IMPORTANT POINT
The judgment establishes that in civil litigation, the burden of proof lies with the plaintiff, and issues must be framed based on the pleadings. A second appellate court is limited to substantial questions of law and cannot re-evaluate evidence or introduce new claims.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The instant appeal has been preferred under Section 100 of the Code of Civil Procedure challenging a judgment and decree dated 26.02.2013 passed by the learned District Judge, Nalbari in TS No. 08/2005. The First Appellate Court, vide the impugned judgment has affirmed the judgment and decree dated 30.03.2007 passed by the learned Civil Judge, Nalbari. The appellants were the defendants in the suit which was instituted for declaration of right, title, interest and recovery of possession.

2. This Court vide order dated 02.08.2013 had framed the following substantial questions of law:

“(1) Whether the learned courts below erred in law in decreeing the suit of the plaintiffs although the defendants have antecedent title over the suit land by way inheritance?

(2) Whether the learned courts below erred in law in declaring right, title and interest of the plaintiff and for eviction of the defendants as trespasser without specifying the share of all the legal heirs of Ramananda Bhattacharjya?”

3. I have heard Shri B.C. Das, learned Senior Counsel assisted by Shri B. Kaushik, learned counsel for the appellants. I have also heard Shri G.N. Sahewalla, learned Senior Counsel assisted by Ms. K. Bhattacharyya, learned counsel for the respondents.

4. Shri Das, the learned Senior Counsel has submitted that the impugned judgment of the First Appellate Court which has affirmed the judgment of the Trial Court has not taken into consideration the materials which were discernible from the pleadings. It is submitted that the suit property was a plot of land measuring 1 Bigha out of which 2 Katha was purchased by the predecessor-in-interest of the plaintiffs namely, Girijananada and 3 katha was purchased by one Ramananda, who was the father of Girijananda. It is submitted that the defendants are also the legal heirs of Ramananda and therefore both the Trial Court and the First Appellate Court had erred in decreeing the entire suit land in favour of the plaintiffs without going into the aspect of the share of the defendants at least on the portion of 3 katha which was purchased by Ramananda. The learned Senior Counsel has drawn the attention of this Court to the pleadings made in paragraph 7 of the plaint to contend that the aforesaid aspect was admitted by the plaintiffs that Ramananda had owned 3 kathas of land which is a part of the suit land. It is also submitted that though the learned Trial Court as well as the First Appellate Court had decreed the suit, this aspect has been overlooked. It is submitted that when a clear case is made out by the pleadings, it was incumbent upon the learned Courts to formulate an issue and decide the same. He submits that by the said inaction, the appellants cannot be precluded from raising this point which would clearly form one of the issues between the parties. It is submitted that when admittedly there is a dispute on a certain factual position, an issue is required to be framed and in the interest of justice, this Court being an Appellate Court can go into that aspect. The learned Senior Counsel for the appellants has submitted that even otherwise, the issue being apparently discernible from the reading of the pleadings, the matter can be remanded back to the First Appellate Court to decide the same on the aspect as to whether the decree could have been passed in view of the fact that the defendants were the legal heirs of Ramananda.

5. The learned Senior Counsel for the appellants has relied upon the following case laws:

(i) State of Rajasthan Vs. Rao Raja Kalyan Singh, (1972) 4 SCC 165

(ii) Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179

(iii) Union of India & Ors. Vs. Vasavi Co-Op. Housing Society Ltd. Ors. (2014) 2 SCC 269

(iv) Commissioner of Taxes Vs. Golak Nath Kakati & Anr. 1979 (0) AIR (Gau) 10

6. The case of Rao Raja (supra) has been cited in support of the contention that even if an issue is not specific but covers a plea, the same may be taken into consideration. R