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2019 DIGILAW 958 (GAU)

Adity Das v. Moloka Das

2019-08-29

PRASANTA KUMAR DEKA

body2019
JUDGMENT : Prasanta Kumar Deka, J. Heard Mr. A. Thakur, the learned counsel for the appellants. Also heard Mr. A. Khanikar, the learned counsel for the respondent. 2. In the second appeal, Judgment and decree dated 19.12.2008 is under challenge which was passed by the learned District Judge at Jorhat in Title Appeal No. 3/2007. The suit was filed by Late Paniram Das, the predecessor-in-interest of the present appellants. So, the appellant herein shall mean the original plaintiff. The present appellant as the plaintiff filed Title Suit No. 63/1995 in the Court of learned Civil Judge (Senior Division), Jorhat for declaration of his right title and interest confirming his possession in respect of the land described in Schedule B of the plaint and that none other than the plaintiff is the lawful owner thereof and for declaration that the defendant/respondent is a defaulter in the eye of law and the plaintiff/appellant requires the tenanted room for his bona-fide requirement standing over the Schedule-C land and for eviction of the defendant/respondent. The case of the plaintiff/appellant is that his father Khageswar Kaibarta and one Kamal Saikia jointly owned the land measuring 1 katha 9 less as. After the death of Khageswar Kaibarta, the plaintiff/appellant inherited the land and his name was mutated in the Record of Rights. On the basis of an imperfect partition, the land measuring 14 less as fell in the share of the plaintiff/appellant. The defendant/respondent approached the plaintiff/appellant for temporary accommodation which was allowed in respect of a room at a monthly rent of Rs. 35/- (Rupees thirty-five) on the condition that the defendant/respondent would vacate the room as and when asked for. On being demanded by the plaintiff/appellant, the defendant/respondent refused to vacate the room and later on collected building materials for construction and extension of the said room standing over the Schedule- C land. The defendant/respondent started construction over 6 less as of land which is the suit land forming part of the 14 less as of land described in Schedule- B. Accordingly, on the basis of the said cause of action, the suit was filed for the relief’s stated hereinabove. 3. The defendant/respondent contested the suit by filing the written statement wherein stand of the defendant/respondent is a specific denial of the plea that he is a tenant under the plaintiff/appellant. 3. The defendant/respondent contested the suit by filing the written statement wherein stand of the defendant/respondent is a specific denial of the plea that he is a tenant under the plaintiff/appellant. It is pleaded that originally one Bhogeswar Das was the owner of the said land and in the year 1941-42, the entire land was sold in a revenue sale case and Kamal Saikia purchased the entire land. The said Kamal Saikia sold the land to the predecessor-in-interests of both the plaintiff and defendant but the name of the father of the plaintiff/appellant was mutated only. In the year 1966-67, the entire suit land was again sold to one Upendra Nath Hazarika in a land sale case who subsequently sold 9 1/3 less as of land to one Paniram Das, the plaintiff/appellant and his brother Deharam Das and 9 & 1/3 less as of land to the defendant/respondent Moloka Das and his brother Manbahal Das. Since then, the defendant/respondent had been possessing the suit land as his own land. 4. On the basis of the pleadings of the parties the following issues were framed: Issue No.-1: Whether there is cause of action for the suit? Issue No.-2: Whether the plaintiff is the lawful owner of the suit land having right, title and interest thereon? Issue No.-3: Whether the imperfect partition accorded to the plaintiff under Section 99 of the Assam Land & Revenue Regulation is in confirmation of the conformity of possession of the plaintiff? Issue No.-4: Whether the defendant is liable to be evicted from the suit land? Issue No.-5: Whether the defendant is tenant under the plaintiff in respect of the suit premise? Issue No.-5(A): Whether the defendant is defaulter and whether the plaintiff is in bonafide requirement of the suit land? Issue No.-6: To what relief/relief’s the parties are entitled? 5. The plaintiff/appellant examined two witnesses and on the other hand, the defendant/respondent adduced evidence of one official witness without examining the defendant/respondent himself. The learned Trial Court decreed the suit and while doing so, the Issue No. 2 was decided in favour of the plaintiff/appellant. Issue No.-6: To what relief/relief’s the parties are entitled? 5. The plaintiff/appellant examined two witnesses and on the other hand, the defendant/respondent adduced evidence of one official witness without examining the defendant/respondent himself. The learned Trial Court decreed the suit and while doing so, the Issue No. 2 was decided in favour of the plaintiff/appellant. The learned trial Court took note of the Exhibit- 2, the certified copy of Jamabandi covering total land measuring 1 katha 9 less as which shows the name of one Kamal Chandra Saikia and the plaintiff/appellant, whose name is purportedly shown to be recorded on the basis of Gift and possession, in place of Khageswar Kaibarta, the father of the plaintiff/appellant. The trial Court also took note of the land revenue payment receipts and Exhibit- 5, the order dated 17.12.1992 passed in imperfect partition case No. 90/90-91 by the Additional Deputy Commissioner, Jorhat. By the said order, land measuring 14 less as of land was partitioned. The trial Court also considered the certified copies of the registered Sale Deeds, Exibit- A, B and C which were produced by the defendant/respondent s side though the defendant/respondent did not grace the witness box. However, the trial Court discarded the said evidence on the ground that the plaintiff/appellant denied the execution of the said deed produced by the defendant/respondent during the cross-examination and as such the genuineness of the deed was denied, the defendant/respondent failed to discharge his onus in respect of execution of the deed by producing original one as per the law. Finally, it held that the plaintiff/appellant proved both by oral as well as documentary evidence his title over the said land as appeared from the Exhibit-2, Exhibit- 5 and Exhibit- 7. While doing so, the admission made in the written statement by the defendant/respondent that the name of the father of the plaintiff/appellant was recorded after the total land was purchased from Kamal Saikia in the name of both fathers of the plaintiff/appellant and the defendant/respondent was considered. The trial Court held the Issue No. 5 against the plaintiff/appellant by holding that he failed to prove the landlord-tenant relation with the defendant/respondent. On the basis of the finding in Issue No. 2 that the plaintiff/appellant has right, title and interest over the said land, the suit for recovery of possession on the basis of title was allowed in favour of the plaintiff/appellant. 6. On the basis of the finding in Issue No. 2 that the plaintiff/appellant has right, title and interest over the said land, the suit for recovery of possession on the basis of title was allowed in favour of the plaintiff/appellant. 6. Being aggrieved, the defendant/respondent filed Title Appeal No. 3/2007 in the Court of learned District Judge at Jorhat. The said Title Appeal was decided in favour of the defendant/respondent by holding that the suit was bad for non-joinder of necessary parties. Thereafter, the second appeal was filed, which was admitted on 06.06.2009 on the following substantial question of law: Whether the finding of the learned lower Trial Court is not in accordance with the provisions of Order XLI Rule 31 of the CPC? 7. Mr. Thakur submits that the First Appellate Court, while passing the judgment, utterly failed to comply with the requirement under Order XLI Rule 31 of the CPC. The point for determination was not recorded by the Court below which clearly violates the principle enunciated by the Supreme Court regarding disposal of appeal under Section 96 CPC. There was no issue wise discussion while passing the judgment nor there was discussion of the evidence on record. It is his contention that the learned Court below discussed as to the applicability of the provisions under Order XLI Rule 27 of the CPC while disallowing an application filed by the defendant/respondent to file additional evidence, that apart so far the merit of the case is concerned, the Court below failed to discuss. Accordingly, the judgment passed by the First Appellate Court is hit under the provision of Order XLI Rule 31 of the CPC. 8. Mr. Khanikar, on the other hand, submits that the judgment passed by the First Appellate Court conforms to the requirement under Order XLI Rule 31 of the CPC. The Court below recorded the issues framed by the learned trial Court and thereafter discussed the evidence on record wherefrom the Court below came to the finding that the suit was bad for non-joinder of necessary parties. 9. The submissions of the learned counsel are considered. The right of an appellant under Section 96 of the CPC is a valuable right. The First Appellate Court has its duty to come to an independent finding in each and every issue framed by the trial Court. 9. The submissions of the learned counsel are considered. The right of an appellant under Section 96 of the CPC is a valuable right. The First Appellate Court has its duty to come to an independent finding in each and every issue framed by the trial Court. It has the power even to frame additional issues if it thinks fit. Further, it has the power to ask the parties to adduce further evidence. In the totality of the contour defining the scope of the First Appellate Court as provided under Section 96 and Order XLI Rule 31 of the CPC is almost similar to that of the trial Court. Accordingly, if the First Appellate Court fails to comply with the mandate under Order XLI Rule 31 of the CPC., the second appellate court has its power to intervene and after setting aside the judgment, the suit can be remanded for passing the judgment afresh after considering all the materials including the evidence on record. 10. Keeping in mind the aforesaid principle, let me scrutinize the judgment passed by the first appellate court. The first appellate court, considering the evidence on record, came to the finding that the plaintiff/appellant failed to establish his relationship with the defendant/respondent as landlord-tenant. It considered Exhibit-2, the certified copy of Jamabandi, Exhibit- 3, the revenue receipts, Exhibit- 4, 5 and 6 the certified copies of orders passed in the partition case. It also considered Exhibit- 7, the certificate in respect of partition. It took note of the admission in the written statement that the entire land was sold to Kamal Saikia in a revenue sale case which was initiated for non-payment of revenue. Thereafter, Kamal Saikia sold the entire suit land to the predecessor-in-interests of the plaintiff and the defendant but only the name of the father of the plaintiff was mutated in respect of the suit land. Considering the said admission, the First Appellate Court held that the plaintiff/appellant was successful to prove that the land belonged to his father and one Kamal Saikia inasmuch as the defendant/respondent failed to produce any sale deed of the sale transaction with his father. 11. The learned appellate court considered the evidence of PW 1, wherein it was admitted that the plaintiff/appellant had his sister and two brothers. The sister expired but left one son and a daughter. 11. The learned appellate court considered the evidence of PW 1, wherein it was admitted that the plaintiff/appellant had his sister and two brothers. The sister expired but left one son and a daughter. The brothers of the plaintiff/appellant were alive at the time of filing the suit and they were not impleaded as necessary parties. The First Appellate Court rightly came to the conclusion that on the death of the father of the plaintiff/appellant, he along with his brothers and sister inherited the suit property. 12. Regarding the possession of the defendant/respondent, the First Appellate Court came to the finding that the defendant though failed to establish his title but his possession over the suit land was proved and further considering the evidence on record, held that the defendant/respondent was not a trespasser. Accordingly, the plaintiff/appellant failed to prove as to how the defendant/respondent came into possession of the suit land. Finally, it came to the conclusion that the plaintiff being not the absolute owner of the property cannot evict the defendant without joining his brothers and sister unless it is established that how the defendant came into possession of the suit land. Accordingly, the Court below held that the suit was bad for non-joinder of necessary parties. On the basis of the said finding, the learned First Appellate Court reversed the finding of the learned Trial Court. 13. In the plaint, the plaintiff/appellant pleaded that the defendant/respondent was a monthly tenant in respect of a room and the monthly rent was Rs. 35/-. The said burden was not discharged by the plaintiff/appellant. The plaintiff/appellant also failed to prove that the defendant/respondent is a trespasser inasmuch as in the plaint he pleaded that the defendant/respondent is a tenant under him. The plaintiff/appellant sought for declaration of his right title and interest over the suit land, i.e. the Schedule-B land, which is on the basis of the partition with Kamal Saikia. If the said pleading is taken into consideration, then the father of the plaintiff/appellant and Kamal Saikia were co-owners and on the death of the father of the plaintiff/appellant, the land described in Schedule-B, which the plaintiff/appellant claimed on the basis of a partition with Kamal Saikia, devolved on all the legal heirs of the father of the plaintiff/appellant which includes his brothers and sister. Under such factual matrix, the process of partition is itself unacceptable inasmuch as the said partition was not amongst the legal heirs of Late Khageswar Kaibarta, the father of the plaintiff/appellant but with Kamal Saikia, the other cosharer. As there is no evidence that there was partition amongst the legal heirs of Khageswar Kaibarta, the learned First Appellate Court held that the suit is bad for non-joinder of necessary parties inasmuch as PW 1, in his evidence deposed that Khageswar Kaibarta died, leaving behind two sons and one daughter including the plaintiff/appellant. 14. Mr. Thakur, in support of his contention, relied on the cases of C. Venkata Swamy Vs. H.N. Shivanna (Dead) by legal representative and Anr., (2018) 1 SCC 604 ; Nagen Chandra Das & Ors. Vs. Abhijit Deb & Ors., (2017) 3 GauLT 761 ; Laliteshwar Prasad Singh and Ors. Vs. S.P. Srivastava (Dead) through legal representatives, (2017) 2 SCC 415 ; Gaffar and Anr. Vs. Jakrun Nessa and Anr., (2008) 2 GauLT 186 . Mr. Thakur relies specifically on decision of the Hon ble Supreme Court in the case of C. Venkata Swamy Vs. H.N. Shivanna (Dead) by legal representative and Anr., (2018) 1 SCC 604 , wherein it was held that under Order XLI Rule 31 CPC mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Mr. Thakur also relies on a decision of the Guwahati High Court reported in the case of Simantajyoti Baruah Vs. Chairman, ASEB & Ors., (2017) 1 GauLT 294 . Relying on the said decision Mr. Thakur submits that the point for determination is mandatory to be recorded by the first appellate court. 15. Mere omission to record the point for determination in my opinion is not fatal nor it vitiates the judgment of the First Appellate Court if it records its reasoning based on evidence adduced by the parties. The Apex Court in Laliteshwar Prasad Singh and Others Vs. S.P. Srivastava (Dead) through legal representatives, (2017) 2 SCC 415 held as follows: 12. Mere omission to record the point for determination in my opinion is not fatal nor it vitiates the judgment of the First Appellate Court if it records its reasoning based on evidence adduced by the parties. The Apex Court in Laliteshwar Prasad Singh and Others Vs. S.P. Srivastava (Dead) through legal representatives, (2017) 2 SCC 415 held as follows: 12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give it reasonings based on evidence. Order 41 Rule 31 CPC reads as under: 31.Contents, date and signature of judgment.- The judgment of the appellate court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; And shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein. It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties. 16. Point for determination must be recorded on the basis of the submissions raised before the First Appellate Court by the counsel and to determine the issues involved there in the appeal. The said issues must be confined in my opinion, in respect of the findings rendered by the trial court considering the pleadings of the parties and evidence on record and the manner of appreciation resorted to by the trial court and the law point involved. So, the First Appellate Court must revisit the evidence on record and discuss the relevant issues raising the disputes between the parties and give its finding on such issues. If the First Appellate Court gives its finding conforming the aforesaid criteria, then non recording of the point for determination does not vitiate the judgment of the First Appellate Court. So, the First Appellate Court must revisit the evidence on record and discuss the relevant issues raising the disputes between the parties and give its finding on such issues. If the First Appellate Court gives its finding conforming the aforesaid criteria, then non recording of the point for determination does not vitiate the judgment of the First Appellate Court. But, if the First Appellate Court failed to discuss the evidence on record, it would definitely violate the provision under Order XLI Rule 31 of the CPC. In the present case in hand, the learned First Appellate Court having recorded the issues framed by the trial court came to the finding that the plaintiff/appellant is not the absolute owner and cannot evict the defendant without joining his brothers and sister. This finding of the First Appellate Court finds support of this Court inasmuch as the plaintiff/appellant sought for the declaration of his absolute right, title and interest over the Schedule-B land which forms the land in the partition case between the plaintiff/appellant and Kamal Saikia but not between the plaintiff and his other brothers and sister. Moreover, there is no pleadings to the effect that the defendant is the trespasser over the joint property of the legal heirs of Khageswar Kaibarta, the father of the plaintiff/appellant and he has filed the suit on behalf of all the legal heirs as one of its co-owners to evict the trespasser. No presumption to that effect can be taken, as the plaintiff/appellant sought for his absolute ownership over Schedule -B property of the plaint. Under such circumstances, the finding that the plaintiff is not the absolute owner in respect of the Schedule-B land is proper which requires no interference by this Court. 17. Mr. Thakur also submits that the First Appellate Court went wrong inasmuch as there was no issue as to non-joinder of necessary parties and the Court below ought to have framed the issue to that effect and after setting aside the Judgment and Order passed by the learned Trial Court ought to have remanded the same for a decision on the basis of an additional issue of non-joinder of necessary parties. 18. In respect to the said submission of Mr. 18. In respect to the said submission of Mr. Thakur, it cannot be accepted inasmuch as there is a specific plea in the written statement that the father of the plaintiff/appellant without mutating the names of the other two brothers i.e. Sabhai Das and Dhondal Das mutated his name only. As there is a specific defence in the written statement, an onus was laden upon the plaintiff/appellant at least to bring on record the said persons whom the plaintiff/appellant failed to implead. In the cross-examination, the said fact was admitted by the PW 1 and under such circumstances, in my opinion, there is no requirement for framing the issues inasmuch as it is within the knowledge of the plaintiff/appellant the defence taken by the defendant/respondent thereby putting on the onus on the plaintiff/appellant to disprove the said fact of non-joinder of necessary parties which the plaintiff/appellant failed miserably. Accordingly, the submission of Mr. Thakur cannot be accepted. 19. From the discussions hereinabove, the substantial question of law is decided in the negative and the second appeal stands dismissed. Send back the LCR.