High Court
Case Details
RSA 108/2001 BEFORE HON’BLE MR. JUSTICE A K GOSWAMI JUDGMENT & ORDER (ORAL) Heard Mr. B R Dey, learned senior counsel for the appellants and Mr. L K Borah, learned counsel for the sole respondent.
Legal Reasoning
This appeal is preferred by the appellants against the judgment 2. and decree dated 18.04.2001 passed by the learned Civil Judge (Senior Division) Goalpara in Title Appeal No.5 of 2000 dismissing the appeal of the appellants an d upholding the judgment and decree dated 22.11.99 passed by the learned Civil J udge (Junior Division) No.1, Goalpara in Title Suit No. 33 of 1993 decreeing the suit of the plaintiff and directing preparation of preliminary decree for parti A final decree may pleased be passed on the basis of the report of the C declaring the plaintiff’s 1/6th right over the suit property as stated i tion in terms of the decree. 3. The sole respondent was the plaintiff. The suit was originally f iled in the year 1989. The case set out in the plaint, briefly, is that her husb and Narendra Chandra Brahma was the owner in possession of land described in the schedules of the plaint and also of a Cinema Hall. Narendra Chandra Brahma died about 8/10 years back leaving behind the plaintiff, defendants and proforma def endants in the suit. After death of Narendra Chandra Brahma, the plaintiff and the defendants were receiving their share of paddy and also the profits of the C inema Hall. Proforma defendants had expressed their unwillingness to take their share. The plaintiff was denied her share from the first week of December, 1988 though she was entitled to 1/6th portion of the share and hence, the suit was filed with the following reliefs: (cid:28)a. n schedules and pass a preliminary decree against the defendants in respect of t he land and Cinema House mentioned in the Schedule. a direction may kindly be given to the collector of the Goalpara Distri b. ct appointing him as Commissioner for implementation of preliminary decree for p artition and for partition of the suit land and property as per the decree and d emarcating the share of the plaintiff. c. ommissioner. Decree be passed against d. e. A receiver may please be appointed to look after the earnings of the Cin ema Hall mentioned in the Schedule-’C’, so that the plaintiff may get her due sh are. f. ntitled under the law and equity: (cid:29) 4. Defendants No.4 and 5 had submitted their written statement supp orting the case of the plaintiff and they also claimed 1/6th share each. The wri tten statement was also filed by the defendants No. 1,2 ,3 and proforma defendan t No.10. Besides taking the usual pleas such as suit being barred by limitation , non-joinder of necessary parties etc, it was pleaded that the plaintiff was no t the wife of Narendra Chandra Brahma and he did not marry the plaintiff as per Kachari system of Hindu Rites. Narendra Chandra Brahma was married to Smti Damay anti Brahma, the mother of the defendants No.1,2,3 and proforma defendants. The plaintiff was only engaged as a maid servant in the house of Narendra Chandra B rahma and the case projected by the plaintiff is utterly false. It was also plea ded that the Cinema Hall was owned by the defendant No.1 and the licence, too, w as in the name of defendant No.1, and, therefore question of distribution of p rofits of the Cinema Hall and appointment of receiver for that purpose did not a rise in any view of the matter. It was also denied that plaintiff is entitled to Decree may be passed for any other relief as to which the plaintiff is e the defendants. any share on the property of deceased Narendra Chandra Brahma. On the basis of pleadings the following issues were framed by th 5. e learned trial Court. (cid:28)1. Whether there is cause of action for the suit. 2. 3. Whether the suit is maintainable in present form. Whether the suit is barred by law of limitation. 4. Whether the suit is bad for non-joinder of necessary parties. 5. Whether the plaintiff is entitled to get any share in the suit p roperty and to what extent. 6. 7. What other relief the plaintiff is entitled to under law Whether the plaintiff is entitled to get relief as prayed for. and equity. (cid:29) On the basis of evidence on record, the learned trial Court dec 6. ided issue No.5 in favour of the plaintiff by holding that the plaintiff was the married wife of Narendra Chandra Brahma and her marriage was solemnized after t he death of first wife, namely, Damayanti. 7. /2000, was also dismissed. Accordingly, this Second Appeal was preferred. 8. On 26.07.2002, the Second Appeal was admitted to be heard on the The appeal preferred by the appellants being Title Appeal No.05 following substantial question of law: Whether the plaintiff-respondent No.1 having failed to prove her case, t (cid:28)(i) he substantial question of law arises whether the trial court was justified in d ecreeing the suit for partition? (cid:29) 9. After death of Dharma Kanta Brahma (defendant No.1), his legal h eirs were brought on record by an order passed on 31.7.96. Defendants No.4 and 5 of the suit are the sons of the plaintiff through Narendra Chandra Brahma. Pro forma respondents No.6 to 13 of the suit are daughters of Narendra Chandra Brahm a through his first marriage. Out of the said proforma defendants, proforma def endant No.10, Smti Giri Bala Brahma had contested the proceeding by filing the w ritten statement along with defendants No.1,2 and 3. The Title Appeal and the pr esent Second Appeal are also filed by the legal representatives of defendant No. 1, defendants No.2 ,3 and said Giri Bala Brahma. 10. Mr. Dey, learned senior counsel submits that inspite of specific plea taken in the written statement that the Cinema Hall belonged to the defend ant No.1, both the Courts below without adverting to that aspect of the matter at all, had passed the impugned judgments and decrees and therefore, on this g round alone, the appeal is liable to be allowed. He further submits that findin gs of the learned Courts below that the plaintiff was the lawfully married wife of Narendra Chandra Brahma is perverse, as marriage, if any, in between Naren dra Chandra Brahma and the plaintiff was solemnized during subsistence of the fi rst marriage. He submits that according to evidence of the plaintiff, she and defendant No.1 were married on 4.6.64. Ext.Ka, tendered into evidence by the d efendants, is a death Certificate, showing that Damayanti expired on 12.6.1965, after the alleged date of solemnization of the marriage of the plaintiff and Na rendra Chandra Brahma. He, accordingly, submits that the learned courts below were not justified in brushing aside Ext.Ka and in holding that the marriage bet ween the plaintiff and Narendra Chandra Brahma was a valid marriage. With regard to 1/6th share claimed by the plaintiff in respect of their landed properties d escribed in the Schedules to the plaint, the learned senior counsel submits tha t the plaintiff did not adduce any evidence to prove that Narendra Chandra Brahm a had right, title and interest over the said properties by producing any docume ntary evidence. This aspect of the matter was also overlooked by the learned Cou rts below, he submits. Mr. Dey, learned senior counsel also submits that the ord er of the learned lower appellate Court cannot be termed as a judgment passed i n accordance with Order 41 Rule 31 of the CPC. It is contended by him that even though the learned lower appellate court had passed an order of affirmation of t he judgment and decree of the learned trial Court, then also the judgment must i ndicate that the relevant aspects of the matter were considered by the appellate Court, which is lacking in the instant case.
Legal Reasoning
11. Mr. L K Bora, learned counsel for the Respondent, on the other h and, while supporting the impugned judgments, concedes that there was no discuss ion in the judgments of the courts below with regard to the Cinema Hall in quest ion. He submits that merely because the licence was in the name of defendant No. 1, the same will not mean that the said property also belonged to him as e vidence was led to the effect that it belonged to Narendra Chandra Brahma. With regard to the marriage in between the plaintiff and Narendra Chandra Brahma, the learned counsel submits that the same is a finding of fact and there being no p erversity in the finding recorded, this Court, may not interfere with the said f inding of fact recorded by both the courts below. He has further submitted that the defendants in the written statement had acknowledged that land described in the Schedules of the plaint belonged to late Narendra Chandra Brahma and that th e defendants No.1,2,3 and profroma respondents being the only heirs of late Nar endra Chandra Brahma, were enjoying the properties left by their father Narendra Chandra Brahma. 12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 13. late court is as under: The operative portion of the judgment of the learned lower appel (cid:28) DISCUSSIONS AND DECISIONS 9. I have gone through memorandum of appeal of the appellants. Perused Judgment/ Order, passed by the Ld. Civil Judge, Jr. Divn.No.1, Goalpara Dt.22nd day of No v’99 in T.S.33/93. I have also gone through evidence recorded by the Ld.Trial Co urt below and other papers on record of T.S.33/93. Such as Ext.(1) and Ext.1(1). 10. Admittedly, all the properties in the suit was owned by the father of the d efendants no.4 & 5, husband of the plaintiff, Late Narendra Ch. Brahma. The Ld. Trial Court has clearly discussed one vital issue i.e. Issue No.5- Ultimately, d ecided that the plaintiff is entitled to get 1/6th share of the properties in th e suit. I have carefully gone through the Issue No.5, same has elaborately discu ssed and decided the Ld. Trial Court below. Further, the plaintiff in her eviden ce has proved that marriage took place with late Narendra Ch.Brahma. 11. After, carefully perusing the Judgment of the Ld. Civil Judge, Jr. Dvn. No .1, Goalpara and defendants No.4 & 5 both have admitted in their written stateme nt regarding share as claimed by the plaintiff. 12. In view of above, I see that Ld. Civil Judge, Jr. Divn. No.1, Goalpara h as rightly decided the relevant issues before passing decree in favour of the pl aintiff/respondent. In the result, I have nothing to interfere in the Judgment / Decree passed on 22nd day of Nov’99 in T.S.33/93. (cid:29) 14. It is also relevant to note that the plaintiff has not disclose d in the plaint that late Narendra Chandra Brahma was earlier married and the de fendants No. 1 to 3 and proforma defendants No.11 to 16 were the offsprings of l A look at the written st ate Narendra Chandra Brahma through his first wife. atement would reveal that the defendants had taken the plea that the plaintiff w as not the wife of late Narendra Chandra Brahma and he did not marry the plainti ff as per Kachari System of Hindu Rites. While the evidence led on behalf of pla intiff indicates that marriage was solemnized on 4.6.1964, Ext. Ka, tendered int o evidence by the defendants go to show that Damayanti expired on 12.6.1965. 15. A perusal of the lower appellate court judgment above demonstrat es that the evidence of the defendants that the marriage of plaintiff, if any, w as during the subsistence of the first marriage, had been glossed over and much emphasis is given to the written statement of the defendants No.4 and 5, who are the sons of plaintiff through Narendra Chandra Brahma and in the facts of the c ase, such admission, if any, cannot be the basis for decreeing the suit of the p laintiff. The learned lower appellate Court completely misdirected to assume tha t all the properties in the suit was owned by the father of the defendants No.4 and 5. I find sufficient force in the submissions of Mr. Dey that the judg ment of the lower appellate court was not a judgment in accordance with Order 41 Rule 31 CPC. It is correct that in a case where the appellate Court agrees with the view of the trial Court, it may not be necessary for the appellate Court to either to reiterate the reasons given in the judgment or to reaffirm the effect of evidence. It is equally correct that in such a case, expressions of general agreement with the reasoning given in the judgment of trial court would normally suffice. In the instant case, the learned lower appellate court did not even no tice that the learned trial Court had totally failed to advert to the plea of de fendants relating to the Cinema Hall. 16. I am conscious of the fact that the suit was filed in the year 1 989 and a considerable period of time has elapsed. However, in the facts and cir cumstances of the case, as noticed above, I am of the considered opinion that th ere is no alternative for this Court but to remand the case to the learned lower appellate court for consideration and disposal of the appeal in accordance with law. The impugned judgment of the learned lower appellate court is se 17. t aside and the case is remanded to the learned lower appellate court with a dir ection to dispose of the appeal as early as possible, preferably within a period of six months from the date of appearance of the parties. 18. Parties to the proceeding shall appear before the learned lower appellate court on 23.7.2013. Registry shall ensure that records of the case re ach the learned lower appellate court i.e. learned Civil Judge (Senior Division) , Goalpara before the next date fixed. 19. Second Appeal is allowed to the extent indicated above. No order as to costs.