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2015 DIGILAW 487 (GAU)

CHITRA DATTA v. BAHI RAM NUNIA

2015-04-23

A.K.GOSWAMI

body2015
JUDGMENT : A.K. Goswami, J. Heard Mr. A.C. Sarma, learned counsel for the appellants/defendants. Also heard Mr. S.P. Choudhury, learned counsel appearing for all the respondents. 2. This appeal is presented against the judgment and decree passed by die learned Civil Judge (Senior Division) No. 1, Silchar in Title Appeal No. 10/2001 affirming the judgment and decree dated 21.12.2000 passed by the learned Civil Judge (Junior Division) No. 3, Silchar in Title Suit No. 29/1986. 3. The plaintiffs, who are owners of Madoora Tea Estate, filed the suit for declaration of title of the plaintiffs' over the lands and houses standing thereon as described in the schedule to the plaint; for a declaration that the licence granted to the defendant No. 1 was terminated with effect from 16.12.1985 and that the defendant No. 1 as well as any person including the defendant No. 2 has no right or authority to occupy the quarters and attached lands; for recovery of vacant khas possession of the quarters and attached lands after evicting the defendants and all persons claiming through them; for costs of the suit; for permanent injunction against the defendants from changing the nature and feature of the quarters and attached land and further from raising any construction on the suit land and from disturbing the possession of the plaintiffs and for such other and further reliefs to which the plaintiffs may be found entitled in law and equity. 4. The case projected in the plaint, in short, was that defendant No. 1 was a worker of Madoora Tea Estate and as an incidence of her employment, she was allotted the suit houses and lands attached to it as a licensee within the special grant land used for the purposes ancillary to the cultivation of tea. The defendant No. 1 ceased to work in the garden and, thus, violated the licensee's licence conditions and defendant No. 2 was also inducted in the suit properties and they are trying to change the nature and character of the suit property. 5. The defendant Nos.1 and 2, in their written statement, amongst others, lad pleaded that the suit was bad under the provisions of the Assam Temporarily Settled Areas) Tenancy Act, 1971 and under the Indian assessment Act, 1872. 5. The defendant Nos.1 and 2, in their written statement, amongst others, lad pleaded that the suit was bad under the provisions of the Assam Temporarily Settled Areas) Tenancy Act, 1971 and under the Indian assessment Act, 1872. While generally denying the averments in the plaint, it is pleaded that the defendant No. 2 was residing in the homestead for long years from the time of the grandfather, namely, Pancham Nunia, who was allotted about 1 Bigha/2 Bighas of land for construction of homestead along with some agricultural lands by the Management of the garden about 100/150 years back. Pancham Nunia's son was Gopi Nunia and after the death of Gopi Nunia, his two sons, Sewnarayan Nunia and defendant No. 2 inherited their father's share in the properties . The defendant No. 1, Samunduri Nunia is the wife of late Sewnarayan Nunia. Khatians had been issued in the name of the defendant No.2 and the son of defendant No. 1. 6. On the basis of the pleadings, learned trial court framed the following issues : "1. Is there any cause of action? 2. Is the suit maintainable in its present form? 3. Is the suit barred by law of limitation? 4. Whether the plaintiffs have right, title and interest over the suit land and houses standing thereon? 5. Whether licence granted to the defendant No. 1 was terminated with effect from 16.12.1985? 6. Whether the defendant No. 2 has no right to occupy the suit land and suit house? 7. Whether plaintiffs are entitled to khas possession of the suit house and suit land? 8. What reliefs, if any, plaintiffs are entitled to?" 7. While the plaintiffs examined one witness, defendants examined two witnesses. Both the sides exhibited a number of documents. Issue No.4 was taken up first by the learned trial court. The learned trial court decided Issue No. 4 holding that plaintiffs have right, title and interest over the suit land but they failed to prove their right and title over the houses standing thereon. Issue Nos. 1, 2, 4, 5, 6, 7 and 8 were decided against the plaintiffs. As Issue No. 3 was not argued, the same was treated to be redundant by the learned trial court. Accordingly, the suit was dismissed. 8. The appeal preferred by the plaintiff was also dismissed. Issue Nos. 1, 2, 4, 5, 6, 7 and 8 were decided against the plaintiffs. As Issue No. 3 was not argued, the same was treated to be redundant by the learned trial court. Accordingly, the suit was dismissed. 8. The appeal preferred by the plaintiff was also dismissed. This second appeal was admitted by an order dated 3.8.2004 on the following three substantial questions of law : "1. Whether the suit is barred under section 66 of the Assam (Temporary Settled Areas) Tenancy Act, 1971; 2. Whether the learned lower appellate court erred in law in not framing the points for determination as provided under Order 41, Rule 31 of the Code of Civil Procedure, and 3. Whether the judgment of the learned Courts below is perverse being contrary to the evidence on record " 9. Mr. Sarma, learned counsel for the appellants has argued on all the substantial questions of law but, at the same time, has submitted that if the second substantial question of law is decided in favour of the appellants, necessarily, the case has to be remanded to the learned lower appellate court for fresh adjudication and disposal, and, therefore, he has submitted that it would be appropriate to first take up substantial question of law No. 2. With regard to the said question, learned counsel for the appellants had submitted that the learned lower appellate court in one single paragraph, without adverting to the materials on record, has simply affirmed the judgment of the learned trial court. According to him, the judgment betrays total non-application of mind and as such, although it is a judgment of affirmation, the same cannot withstand the scrutiny of law. 10. Mr. S.P. Choudhury, learned counsel for the respondents has supported the impugned judgments. He has further submitted that while it is correct that the learned lower appellate court has summarized his conclusions in one paragraph, the same being a judgment of affirmation, the argument advanced by Mr. Sarma is not tenable. 11. It will be appropriate to first take up substantial question of law No. 2. The learned lower appellate court disposed of the appeal as under : "10. I have carefully gone through the impugned judgment and the evidence of the witnesses. Also I have examined the documents exhibited. All the issues were thoroughly discussed by the learned court below. 11. It will be appropriate to first take up substantial question of law No. 2. The learned lower appellate court disposed of the appeal as under : "10. I have carefully gone through the impugned judgment and the evidence of the witnesses. Also I have examined the documents exhibited. All the issues were thoroughly discussed by the learned court below. The learned counsels raised only those points of contentions which were already raised in the trial court and the learned trial court after an elaborate discussion on all the points arrived at the decisions, For the sake of brevity, I do not deem it necessary to discuss in details. I find no illegality or infirmity in the judgment appealed against. As such, I find no sufficient ground to interfere with the judgment dated 21.12.2000 passed by the learned lower court. The appeal fails and as such it is liable to be dismissed. 11. In the result, the appeal is dismissed on contest. The impugned judgment passed by the learned lower court is hereby affirmed. However, under the facts and circumstances, the parties will bear their own cost." 12. From the aforesaid paragraphs, it is crystal clear that the learned lower appellate court, in a most summary and cryptic manner, had disposed of the appeal. First appeal is a valuable right of the parties, and, therefore, the judgment of the learned lower appellate court must reflect conscious application of mind and record findings supported by reasons, on all the issues. While agreeing with the view of the learned trial court, the learned lower appellate court need not discuss in detail the effect of the evidence or reiterate the reasons given by the learned trial court and it will be sufficient if there is expression of general agreement with reasons given by the learned trial court. Paragraph 10 of the impugned lower appellate court's judgment, however, falls short of the requirement even on the touchstone of the judgment of affirmation. The learned lower appellate court, in one sweeping sentence, stated that for the sake of brevity, it did not consider it necessary to discuss the issues in details. Not to speak of details, there is not even a reference t(v the reasoning of the learned trial court. 13. The learned lower appellate court, in one sweeping sentence, stated that for the sake of brevity, it did not consider it necessary to discuss the issues in details. Not to speak of details, there is not even a reference t(v the reasoning of the learned trial court. 13. In Santosh Hazari v. Purusattam Tewari (deceased) by LRs, (2001) 3 SCC 179 , the Apex Court had laid down that expression of general agreement with the findings recorded in the judgment under appeal should not be a devise or a camouflage adopted by the appellate court for shirking the duty cast on it. In these circumstances, I am in agreement with the submissions of Mr. Sarma that the impugned judgment of the lower appellate court cannot be sustained with law. 14. In view of the above, it is not necessary to discuss the submissions advanced by the learned counsel for the parties on the other aspects of the case. 15. In the result, the impugned judgment and decree of the lower appellate court is set aside and quashed. The appeal is allowed as indicated above, the learned lower appellate court will now hear the case afresh and dispose of the same in accordance with law. The parties, by themselves or through their counsel, will appear before the learned court of the Civil Judge No. 1, Silchar on 15.6.2015. 16. Registry will send back the records at the earliest.