IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: 1. Md. Rahmat Ali, S/o Md. Hafizatddin 2. Smti. Nazma Rahman, W/o Md. Rahmat Ali, Both are residents of Billage Fesuwal, Mouza Ghiladhar, P.O. Baruagaon, Dist Golaghat, Assam. -Versus- Appellants 1. Md. Sayeedur Rahman, S/o late Taleb Ali, Billage Fesuwal, Mouza Ghiladhar, P.O. Baruagaon, Dist Golaghat, Assam.... Respondent -BEFORE- HON BLE MR. JUSTICE N. CHAUDHURY For the Appellants : Ms. P Bhattacharya Advocate For the Respondent : None appears Page 1 of 11
Date of Hearing : 21.06.2016 Date of delivery of Judgment and Order : 21.06.2016 JUDGMENT AND ORDER (ORAL) First appellate judgment and decree dated 27.02.2006 passed by learned Civil Judge (Sr. Divn.), Golaghat in Title Appeal No. 5/2005 has been called in question in the present second appeal by the defendants. Plaintiff s suit for declaration of right, title and interest and for recovery of khas possession was dismissed by the learned trial court on 31.05.2005 in Title Suit No. 2/2003. However, the learned first appellate court reversed the findings of the learned trial court and by the impugned judgment and decree dated 27.02.2006 as referred to above, decreed the suit of the plaintiff declaring the right, title and interest of the plaintiff and also for recovery of khas possession by evicting the defendants. 2. The facts involved in the second appeal are simple. The sole respondent, as plaintiff, instituted title suit No. 2/2003 in the court of learned Civil Judge (Jr. Divn.) at Golaghat. According to the plaintiff, the defendant No. 1 is his son-inlaw and defendant No. 2 is his daughter. The defendant No. 1 had dispute with his brothers in regard to paternal properties and so out of love and affection and for sympathy he permitted defendants to live on 5L of land along with katcha house standing thereon measuring 26 x 27 over dag No. 92 and PP No. 127 of village Fesualgaon under Ghiladhar Mouza in the district of Golaghat. The defendants were supposed to vacate the suit land as and when asked but they Page 2 of 11
refused to do so when they were asked to leave the suit land. They rather started claiming that the land had been gifted to them by the plaintiff. It is stated in the plaint that, the plaintiff did never make any gift in favour of the defendants and so there was no reason for the defendants to make such a claim. With these prayers, plaintiff instituted the suit for declaration of right, title and interest in respect of the suit property and for recovery of khas possession by evicting the defendants. The suit property has been described as a plot of land measuring 4/5 L covered by dag No. 92 and PP No. 127 at village Fesuelgaon under Mouza Ghiladhar in the district of Golaghat and a house measuring 26 x 27 standing thereon. 3. On being summoned, the defendants No. 1 and 2 appeared and submitted a joint written statement whereas defendants No. 3 and 4 did not appear and did not contest the suit. According to the contesting defendants No. 1 and 2, the plaintiff himself being aware of dispute among the brothers of the defendant No. 1 wherein defendant No. 1 was badly assaulted by his younger brother resulting in bodily injuries, the plaintiff came to village Fesuelgaon in the month of April, 1995, and donated land measuring 1K 10L including suit land to his daughter, the defendant No. 2. The defendant No. 2 was asked to construct house and to live on the suit land on assertion of their own right on the basis of the gift and accordingly they made construction and started living without any let or hindrance from any quarter. But subsequently the plaintiff might have changed his mind but for which notice was issued to them for vacating the suit land. According to the defendants, the suit of the plaintiff being based on Page 3 of 11
incorrect statements, the same is liable to be dismissed along with compensatory cost. 4. On the basis of the aforesaid averments made by the parties in thier respective pleadings, the learned trial court framed as many as 9 issues as follows:- (1) Whether there is any cause of action in the suit? (2) Whether the suit is barred by law of estoppels, waiver and acquiescence? (3) Whether the plaintiff has given the suit land on gift to the defendant No. 2 for the purpose of constructing residential house? (4) Whether the plaintiff has right, title and interest over the suit land? (5) Whether the plaintiff is entitled to khas possession of the suit land by evicting the defendant? (6) Whether the plaintiff constructed the house on the suit land measuring 4 to 5 Lochas to the defendant Nos. 1 and 2 to reside thereon with the condition to vacate the same as and when the plaintiff requires? (7) Whether the suit land in the part of the land measuring 1 Katha 10 Lochas gifted to the defendant No. 2 by the plaintiff? (8) Whether the plaintiff is entitled to get relief as prayed for? (9) To what other relief/ reliefs the parties are entitled to? 5. In course of trial, plaintiff examined 4 witnesses and adduced some documents wherein defendants No. 1 and 2 examined 5 witnesses including themselves but did not adduce any documentary evidence. Having perused the oral and documentary evidence of the parties, the learned trial court was of the view that plaintiff had made declaration of making gift in favour of the defendant Page 4 of 11
No. 2 in presence of DW 3 and thereupon handed over the possession of the suit land measuring about 5L. The defendants No. 1 and 2 having accepted the gift made construction and started living thereon. All the three essentials of a Mahomedan gift, namely, declaration of intention to make gift, handing over possession and acceptance of gift by the donee have been satisfied on the basis of the evidence adduced by the defendants and so the gift as claimed by the defendants stood established. With such opinion the learned trial court decided issue No. 3 in favour of the defendants and consequently issue No. 4 was also decided against the plaintiff. The suit of the plaintiff was accordingly dismissed in entirety by judgment and decree dated 31.05.2005. Aggrieved, the plaintiff instituted title appeal No. 5/2005 in the court of learned Civil Judge (Sr. Divn.) at Golaghat. The learned first appellate court after hearing the parties proceeded to decide the suit afresh issue wise without framing any point for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. Coming to issue No. 3, the learned first appellate court held that there is no such evidence on record to prove that plaintiff had made a clear unambiguous declaration stating his intention to make gift to the defendants. Admittedly, plaintiff had handed over the possession of the suit property to the defendants and the defendants were living thereon. But while arriving at the finding that there is no such evidence on record to establish declaration of gift, the learned first appellate court did not discuss any evidence at all. He expressed his opinion as follows:-... I have no hesitation to hold that there is no such evidence in this case to prove that the appellant had made a clear Page 5 of 11
and unambiguous declaration stating his intention to make a gift to the respondents. 6. Apart from making the aforesaid observations, the learned first appellate court has not discussed the evidence. The findings of the learned trial court in this regard are based on the evidence adduced by the parties. Learned trial court considered evidence of the 4 (four) PWs as well as the evidence of the 5 (five) DWs. Particularly, considering the oral evidence of PW 3 in regard to making of declaration by the plaintiff, the learned first appellate court held that the plaintiff had made declaration of making the gift in presence of DW 3 who is an independent witness. The learned trial court appears to have discussed the evidence in detail. On the other hand, the learned first appellate court has not made any mention of any evidence whatsoever. He has not disclosed as to what was the evidence adduced by the defendants to prove existence of the three essentials of a Mahomedan gift. Without discussing the evidence adduced by DWs, more particularly, DW No. 1, 2 and 3, the learned first appellate court only made a bald opinion that there was no such evidence in the case to prove that appellant had made clear and unambiguous declaration stating his intention to make a gift. It is to be examined as to whether such decision of the first appellate court satisfies the test laid down by the Hon ble Supreme Court in preponderant judicial pronouncements. 7. This court while admitting the second appeal on 26.05.2006, framed the following sole substantial question of law:- Whether the lower appellate Court was justified in reversing the decree passed by the learned trial Court on the ground of absence of clear and Page 6 of 11
unambiguous gift on the basis of which the learned trial Court passed the decree? 8. I have heard Ms. P Bhattacharya, learned counsel for the appellants. None appears for the respondent although the names have been distinctly and clearly shown in the cause list and the item is also duly displayed in the Digital Notice Board at various points of High Court Campus. 9. In the case of Santosh Hazari vs. Purushottam Tiwari (Dead) by Lrs reported in (2001) 3 SCC 179, the Hon ble Supreme Court has discussed, inter alia, the duties and responsibilities of a first appellate court. The first appellate court is the last court of law and fact whereas a second appeal is decided only on the point of substantial question of law. This being the position, the responsibility of a first appellate court is immense. If a trial court judgment is affirmed, in that event a first appellate court may not go in detail into all the evidence adduced by the parties but when a first appellate judgment is one of reversal, in that event the responsibility of the first appellate court is more. It is required to discuss what are the findings of the learned trial court and what are the reasons for such findings. Thereafter, it is to be shown that those findings of the learned trial court cannot be inferred from the reasons recorded or that the findings are unacceptable. A first appellate judgment while reversing the judgment of the trial court is required to discuss the evidence in detail adduced by the parties on a particular issue and thereafter only can arrive at the finding that trial court judgment is liable to be reversed. On the one hand, it is to be established as to how the findings of the learned trial court are wrong and on the other hand, it is also to be established by discussing evidence that a contrary case has been Page 7 of 11
established. Paragraph 15 of the judgment of Santosh Hazari (supra), is instructive in this regard and so it is quoted below for ready reference:- 15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice [See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary : (AIR 1967 SC 1124)]. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact [See Madhusudan Das Vs. Smt. Narayani Bai & Ors. : (1983) 1 SCC 35]. The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. [See Sarju Pershad Ramdeo Sahu Vs. Page 8 of 11
Jwaleshwari Pratap Narain Singh & Ors. : (AIR 1951 SC 120)]. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. 10. As has been pointed out above, the first appellate judgment is deficient on both the counts as referred to above. The learned first appellate court while deciding issue No. 3 ought to have discussed the findings and the reasons recorded by the learned trial court and thereafter by discussing the evidence available on record ought to have expressed his own opinion. Without doing so, only the opinion has been expressed that there is no evidence on record in support of the first ingredient of the Mahomeda gift. A Mahomedan gift can be said to have been established if it contains three ingredients as enumerated under Section 149 of the Mulla s Mahomedan Law. Section 149 is quoted below for ready reference:- 149. The three essentials of a gift. It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. 11. The learned first appellate court found that there was delivery of possession and there was taking over of possession. The learned trial court and learned first appellate court are contradictory to each other only on the first Page 9 of 11
ingredient of Mulla s gift (HIBA) which is as to declaration of donor expressing his intention to make gift. Since defendants examined themselves as DW 1 and DW 2 and one independent witness, namely, Ijajur Rahman as DW 3 was examined and since this DW 3 claimed to be an eye witness of the facts in issue, the learned first appellate court was duty bound to discuss the deposition of DW 3 in addition to the depositions of DW 1 and DW 2. 12. Judgment has been defined in Section 2(9) of the Code of Civil Procedure. It means the statement given by the Judge on the grounds of a decree or order. Order XX Rule 5 of the Code of Civil Procedure further provides that Court must state its decision on each issue. This rule provides that Court shall state its finding or decision with reasons therefor upon each separate issue unless the finding upon any one or more of the issue is sufficient for the decision of the suit. Thus, both from Section 2(9) as well as from Order XX Rule 5 of the Code of Civil Procedure it is clear that a judgment shall not be a mere opinion of the Court but it must contain the reasons therefor. In case of appeal, Order XLI Rule 31 of the Code of Civil Procedure lays down as to what should be the content of the judgment. Order XLI Rule 31 of the Code of Civil Procedure is quoted below:- 31. Contents, date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state (a) the points for dtermination; (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. Page 10 of 11
13. Thus, from all the aforesaid provisions of law it is clear that a mere expression of opinion will not constitute a Judgment either under section 2(9) or Order XX Rule 5 or Order XLI Rule 31 of the Code of Civil Procedure. The impugned appellate judgment in the present case, does not satisfy the aforesaid tests which emanate from Section 2(9) or Order XX Rule 5 or Order XLI Rule 31 of the Code of Civil Procedure and the law laid down by the Hon ble Supreme Court in the case of Santosh Hazari (supra). Consequently, the learned first appellate judgment cannot be sustained. It is liable to be set aside. It is accordingly, set aside. The sole substantial question of law is decided in favour of the appellant and against the plaintiff. The second appeal stands allowed. The matter is remitted to the learned first appellate court to pass a proper judgment in view of the observations made herein above. 14. Send down the records immediately. No order as to costs. BiswaS JUDGE Page 11 of 11