In a second appeal regarding a Title Suit concerning property land disputes and gift deeds, the High Court held that the first appellate court failed to discuss evidence and frame issues, violating Order XLI Rule 31 CPC.
Impugned judgment and decree of first appellate court set aside; matter remanded for fresh judgment within 3 months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010004032008
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 131/2008
1:NIRMALANGSHU BHATTACHARJEE S/O LT. SHYAMAKANTA BHATTACHARJEE. VERSUS
1:MUSTT. ISKA ARA BEGUM -
Advocate for the Petitioner : S C KEYAL Advocate for the Respondent :
:: BEFORE ::
| HON’BLE M | R. JUSTICE PRASANTA KUMAR DEKA |
|---|---|
| For the Appellants |
: Mr. SK Ghosh Advocate |
| For the Respondents |
: Mr. Sheeladitya Advocate |
| Date of Hearing | :18.07.2019 |
| Date of delivery of | |
| Judgment and Order | :18.07.2019 |
& ORDE R :: :: J UDGMENT ( ORAL )
Heard Mr. SK Ghosh, learned counsel for the appellants and Mr. Sheeladitya, learned
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counsel for the respondents.
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knowledge that the said Pardeshi Guwala (defendant no. 1) mutated his name to the extent of 1 K 12½ L of land on 18.06.1992. The present appellants forcibly entered into the land measuring 1 K 12½ L and dispossessed the plaintiffs/ respondents on 15.12.1993 and thereafter started construction thereon the suit land by the defendants/appellants. On 16.12.1998 the certified copy of the fraudulent gift deed was obtained purportedly executed by the plaintiff/respondent no. 1. Claiming that the said plaintiff/ respondent no. 1 never executed the said gift deed, It is the pleading of the plaintiffs/respondents that on the strength of the said fraudulent gift deed Pardeshi Guwala (defendant no. 1) did not acquire any right, title and interest and possession over the suit land in order to transfer the same to the present appellants. Accordingly, the plaintiffs/ respondents sought the reliefs mentioned over the suit land.
1. Whether the suit is maintainable in its present form?
2. Whether the suit is properly valued?
3. Whether the suit is barred by law of limitation?
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4. Whether there is any cause of action for the suit?
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether the plaintiff have nay right, title and interest over the suit property?
7. Whether the gift deed No. 2445 dated 9.4.92 and sale deed No. 6975 dated 6.11.92 and sale deed No. 4907 dated 21.7.92 are not binding on plaintiff?
8. Whether the plaintiffs are entitled to the relief as prayed for?
1. Whether the suit of the plaintiff is barred by time in view of the provisions contained in Article 59 of the Limitation Act, the same having not been instituted within 3 years from the date of knowledge of the plaintiff about the execution of the gift deed dated 9.4.92 as well as the sale deeds dated 21.7.92 & 6.11.92?
2. Whether the suit of the plaintiff can be decreed without there being any prayer for cancelling the gift deed dated 9.4.92 and the sale deeds dated 21.7.92 & 6.11.92?
3. Whether, the plaintiff have prayed for a decree that the gift deed dated 9.4.92 is not binding the same being fraudulent, the burden lies on the plaintiff to prove the same or on the defendant who claims execution of such gift deed?
of law and in presence of Mr. Sheeladitya, learned counsel for the respondents, the following substantial question of law is formulated:-
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4. Whether the judgment and decree passed by the first appellate court is hit under the provision of Order XLI Rule 31 of the CPC?
In fact, the subsequent substantial question of law was taken as a ground in the appeal
memo by the present appellants and as such, the same is formulated and taken up for answering the said question before entering into the other substantial questions of law.
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merit of the claims and counter claims of the parties to this appeal nor there are any discussions in respect of the evidence led by the parties to the suit, not to speak of the issues framed by the learned trial court. In fact, the said issues are not even recorded in the judgment of the first appellate court. The said judgment of the first appellate court cannot be accepted to be a judgment passed within the purview of Order XLI Rule 31 of the CPC. The right of the appellant in an appeal under Section 96 of the CPC is a valuable right and the first appellate court is bound to examine the evidence on record and pass a reasoned judgment touching all the issues. If the first appellate court fails to adhere to the said duty cast by the mandate of Order XLI Rule 31 of the CPC it would amount causing prejudice to the appellant and that cannot be permitted as the same amounts to deprivation of the valuable right of the appellant. Accordingly, in my considered opinion, it would be proper not to enter into the other substantial questions of law so formulated instead, answering the present substantial question of law under discussion in favour of the appellant it would be proper to set aside the impugned judgment and decree passed by the first appellate court which I accordingly do and remand the same for passing a fresh judgment by the first appellate court after hearing the parties afresh. Further, in my considered view, the evidence on record are sufficient to pass a fresh judgment by the first appellate court and as such, the court below shall do accordingly, however, after notifying the parties thereby fixing a date for appearance. The whole exercise shall be completed within a period of 3 (three) months from the date of receipt of the LCRs by the court below. This second appeal stands disposed of.
JUDGE
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Comparing Assistant
2 issues framed by the court
Whether the judgment and decree of the first appellate court is hit under the provision of Order XLI Rule 31 of the CPC due to lack of discussion on evidence and issues?
Whether the first appellate court failed to examine the evidence on record and pass a reasoned judgment touching all issues?
2 provisions across 1 enactments
NIRMALANGSHU BHATTACHARJEE
MUSTT. ISKA ARA BEGUM
PRASANTA KUMAR DEKA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
