High Court
Case Details
RSA 18/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. B.R. Dey, learned Sr. counsel for the appellants/defendants an d Mr. P.K. Roy, the learned counsel appearing for the respondents/plaintiffs. This appeal by the defendants is directed against the judgment and decre e dated 25.06.2010 passed by the learned Civil Judge, Karimganj, in Title Appeal No.83/2006, dismissing the appeal preferred by them by affirming the judgment a nd decree dated 11.09.2006 passed by the learned Civil Judge (Jr. Division) No.1 , Karimganj, in Title Suit No.338/1990, whereby and whereunder the suit of the p laintiffs/respondents was decreed. The respondents as plaintiffs instituted the said suit in the Court of t he learned Munsiff No.1, Karimganj, praying for declaration of jote right over S chedule-I land and for khas possession over the land described in Schedule-II to the plaint and also for declaration that the defendants have no right, title an d interest over the suit land and to restrain them from disturbing the possessio n of the plaintiffs or enjoyment or cultivation etc., apart from permanent injun ction, contending inter alia that the plaintiffs, who are the successor-in-inter est of Dwijendra Ch. Dey, who was Jotedar in relation to Schedule-1 land belongi ng to Hasanpur Estate being the lessee under the former Jamindar Md. Abdul Hoque Choudhury, was issued with the Khatian in respect of the Schedule-1 land. Accor ding to the plaintiffs, after the death of Dwijendra, they inherited the right o ver the property and were enjoying the same. It has further been contended that the defendants, despite having no right, title and interest over the suit land i llegally entered into the land of the plaintiffs described in Schedule-2 to the plaint and tried to evict the plaintiffs forcibly and to construct the house ove r the said land, for which the suit has to be instituted. The suit of the plaintiffs has been contested by the defendants by filin g three sets of written statements, contending inter alia that the documents ref erred to in the plaint of the plaintiffs are all fabricated documents prepared f or the purpose of the case and with a view to grab the suit properties and that they are possessing the suit land by constructing dwelling house as well as cult ivating Boro paddy for a long time. It has also been pleaded that the father of the defendant No.1 purchased the suit land along with other land from Sunahar Al i by registered instrument dated 22.11.1960. According to the defendants Sunahar Ali purchased the land through the Court auction long past and was delivered wi th the possession. The Trial Court based on the pleadings of the parties, framed the follow ing issues for determination:- 1. 2. 3. nd? 4. Whether there is any cause of action for the suit? Whether the suit is maintainable in its present form? Whether the plaintiffs have right, title and possession over the suit la To what relief or reliefs if any the plaintiffs are entitled to? Based on the evidence adduced by the parties the Trial Court by the afor esaid judgment decreed the suit of the plaintiffs. Being aggrieved the defendant s preferred the aforesaid appeal, which has been dismissed. Hence the present ap peal. Upon hearing the learned counsel for the parties, the appeal has been ad mitted today on the following substantial question of law:- Whether the judgment passed by the First Appellate Court is in conformity with t he provisions of Order 41 Rule 31 CPC? As agreed to by the learned counsel for the parties, the appeal is taken up for hearing and disposal today itself. It has been contended by the learned Sr. counsel for the appellants that though the question of legality and validity of the lease deed (Ext.-4), based on which the plaintiffs have claimed the jote right, has been raised, the First Appellate Court did not go into that aspect of the matter while deciding the iss ue No.3. It has also been submitted that the First Appellate Court did not in fa ct record any finding relating to the submissions advanced by the learned counse l for the parties, though it has noticed the argument advanced. The learned Sr. counsel, therefore, submits that the judgment and decree passed by the First App ellate Court needs to be set aside and the appeal may be remitted to the First A ppellate Court for deciding the same afresh, on the basis of the evidence alread y adduced by the parties. The learned counsel appearing for the respondents, on the other hand, su pporting the judgment and decree passed by the Appellate Court, has submitted th at though the First Appellate Court, upon noticing the argument advanced by the learned counsel appearing for the parties, did not specifically rejected the con tention of the appellants, it appears from the judgment passed that such content ion has been rejected by upholding the judgment and decree passed by the Trial C ourt. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by the Courts below. It appears from the judgment passed by the First Appellate Court that th ough the First Appellate Court has recorded the submissions advanced by the lear ned counsel appearing for the parties against issue No.3, no finding has however been recorded either rejecting or accepting the submissions advanced by the lea rned counsel. The First Appellate Court having noticed the submissions has abrup tly come to the finding that no illegality has been committed by the Trial Court in deciding the issue No.3. The First Appellate Court being the final Court on facts is required to discuss all the evidence on record and consider the submissions advanced, though the detailed discussion of evidence, in case of upholding the judgment and decr ee under challenge, may not be required. As noticed above, the First Appellate C ourt did not even record any finding on issue No.3 except saying that no illegal ity has been committed by the Trial Court while deciding the issue. In view of the above, the judgment and decree dated 25.06.2010 passed by the First Appellate Court is set aside. The appeal is remitted to the First App ellate Court for deciding the same afresh within a period of 2(two) months from the date of appearance of the parties, on the basis of the evidence already on r ecord. Issue Nos.1 and 2 need not be gone into as the learned counsel appearing for the appellants has submitted that the said issues have rightly been decided by both the Courts below. The parties are directed to appear before the First Ap pellate Court on 07.10.2013. The appeal is accordingly allowed. No costs.