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2015 DIGILAW 514 (GAU)

Helal Uddin v. Joytun Nessa

2015-05-05

SUMAN SHYAM

body2015
ORDER 1. The core question arising in the present case is as to whether the learned First Appellate Court was justified in law in passing the impugned judgment and order dated 02-08-2003 in Title Appeal No. 37 of 2000 setting aside judgment and decree dated 28-06-2000 passed by Civil Judge (Dr. Div.) No. 1, Karimganj in Title Suit No. 102 of 1991 and remanding the matter for retrial by the court of first instance. 2. The plaintiffs case in brief is that they are the owners of the suit land by way of right of inheritance. The suit land is their homestead land and is recorded in the name of the plaintiffs during last settlement survey. In their illegal bid to carve out a pathway in southern and eastern boundary of the homestead pond belonging to the plaintiffs, the defendants herein had instituted a proceeding under Section 133 Cr. P.C. by Misc. Case No. 103 of 1991. The said misc. case was dismissed by the learned Magistrate in view of the fact that the dispute sought to be raised therein was civil in nature. As such the plaintiffs were compelled to institute Title Suit No. 102 of 1991 in the court of learned Civil Judge (Jr. Div.) No. 1, Karimganj, inter alia, praying for a decree declaring their right, title and interest over the suit land and also for confirmation of possession in respect thereof besides other consequential reliefs. 3. The defendants contested the suit by filing written statement thereby denying the case of the plaintiffs. Over and above taking a general objection pertaining to the maintainability of the suit, the defendants had also taken a plea that Darbesh Saheb Maszid was constructed by the predecessor of the defendants i.e. Darbesh Saheb Abdul Gani. It is their case that a pathway has been in existence starting from south and proceeds towards north through the southern and eastern bank of pond of the plaintiffs which also, after touching upon the aforesaid mosque, reached PWD road at Lakshmi Bazar Road on the north. The defendants have claimed that the said path has been used by the villagers since time immemorial so as to communicate to the Tila Bazar, Darbesh Saheb Mosque and shrine. Since there is no other path to go to the mosque and Tila Bazar except suit path. The defendants have claimed that the said path has been used by the villagers since time immemorial so as to communicate to the Tila Bazar, Darbesh Saheb Mosque and shrine. Since there is no other path to go to the mosque and Tila Bazar except suit path. It is further stated that the defendants along with some of the plaintiffs had purchased some land in order to widen the said path in the year 1975. The contesting defendants claimed to have acquired right of easement of necessity in respect of the suit path. They have admitted that prior to institution of the suit the defendants had instituted a proceeding under Section 133 Cr. P.C. for declaration of the suit path. 4. Taking note of the pleadings submitted by the respective parties the learned Trial Court had framed as many as 5 issues which are as follows: (1) Whether there is cause of action for the suit? (2) Whether the plaintiffs have right, title and interest and possession over the suit land? (3) Whether there is any path on the southern and eastern side of plaintiff’s homestead? (4) Whether the plaintiffs are entitled to get a decree as prayed for? (5) To what reliefs are the plaintiffs entitled? 5. Upon examination of the materials on record and also hearing learned counsel for the parties the learned Trial Court had recorded findings in respect of issue No. 2 and 3 in favour of the plaintiffs. Resultantly, the suit filed by the plaintiffs went on to be decreed by the Trial Court by judgment and decree dated 28-06-2000. 6. Being aggrieved by the judgment and decree dated 28-06-2003 passed in Title Suit No. 102/1991, the defendants as appellants had preferred Title Appeal No. 37 of 2000 in the court of Civil Judge (Sr. Div.), Karimganj. Upon hearing learned counsel for the parties the First Appellate Court was pleased to pass judgment and decree dated 02-08-2003 setting aside the judgment and decree dated 28-06-2000 passed by the Trial Court and thereafter remanding the suit for retrial by the court of first instance. 7. Bring highly disagree and dissatisfied with the judgment and decree dated 02-08-2003 passed by the lower Appellate Court, the plaintiffs as appellants had approached this Court by presenting the instant second appeal which was admitted for hearing on the following substantial questions of law: 1. 7. Bring highly disagree and dissatisfied with the judgment and decree dated 02-08-2003 passed by the lower Appellate Court, the plaintiffs as appellants had approached this Court by presenting the instant second appeal which was admitted for hearing on the following substantial questions of law: 1. Whether the judgment and order passed by the first appellate court is sustainable under Order 41 Rule 23 of the CPC particularly in view of the findings of both the courts below to the effect that the suit path is the part and parcel of the homestead land of the plaintiff. 2. Whether the findings of the first appellate court about inadequacy of the findings of the trial court, as stated therein, about issue No. 3 is legally sustainable in view of the legal position that the easement is not in force in the State of Assam. 3. Whether the learned lower Appellate Court was right in setting aside the decree passed by the learned trial Court and remanding the matter to the Trial Court on the face of evidence on record that there is no public path on the eastern and southern bank of the plaintiff’s pond. 8. I have heard Ms. R. Choudhury, learned counsel for the appellants. Also heard Mr. I.A. Talukdar, learned counsel representing the respondents. Ms. Choudhury, learned counsel for the appellants submits that the learned First Appellate Court did not record any reason that called for setting aside judgment and decree passed by the Trial Court. Moreover, there was absolutely no reason cited as to why there was need for retrial of the suit by the Trial Court. Having regard to the fact that there was sufficient evidence available on record for the learned First Appellate Court to record independent findings with regard to each of the issues there was no need for a remand of the matter even if the learned Lower Appellate Court did not agree with the Trial Court judgment. Since this is not a case where the ownership of the plaintiffs in respect of the homestead land is in dispute and considering the fact that report of local inspection carried out on more than two occasions were already available on record. There was no justification for the learned First Appellate Court to remand the matter for retrial by the Trial Court. 9. Mr. There was no justification for the learned First Appellate Court to remand the matter for retrial by the Trial Court. 9. Mr. I.A. Talukdar, learned counsel appearing for the respondent submits in all fairness that although the order of the learned Trial Court did not take due note of Exhibit-‘C’ and Exhibit-‘D’ as well as the three inspection reports before recording any conclusion in respect of the issue No. 3, yet the said exercise could have, very well, been carried out by the First Appellate Court instead of remanding the matter back to the Trial Court. He submits that he has no objection if the appeal is disposed of with a direction to decide the appeal afresh taking note of materials available on record. 10. A perusal of the judgment and order under appeal does not disclose any ground recorded by the First Appellate Court meriting a remand under Order XLI Rule 23A CPC. It appears that the learned court below has failed to record any reasons meting the conditions of Order XLI Rule 23A CPC so as to enable the court to remand the matter for retrial. On examination of the materials on record what can be seen is that there was sufficient evidence available on record to decide the issues. Under the provisions of Order XLI Rule 31 CPC the First Appellate Court had ample powers to re-appreciate the evidence available on record and to record a decision on each of the issues by citing proper reasons. There was nothing stopping the First Appellate Court to record its own finding in respect of each of the issues taking note of the entirety of evidence available on record. There is no observation made by the First Appellate Court that the evidence on record was insufficient for the lower Appellate Court to deliver a judgment by recording its findings and conclusion in respect of each of the issues. 11. In that view of the above discussion this Court is of the opinion that the order of remand is not sustainable in the eye of law and the same stands interfered with. The judgment and order dated 02-08-2003 passed by the learned Civil Judge (Sr. 11. In that view of the above discussion this Court is of the opinion that the order of remand is not sustainable in the eye of law and the same stands interfered with. The judgment and order dated 02-08-2003 passed by the learned Civil Judge (Sr. Div.), Karimganj in Title Appeal No. 37/2000 is hereby set aside and the matter is now remanded back to the First Appellate Court so as to give a fresh decision on merit by recording its conclusion in respect of all the issues taking note of evidence on record and keeping in mind the mandate of Order XLI Rule 31 CPC. The questions of law framed by this Court shall answered accordingly. Having regard to the nature of issues involved in this case there would be no order as to cost. Parties will appear before the First Appellate Court on 26-06-2015. Registry to send back the LCR.