Gauhati High Court
On The Death Of Jamini Bora Her Legal ... vs Subha Chandra Gogoi on 10 June, 2013
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
RSA. No. 178 of 2002
1. Shri Naren Bora
2. Shri Madhav Bora
Both are the sons of
Late Nandi Bora, resident of
Uttar Haiborgoan, Nagaon Town,
Dist: Nagaon (Assam)
3. Smt. Kunja Bora @ Gogoi
Wife of late Chandra Bora, resident of
Uttar Haiborgoan, Nagaon Town,
Dist: Nagaon (Assam)
4. Smt. Chayanika Bora @ Gogoi
Daughter of late Chandra Bora, resident of
Uttar Haiborgoan, Nagaon Town,
Dist: Nagaon (Assam)
..... Appellants
-Versus-
Shri Subha Chandra Gogoi,
Son of late Kusharam Gogoi, resident of Uttar Haiborgoan,
Nagaon Town, Dist: Nagaon (Assam).
..... Respondent
For the appellants : Mr. A.C. Sarma, Advocate.
Mr. P. Chakraborty, Advocate For the respondent : Ms. T. Goswami, Advocate Date of hearing : 10.06.2013 Date of judgment : 10.06.2013 R No. 178 of 2002 Page 1 of 6 BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (Chaudhury, J)
1. This second appeal has been preferred at the instance of the principal defendant. The second appeal was admitted on 13.12.2002 with the following substantial questions of law :
i. For that the learned lower appellate court passed the impugned judgment and decree not in accordance with the remand order passed by the Hon'ble High Court in Second Appeal No. 173/96.
ii. For that the learned lower appellate court misread and misinterpreted the evidence on record relating to the construction of Holding No. 59 as ordered by the Hon'ble High Court.
iii. For that the learned lower appellate court erred in law in reversing the judgment and decree passed by the trial court without declaring the right, title and interest of the either parties.
2. The plaintiff of this suit Shri Subha Chandra Gogoi and the principal Defendant No.1 Smti Jamini Bora and the proforma defendant Nos 19,20 and 21 were the sons and daughter of one Devi Chutiani who owned and possessed a plot of land measuring 4 kathas 4 1/3 lechas of land covered by Dag No.162 of Patta No.833 under Nagaon Kichamat of District Nagaon.
According to the plaintiff the said Devi Chutiani died in the year 1941 leaving behind her husband (now deceased) Kusaram Gogoi, one son and four daughters. Out of four daughters, except one daughter, Akanman Gogoi, all other three daughters had been given in R No. 178 of 2002 Page 2 of 6 marriage prior to 1956. Akanman Gogoi was never married and she is living. The plaintiff claims that during 1983 the defendant No.1 came to the place from her marital house and wanted shelter under him which he permitted on the condition that she would vacate as and when demanded. But later on she refused to vacate the land and staked claim to it. Hence the suit being T.S.No.82 of 1992 was filed in the Court of learned Assistant District Judge, Nagaon, praying for declaration of right, title and interest over the schedule 'K' land and Scheduled 'Kha " house standing thereon.
2. Principal Defendant Nos. 1 to 5 submitted joint written statement, denying the claim of the plaintiff. A specific stand was taken vide paragraph-9 of the written statement, claiming that the defendant No.1 had not enjoying the possession of the suit land since the death of original owner Deva Chutiani. It was overtly asserted that she acquired valid title at last after the death of her father Kusa Ram Gogoi. According to the contesting defendant, the said properties are ancestral properties and there such no suit is maintainable for possession without partition.
3. On the rival submission of the parties, the learned Trial Court framed as many as seven issues as follows:-
"1. Is there any cause of action for the suit?
2. Is the suit maintainable in the present from?
3. Whether the suit is barred by adverse possession?
4. Whether the suit is barred by principles of waiver estoppels and acquiescence?
5. Whether plaintiff has any right, title and interest over the suit property?
6. Whether defendant is liable to be evicted?
7. Whether plaintiff is entitled to any relief, is so, what?"
R No. 178 of 2002 Page 3 of 6
4. Out of the aforesaid issues, issue No.5 and 6 are the crux of the dispute. The learned Trial Court held that the plaintiff and the defendant hold joint right, title and interest over the suit property along with other sisters defendant and as such issue No. 5 was decided in the negative to the extent that the plaintiffs are at liberty to claim partition of only his/ her share in the property. So far as the issue No.6 is concerned, learned Trial Court held that since they are also co-sharers, they cannot be evicted. So issue No.6 was answered in the negative against the plaintiff and infavour of the defendant.
5. Aggrieved thereby the plaintiff preferred Title Appeal No. 10 of 1995 in the Court of learned District Judge, Nagaon. The learned Appellate Court by his judgment and decree dated 08.07.1996, dismissed the appeal and maintained the learned Trial Court decree.
It appears that the said appellate judgment was challenged before this Court earlier in second appeal No.173 of 1996 and this Court without disturbing the findings of the learned Courts below on other issues remanded the appeal to the first Appellate Court on the limited question to decide as to whether the Schedule-'Kha' house was constructed by the plaintiffs or not. The said second appeal judgment in second appeal No. 173 of 1996 was passed on 23.04.2001.
6. Thereafter, the first Appellate Court passed the impugned judgment dated 10.06.2002. In the first Appellate Judgment, vide paragraph-4, the first Appellate Court has held that in the absence of any step taken by respondent to get the municipal registration cancelled and the suit house being in the name of the plaintiffs, there is 'no hesitation to say that the plaintiffs are the owner of the suit house.' Thereby the first Appellate Court disposed the appeal. In so doing, the first Appellate Court has not discussed the evidence on record. It is also not decided as to what was the effect of holding that the Schedule-'Kha' house was constructed by the plaintiffs.
7. The defendants have preferred is second appeal against the R No. 178 of 2002 Page 4 of 6 aforesaid appellate judgment and thereupon the substantial questions of law, mentioned above, have been framed for consideration.
8. I have heard Mr. A. C. Sarma, assisted by Mr. P. Chakraborty, learned counsel for appellants. Also heard Ms. T. Goswami, learned counsel for respondent.
9. Mr. A. C. Sarma, learned counsel for appellants, has contended that under the provision of Order 41 Rule 31, it is incumbent as the first Appellate Court to record the reasons for the decision arrived at by him.
Relying on the judgment of Santosh Hazares, reported in (2001 ) 3 SCC 1 79, the learned counsel argued that the first Appellate Court is not only the last Court on facts, it is also the last Court on law. The learned counsel further argued that second appeal is heard only on the substantial questions of law and not on mere errors of law and as such the first appellate has been vested with immense responsibility under the law.
10. In this view of the matter, the duties and responsibilities of first Appellate Court, while deciding the appeal are heavy. The first appellate court has to peruse all the materials on record, to consider the evidence on record and thereafter, it is expected to arrive at the findings of facts in the light of the law involved in the case.
11. After hearing the learned counsel for both the parties to this second appeal, it appears that the impugned first Appellate judgment is insufficient so far as the requirement under Order 41 Rule 31 C.P.C are concerned. The learned first Appellate Court has not discussed the oral evidence led by the parties, not to speak of all the documents adduced by them. The first Appellate Court is also duty bound to discuss the findings of the original Court and the said responsibility assumes more importance when the first Appellate's judgment is a one of reversal of the Trial Court's judgment either fully or in part. R No. 178 of 2002 Page 5 of 6
12. Here in this case, the first Appellate Court has not observed as to whether the appeal is allowed or dismissed and what would be the effect of observations/ findings arrived at by it. The first Appellate Court ought to have considered the appeal in the light of the observation made by this court on earlier occasion and the said judgment should have contained all materials.
13. In this view of the matter, the impugned first Appellate judgment is not a judgment in the eye of law and as such the same is required to be set aside.
14. Accordingly, the impugned first Appellate judgment is set aside. The learned first Appellate Court shall decide the appeal afresh, keeping in view the observation made by this Court on 23.04.2001 in second appeal No.173 of 1996 as well as the evidence of the learned Trial Court which this Court did not interfere. The first Appellate Court shall decide the appeal expeditiously preferably within a period of 6 (six) months from the date of receipt of the records as the suit was instituted in the year 1991 and more than 21 years have passed in the meantime.
Both the parties shall appear before the learned Appellate Court on 15.07.2013 to receive the necessary order(s).
15. In the meantime the records of both the Courts below, which were received by this Court, shall be immediately sent down along with a copy of this order.
16. The second appeal is allowed.
17. No order is to cost.
JUDGE sumita R No. 178 of 2002 Page 6 of 6