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2015 DIGILAW 1299 (GAU)

Arbinda Sarma Sidhanta v. Lutfun Nissa

2015-10-07

N.CHAUDHURY

body2015
JUDGMENT : The appellate judgment and order dated 07.07.2008 passed by the learned Civil Judge, Jorhat in Title Appeal No. 11/2008 has been called in question in the present appeal by the defendant. By the impugned judgment and order, the learned first appellate court remanded the case to the trial court. Hence, this appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure. 2. The brief facts involved in this appeal are required to be stated at the threshold. One Akas Ali, as plaintiff, instituted Title Suit No. 16/2006 on 14.02.2006 in the Court of learned Civil Judge (Sr. Divn.) at Jorhat stating that the sole defendant being the exclusive owner in possession of the suit land described in Schedule A to the plaint, agreed to sell the same to him at a consideration of Rs. 8000/- per katha and accordingly executed a written agreement on 20.05.1979 on receipt of a sum of Rs. 20,000/- as advance from the plaintiff. The defendant undertook to execute sale deed in favour of the plaintiff upon receipt of balance sum of Rs. 20,000/-. On receipt of the possession of the suit land, plaintiff raised a kacha house on a part of it with C.I. sheet roofing. After some days, few strangers entered into suit land forcefully by removing bamboo fencing and they raised another kacha house and continued possessing the same. Having come to know about such dispossession, the defendant instituted T.S. No. 82/1980 against the strangers for declaration of his right, title and interest and recovery of possession. The suit was decreed in favour of the defendant and T.A. No. 79/1983 preferred there-against was dismissed by the first appellate court on 07.01.1986. The defendant of that suit i.e. T.S. No. 82/1980 preferred second appeal No. 49/1986 before this High Court and thereupon the matter was remanded by judgment and order dated 25.09.1991 to the first appellate court. On remand, the case was re-numbered as T.A. No. 6/1993 and the same was dismissed again on merit by the learned Additional District Judge on 08.12.1993. There was no further second appeal and the defendants of T.S. No. 82/1980 put the decree into execution vide Title Execution Case No. 4/2000. On remand, the case was re-numbered as T.A. No. 6/1993 and the same was dismissed again on merit by the learned Additional District Judge on 08.12.1993. There was no further second appeal and the defendants of T.S. No. 82/1980 put the decree into execution vide Title Execution Case No. 4/2000. In course of the execution proceeding, not only the encroachers who are the defendants of the T.S. No. 82/1980, the executing court proceeded against the plaintiff as well for which the plaintiff filed an application under Order XXI Rule 97 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure before the executing court ascertaining their right of part performance. The decree holder in T.S. No. 82/1980 objected to the application filed by the present plaintiff under Order XXI Rule 97 of the Code of Civil Procedure and thereupon the executing court confirmed possession of the present plaintiff over the suit land by order dated 10.01.2002. This order passed by the executing court was challenged in civil revision No. 123/2002 of the High Court and this court disposed of the revision petition on 03.01.2005 reversing the finding of the executing court and in favour of the decree holder of Title Execution No. 4/2000. The execution was thus complete and the plaintiff of the present suit got evicted along with encroachers. The defendant thus, got possession of the suit land on 07.01.2006 by virtue of Title Execution No. 4/2000. 3. The plaintiff further pleaded that in the mean time the defendant executed another agreement on 29.03.1980 in favour of the plaintiff and returned a sum of Rs. 15,000/- to the plaintiff out of the earlier advance of Rs. 20,000/-. It was stipulated in the fresh agreement that after the suit land is vacated by the encroachers in the execution proceeding and the defendants got khas possession, registered sale deed would be executed in favour of the plaintiff within one month from the date of getting khas possession of the suit land. The defendant retained Rs. 5,000/- as advance. The plaintiff fixed the market price of the suit land at Rs. 8,000/- per katha and the defendant accepted the same. Thereupon first instalment was paid on 24.02.1982 amounting to Rs. 5,000/-. The second instalment was paid on 12.11.1985 for Rs. 10,000/-, third instalment was paid on 24.12.1985 for Rs. The defendant retained Rs. 5,000/- as advance. The plaintiff fixed the market price of the suit land at Rs. 8,000/- per katha and the defendant accepted the same. Thereupon first instalment was paid on 24.02.1982 amounting to Rs. 5,000/-. The second instalment was paid on 12.11.1985 for Rs. 10,000/-, third instalment was paid on 24.12.1985 for Rs. 10,000/- and the last instalment was paid on 21.11.1986 for a sum of Rs. 10,000/- and thus entire money was paid by the plaintiff to the defendant which the defendant acknowledged by giving receipt. Since the defendant received the khas possession of the land on 07.01.2006, he was duty bound to execute sale deed within one month thereafter and thus plaintiff having completed his part as per terms of the contract, the defendant failed to perform his part and rather, he was seeking to sell the suit land on higher rate to other persons. The plaintiff claimed to be always ready and willing for purchasing the land and so the suit was instituted for specific performance of contract. 4. Upon receipt of summons in the case, the defendant appeared and submitted written statement. It appears that the suit might have been transferred to the court of learned Munsiff in the mean time because of change of pecuniary jurisdiction and thereupon the suit might have been re-numbered as T.S. No. 52/2006. The learned counsel for the parties submit that subsequently the suit might have been again renumbered as T.S. No. 42/2007 of the Court of learned Munsiff No. 2 at Jorhat. However, as the records of trial court have not been received by the High Court, this part of submission of the learned counsel could not be verified. Be that as it may, a copy of the written statement furnished by the learned counsel for the appellant shows that the written statement was filed by the sole defendant in T.S. No. 52/2006 wherein all the statements made in the plaint were straightway denied by the sole defendant. Moreover, in paragraph 8 of the written statement, the defendant took an additional plea that the right of the plaintiff under Section 53 A of the Transfer of Property Act had been decided against the plaintiff by the High Court in earlier civil revision No. 123/2002 and so the plaintiff is not entitled to any decree for specific performance of contract. 5. 5. Upon rival contentions of the parties, the learned trial court framed the following 7 issues along with an additional issue and both the parties led their respective evidence accordingly. 1. Whether there is cause of action for instituting the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the plaintiff entered into an agreement with the defendant on 20.05.1979 for purchasing a plot of land mentioned in Schedule “A” of the plaint on consideration and paid an advance of Rs. 20,000/- to defendant? 4. Whether the plaintiff is entitled for right of specific performance? 5. Whether the defendant fails to execute the sale deed in favour of plaintiff? 6. Whether the plaintiff is entitled for a decree as prayed for? 7. What relief/reliefs the parties are entitled for? Additional Issue: “Whether the present suit is barred by law of limitation?” 6. Plaintiff examined 3 witnesses including himself whereas the defendant examined himself alone. Both the sides exhibited documents to prove their respective cases. Upon consideration of these materials available on record, the learned trial court by his judgment and decree dated 10.03.2008 dismissed the suit holding that the suit is premature and that plaintiff is not entitled to right of specific performance. This judgment and decree passed by the learned trial court was challenged by the plaintiff before the first appellate court in T.A. No. 11/2008 and the learned first appellate court by his impugned judgment and order dated 07.07.2008, allowed the appeal and remanded the same to the trial court with a direction to the learned court to afford opportunity to both sides for leading further evidence. It is this judgment which has been brought under challenge in the present appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure. 7. This court while admitting this appeal on 05.09.2008 did not frame any substantial question of law. But since subsequently in the case of Narayanan v. Kumaran and others reported in (2004) 4 SCC 26 , the Hon’ble Supreme Court held that even in an appeal under Order XLIII Rule 1(u), framing of substantial question of law like that of second appeal under Section 100 of the Code of Civil Procedure is necessary, this court has heard the learned counsel for the appellant to see as to whether any substantial question of law does arise in the present case. 8. 8. I have heard Ms. B Sarma, learned counsel for the appellant and Mr. PK Deka assisted by Mr. JK Parajuli, learned counsel for the sole respondent. I have also perused the records of the first appellate court. As the trial court records were not forwarded, the same could not be gone into. However, learned counsel for the parties have provided the court with necessary papers which would have been available at the lower court’s records upon receipt. Having heard Ms. B Sarma, learned counsel for the appellant, the following substantial question of law is framed in this case:- “Whether the learned first appellate court committed error in not considering the provision of Order XLI Rule 24 of the Code of Civil Procedure in remanding the case to the trial court?” I have heard the learned counsel for both sides on the sole substantial question of law and perused the pleadings as well as evidence of both sides including Ext. 2 agreement dated 29.08.1980. These documents are provided by the learned counsel for both sides. 9. During pendency of the appeal, the respondent No. 1, Lutfun Nissa died. Her legal heirs are already on record and so her name be struck off from the array of parties. 10. It appears that the learned first appellate court has neither framed a point for determination as required under Order XLI Rule 31 of the Code of Civil Procedure nor has it proceeded to decide the issues framed by the learned trial court. The learned first appellate court only considered the finding as to bar of limitation of the suit and made the following observation:- “In the instant case the appellant filed the suit on the basis of his agreement with the respondent dated 29.03.1980. This agreement has been admitted in evidence as Ext. 2. This agreement reveals that within one month next after execution of the decree, that was passed in T.S. No. 82/1980, the respondent will execute the sale deed in favour of the appellant. The appellant in his plaint claimed that the decree was executed on 07.01.2006. That the decree was, in fact, executed on 07.01.2006 is a fact.” 11. It would appear from the finding of the learned first appellate court that the learned first appellate court took note of the recital in the plaint as to cause of action as well as factum of agreement. That the decree was, in fact, executed on 07.01.2006 is a fact.” 11. It would appear from the finding of the learned first appellate court that the learned first appellate court took note of the recital in the plaint as to cause of action as well as factum of agreement. The learned trial court noted that a written agreement being Ext. 2 was executed by the defendant on 29.03.1980 in favour of the plaintiff agreeing to sell the suit land. The learned trial court also noted that the defendant was supposed to execute the sale deed in favour of the plaintiff within one month next after execution of the decree in T.S. 82/1980 and that such possession was given in favour of the defendant in the execution case on 07.01.2006. Having arrived at such findings of fact on the basis of Ext. 2 as well as the oral evidence led by the plaintiff, there was no difficulty on the part of the learned first appellate court to give a decision on merit of the case including the issue of limitation. The learned first appellate court has not pointed out as to why leading of further evidence by the plaintiff was necessary to prove the issue of limitation. This decision of the learned first appellate court, therefore, appears to be in direct contradiction with the provision of Order XLI Rule 24 of the Code of Civil Procedure which provides that if the evidence on record is sufficient then appellate court is to decide the matter on merit and no remand should be made. Admittedly, the first appellate court has not framed any issue and so it is not an order under Order XLI Rule 25 of the Code of Civil Procedure. In view of the finding of the first appellate court quoted above it appears that there were sufficient evidence on record to arrive at a finding on all issues including the point of limitation and so remanding the suit to the trial court for proper adjudication on the issue of limitation does not appear to be correct decision in view of provision of Order XLI Rule 24 of the Code of Civil Procedure. Moreover, the learned first appellate court has not discussed any other issue framed and decided by the learned trial court. Moreover, the learned first appellate court has not discussed any other issue framed and decided by the learned trial court. The learned trial court has held that the plaintiff is not entitled to the right to specific performance of contract. The learned trial court has made discussion on each and every issue and so before setting aside those findings of the trial court judgment, it was incumbent upon the learned first appellate court to discuss all the findings and thereupon to point out on which ground the finding of the learned trial court was not acceptable. The responsibility and jurisdiction of the first appellate court has time and again being reminded by the Hon’ble Apes Court in a catena of decisions. In the case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 , the Hon’ble Supreme Court has discussed that the first appellate court is the last court of fact and law and so it is duty bound to consider the entire facts and circumstances before passing any judgment on fact and law. The judgment and order impugned herein clearly shows that the learned first appellate court has failed to discharge the responsibility and jurisdiction vested on a first appellate court as discussed in the case of Santosh Hazari (supra). Having so found and more particularly of the fact that there was clear violation of the provision of Order XLI Rule 24 of the Code of Civil Procedure in the present case, the sole substantial question of law is decided in favour of the appellant and against the plaintiff respondent. Consequently, the appeal stands allowed and the impugned 11. No order as to costs. 12. Send down the records immediately.