JUDGMENT AND ORDER : 1. Heard Mr. RJ Bordoloi, learned counsel for the appellants. None appears on behalf of the respondents though the names of the learned counsels have been duly shown in the cause list. 2. The present appellants are the defendants in Title Suit No. 225/1992 in the court of learned Civil Judge (Jr. Divn.) No. 1, Guwahati. The original plaintiff/ respondent, namely, Babul Boro preferred Title Suit No. 225/1992 against the present defendants/ appellants for declaration of his possessory/ tenancy right over the suit land along with declaration that the decree obtained in Title Suit No. 253/1984 on 12.01.1989 passed by the learned Sadar Munsiff No. 1 at Guwahati in favour of the present defendants/ appellants is void, illegal and ineffective in law and for a further declaration that the Title Execution Case No. 15/1989 was illegally instituted without a lawful decree and the acts involved therein are void, illegal and ineffective in the eye of law and for confirmation of possession of his right over the suit land. On the death of the sole plaintiff, his legal heirs were substituted in the present second appeal. It is the case of the plaintiff/ respondent that he and his elder brother, namely, Santhar Boro (since deceased) were the khatian holders of Schedule A and B land respectively. They were the occupancy tenant under the original pattadar. Santhar Boro died leaving behind his wife and a daughter who also died leaving behind the plaintiff as the only legal heir. The plaintiff inherited the property of Santhar Boro as shown in Schedule B of the plaint. It was pleaded that he was an occupancy tenant and entitled to get all protections under the Assam (Temporarily Settled Areas) Tenancy Act, 1971. The present defendants/ appellants filed Title Suit No. 58/1977 against the plaintiff/ respondent and his elder brother in the court of learned Assistant District Judge No. 1, Guwahati for declaration of their title and recovery of possession over the suit land described in Schedule A and B along with other land. The suit was partly decreed declaring right title of the plaintiff No. 1 over the suit land vide judgment dated 20.02.1984. In the said judgment, the learned Assistant District Judge No. 1, Guwahati while discussing issues No. 5 and 6 found that the khatian of the plaintiffs/ respondents were valid. The suit was partly decreed declaring right title of the plaintiff No. 1 over the suit land vide judgment dated 20.02.1984. In the said judgment, the learned Assistant District Judge No. 1, Guwahati while discussing issues No. 5 and 6 found that the khatian of the plaintiffs/ respondents were valid. It was also held in the issues No. 7 and 8 that the defendants/ appellants were not entitled to get a decree for recovery of possession. The defendants/ appellants again filed Title Suit No. 253/1984 against the present plaintiff/ respondent with respect to the same land with a prayer for declaration of title and recovery of possession thereon. An ex parte decree was obtained by the defendants/ appellants without serving summons as per the provisions of the Code of Civil Procedure on the plaintiff/ respondent. The defendants/ appellants suppressed the fact and the result of their earlier Title Suit No. 58/1977 and fraudulently managed to obtain a decree and also a report of Civil Nazir in Title Execution Case No. 15/1989 showing to have obtained possession of decreetal land on 29.06.1990 by the defendants/ appellants. The report of Nazir, as pleaded by the plaintiff/ respondent, was false and manufactured and no possession was delivered to the defendants/ appellants. On the strength of the said ex parte decree and the report of the Nazir in Title Execution Case No. 15/1989, the defendants/ appellants started harassing the plaintiff/ respondent by filing various criminal cases. While the plaintiff/ respondent was contesting the said criminal cases, he could come to know for the first time on 20.03.1992 about the institution of the Title Suit No. 253/1984 and Title Execution Case No. 15/1989 from the certified copies of documents filed by the defendants/ appellants in the court of Executive Magistrate. Accordingly, the plaintiff/ respondent filed the suit for declaration and the reliefs mentioned hereinabove. 3. The defendants/ appellants contested the claim of the plaintiff/ respondent, filed their joint written statement and took the defence that on 18.03.1966, the defendant/ appellant No. 1 purchased the suit land from its original pattadars and thereafter obtained possession thereon the suit land. The name of the defendant/ appellant No. 1 was mutated in the Revenue Records in the year 1968. The name of the defendant/ appellant No. 1 was mutated in the Revenue Records in the year 1968. The defendants/ appellants while possessing the suit land, the plaintiff/ respondent along with his brother tried to trespass into the suit land and as such, Title Suit No. 58/1977 was filed. The said suit was decreed on contest declaring title of the defendants/ appellants over the suit land. The plaintiff/ respondent afterwards tried to forcibly occupied a portion of the suit land and as such Title Suit No. 253/1984 was instituted against the plaintiff/ respondent and his brother, Santhar Boro. Summons were duly served on the plaintiff/ respondent. However, owing to nonappearance, the suit was decreed ex parte and the same was executed properly and the defendants/ appellants were maintaining possession over the suit land. It was also taken as the defence that the alleged khatian of the plaintiff/ respondent was cancelled by the settlement officer on 16.09.1964 and the plaintiff/ respondent nor did his brother ever occupy the suit land as tenant under the vendors of the defendants/ appellants. Accordingly, the defendants/ appellants prayed for dismissal 4. On the basis of the pleadings, the following issues were framed by the learned trial court:- 1. Whether the suit is maintainable? 2. Whether the suit is barred by principle of resjudicata? 3. Whether the suit is barred by limitation? 4. Whether proper court fee has been paid? 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether the defendants have purchased the suit land by a registered sale deed for available consideration from the pattadars? 7. Whether the alleged khatian of the plaintiff was cancelled by the settlement officer by the order dated 16.09.1964? 8. Whether the plaintiff is entitled to get decree as prayed for? 9. What other relief/reliefs, if any, parties are entitled to? 5. The plaintiff/ respondent in support of his case examined 3 (three) witnesses and on the other hand, the defendants/ appellants examined 2 (two) witnesses. The plaintiff/ respondent filed some documents along with the plaint such as copy of judgment and decree of title suit No. 58/1977, copy of the plaint of title suit No. 253/1984, ex parte judgment and decree passed in title suit No. 253/1984 and the report of the Nazir. The plaintiff/ respondent filed some documents along with the plaint such as copy of judgment and decree of title suit No. 58/1977, copy of the plaint of title suit No. 253/1984, ex parte judgment and decree passed in title suit No. 253/1984 and the report of the Nazir. The original case record of title suit No. 253/1984 could not be traced out and as such, the parties were allowed to place secondary evidence. The trial court vide its judgment and decree dated 19.12.2000, decreed the suit in favour of the plaintiff/ respondent. While decreeing the suit, the learned trial court discussed each and every issues so framed. The learned trial court while discussing issue No. 1 came to the finding that the defendants/ appellants while filing title suit No. 253/1984 did not mention the result and filing of earlier title suit No. 58/1977 in the plaint. The issue No. 7 covers as to whether the khatian in the name of plaintiff/ respondent was cancelled by the Settlement Officer vide order dated 16.09.1964. The learned trial court while discussing issue No. 7 came to the finding that the plaintiff/ respondent had the knowledge that the said khatian(s) were cancelled on 16.09.1964. Thereafter, the court below took into consideration the deposition of DW 1 and held that khatian No. 21 was cancelled. The learned trial court also considered the judgment passed in title suit No. 58/1977. On perusal, the learned trial court made an observation that issues No. 5 and 6 discussed in the judgment passed in title suit No. 58/1977, mentioned that the plaintiff/ respondent’s khatian(s) were still valid. Giving stress on the said finding, the learned trial court abruptly came to the finding that the matter had already been raised by the plaintiff/ respondent in title suit No. 58/1977 in respect of cancellation of khatian and as such the issue NO. 7 cannot be adjudicated. Thus, the learned trial court failed to give its finding with regard to the issue No. 7. The learned trial court further, while deciding issue No. 9 took up the allegation made in the plaint that the ex parte decree passed in title suit No. 253/1984 was obtained fraudulently and keeping that mind setup, put the burden to disprove the fact of fraud on the defendants/ appellants. The learned trial court further, while deciding issue No. 9 took up the allegation made in the plaint that the ex parte decree passed in title suit No. 253/1984 was obtained fraudulently and keeping that mind setup, put the burden to disprove the fact of fraud on the defendants/ appellants. The court below held that the defendants/ appellants failed to examine the concerned Nazir or other official witnesses to substantiate that the possession of the suit land was really delivered to them. Without any material piece on record, the learned trial court came to its own finding that the report was found to be a vague one as it does not contain proper boundary shown in the schedule of land. The court below finally held that the report of the Nazir was a collusive one. Thereafter analysing the evidence on record, the learned trial court disbelieved the deposition of DW 2 that possession of the suit land was delivered to the defendants/ appellants in execution of the decree and considering certain inferences, the trial court came to the finding as follows:- “On analysing the evidence of DW 2 along with other evidence it could be inferred that once the plaintiff was the occupancy tenant under the defendants/ appellants.” With such material findings, the learned trial court finally held that the defendants/ appellants practised fraud to obtain ex parte order and decree and the same was set aside. It is pertinent to mention here that the plaintiff/ respondent never even called any of the official witnesses from the concerned executing court in order to discharge his initial burden of proof. 6. Being aggrieved, the defendants/ appellants preferred title appeal No. 11/2001 in the court of learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati, challenging the judgment and decree passed by the learned trial court. The learned first appellate court vide its judgment and decree dated 20.03.2003 dismissed the appeal by upholding the findings of the learned trial court. The findings of the learned first appellate court is almost similar to the findings of the trial court, however, to some extent cryptic in nature. 7. The defendants/ appellants on the dismissal of the first appeal preferred the present second appeal which was admitted on 29.04.2013 on the following substantial questions of law:- 1. The findings of the learned first appellate court is almost similar to the findings of the trial court, however, to some extent cryptic in nature. 7. The defendants/ appellants on the dismissal of the first appeal preferred the present second appeal which was admitted on 29.04.2013 on the following substantial questions of law:- 1. Whether the Court below committed error by holding that the judgment and decree passed in Title Suit No. 253/84 was obtained by fraud? 2. Whether the Court below committed error by upholding that the respondent was entitled to the possession on the basis of the khatian which was the subject matter of the Title Suit No. 58/77? 3. Whether the Khatian as claimed by the respondent was a valid Khatian in the eye of law? 8. Mr. Bordoloi, learned counsel for the appellants, submits that the findings of both the courts below are not at all based on any material piece of evidence. It is submitted that the plaintiff/ respondent had alleged about the fraudulent acts purportedly perpetrated by the defendants/ appellants in order to obtain the ex parte decree in Title Suit No. 253/1984. However, except the use of word ‘fraud’ in the plaint, the mode on the basis of which the said fraud was perpetrated had not been pleaded in complete violation to the provisions under Order VI of the CPC. A vague allegation is that the ex parte decree in title suit No. 253/1984 was obtained fraudulently by the defendants/appellants. There was no endeavour on the part of the plaintiff/ respondent at least to discharge their initial burden in order to prove the said fraud. It is also submitted that the Exhibit-Kha, the order of cancellation of khatian dated 30.08.1979 was exhibited and is on record as Exhibit-Kha. The learned courts below failed to consider the said exhibit. Instead, the learned trial court came to the finding that as the said issue was already decided in title suit No. 58/1977 while discussing issues No. 5 and 6 in the said judgment, accordingly, the same i.e. the Exhibit- ‘Kha’ was never considered nor recorded anything with respect to the said order of cancellation. Instead, the learned trial court came to the finding that as the said issue was already decided in title suit No. 58/1977 while discussing issues No. 5 and 6 in the said judgment, accordingly, the same i.e. the Exhibit- ‘Kha’ was never considered nor recorded anything with respect to the said order of cancellation. It is submitted that a finding which was given by the Court way back in the year 1984 is bound to change and a Court has a duty cast upon it to consider the said issues afresh when there is change in circumstances and a suit is filed on the accrual of fresh cause of action other than the one on the basis of which the earlier suit was filed. Mr. Bordoloi submits that the fact of cancellation of khatian is well within the knowledge of the plaintiff/ respondent as evident from his deposition. In such a situation, coupled with the Exhibit-Kha gives a preponderance that the plaintiff/ respondent has no right to continue with their status of a tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971. Summing up his submissions, Mr. Bordoloi further reiterates that the judgment impugned in this appeal are liable to be set aside along with the substantial questions of law so framed be decided in favour of the defendants/ appellants. 9. Considered the submissions of the learned counsel for the appellants. Perused the available records and the judgments passed by the learned courts below. As pointed out by Mr. Bordoloi, except a vague allegation made in the plaint there is no such substantive allegation with regard to the fraud and the manner in which it was played while obtaining the said ex parte decree by the defendants/ appellants. On the top of it, the learned trial court while discussing the issue No. 9 came to the finding that the defendants/ appellants had failed to call the Nazir in order to disprove the fact of fraud. This is clearly a wrong finding which had been upheld by the learned first appellate court, inasmuch as, the initial burden never shifts from the plaintiff. It is the onus which shifts from moment to moment, from the submissions and the material piece of evidence adduced to the suit. However, once the evidence of both the parties are on record, the question of onus does not count but the initial burden remains all throughout. It is the onus which shifts from moment to moment, from the submissions and the material piece of evidence adduced to the suit. However, once the evidence of both the parties are on record, the question of onus does not count but the initial burden remains all throughout. There is no iota of a single piece of evidence on record to hold that the judgment and decree passed in title suit No. 253/1984 was obtained fraudulently. Accordingly, the substantial question of law No. 1 is decided in favour of the defendants/ appellants. 10. Regarding the substantial question of law No. 2, this court finds that with the materials on record, the courts below ought to have considered the piece of evidence i.e. Exhibit-Kha and keeping in view of the said order of cancellation of khatian in the name of the plaintiff/ respondent and/or his predecessor-in-interest, the courts below ought to have given a finding vis-a-vis the findings of issues No. 5 and 6 in title suit No. 58/1977 which both the courts below have not done. Evidence, documentary or oral is to be considered whether it helps the parties or not. If it is not helpful, a finding must be there while discarding the said evidence. Merely discarding the said evidence without any reasoning, a judgment, so passed, cause prejudice to the party adducing the said material piece of evidence. Accordingly, substantial question of law No. 2 is also decided in favour of the defendants/ appellants. Without further entering into the legality and validity of khatian referred in the substantial question of law No. 2 vis-a-vis Exhibit – ‘Kha’, this court finds that the judgment and decree passed by the learned first appellate court being the final court of facts ought to have discussed the material piece of evidence on record within the broad ambit and scope of Order XLI Rule 31 of the CPC. Mere discussions of the issues in a cryptic manner upholding the findings of the trial court leaving aside other materials on record put forth by a party marking as exhibit cannot be considered to be a judgment within the parameters of Order XLI Rule 31 of the CPC. Mere discussions of the issues in a cryptic manner upholding the findings of the trial court leaving aside other materials on record put forth by a party marking as exhibit cannot be considered to be a judgment within the parameters of Order XLI Rule 31 of the CPC. Accordingly, the judgment and decree passed by the learned first appellate court is set aside and the matter as a whole is remanded back to the learned first appellate court for passing a judgment afresh discussing all the materials on record. Accordingly, this appeal succeeds. 11. The learned first appellate court shall immediately on receipt of the LCRs issue notices to the parties to the appeal informing the date for appearance and thereafter dispose of the appeal preferably within a period of 3 (three) months from the receipt of the LCRs. 15. Send down the LCRs immediately.