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2015 DIGILAW 896 (GAU)

Someswar Nath v. Joyram Nath

2015-07-23

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. H. Das, learned counsel for the appellants/defendants and Mr. P.K. Kalita, learned counsel for the respondents/plaintiffs. 2. This appeal is directed against the judgment and decree dated 23.11.2004 passed by the learned Civil Judge (Sr. Divn.), Goalpara in Title Appeal No.11/2004 allowing the appeal and reversing the judgment and decree dated 05.05.2004 passed by the learned Civil Judge (Jr. Divn.) No.1, Goalpara, in Title Suit No.07/99, whereby the suit of the plaintiffs was dismissed. 3. The plaintiffs filed the suit for declaration of right, title and interest in respect of the suit land described in Schedule-A and Schedule-B and for confirmation of possession, perpetual injunction restraining the defendants, etc. from digging tanks in the suit land; for declaration that the order passed by the Executive Magistrate on 29.01.99 in Misc. Case No.11/97 under Section 145 Cr.P.C. is without jurisdiction, illegal and void, for possession of the suit land in case during the pendency of the suit defendants dig tanks, by restoring its topographical possession at the cost of the defendants, damages and compensation of Rs.25,000/- per year with interest at the rate of 18% per annum from the date of institution of the suit till recovery of the decretal amounts, cost of the suit, etc. 4. Schedule-A and Schedule-B read as under:- Schedule-A District Goalpara, P.S. Boguan, Circle Balijana, Dihi-Nachonipara, Mouza & Village- Hurali, Land measuring 2B-1K-5L in the name of plaintiffs’ father Howria Ram Nath, now have been recorded along with lands of Tauzi No.3 in New periodic patta No.71 at village Hurali covered by Dag Nos.512 & 513 in the name of plaintiff No.1, Shri Joy Ram Nath and the said land is bounded by :- North :- Land of Schedule-B belong to plaintiffs. South :- Land of the plaintiffs. East :- Tuleswari Nath & others. West :- Land of Tarani Kanta Nath, Dhaneswar Nath & others. South :- Land of the plaintiffs. East :- Tuleswari Nath & others. West :- Land of Tarani Kanta Nath, Dhaneswar Nath & others. Schedule-B District Goalpara, P.S. Boguan, Circle Balijana, Dihi-Nachonipara, Village- Hurali, Dag No.512, land 15 (fifteen) lechas pertaining to Annual patta No.1, now converted to periodic patta No.71 in the name of Shri Joy Ram Nath, Dag No.506, land 1B-3K-10L pertaining to Annual patta No.2, now converted into periodic patta No.89 in the name of Shri Dimbudhar Nath and Dag No.507, land 1B-2K-10L pertaining to annual patta No.3, now converted into periodic patta No.84 in the name of Shri Durgacharan Nath, Total land 3B-0K-15L bounded by:- North :- Land of Haricharan Nath. South :- Land of schedule-A belonging to plaintiffs. East :- Land of Gauri Kanta Nath, Ismail Master & others. West :- Land of Iman Ali, Bharat Chandra Nath, Chiben Nath & others. 5. The defendants contested the suit by filing written statement contending that the suit land was continuously possessed for more than 50 years by the committee of Muralizar Jogi Samaz and even if the plaintiffs have any right, title and interest, the suit was barred by adverse possession. It was alleged that the plaintiffs/their father, on earlier occasion, in collusion with Revenue Officials recorded a Government khas land known as Borpukhuri in the name of plaintiffs’ father. The present suit land is also known as Gorekhuna Beel and the plaintiffs may have recorded the suit land in their favour in a clandestine manner in collusion with Revenue Officials, but they never had possession. 6. On the basis of the pleadings, the learned Trial Court framed 8 issues, out of which, Issue No.5 was as to whether plaintiffs have right, title and interest over the suit land described in Schedule-A and Schedule-B of the plaint. While plaintiffs examined 9 witnesses and exhibited a number of documents, defendants examined 9 witnesses. 7. On the basis of evidence on record, the learned Trial Court in Issue No.5 held that plaintiffs had not succeeded in establishing their right, title and interest over the suit land and accordingly, dismissed the suit. 8. The learned lower Appellate Court reversed the decision rendered in Issue No.5 and resultantly allowed the appeal. 9. 7. On the basis of evidence on record, the learned Trial Court in Issue No.5 held that plaintiffs had not succeeded in establishing their right, title and interest over the suit land and accordingly, dismissed the suit. 8. The learned lower Appellate Court reversed the decision rendered in Issue No.5 and resultantly allowed the appeal. 9. This appeal was admitted to be heard by an order passed on 27.05.2005 on the following substantial question of law:- “Whether the learned Court below erred in reversing the finding of the learned Trial Court on the Issue No.5 by overlooking the mandate of Order 41 Rule 31 Civil Procedure Code ?” 10. Mr. Das, learned counsel for the appellants/defendants has submitted that the learned Trial Court, on the basis of the evidence on record, recorded a finding that the exhibits exhibited by the plaintiffs do not point towards a clear and conclusive fact as regards the claim over the suit land and that the same do not tally with the pleadings. It is submitted that the learned lower Appellate Court without analyzing the evidence on record and without considering the exhibits, by merely noting the exhibit numbers, reversed the finding recorded in Issue No.5. It is submitted by him that while the learned lower Appellate Court is certainly entitled to reverse a finding recorded by the learned Trial Court, the same has to be done on the basis of appraisal of the evidence on record and also recording where the learned Trial Court had gone wrong. Mr. Das submits that the learned lower Appellate Court rejected the contention of the defendants that the exhibited documents are not related to the suit land by holding that the defendants had failed to prove by adducing evidence that the exhibited documents do not relate to the suit land, thereby shifting the burden on the defendants, which is not contemplated in law. Accordingly, the learned counsel submits that substantial question of law requires to be answered in favour of the appellants, the judgment being not in conformity with the mandate of Order 41 Rule 31 C.P.C., and the appeal be remanded to he learned lower Appellate Court for deciding afresh in accordance with law after hearing the parties. 11. Mr. Accordingly, the learned counsel submits that substantial question of law requires to be answered in favour of the appellants, the judgment being not in conformity with the mandate of Order 41 Rule 31 C.P.C., and the appeal be remanded to he learned lower Appellate Court for deciding afresh in accordance with law after hearing the parties. 11. Mr. Kalita, learned counsel for the respondents/plaintiffs submits that though the judgment of the learned lower Appellate Court is not very exhaustive, it cannot be said that the same does not conform to the requirement of Order 41 Rule 31 C.P.C. It is submitted by him that it is the substance of the judgment that really matters and it is not necessary that a long judgment is required to be written. He has submitted that adverting to the evidence on record, the learned lower Appellate Court found that the plaintiffs had been able to establish their right, title and interest and therefore, no interference is called for in this appeal. 12. I have considered the submissions of the learned counsel for the parties and have perused the evidence on record. 13. The first Appellate Court is enjoined to independently assess the evidence on record being the last court of facts. While in a case of affirmation of the judgment of the learned Trial Court, general agreement with the findings of the learned Trial Court may suffice, while reversing a judgment of the learned Trial Court, the first Appellate Court has necessarily to advert to the evidence on record. The learned lower Appellate Court, in the instant case, has merely referred to the exhibits and did not consider the import of such exhibits. This assumes importance in view of the fact that the learned Trial Court had recorded a finding that exhibits do not relate to the suit land. Some arguments were also advanced in this regard before the learned lower Appellate Court. However, the learned lower Appellate Court rejected their contention by holding that defendants did not adduce any evidence to prove that exhibited documents are not related to the suit land. 14. It is for the plaintiffs to prove their case to succeed in the case and the plaintiffs cannot take advantage of the weakness of the case of the defendants, if any. 14. It is for the plaintiffs to prove their case to succeed in the case and the plaintiffs cannot take advantage of the weakness of the case of the defendants, if any. In order to enable the plaintiffs to get a decree, as prayed for, they have to establish right, title and interest in the instant case. The burden is entirely on the plaintiffs, but the learned lower Appellate Court shifted the burden on the defendants to prove that the exhibited documents do not relate to the suit land. The approach of the learned lower Appellate Court was not correct. The learned lower Appellate Court did not make any attempt to examine whether the documents exhibited by the plaintiffs are relatable to the suit land. The learned lower Appellate court also did not indicate why the reasoning given by the learned Trial Court in rejecting the case of the plaintiffs is not justified, except stating that there was failure on the part of the Trial Court to appreciate oral as well as documentary evidence. 15. I am unable to subscribe to the submission of Mr. Kalita that the impugned judgment of the learned lower Appellate Court is a self-contained judgment supported by reasons while upsetting the finding of the learned Trial Court. Having regard to the conclusion arrived at by the learned Trial Court, it was necessary for the learned lower Appellate Court to have examined, at least, the exhibits in more detail to find out as to whether same is relatable to the suit land. 16. In view of the above discussion, I am of the considered opinion that the impugned judgment of the learned lower Appellate Court cannot be sustained in law and therefore, the same is set aside and quashed. The appeal is allowed by directing the learned lower Appellate Court to hear the appeal afresh in accordance with law bearing in mind the observations made in this judgment. The substantial question of law is answered in favour of the appellants. No cost. 17. Having regard to the period of time that has elapsed, the learned lower Appellate Court is requested to dispose of the appeal within a period of 6(six) months from the date of appearance of the parties or by their learned counsel. The parties themselves or through their counsel will appear before the learned lower Appellate Court on 10th of September, 2015. 18. The parties themselves or through their counsel will appear before the learned lower Appellate Court on 10th of September, 2015. 18. Registry will send back the records forthwith.