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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
Sujat Uddin Choudhury S/o Late Mabarak Ali Choudhury – Appellant
Versus
Md. Ali Ahmed Barbhuiya S/o Late Kutub Ali Barbhuiya – Respondent
RSA No. 156 of 2009
Decided On : 15-06-2023
Code of Civil Procedure, 1908 - Section 100 - Order 41 Rule 31 - Regular Second Appeal - Contents, date and signature of judgment - Whether plaintiff acquired title in a specific plot & got possession without may valid partition over the patta - first appellate court judgment cannot be considered to be a judgment according to Order 41 Rule 31 of the Civil Procedure Code (Para 20).
Finding of the Court: On a plain reading of appellate court judgment, it is found that appellate court has failed to draw up a point for determination - Civil Procedure Code has laid down rule as to how the appellate court judgment is to be written - If rule is not followed, then it is not a judgment at all. First appellate court judgment cannot be considered to be a judgment according to Order 41 Rule 31 of Civil Procedure Code - Such a judgment is not sustainable in law.
Result: Appeal allowed.
JUDGMENT :
PARTHIVJYOTI SAIKIA, J.
1. Heard Mr. A.M. Barbhuiya, learned counsel representing the appellant as well as Mr. M.H. Rajbarbhuiyan, learned counsel appearing for the respondents.
2. This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) whereby the judgment dated 29.06.2009 passed by the court of learned District Judge, Hailakandi in Title Appeal No. 33/2006, affirming the judgment and decree dated 20.09.2002 passed by the court of learned Civil Judge, Senior Division, Hailakandi in Title Suit No. 48/2000, is under challenge.
3. Kukicherra Tea Company sold 509 Bighas, 13 Kathas and 12 Chatak of land to Lt. Md. Hamid Raja Choudhury and five others. Registered sale deeds were executed and delivery of possession were also given. Hamid Raja Choudhury and five other buyers divided the land between themselves and since then, all of them have been enjoying the possession of the land.
4. After amicable division of land between themselves, Hamid Raja Choudhury got about 160 Bighas of land. Hamid Raja Choudhury had five sons and two daughters. The sons are- Lt. Abdul Jabbar Choudhury, Lt. Abdul Masabbir Choudhury, Lt. Mubarak Ali Choudhury, Md. Moin Uddin Choudhury and Md. Kochir Uddin Choudhury. The daughters are-Morium Nessa Choudhury and Khairun Nessa Choudhury.
5. During the lifetime of Hamid Raja Choudhury, his sons jointly enjoyed the land by cultivating paddy in low lying areas.
6. Hamid Raja Choudhury donated 12 Kader of land to his elder sons Lt. Abdul Jabbar Choudhury and Abdul Musabbir Choudhury. After the death of Hamid Raja Choudhury, the remaining lands were amicably partitioned between the five sons.
7. The two daughters of Hamid Raja Choudhury died unmarried.
8. In the meantime, Abdul Jabbar Choudhury also died. Therefore, his five sons inherited the property left behind by him. Those sons even sold 2 plots of land to Abdul Sattar and Akhtar Ali.
9. Similarly, after the death of Abdul Musabbir Choudhury, his sons and daughters inherited his share of land. They also sold some of their lands to some other persons.
10. The other sons of Lt. Hamid Raja Choudhury and his grandsons continued to occupy their respective shares. They also sold some portion of their land.
11. The sons of Lt. Abdul Musabbir Choudhury even leased out 6 Bighas 10 Kathas of land for an amount of Rs. 25,000/-.
12. The sons of Lt. Abdul Musabbir Choudhury had sold some lands to the respondents. Since then i.e. from 07.05.1999, the respondents have been occupying their lands.
13. On 17.05.2000, the appellants trespassed into the land of the respondents and dispossessed them. Therefore, the respondents filed the suit for declaration of their right, title and interest over the suit land and for recovery of vacant possession.
14. The appellants contested the case by filing written statement. They have claimed that the respondents never had possession of the suit land. They specifically denied the allegation dated 17.05.2000.
15. On the basis of the pleadings of the parties, the trial court framed the following issues:
(1) Is there any cause of action?
(2) Is the suit bad in law?
(3) Is the suit barred by waiver, estoppels and acquiescence?
(4) Is the suit bad for non-joinder?
(5) Whether the plaintiff acquired title in a specific plot & got possession without may valid partition over the patta?
(6) To what relief the plaintiff is entitled?
16. The respondents examined 6 witnesses and the appellants examined 3 witnesses in order to prove their respective cases.
17. On the basis of the evidence on record, the trial court decreed the suit of the respondents. On being aggrieved by the judgment of the trial court, the appellants preferred an appeal before the court of the District Judge, Hailakandi. The first appellate court dismissed the appeal and the trial court judgment was affirmed.
18. I have gone through the judgment of the first appellate court.
19. I find that at this stage, Order 41 Rule 31 of the Code of Civil Procedure is required to be
SupremeToday
Order 41 Rule 31 of the CPC reads as under Contents, date and signature of judgment
First appellate court judgment fail to comply with the provision of law as laid in Order 41 Rule 31 of the Code of Civil Procedure. Such a judgment is not sustainable in law.
Point of Law : 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 ....
The main legal point established in the judgment is the mandatory nature of compliance with the provisions of law as laid down in Order 41, Rule 31 of the Code of Civil Procedure for the first appell....
A party's right to present evidence on ownership must be duly recognized; failure to address critical issues of fact leads to flawed judgments.
The failure of the Trial Court to adequately consider evidence and provide a reasoned judgment necessitates remand for fresh consideration, ensuring jurisdiction is correctly exercised and due proces....
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