutated in the records of rights. 8. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 9. The decision and reasons thereof of the learned lower Appellate Court is contained in paragraph 15. 10. It must be borne in mind that the learned lower Appellate Court had set aside the judgment and decree of the learned Trial Court. Though the learned lower Appellate Court mentioned that it had scrutinized oral and documentary evidence, there is no reflection of such scrutiny in paragraph 15. Only two sentences of PW-1 had been referred to in paragraph 15 and the case of the plaintiffs and the defendants was broadly summarized without indicating the deposition of any of the witnesses. Therefore, I am of the considered opinion that the impugned judgment of the learned lower Appellate Court is perverse. The same is not a judgment in accordance with law and, therefore, the same cannot be sustained. The first Appellate Court is the last court of facts and therefore, it is obligatory on the part of the first Appellate Court to advert to the evidence on record, which must be reflected in the judgment. It will be permissible to draw conclusions only after an analysis of the evidence. 11. In that view of the matter, without expressing any opinion on the merits of the respective cases as projected by the learned counsel for the parties before this Court, the impugned judgment of the learned lower Appellate Court is set aside. The learned lower Appellate Court will dispose of the appeal on the basis of the materials available on record in accordance with law after hearing the parties within a period of 6(six) months from the date of appearance of the parties. The parties, by themselves or through their counsel, will appear before the learned court of Civil Judge, Barpeta on 16.11.2015. 12. The appeal is allowed as indicated above. No cost. 13. Registry will send back the records forthwith.