IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (CIVIL APPELLATE JURISDICTION) RSA No. 149 of 2006 APPELLANTS: 1. On the death of Karuna Kakoti, his legal heirs 1(a) Smti. Dhanebala Kakoti. 1(b) Smti. Hiran Kalita. 2. Sri Radha Kakoti. Son of Late Datoram Kakoti. 3. Sri Parikshit Kakoti, Son of Late Datoram Kakoti. 4. Sri Tapan Kakoti, Son of Late Aniram Kakoti. All are resident of Paikan Bon Maja, Mukalmua, P.O. Paikan Bon Maja, District Nalbari, Assam. -Versus- RESPONDENT : Sri Chandra Kanta Kumbhakar, Son of late Budhi Ram Kumbhakar, Resident of Paikan Bonmaja, Mukalmua, P.O. Paikan Bon Maja, District Nalbari, Assam. Page 1 of 16

2 BEFORE HON BLE MR. JUSTICE SUMAN SHYAM For the appellants : Mr. K. Agarwal, Sr. Advocate. Mr. R. J. Barua, Advocate. For the respondent : Mr. M. A. Sheikh, Advocate. Dates of hearing : & Date of Judgment : Decisions Cited : 1. H. SIDDIQUI (DEAD) BY LRS. VS. A. RAMALINGAM, (2011) 4 SCC B. V. Nagesh vs. H. V. Sreenivasa Murthy, (2010) 13 SCC Bogamal Gohain and others vs. Lakhinath Kalita and others, (1991) 2 GLR 147. JUDGMENT AND ORDER (Oral) 1. This Second Appeal is directed against the judgment and decree dated passed by the learned Civil Judge (Senior Division), Nalbari in Title Appeal No.2/2005 reversing the judgment and decree passed by the learned Civil Judge (Junior Division) No.1, Nalbari in Title Suit No.51/1996 decreeing the suit filed by the appellants/plaintiffs. Page 2 of 16

3 2. The case of the appellants/plaintiffs in brief is that the plaintiffs are the owners in possession of the suit land described in Schedule- Ka to the plaint as well as other properties, all of which are their ancestral properties. The defendant No.1 is a person of litigious nature and therefore, he has brought several proceedings against the plaintiffs including Title Suit No.37/1995 whereby the said defendant No.1 had claimed the suit land described in the schedule to the plaint. It is alleged that the defendant had managed to get mutation of his name in respect of some of the lands belonging to the plaintiffs behind their back. It was only on that the defendant had stated in his evidence, in connection with Title Suit No.37/1995, that he had purchased the suit land from the plaintiffs and therefore got his name mutated in respect thereof. It was from such evidence adduced by the defendant No.1 that the plaintiffs had, for the first time, come to know about the claim of purchase of the suit land by the said defendant pursuant whereto they had made enquires and thereafter learnt that the defendant No.1 had fraudulently included the suit land as well as other land belonging to the plaintiffs in the registered sale deed and thereafter got his name mutated. Since such claim of the defendant No.1 made in course of adducing evidence in Title Suit No.37/1995 had clouded the right, title and interest of the plaintiffs, hence the plaintiffs were compelled to Page 3 of 16

4 institute the suit praying for declaration of their right, title and interest over the suit land included in the schedule to the plaint; to issue a precept for cancellation of registered deed of sale Nos.3793/79 and 1504/81 by declaring the same as forged and fraudulent; for a declaration that the decree passed in Title Suit No.37/1995 was void, inoperative in the eye of law; for confirmation of possession of the plaintiffs over the suit land and for other consequential reliefs. 3. The defendant No.1 contested the suit by filing written statement, inter alia, taking various pleas pertaining to the question of maintainability of the suit. According to the defendant No.1, the plaintiff Nos.1 to 3 and the father of the plaintiff No.4 had executed a registered deed of sale No.3393/79 in favour of the defendant No.1 and sold away a plot of land measuring 1 Bigha 14 ½ Lechas in total covered by K.P. No.138 dag No.956 for 3 Kathas; 1 katha 17 Lechas under dag No.957 of the same patta; 1 Katha 17 ½ Lechas pertaining to dag No.186 of K P No.136. Pursuant to the execution of the registered deed of sale the possession of the land had also been delivered in favour of the defendant No.1 pursuant whereto he had got his name mutated in respect of the aforesaid plot of land. Thereafter, the plaintiff No.1 and the father of the plaintiff No.4 had executed another registered deed of sale bearing No.1504/81 dated in favour of the defendant No.1 transferring by Page 4 of 16

5 way of sale land measuring 2 Bighas 1 Katha 2 ½ Lechas in total in the following proportion Kathas 15 Lechas of land under KP No.138 of dag No.186; 1 Katha 17 ½ Lechas of land under dag No.959 of KP No.138 and 4 Kathas of land under dag No.243. Again they sold 1 Katha 10 Lechas of land pertaining to KP No.102 dag No.244 pursuant whereto the possession of the entire land had been delivered to the defendant No.1. When the plaintiffs attempted to dispossess the defendant No.1 from these lands he had to institute proceedings under Section 145/146 of the Cr.P.C. and the land under dag Nos.959 and 186 were put under attachment. He, therefore, prayed for dismissal of the suit. 4. After exchange of pleadings the learned trial Court had framed as many as six issues which are as follows :- 1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the plaintiff have right, title and interest and possession over the suit land? 4. Whether the plaintiff and the father of the plaintiff No.4 sold the suit land to the defendant, delivered possession and the defendant has been possessing the suit land? 5. Whether the plaintiffs are entitled for relief as prayed for? 6. To what other relief(s) the parties are entitled? Page 5 of 16

6 5. On the basis of the materials on record the learned trial Court had decreed the suit filed by the plaintiffs. Being aggrieved by such judgment and decree passed by the trial Court the defendant No.1 had preferred Title Appeal No.4/2000 before the Court of District Judge, Nalbari. The said Title Appeal was allowed by setting aside the judgment and decree under appeal and the suit was remanded back to be tried afresh by the learned trial court after considering two more additional issues framed by the First Appellate Court. The aforesaid two issues are as follows :- 7. Whether the suit is barred by limitation so far the relief No.2 claimed by the plaintiff is concerned? 8. Whether the defendant obtained the Sale Deed No.3793/79 and 1504/81 by the means of forgery and whether they are liable to be declared void? 6. On remand of the matter, the learned trial Court had afforded opportunities to both parties to adduced further evidence and accordingly the PW 1 had adduced additional evidence but the contesting defendant did not adduce any further evidence. 7. Thereafter, the learned trial Court, upon consideration of the materials on record, passed the judgment and decree dated in Title Suit No.51/1996 decreeing the suit filed by the plaintiffs by recording findings of facts on all the issues in favour of the plaintiffs. Being aggrieved by the said judgment and decree Page 6 of 16

7 passed by the learned trial Court the defendant No.1 as appellant had preferred Title Appeal No.2/2005 which was eventually allowed by the learned Civil Judge (Senior Division), Nalbari by the impugned judgment and decree dated thereby reversing the decree passed by the trial Court and dismissing the suit of the plaintiffs. 8. Being aggrieved by the aforesaid judgment and decree of reversal dated the plaintiffs as appellants have preferred the present Second Appeal which was admitted to hearing by framing the following substantial questions of law :- 1. Whether the Ext. kha the Secondary Evidence of the alleged Sale Deed can be admitted in evidence and relied on without following the procedure of Sections 65 and 66 of the Indian Evidence Act, 1872? 2. Whether the findings arrived at by the lower Appellate Court are perverse and liable to be set aside and quashed? 3. Whether the learned Appellate Court while deciding the issue relating to limitation and reversing the findings of the learned trial court in this respect committed substantial error of law and came to a perverse findings? 4. Whether the Judgment and Decree dated of the Appellate Court can be construed as a Judgment in accordance with the provisions of Order 41 Rule 31 of the CPC? Page 7 of 16

8 9. I have heard Mr. K. Agarwal, learned Senior Counsel assisted by Mr. R. J. Barua, learned counsel appearing for the appellants. I have also heard Mr. M. A. Sheikh, learned counsel appearing for the respondent/defendant No Mr. Agarwal, learned senior counsel for the appellants, submits that a bare perusal of the judgment and decree under appeal would go to show that the learned First Appellate Court had decided the Issue No.7 against the appellants/plaintiffs merely on the basis of conjectures and surmises inasmuch as there was no material basis for the learned First Appellate Court to reverse the findings recorded by the trial Court as regards Issue No.7. He further submits that even the findings recorded by the learned lower Appellate Court as regards Issue No.8 is not based on materials on record inasmuch as the learned Court below failed to consider the fact that the execution of the sale deeds Ext- Ka and Ext- Kha having been categorically denied by the plaintiffs, it was incumbent upon the defendant No.1 to prove the execution as well as the contents of the deed by adducing cogent evidence. The learned First Appellate Court has not cited any proper reason for reversing the findings recorded by the trial Court in respect of Issue No.8 whereby it was held by the trial court that the defendant No.1 did not fulfill the conditions laid down under Section 65 of the Indian Page 8 of 16

9 Evidence Act for producing secondary evidence as has been done in the present case. 11. Mr. Agarwal further submitted that besides the relief of cancellation of the two sale deeds the plaintiffs/appellants had prayed for other declaratory reliefs and taking note of such pleadings, Issue Nos.3, 4, 5 and 6 had been framed by the trial Court. Although the trial court had discussed each of the aforesaid Issue NOs.3 to 6 in details and recorded specific findings in favour of the plaintiffs thereby decreeing the suit, the learned First Appellate Court has not made any discussion as regards the Issue Nos.3 to 6 while reversing the judgment and decree passed by the trial Court. He, therefore, submits that on this count alone the impugned judgment and decree passed by the learned First Appellate Court is not sustainable in the eye of law and hence liable to be set aside. 12. Per contra, Mr. M. A. Sheikh, learned counsel for the respondent/defendant No.1, submits that the evidence on record would go to show that the plaintiffs side has failed to prove their case by discharging the burden cast upon them under Section 101 of the Evidence Act. He, however, submitted with all fairness that since the learned trial Court had recorded specific findings as regards all the issues by making threadbare discussion as regards the evidence on record, it was incumbent upon the First Appellate Page 9 of 16

10 Court to record its independent findings and conclusions in respect of all the issues, more particularly the Issue Nos.3, 4, 5 and 6, which has not been done in the present case. 13. I have considered the rival submissions made by and on behalf of both the parties and have also examined the records. From a perusal of the judgment and decree under appeal it appears that although there were as many as 8 issues that went for trial including the additional Issue Nos.7 and 8 and notwithstanding the fact that the learned trial Court had decreed the suit filed by the appellants/plaintiffs by recording independent findings as regards all the issues, yet the learned First Appellate Court has not made any attempt to discuss and record a finding as regards any of the issue save and except Issue Nos.7 and 8. A bare perusal of the pleadings contained in the plaint as well as the schedule mentioned in Exts- Ka and Kha sale deeds would make it evident that the suit land claimed by the plaintiffs is not one and the same as transacted by the sale deeds Exts- Ka and Kha. It appears that the learned First Appellate Court had completely lost sight of the aforesaid position and proceeded to decide the appeal on an assumption that the cancellation of the sale deeds was the only relief prayed for in the suit which is not correct. Page 10 of 16

11 14. Even while discussing and deciding the Issue No.7 the learned First Appellate Court has held the plaintiffs suit to be barred by limitation as the same had not been brought within the period of three years from the date of execution of the Exts- Ka and Kha sale deeds. The learned First Appellate Court held that the suit filed by the plaintiff was barred by law of limitation since the same was not brought within three years from the date of execution of the Exts- Ka and Kha sale deeds by ignoring the pleaded stand of the plaintiffs that they came to know about the aforesaid sale deeds, for the first time, from the testimony of the defendant No.1 adduced in connection Title Suit No.37/1995 on Although there was nothing on record to suggest that the plaintiffs had prior knowledge of the aforementioned two sale deeds, the learned First Appellate Court reversed the findings of the trial Court on Issue No.7 on mere conjectures and surmises which were not founded on any material basis. That apart, while holding the plaintiffs suit as barred by limitation, the learned First Appellate Court has also not indicate, even remotely, as to how the relief for declaration of right, title and interest over the suit land as prayed by the plaintiffs stood barred by limitation. 15. Order XLI Rule 31 of the Code of Civil Procedure lays down the parameters to be met by the First Appellate Court while deciding an appeal. As per the said provision the Appellate Court is Page 11 of 16

12 required to frame points of determination and thereafter give a decision thereon with reasons for such decision. That apart, when a decree under appeal is reversed or varied, the relief to which the appellant would be entitled to is also required to be indicated in precise terms. 16. The First Appellate Court is the final Court of fact which can also entertain issues involving questions of law. First appeal is a valuable right available to the parties and therefore as per the mandate of law the First Appellate Court is dutybound to frame points of determination and records its conclusions based on independent findings in respect of the issues decided by the trial Court. Such requirement of recording independent finding, based on the sum total of evidence available on record, is a mandatory requirement under the law that the First Appellate Court would be required to adhere to scrupulously, more particularly in cases where the judgment and decree under appeal is reversed. 17. In the case of H. SIDDIQUI (DEAD) BY LRS. VS. A. RAMALINGAM reported in (2011) 4 SCC 240 the Hon ble Supreme Court while discussing on the scope of Order XLI Rule 31 CPC has observed as follows :- 21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the Page 12 of 16

13 various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380) 18. While quoting with approval the judgment and decision rendered in the case of B. V. Nagesh vs. H. V. Sreenivasa Murthy, (2010) 13 SCC 530, the Hon ble Apex Court has observed that in a first appeal the parties have a right to be heard both on questions Page 13 of 16

14 of law and on fact and the judgment of the First Appellate Court must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. 19. In the case of Bogamal Gohain and others vs. Lakhinath Kalita and others, reported in (1991) 2 GLR 147, this Court while discussing the scope and ambit of Order XLI Rule 31 CPC has observed as follows :- 7. From the aforesaid decisions, it is abundantly clear that a judgment of the appellate Court be selfcontained. It should be a speaking judgment. It should contain decision on each and every point arising for consideration before the Court with reasons thereof. It may be observed that the requirement of giving reasons for the decision on each point is a salutary requirement. It is like the principle of audi alteram partem. It has to be observed in proper spirit. A mere pretence of compliance will not suffice. An appellate judgment which does not comply with these requirements would be vitiated. 20. From the aforesaid discussions it is, thus, evident that the judgment and decree rendered by the First Appellate Court must comply with the requirements of Order XLI Rule 31 CPC, at least in substance, if not in form. If the judgment is rendered by the First Appellant Court in total disregard to the mandatory requirements of Page 14 of 16

15 Order XLI Rule 31 CPC the same would not be sustainable in the eye of law on such count alone. 21. As has been mentioned herein above, the impugned judgment and decree passed by the learned First Appellate Court does not record any reasons or findings as regards Issue Nos.1 to 6 which according to the opinion of this Court were material issues and could not have been ignored by the First Appellate Court while reversing the judgment and decree passed by the trial Court. In that view of the matter, the impugned judgment and decree passed by the First Appellate Court is not sustainable in the eye of law and hence stands set aside. The substantial question of law framed by this Court as regards the compliance of Order XLI Rule 31 CPC stands answered in favour of the appellants/plaintiffs and against the respondent/defendant No Since the judgment and decree under appeal have been held to be not sustainable being in total non-compliance of Order XLI Rule 31 CPC and having regard to the fact that the First Appellate Court has failed to address the Issue Nos.1 to 6 before reversing the judgment and decree passed by the trial Court, hence in order to avoid any prejudice being caused to either of the parties, this Court has no option but to remand the appeal for a fresh decision by the First Appellate Court upon due consideration of the evidence available on record. Accordingly, it is directed that Page 15 of 16

16 the First Appellate Court would now decide all the issues including the additional issues based on materials available on record. It is, however, made clear that the learned First Appellate Court would decide the appeal independently and without being influenced by any of the observations made herein above. Since the suit is of the year 1996 and the parties have been litigating since a long period of time, hence the learned First Appellate Court would make an endeavour to dispose of the appeal within a period of six months from the date of receipt of a copy of this order, if necessary, by holding day to day hearing. 23. The parties would now appear before the First Appellate Court on 18 th of May, In view of the course adopted by this Court in remanding the matter for fresh decision by the lower Appellate Court, answering the remaining substantial questions of law framed by this Court is deemed unnecessary at this stage. 25. The Second Appeal stands allowed to the extent indicated above. The parties to bear their own cost. Registry to send back the LCR immediately. JUDGE T U Choudhury Page 16 of 16