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2015 DIGILAW 654 (GAU)

Md. Sirajul Islam v. Md. Sher Ali

2015-05-28

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Mr. R. L. Yadav, learned counsel for the appellant. None appears for the respondents. 2. This Second Appeal has been preferred against the concurrent judgment and decree dated 16.06.1999 passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No.9/1999 affirming the judgment and decree dated 17.02.1994 passed by the learned Munsiff No.2, Nagaon in Title Suit No.108/1982. 3. Referring to the plaint filed in the suit Mr. R. L. Yadav, learned counsel for the appellant fairly submits that although the plaint has not been happily worded so as to give a clear picture portraying the factual details forming the foundation of the plaintiff’s claim, yet from a reading of the pleadings as well as the materials available on record the case of the plaintiff can be summed up as follows. The father of the plaintiff Hasan Ali was the original owner in possession of a plot of land measuring 4 bigha 10 lechas covered by P.P. No.133 of dag No.24 under Kachalukhowa Kissam of Nij Sahar mouza in the district of Nagaon. The said patta No. and dag No. corresponds to the previous patta No.64 and dag No.330 of the same mouza. Hasan Ali died leaving behind two sons i.e. the plaintiff herein and Rausan Ali, his wife Fatima Nessa and five daughters. All the other legal heirs of Hasan Ali pre-deceased the plaintiff. It is the case of the plaintiff that out of the aforesaid 4 bigha 10 lechas of land owned by his father, after the death of Hasan Ali the legal heirs had sold 1 bigha land to Mohammad Ali alias Basom. Thereafter, another 1 bigha was sold to Janahar Sheikh and thereafter, further 1 bigha was also sold to Ali Mohammad and Lal Mohammad. As such out of the aforesaid 4 bigha 10 lechas of land only 1 bigha 10 lechas remained in the ownership and possession of the heirs of Hasan Ali. Thereafter, another 2 kathas of land from the aforesaid 1 bigha 10 lechas was sold to Chand Mohammad. From the remaining 3 katha 10 lechas a plot of land measuring 14 lechas was sold to a third party by the heirs of Hasan Ali. After the death of other legal heirs of Hasan Ali, the plaintiff became the exclusive owner in possession in respect of the remaining area of land measuring 2 katha 16 lechas. From the remaining 3 katha 10 lechas a plot of land measuring 14 lechas was sold to a third party by the heirs of Hasan Ali. After the death of other legal heirs of Hasan Ali, the plaintiff became the exclusive owner in possession in respect of the remaining area of land measuring 2 katha 16 lechas. Out of the said land the plaintiff had sold land measuring 14 lechas to the father of the defendants and delivered possession in respect thereof. As such, a plot of land measuring 2 katha 10 lechas remained in possession and ownership of the plaintiff which plot of land has been claimed by the plaintiff in the suit. 4. Mr. Yadav, learned counsel for the appellant, further submits that from a perusal of the judgment and order passed by the Court below it would be evident that the learned First Appellate Court has not considered the evidence of the PW 1 at all. Further, even the jamabondi (Ext-1) showing the ownership and possession of Hasan Ali in respect of 4 bigha 10 lechas of land has been completely ignored by the Court below while passing the impugned judgment and decree. He submits that the conclusion drawn by the learned First Appellate Court to the effect that the plaintiff’s plaint is defective one and that the plaintiff has failed to prove his right, title, interest and possession over the suit land merely because Ext-Ka Sale Deed executed by the plaintiff in respect of the 14 lechas of land did not indicate any further land belonging to the plaintiff in the adjacent boundaries is an erroneous finding as the same has not been recorded by appreciating the entirety of evidence adduced by the plaintiff in support of his case. 5. I have considered the submissions made by Mr. Yadav, learned counsel for the appellant and have also examined the materials available on record. There can be no doubt about the fact that the plaint does not disclose all the facts and particulars in a proper sequence so as to constitute a complete cause of action in favour of the plaintiff. I have considered the submissions made by Mr. Yadav, learned counsel for the appellant and have also examined the materials available on record. There can be no doubt about the fact that the plaint does not disclose all the facts and particulars in a proper sequence so as to constitute a complete cause of action in favour of the plaintiff. However, since the suit had ultimately gone for trial and the plaintiff was allowed to adduce evidence in support of his pleadings, the learned Court below was duty bound to decide the issues involved in the suit by appreciating the evidence available on record and not merely by reading the plaint. 6. It also appears from the record that the plaintiff had produced Ext-1 i.e. certified copy of jamabondi in support of his claim that his father Hasan Ali was the owner in possession in respect of the plot of land measuring 4 bigha 10 lechas. However, the learned Court below appears to have ignored the said piece of evidence adduced by the plaintiff. That apart, from a reading of the impugned judgment I am of the opinion that the learned First Appellate Court has not appreciated the evidence adduced by the PW 1 in support of his case inasmuch as nothing is reflected in the impugned judgment and order under appeal to show as to in what manner such evidence has been dealt with. What value such evidence will carry in the ultimate analysis is a different matter altogether. 7. In the instant case the defendants’ side had not led any evidence. However, the defendants had filed their written statement whereby they had generally denied the claim of the plaintiff. In the said written statement, over and above the 14 lechas of land admittedly sold by the plaintiff to the defendants, the defendants had also claimed to have purchased another plot of land measuring 1 katha 1lecha vide registered deed of sale No.6394 dated 14.09.1960. It is, however, not clear as to whether any such sale deed was produced on record by the said defendants in support of their claim, during the course of the trial. The plaintiff has also not prayed for amendment of the plaint so as to challenge the aforesaid sale deed dated 14.09.1960. It is, however, not clear as to whether any such sale deed was produced on record by the said defendants in support of their claim, during the course of the trial. The plaintiff has also not prayed for amendment of the plaint so as to challenge the aforesaid sale deed dated 14.09.1960. Be that as it may, what consequences would follow due to the aforesaid omission is a matter to be considered in the backdrop of the facts situation of the case as well as the totality of evidence that is available on record. Having regard to the recourse that this Court intends to adopt, no further discussion in the aforesaid aspect of the matter is deemed necessary at this stage. 8. In view of the discussions made in the foregoing paragraphs, I am of the opinion that the learned Court below has failed to appreciate the evidence available on record and thereafter, draw conclusions on facts in respect of each of the issues by recording reasons thereof. Such being the position, the impugned judgment and order passed by the learned First Appellate Court contravenes the provisions of Order XLI Rule 31 CPC and as such is not sustainable in the eye of law. Accordingly, the same is set aside. 9. It is the settled law that in exercise of jurisdiction under Section 100 of the CPC the High Court while deciding a Second Appeal cannot re-appreciate the evidence and record finding of facts which have not been gone into by the Courts below. In that view of the matter, for ends of justice, this Court is left with no other option but to remand the matter back to the learned First Appellate Court for a fresh decision on merit by recording its finding on facts and law on the basis of the evidence available on record. 10. In the result, the Second Appeal stands allowed to the extent indicated herein before. The appellant would now appear before the First Appellate Court on 22.06.2015. Registry to send back the records as expeditiously as possible. In view of the fact that the Title Suit is a very old one, an endeavour may be made for expeditious disposal of the appeal, preferably within a period of six months from the date of receipt of the record subject to due service of notice upon the opposite parties.