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2016 DIGILAW 1063 (GAU)

Jakir Hussain Borbhuyan v. Samsun Nahar Begum

2016-11-28

PRASANTA KUMAR DEKA

body2016
JUDGMENT AND ORDER : Prasanta Kumar Deka, J. Heard Mr. A. Iqbal and Ms. M. Nath, learned counsels, appearing on behalf of the appellant/defendant No. 1. Also heard Mr. S.K. Ghosh, learned counsel, appearing on behalf the respondent/plaintiff. 2. This second appeal is filed impugning the judgment and decree dated 23.12.2003, passed by the learned Civil Judge, Senior Division No. 1, Cachar, Silchar in Title Appeal No. 1/2001 allowing the appeal thereby setting aside the judgment and decree dated 21.09.2000, passed by the learned Civil Judge, Junior Division No. 1 in Title Suit No. 66/1999. 3. The respondent/plaintiff filed suit with pleadings that she and her brother proforma respondent No. 4 jointly purchased 6 (six) khatas of land covered by Second R.S. Patta No. 376 Dag No. 1270 described in the Scheduled 1 of the plaint which is the suit land from Md. Nasiruddin Barbhuiya and Md. Kutub Uddin Barbhuiya defendant Nos. 2 and 3 for valuable consideration on 29.09.1986 by way of registered sale deed bearing No. 2945, dated 29.09.1986 (Exhibit No. 1). The said defendant Nos. 2 and 3 Md. Nasir Uddin Barbhuiya and Md. Kutub Uddin Barbhuiya were gifted the total land measuring 9 (nine) khatas covered by Dag No. 1270 of the RS Patta No. 376 along with other land by way of gift deed (Exhibit No. 4) by the grandfather dated 16.07.1979. The appellant was defendant No. 1 and he is the uncle of defendant Nos. 2 and 3. 4. That in the second week of May, 1998, the present appellant/defendant No. 1 dispossessed her on the strength of Exhibit No. 2 i.e. registered sale deed bearing No. 573, dated 13.04.1995 which was executed by the defendants No. 2 and 3. The respondent/plaintiff on search found that Ext. No. 2 sale deed where-from she gathered that the defendant Nos. 2 and 3 sold the total land measuring 9 (nine) khatas covered by Dag No. 1270 of RS Patta No. 376 by way of Ext. 2. The respondent/plaintiff on search found that Ext. No. 2 sale deed where-from she gathered that the defendant Nos. 2 and 3 sold the total land measuring 9 (nine) khatas covered by Dag No. 1270 of RS Patta No. 376 by way of Ext. 2. Finding no other way and on being dispossessed, the respondent, as the plaintiff, filed Title Suit No. 66 of 1998 with the following prayers : "(a) For a declaration of the title (maliki rights) of the Plaintiff along with the Pro-Defendant No. 4 over the land measuring 9 Khatas (more-fully described in Schedule-1 below); (b) For getting khas possession of the Schedule-1 land after removing all obstruction/construction of the Principal Defendants and/or any person claiming through them; (c) For cancellation of the purported illegal Sale Deed (described in the Schedule- 2 below) so far it attracts the land described in Schedule-1 below, being the jointly purchased land of the Plaintiff and the Pro-Defendant No. 4 on declaration that it is void, inoperative, illegal and without consideration and not binding upon the Plaintiff and the Pro-Defendant No. 4 and also to send a note to this effect to the Deputy Registrar (Registration) Cachar, for making note in the concerned Book Volume regarding partial cancellation of the Deed mention in Schedule- 2 below; (d) For a further declaration that by the purported and illegal Sale Deed described in Schedule 2 below, the Principal Defendant No. 1 has acquired no right, title or interest over the land described in Schedule-1 below and that the Principal Defendant Nos. 2 and 3 had no right, title, authority or possession over the Schedule-1 land; (e) For both permanent/temporary injunction against the Defendants restraining them from changing the nature and feature of the Schedule-1 land and/or raising any construction thereon and/or transferring the schedule-1 land by way of sale, mortgage or lease or creating any change over the same and/or after the Decree and the delivery of possession of the Schedule-1 land to the Plaintiff from creating any interference or disturbance in the peaceful enjoyment of the Schedule-1 land and/or dispossessing her therefrom and/or any part thereof; (f) For costs of the suit; and (g) for such other and further reliefs to which the Plaintiff may be found entitled in law and equity." 5. On receipt of the summons except present appellant/defendant No. 1, none of the other defendants including the proforma respondent No. 4 appeared and contested on the claim of the respondent. The present appellant/defendant No. 1 in his written statement took the routine pleas and finally pleaded that the land measuring 9 (nine) Khatas covered by Dag No. 1270 of RS Patta No. 376 was gifted along with the other lands to the defendant Nos. 2 and 3 by his father late Mastan Ali Barbhuiya by way of registered deed of gift in the year 1979 (Ext. 4) and delivered possession thereof to the defendant Nos. 2 and 3. 6. The defendant Nos. 2 and 3 (common vendors of the plaintiff/respondent) in turn and in terms of the said gift deed Ext. 4 sold the total land measuring 9 (nine) Khatas covered by Dag No. 1270 of RS Patta No. 376 and handed over Khash possession to the appellant/defendant No. 1. Thereafter by executing registered sale deed No. 573 dated 13.04.1995 (Ext. 2) the defendant Nos. 2 and 3 transferred the said land measuring 9 (nine) Khatas and since then the appellant/defendant No. 1 has been maintaining his possession without any interference from any quarter thereon. 7. It was further contended that the suit land described in Schedule- 1 of the plaint is not in existence and the boundaries given thereof were also not correct and proper. It was also further pleaded that the defendant Nos. 2 and 3 never executed any such sale deed to the plaintiff/respondent or the proforma respondent No. 4 and denied the possession of the plaintiff/respondent. As such, the defendant No. 1/appellant prays for dismissal of the suit. 8. The learned trial court after perusal of the pleadings and having heard the learned counsel appearing for both the parties framed total 7 (seven) numbers of issues, which are as follows : "1. Is there any cause of action for the suit ? 2. Has the plaintiff takes stand to file the suit ? 3. Had the defendant No. 1 illegally dispossessed the plaintiff out of the possession of the schedule mentioned land and has been occupying the same without having right title and interest thereon ? 4. Whether the sale deed No. 573 dated 13.4.95 purported to have been executed by the defendant Nos. 3. Had the defendant No. 1 illegally dispossessed the plaintiff out of the possession of the schedule mentioned land and has been occupying the same without having right title and interest thereon ? 4. Whether the sale deed No. 573 dated 13.4.95 purported to have been executed by the defendant Nos. 2 and 3 in favour of the defendant No. 1 is illegal, void, collusive, fraudulent and liable to be cancelled ? 5. Whether the plaintiff has got right, title and interest over the suit land as claimed ? 6. Is the plaintiff entitled to get the decree as prayed for ? 7. What other relief/reliefs the parties are entitled to ?" 9. The plaintiff/respondent No. 1 examined herself as PW 1 and her husband deposed as PW No. 2. On the other hand, the appellant/defendant No. 1, failed to adduce any evidence in support of his pleadings/defence taken in the written statement. The learned trial court, after hearing both the parties dismissed the suit of the plaintiff/respondent vide judgment and decree dated 21.09.2000, passed in Title Suit No. 66/1999. 10. Being aggrieved, the plaintiff/respondent as the appellant preferred Title Appeal No. 1/2001 in the court of the learned Civil Judge (Senior Division) No. 1, Cachar, Silchar. The learned first appellate court after hearing both the plaintiff/respondent No. 1 and the defendant No. 1/appellant reversed the judgment and decree dated 21.09.2000, passed in Title Suit No. 66/1999 by passing the impugned judgment and decree dated 23.12.2003, passed in Title Appeal No. 1/2001. 11. The present appellant/defendant No. 1 being aggrieved has preferred this second appeal challenging the impugned judgment and decree dated 23.12.2003, passed by the learned Civil Judge (Senior Division) No.1, Cachar, Silchar in Title Appeal No. 1/2001. The second appeal was admitted on the following substantial question of law :- "1. Whether the learned lower appellate court erred in overlooking the material pieces of evidence while constructing Ext. 1 and Ext. 2 in decreeing the suit of the respondent/plaintiff ?" 12. At the time of hearing Mr. A. Iqbal, learned counsel appearing for the appellant submits before the court that another substantial question of law is to be formulated which was agreed to by the learned counsel for the respondent/plaintiff. Finding that the substantial question of law proposed, has a bearing in the present second appeal, the same is accordingly formulated. "2. A. Iqbal, learned counsel appearing for the appellant submits before the court that another substantial question of law is to be formulated which was agreed to by the learned counsel for the respondent/plaintiff. Finding that the substantial question of law proposed, has a bearing in the present second appeal, the same is accordingly formulated. "2. Whether the judgment and decree passed by the first appellate court in Title Appeal No. 1/2001 allowing the appeal thereby setting aside the judgment and decree 21.09.2000, passed by the trial court in Title Suit No. 66/1999 violates the provision of Order 41, Rule 33 of the CPC, 1908 ?" 13. Mr. A. Iqbal, learned counsel appearing on behalf of the appellant submits that the learned trial court has decided each and every issue so framed as required under Order 20, Rule 5 of the CPC. Not only that, the learned trial court also appreciated the evidence on record on true perspective and finding was arrived on each and every issue and does not suffer from any perversity. For the said reason, a duty was cast upon the first appellate court to scrutinize each and every issue discussed by the trial court keeping in view the materials/evidence on record. Instead of doing so, the learned first appellate court mechanically without appreciating materials on record/evidence passed the impugned judgment and decree and reversed the finding of the trial court during the process. 14. Mr. Iqbal also submits that the first appellate court is the last court for recording of findings based on fact and having not done so, by passing the impugned judgment and decree has failed to serve the very purpose being the first appellate court and the last court of facts. In support of his claim, learned counsel relied upon the case of H. Siddiqui (Dead) By LRS v. A Ramalingam, reported in (2011) 4 SCC 240 and also relied upon the case of Dolly Khonglah v. Dilip Kumar Singhania and another, reported in 2008 2 G.L.T. 582. 15. In support of his claim, learned counsel relied upon the case of H. Siddiqui (Dead) By LRS v. A Ramalingam, reported in (2011) 4 SCC 240 and also relied upon the case of Dolly Khonglah v. Dilip Kumar Singhania and another, reported in 2008 2 G.L.T. 582. 15. In the decision of the Apex Court, it has been held that independent assessment of evidence on each point and the recording of reasons is required for an appeal under Section 96 of the CPC and it was also further held that there must be strict adherence to the provision of Order 41, Rule 31 of the CPC while disposing the appeal under Section 96 of the CPC. In the same line, in the decision of our High Court (supra), it was held that under Order 41, Rule 31 of the CPC there is duty and obligation of the appellate court to give an adequate and satisfactory judgment and decree. The appellate court has to set up the crucial point for determination and record the decision thereon and give its own reason. For the said reason, the substantial question of law No. 2 is to be decided in favour of the appellant/defendant No. 1. 16. Mr. S.K. Ghosh, learned counsel appearing on behalf of the respondent/plaintiff fairly submits that the learned first appellate court though reversed the finding of the trial court ought to have discussed the materials on record, the point for determination which is crucial in nature to decide the dispute between the parties to the suit. However, he submits that in the present case in hand, the learned first appellate court has at least determined the crucial point in dispute between the parties and accordingly has given its finding which goes to the root of the dispute between the parties. 17. After hearing both the learned counsel appearing on behalf of both the parties and on perusal of the judgment and decree herein above referred to, passed by the learned first appellate court, I conclude that the first appellate court as the final fact finding court ought to have discussed the issues as framed by the learned trial court and further there was a duty cast upon the said first appellate court to carefully discuss the evidence/materials on record. Having not done so, I find that the impugned judgment and decree is in clear violation of the law laid down by the Apex Court and as such the substantial question of law No. 2 is answered in the affirmative. 18. During the submission of Mr. Iqbal, learned counsel appearing on behalf of the appellant/defendant No.1 he never submitted anything in support of the substantial question of law No. 1 and on a specific query, Mr. Iqbal submits that he would not press the substantial question of law No. 1. 19. In my considered opinion, as the substantial question of law No. 2 has been decided in the affirmative, this court as the second appellate court though has the power to go into the evidence on record and give the findings of the issue, however, this court refrains from entering into or giving its findings on the issues. Instead this court feels it necessary to remand the matter to the first appellate court after setting aside the impugned judgment and decree dated 23.12.2003, passed by the learned Civil Judge, Senior Division No. 1, Cachar, Silchar in Title Appeal No. 1/2001 with a direction to re-hear the matter and pass the judgment and decree as required under Order 41, Rule 31 of the CPC and as per the law laid down by the Hon'ble the Apex Court by discussing each and every issues as required under the provisions of law on the basis of materials available on record and by proper appreciation of the said evidence on record in the proper perspective. It is obligatory on the part of this court to mention that the first appellate court considering the facts and circumstances of a specific case has also the discretion to specifically sieve the point for determination as per Order 41, Rule 31 CPC, 1908 and give a finding thereof. Be that as it may, the first appellate court as the final court is found to give a finding on a particular fact/issue relevant for adjudication of dispute between the parties to a lis and has a vital role in adjudicating the appeal under Section 96 of the CPC, 1908 and the same is not made directory but mandatory. 20. Mr. 20. Mr. Ghosh, learned counsel appearing on behalf of the respondent/plaintiff further submits that this second appeal has been pending since the year 2004 and as such a time period may be specified for disposal of the said first appeal. This court also feels that it will be proper to direct the first appellate court to dispose of the first appeal within a period of 2 (two) months from the date of receipt of the record of this case along with the judgment and order. 21. It is specifically pointed out that no further chances for adducing any further evidence by either of the parties be allowed and the learned first appellate court shall decide the said first appeal purely on the basis of the materials already available on record. 22. On the submission of the learned counsel appearing on behalf of both the parties, this court directs the first appellate court to issue notice/summons to both the parties immediately on receipt of the case record from the Registry of this court. On the other hand, a direction is hereby given to the Registry of this court to forthwith send the case record of this first appeal to the learned Civil Judge, Senior Division, No.1, Cachar Silchar within a period of 1 (one) week from today for doing the needful. 23. With the above direction and observation, this R.S.A. is disposed of. 24. Send back the LCR.