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2015 DIGILAW 1194 (GAU)

NEPAL CH DAS v. AMAR KR ROY

2015-09-17

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. T. U. Laskar, learned counsel for the appellant. Also heard Mr. M. Nath, learned counsel for the respondent Nos. 1 and 2. None appears for the other respondents. 2. This appeal by the plaintiff is preferred against the judgment and decree dated 10.02.2005, passed by the learned Ad hoc Additional District Judge, Karimganj, in Title Appeal No. 12/2004, dismissing the appeal and affirming the judgment and decree dated 10.05.2000, passed by the learned Civil Judge, Junior Division No. 2, in Title Suit No. 180/1993, whereby the suit of the plaintiff was dismissed. 3. At the very outset, Mr. T. U. Laskar, leaned counsel for the appellant submits that having regard to the cryptic nature of the order passed by the learned lower Appellate Court, the same cannot be construed to be a judgment in accordance with law and the impugned judgment does not satisfy the requirements of Order 41 Rule 31 CPC. According to him, this is a fit case where, after setting aside the impugned judgment of the learned lower Appellate Court, the matter should be remanded to the learned lower Appellate Court for fresh disposal. However, he submits that though substantial question of law No. 1 could also partially cover the question raised by the appellant, it would be appropriate if another substantial question of law is framed with regard to the issue as to whether the impugned judgment of the learned lower Appellate Court is a judgment in accordance with Order 41 Rule 31 CPC. 4. I have also heard Mr. M. Nath, learned counsel for the respondent Nos. 1 and 2 on this limb of the argument of Mr. Laskar. 5. Upon hearing the learned counsel for the parties, it is considered appropriate to frame the following additional substantial question of law: “Whether the impugned judgment of the learned lower Appellate Court is a judgment as envisaged under Order 41 Rule 31 CPC and, if not, whether the impugned judgment of the learned lower Appellate Court is liable to be set aside?” 6. Mr. M. Nath, learned counsel for the respondent Nos. 1 and 2 submits that though one substantial question of law is framed today, he will not seek adjournment of the case on the ground of framing of fresh substantial question of law and he is ready to argue the case today. 7. Mr. Mr. M. Nath, learned counsel for the respondent Nos. 1 and 2 submits that though one substantial question of law is framed today, he will not seek adjournment of the case on the ground of framing of fresh substantial question of law and he is ready to argue the case today. 7. Mr. Nath submits that the learned lower Appellate Court had indicated in the impugned judgment that the learned trial Court had discussed the evidence on record elaborately and he found no reason to interfere with the judgment of the learned trial Court and, therefore, the argument of Mr. Laskar that the impugned judgment of the learned lower Appellate Court is not a judgment in terms of Order 41 Rule 31 CPC is not tenable in law. 8. The plaintiff had filed the suit with the following prayers: “A. For declaration of title (jote rights) for the plaintiff over the land described in plot No. 1 and 2 of schedule-2 below situated within the land described in Schedule-1 below and for declaration of Maliki rights of the plaintiff in respect of the house No. 1, 2 and 3 in the described in Schedule-3 below; B. For khas possession of the plaintiff over the land described in Schedule-2 below and the houses situated over the said land described in Schedule-3 below by evicting the defendants therefrom and; C. For such further and other reliefs to the plaintiff as are deem fit and proper in law and equity; D. For cost of the suit along with the future interest on it. 9. The principal defendants had filed written statement denying the case projected by the plaintiff. 10. During trial, the plaintiff examined nine witnesses and the defendants examined three witnesses. The plaintiff exhibited 15 documents and the defendants also exhibited 6 documents of the same kind. The learned trial Court dismissed the suit of the plaintiff. However, in the judgment of the learned trial Court, there is no reference to the evidence of the witnesses examined by the plaintiff except cursory reference to the evidence adduced by PW1 and cross-examination of PW3. 11. In the appeal, the learned lower Appellate Court formulated the following two points for the purpose of decision: “(a) Whether the learned trial Court has committed error in deciding Issue No. 4 to 6? 11. In the appeal, the learned lower Appellate Court formulated the following two points for the purpose of decision: “(a) Whether the learned trial Court has committed error in deciding Issue No. 4 to 6? (b) Whether the trial Court has failed to appreciate evidence in its true perspective and thus arrived at wrong findings and decision? If so, whether the judgment and decree is liable to be set aside? 12. Issue Nos. 4 and 6 are as follows: “4. Whether the plaintiffs have right, title to the suit land? 6. Whether Nirendra Kumar Roy was a jotedar tenant under Bhagirathi Prasad Choubey and others?” 13. The decision of the learned lower Appellate Court is reflected in paragraph 6 of the impugned judgment. Paragraph 6 is quoted below in its entirety, which is as under: “6. Issue No. 4 was framed to decide whether the plaintiff has right, title in the suit land and issue No. 6 was framed to decide whether Nirendra Kumar Roy, the husband of defendant No. 16, Smti Pronoy Bala Roy, was jotedar tenant under Bhagirathi Prasad Choubey and others. Both the issues are important and vital issues of the original suit and the learned trial court has decided both the issues against the interest of appellant. The trial court has decided issue No. 4 in negative while issue No. 6 in affirmative. On sifting of the impugned judgment and order, it is found that the trial court has discussed entire evidence elaborately, both oral and documentary, with proper appreciation thereof and thus, arrived at correct findings and decision in respect of the issue No. 4 and 6. I find no reason to interfere with the findings and decision of the aforesaid two issues. Accordingly, I confirm both the issues as per decision of the lower court Decision of issues Nos. 4 and 6 are sufficient to decide the tale of the original suit.” 14. A perusal of the afore-quoted paragraph reveals that the learned lower Appellate Court was of the opinion that the learned trial Court had discussed the entire evidence elaborately, both oral and documentary, with proper appreciation thereof and, therefore, he found no reason to interfere with the findings. 15. In Mehrunnisa (Smt) and Ors. A perusal of the afore-quoted paragraph reveals that the learned lower Appellate Court was of the opinion that the learned trial Court had discussed the entire evidence elaborately, both oral and documentary, with proper appreciation thereof and, therefore, he found no reason to interfere with the findings. 15. In Mehrunnisa (Smt) and Ors. vs. Visham Kumari (Smt) and Anr., reported in (1998) 2 SCC 295 , the Apex Court had held that the Appellate Court is under a duty to examine the entire relevant evidence on record and, if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives rise to a substantial question of law, the High Court is fully authorized to set aside the finding. 16. As noted earlier, learned trial Court did not even refer to the evidence of a large number of witnesses and, if that be so, where is the question of the learned trial Court appreciating the entire evidence on record as observed by the learned lower Appellate Court? The impugned judgment of the learned lower Appellate Court betrays total non-application of mind. The decision rendered without adverting to the evidence on record and without highlighting, at least, the salient features thereof, cannot be said to be a judgment in conformity with the mandate of Order 41 Rule 31 CPC. A duty is cast on the learned lower Appellate Court to advert to the evidence on record even in a case of judgment of affirmation. The judgment of the learned lower Appellate Court is a perverse judgment and requires to be interfered with. 17. In view of the above discussions, the impugned judgment of the learned lower Appellate Court is set aside and the appeal is remanded back to the learned lower Appellate Court for disposal afresh in accordance with law. No cost. 18. Substantial question of law framed today is answered in terms of the above. As the appeal is remanded back on the basis of decision in substantial question of law framed today, it will not be necessary for this Court to record the other submissions of the learned counsel for the parties and no decision is also called for in respect of the substantial questions of law formulated earlier. 19. Mr. As the appeal is remanded back on the basis of decision in substantial question of law framed today, it will not be necessary for this Court to record the other submissions of the learned counsel for the parties and no decision is also called for in respect of the substantial questions of law formulated earlier. 19. Mr. T. U. Laskar, learned counsel, at this stage, submits that this Court may direct the learned lower Appellate Court to issue notices to the respondents other than respondent Nos. 1 and 2 of this appeal, who have appeared before this Court, and that the date for appearance of the appellant and the respondent Nos. 1 and 2 before the learned lower Appellate Court may also be fixed. 20. The appellant and the respondent Nos. 1 and 2 will appear before the learned lower Appellate Court by themselves or through their respective counsel on 20.11.2015 and the learned lower Appellate Court will issue notice to the other respondents in the appeal. The appeal shall be disposed of as expeditiously as possible. 21. The Registry shall send back the records forthwith.