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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
HAJI ALA UDDIN S/O LATE ABDUL KHALIQUE – Petitioner
VERSUS
JOINAL ABEDIN S/O LATE ABDUL AZIR – Respondent
RSA No. 2 of 2016
Decided On : 26-05-2022
Code of Civil Procedure, 1908 – Section 100 – Order 41 – Assam Land and Revenue Regulation Act, 1886 – Section 41(2) – Case of appellants – First schedule land was originally settled predecessors of appellants – After his death, his sons inherited land – During settlement operation in first schedule land was recorded in names of sons, daughters and wife – Even in last settlement operation also, same thing was done, though name was also recorded in respect of said land – Appellants claimed that it was erroneous and illegal as because did not have possession and title over that land - Appellate court has jurisdiction to reverse or affirm the findings of the trial court. The 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. (Para 21)
Finding of the court:
First appeal is a valuable right and parties have a right to be heard both on questions of law and on facts and judgment in first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of findings – Learned first appellate court did not specifically answer all issues and failure to answer all issues is against law and therefore, first appellate court judgment is bad in law.
Results: Appeal is allowed.
ORDER :
1. Heard Ms. R. Choudhury, learned counsel representing the appellants. None appeared for the respondents.
2. This is a regular second appeal under Section 100 of the Code of Civil Procedure whereby the judgment and decree dated 28.08.2015 passed by the Civil Judge, Karimganj, in Title Appeal No. 39/2012 arising out of the judgment and decree dated 02.07.2012 passed by the Munsiff No. 1, Karimganj in Title Suit No. 214/2015.
3. The case of the appellants (plaintiff before the trial court) is as under:
The appellants claimed that they had inherited a parcel of land as described in the first schedule of the plaint. They had claimed that the respondents have illegally occupied a portion of the said land which is described in the second schedule of the plaint.
4. The first schedule land was originally settled in the name of Hasid Ali, the predecessors of the appellants. After his death, his sons inherited the land.
5. During the settlement operation in the years 1960-1968, the first schedule land was recorded in the names of the sons, daughters and the wife of late Hasid Ali. Even in the last settlement operation also, same thing was done, though the name of Asma Khatun was also recorded in respect of the said land. The appellants claimed that it was erroneous and illegal as because Asma Khatun did not have possession and title over that land.
6. Subsequently, there was an amicable partition between the children of late Hasid Ali. In that settlement, Abdul Khalique, the son of late Hasid Ali got the suit land and became the absolute owner of the same.
7. The present appellants Hazi Ala Uddin and others are the sons of late Abdul Khalique. After the death of Abdul Khalique, they inherited the property.
8. The respondents are neighbors of the appellants. About five years prior to filing this suit by the appellants, the residential house of the respondents was gutted in a fire. They became homeless. Therefore, they requested the appellants to give them temporary shelter in the suit land. This request was conceded to. The respondents constructed a temporary house over the suit land.
9. After that, the respondents constructed two other temporary houses in the suit land. In fact, the respondents never left the suit land. In the month of January, 2005, the appellants requested the respondents to leave the suit land. They did not do so. Finally, the appellants filed a suit praying for declaration, right, title and interest over the entire first schedule land and recovery of possession of the second schedule land.
10. The respondents contested the case by filing a written statement. They have claimed that they as well as the appellants had common ancestral. According to the respondents, they along with the appellants jointly inherited the entire property. The respondents have stated that their father late Ajim Miya was the absolute owner of the suit property and he inherited the same from his forefathers. They have also stated that there was an amicable family partition and by way of that partition, Ajim Mia became the absolute owner of the second schedule property.
11. After the death of Ajim Mia, his successors have also amicable partition of the suit land and by that partition, the respondent Joynal Abedin became absolute owner of the property.
12. The respondents have stated that the appellants had illegally got their names recorded in the land records in respect of the suit property.
13. The respondents have stated that that Abdul Khalique, the predecessor of the appellants had illegally executed a Sale Deed No. 5854 dated 19.05.1976 in favour of the Smti. Asma Khatun. According to the respondents, the said Sale Deed had an erroneous description of the property and therefore Asma Khatun illegally got her name registered in respect of the suit property.
14. Upon the pleadings of the parties, the trial court framed the following five issues:
(i) Is there any cause of action for the suit?
(ii) Whether the suit is maintainable in its present form
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