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2015 DIGILAW 909 (GAU)

Amar Chand Malakar v. Jyotsna Debnath

2015-07-24

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. N. Dhar, learned Counsel for the appellants. None appears for the respondents despite service of notice. 2. This second appeal is preferred by the appellants/plaintiffs against the judgment and decree dated 12.05.2004, passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 47/2000, dismissing the appeal and affirming the judgment and decree dated 14.08.2000, passed by the learned Civil Judge (Junior Division) No. 1, Karimganj, in Title Suit No. 157/1986, dismissing the suit. 3. This second appeal was admitted to be heard by an order passed on 19.08.2005 on the following substantial question of law: “Whether the impugned judgment and decree suffers from perversity because the findings arrived at by the appellate Court was passed on non consideration of the evidence of P.W. 2 pertaining to relationship of the plaintiff with the owner of the suit land namely, Labor Malakar and also P.W. 3 as well as D.W. 2 regarding possession of the plaintiff over the suit land.” 4. The appellants are the successors-in-interest of the original plaintiff, namely, Ambika Malakar. The plaintiff filed the suit claiming to be in possession of the suit land measuring 1 Bigha. It is pleaded that he had inherited the suit land from Kandra Malakar and was cultivating aush and sali paddy. It is alleged that the defendant Nos. 1, 2 and 3 were trying to dispossess the plaintiff by manufacturing some fraudulent deeds. 5. The case of the defendants was that of purchase of the suit land and they had in their written statement recited various transactions prior to the purchase made by the defendant Nos. 1 and 2 on 13.03.1978. 6. Mr. N. Dhar, learned counsel for the appellants, at the outset, has very fairly submitted that though Exhibit – 1 had been considered as a patta, which is a document of title issued in favour of the original plaintiff and thus, strongly supports the case of the plaintiff, it is his duty to point out that Exhibit – 1 is not a patta but a Jamabandi. He has submitted that on a perverse consideration of the evidence on record, the suit of the plaintiff was dismissed by holding that the plaintiff failed to show how his father acquired right, title and interest over the suit land. He has submitted that on a perverse consideration of the evidence on record, the suit of the plaintiff was dismissed by holding that the plaintiff failed to show how his father acquired right, title and interest over the suit land. It is submitted by him that the said finding is incompatible with another finding recorded by the learned Trial Court that suit land was sold by the plaintiff and Akshay Malakar to Murari, Govinda and Debendra. It is submitted that there is no dispute that the suit land originally belonged to one Labor Malakar. Mr. Dhar submits that the original plaintiff was the grandson of Labor Malakar, which would be evident from the evidence of P.W. - 2. Learned counsel also submits that evidence of witnesses, more particularly, that of P.W. – 3 and D.W. – 2 regarding possession of the suit land was not at all considered. It is submitted by him that the impugned judgment of the learned lower Appellate Court is most perfunctory and even if it is considered that in a case of affirmation, general agreement with the findings of the learned Trial Court would suffice, then also the impugned judgment of the learned lower Appellate Court falls far short of the mandate of Order XLI Rule 31 of the Code of Civil Procedure, 1908. According to him, both the Courts below had not adverted to the evidence on record and had not considered the documents exhibited, and therefore, ends of justice would be sub-served if the impugned judgment of the learned lower Appellate Court is set aside with a direction to the learned lower Appellate Court to dispose of the appeal afresh in accordance with law after hearing the parties. 7. A perusal of the judgment of the learned Trial Court goes to show that though the plaintiff had examined three witnesses, there is no reference to the evidence of the said witnesses in the judgment. However, evidence of D.Ws. – 2 and 3 are referred to. Only one statement of P.W. – 1 in cross-examination was picked up. 8. The learned lower Appellate Court had recorded that he had carefully considered the entire materials on record. However, the impugned judgment of the learned lower Appellate Court does not refer to any evidence of any of the witnesses from the plaintiff’s side. Only one statement of P.W. – 1 in cross-examination was picked up. 8. The learned lower Appellate Court had recorded that he had carefully considered the entire materials on record. However, the impugned judgment of the learned lower Appellate Court does not refer to any evidence of any of the witnesses from the plaintiff’s side. The learned lower Appellate Court, though agreed with the findings recorded by the learned Trial Court, also made an observation that Labor Malakar, who undisputedly, was the original owner of the suit land, died leaving Akshay Malakar as his heir along with Ambika Malakar. It is to be noted that Ambika Malakar was the plaintiff. 9. On examination of the judgments of the learned lower Courts below, I am of the considered opinion that none of the Courts below had assessed the evidence on records with reference to the depositions of the witnesses, and therefore, though considerable time has elapsed from the date of filing of the suit, I am persuaded to accept the submission of Mr. N. Dhar for remanding the case to the learned lower Appellate Court. 10. The impugned judgment of the learned lower Appellate Court is set aside and the learned lower Appellate Court is directed to dispose of the appeal in accordance with law, bearing in mind the observations of this Court made hereinabove after hearing the parties. It is also made clear that no final and conclusive opinion has been expressed by this Court while disposing of this appeal. 11. No cost. 12. Registry will send back the records to the learned lower Appellate Court.