Gauhati High Court
Md. Hussain Ahmed And Ors vs Md. Mahmod Ali And Ors on 17 December, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010091422009
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 4/2009
1:MD. HUSSAIN AHMED and ORS
S/O LT. ABDUR RAJAK
VERSUS
1:MD. MAHMOD ALI and ORS
S/O LT. IBRAHIM ALI
Advocate for the Petitioner : MR .B MALAKAR
Advocate for the Respondent : MISS.S ROY
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the appellants: Mr. N. Dhar, Mr. S. Chakraborty, Mr. B. Malakar, Mr. T.U. Laskar, Advocates.
For the respondents: Mr. B.C. Das, Senior Advocate, Mr. R.C. Paul, Ms. S. Roy, Advocates.
Date of hearing: 25.11.2019, 26.11.2019, 10.12.2019.
Date of judgment: 17.12.2019.
JUDGMENT AND ORDER
Heard Mr. N. Dhar, learned counsel for the appellants. None appears on call for the respondents although the names of the learned counsel for the respondents is reflected in the cause list.
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2) This appeal under Section 100 is directed against the first appellate judgment and decree 18.08.2008 passed by the learned Civil Judge, Karimganj in Title Appeal No. 41/2006, thereby dismissing the appeal and affirming the judgment and decree dated 21.02.2006, passed by the learned Civil Judge (Junior Division) No.1, Karimganj in Title Suit No. 19/2002, thereby dismissing the suit as well as counter-claim.
3) By order dated 06.03.2009, this appeal was admitted for hearing on the following substantial question of law, viz., Whether the learned Court below erred in law in dismissing the suit entirely on alleged evidence of DW-1 in cross examination that he claims 38 decimals of land pertaining to Schedule-1 although Exhibits 3 and 4 discloses the same to be 37 decimals and not decreeing the suit for 37 decimals? However, upon hearing the learned counsel for the appellants, by order dated 25.11.2019, the said substantial question of law was reframed by substituting "Exhibits 3 and 4" to "Exhibits 2 and 3", as such, the reframed substantial question of law is now as follows - Whether the learned Court below erred in law in dismissing the suit entirely on alleged evidence of DW-1 in cross examination that he claims 38 decimals of land pertaining to Schedule-1 although Exhibits 2 and 3 discloses the same to be 0.37 decimals and not decreeing the suit for 0.37 decimals?
4) The plaintiffs in the suit are the appellants herein. The appellants had instituted the suit for declaration of their title as land-holders in respect of land measuring 6 jasti- 8 pon described in Schedule-2 of the plaint, for confirmation of their khas possession in respect of the same and for permanent injunction restraining the respondents from cutting down the trees standing on land described in para-1 of Schedule-2 and from affecting any change in the status of the said land and from raising a brick wall along the eastern boundary of land described in para-2 of Schedule-2 and from transforming that land into a road by digging out the roots of the trees. In the plaint, it was projected that one Pulin Chandra Dey of Umarpur was the title- holder and possessor of the land described in Schedule-1 of the plaint along with other land and that during the last survey, his name was entered in the final jote khatian No. 389 in respect of land measuring 0.48 decimal in Dag No. 1087 of Mouza- Umarpur Part-I, which included land covered by Schedule-I. The said Pulin Chandra Dey by Page No.# 3/14 registered gift deed dated 30.05.1975, gifted the land described in Schedule-I along with other land to Kadambini Bala Dey, his daughter- in- law. It is also projected that on the death of Pulin Chandra Dey, his sons, namely Pradyumna Dey and Hiralal Dey became owners and possessors of the land described in Schedule-I along with other adjacent land along with Kadambini Bala Dey. Thereafter, out of the Schedule-I land, Hiralal Dey sold of 1 powa land to the defendant No.2 vide Regd. Sale Deed No. 971 dated 04.05.1978 and delivered possession. It was projected that after death of Pradyumna Dey, Kadambini Bala Dey and her two sons, namely, Ashutosh Dey and Dibyendu Dey inherited his left out property including the suit land and other land, out of which they sold land measuring 0.30 decimal to the plaintiff No.1, 2 and Moiob Ali, father of plaintiffs No. 3 to 6 by executing Regd. Sale Deed No. 2120 dated 26.11.1987 and delivered possession thereof. It was stated in the plaint that in the sale deed, there is a mention of about 4 cubit wide passage belonging to Mahmud Ali, the defendant No.1 in the western boundary of the sold land. It was projected that the plaintiffs possessed their land by digging pond, constructing houses and by planting trees in the remaining land and that they had constructed a brick wall along the northern side of the western boundary of the suit land 6-7 years ago and that they had demarcated the western and southern boundary. It is projected that the plaintiffs are using the 4 cubit wide passage. It was projected that on 03.02.2002, taking advantage of the absence of the plaintiffs No.1 and 2, the defendants had demolished the plaintiff's wall along the western boundary of Schedule-I land and by cutting several trees, they had forcibly taken over possession of 1 cubit land of the plaintiffs, which is described in paragraph-2 of Schedule-2 and began raising a new pucca wall along the western boundary and that they had also taken over land measuring 0.5 decimal of the plaintiff on the southern boundary, described in paragraph-1 of Schedule-2. Hence, the suit for reliefs as prayed for in the plaint.
5) The respondents- defendants had contested the suit by filing their written statement, specifically stating that after the death of Pulin Chandra Dey, Pradyumna Dey and Hiralal Dey did not become the owner of land gifted to Kadambini Bala Dey and they were not authorized to sell any land of Schedule-I. It was stated that the sale deed of the plaintiffs was false, fraudulent and collusive and that the plaintiffs did not possess 0.30 decimal land in the eastern side of defendants' passage. It was stated that the passage of the defendants was more than four cubits wide and that the plaintiffs did not construct any brick wall along the Page No.# 4/14 boundary of their land 6-7 years ago. It was stated that the land purchased by the plaintiffs was not 0.37 decimal. It was denied as false that the plaintiffs were using the defendants' passage in the adjacent east of their homestead land. It was denied that the defendants had demolished any brick wall or had cut any trees on 03.02.2002 or had dispossessed the plaintiffs from any land. It was stated that in order to safeguard their passage, the defendants had constructed a low brick wall on the eastern boundary of the passage and they did not construct any brick wall on the plaintiffs' land. It was claimed that by a registered gift deed dated 30.05.1975, Pulin Chandra Dey had gifted land measuring 2 kedar 3 powa to Kadambini Bala Dey and delivered possession thereof to her. It was stated that by a registered sale deed dated 10.11.1987, Kadambini Bala Dey and her two sons had sold land measuring 0.16 acre along with a passage measuring 0.4 acre described in Schedule-2 of the written statement to the defendants No.1 to 6 and delivered possession thereof. By another sale deed dated 26.11.1987, they had also sold land measuring 0.07 decimal to the defendants No.2 to 5 and delivered possession and accordingly, they were possessing land measuring 0.23 decimal. It was stated that they had also purchased land measuring 0.15 acre in Settlement Survey Dag No. 1086 in the eastern part of their house described in paragraph 1 and 3 of the Schedule to their written statement from Ashanur Raja Choudhury by registered Sale Deed dated 27.02.1990 and included the same in their homestead land by digging a pond for their daily use. It was claimed that the defendants had demarcated their land by placing stones along the boundary and also by raising bamboo fence. It was stated that they are using the passage described in Schedule-2 for egress and ingress to their land, which is the only path. It was stated that the homestead land described in Schedule-1, 3 and 4 was measuring 0.39 acre and the passage described in Schedule-2 was measuring 0.04 acre, totaling 0.43 acre. It was stated that the road was not four cubit wide but it was measuring 1 rekh, 121/2 gonda (equivalent to 41/2 cubit- 1 pon- 10 gonda). It was stated that along the adjacent eastern boundary of the said passage the plaintiffs had dug a drain a few years ago, and their passage got damaged by the drain as loose soil fell into it, as such, to protect their passage, the defendants had built a 5 inch wide boundary wall in the eastern part to protect the passage. It was stated that the plaintiffs had never used the said passage as they have a separate passage for going to the PWD road in the north of their homestead land. It was stated that the plaintiffs had illegally planted trees along their western boundary and that the branches of the said trees have extended to the passage, which is the reason for Page No.# 5/14 the authorities to refuse to give electricity connection to the defendants, which is the cause of conflict between the parties. It was stated that the plaintiffs are required to cut down and remove the branches of their trees that was over the land of the defendants. Accordingly, the defendants had, inter-alia, prayed for a counter-claim for a direction to the plaintiffs to cut down the branches of the trees overhanging the defendants' passage within the time stipulated by the Court, failing which the defendants be allowed to remove the same at the cost of Rs.200/- from the plaintiffs.
6) On the basis of pleadings, the learned trial Court had framed the following 8 issues for trial, viz., (1) Whether there is any cause of action for the suit?, (2) Whether the suit is bad for defect of parties?, (3) Whether the suit land is properly and correctly described in the plaint?, (4) Whether the plaintiffs have right, title and interest over the plot (P-6) Nos. 1 and 2 of the second schedule land described in the plaint?, (5) Whether the defendants have encroached upon the land described in plot nos. 1 and 2 in the second schedule of the plaint?, (6) Whether the plaintiffs are entitled to get relief as prayed for? Since no issue as to the counter-claim was framed accordingly as per provisions of order XIV Rule-5(1) C.P.C. the following issues were framed: (7) Is there any cause of action for the counter-claim, (8) Whether defendants are entitled to the counter claim as prayed for?
7) In support of the pleadings the plaintiffs' side had examined 4 (four) witnesses, namely, Hussain Ahmed (PW-1), Alauddin (PW-2), Asutosh Dutta (PW-3) and Satyabrata Choudhury (PW-4), and they had exhibited the following documents, viz., (i) Copy of gift deed No. 4092 dated 30.05.1975 (Ext.1); (ii) Deed No. 971 dated 04.05.1987 (Ext.2);
(iii) Deed No. 2120 dated 26.11.1987 (Ext.3); (iv) Certified copy of final khatian (Ext.4); (v) Information Slip (Ext.5). The defendants' side had examined 5 (five) witnesses, namely, (1) Ahmed Ali (DW-1), (2) Abdul Muquit (DW-2), (3) Abdul Jalil (DW-3), (4) Mahmud Ali (DW-4), and Asutosh Dutta (DW-5), and they had exhibited the following documents, viz., (i) Deed No. 895 dated 10.11.1987 (Ext.A); (ii) Deed No. 2121 dated 26.11.1987 (Ext.B); (iii) Deed No. 284 dated 27.02.1990 (Ext.C); (iv) Challan (Ext.D to D-3); (v) Certified copy of memorandum of local inspection (Ext.E).
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8) The learned trial Court took up issue No.2 first and held that the suit was not bad for defect of parties. In respect of issue No.3, it was held that although the claim was in respect of land measuring 0.37 decimal, but in the cross examination, the PW-1 had stated that there was 0.08 decimal land within Schedule-1 and in Schedule-2 there was 0.30 decimal land and the PW-1 had claimed the total land area as 0.38 decimal. Accordingly, presumption was drawn that the plaintiffs had not described the land correctly and issue No.3 was decided against the plaintiffs. In respect of issue No.4, the learned trial Court had discussed the evidence of PW-1, as well as the evidence of PW-2 and PW-3, who were the attesting witnesses of Ext.3, and PW-4, the employee of Sub- Registry, it was held that Ext.2 and Ext.3 were duly proved. However, in view of the decision rendered in respect of issue No.2, it was held that the presumption of right, title, interest and possession of the plaintiffs over the land improperly described cannot be drawn and, as such, the issue was decided against the plaintiffs. In respect of issue No.5, the learned trial Court had referred to the evidence of DW- 2 to the effect that both the plaintiffs and the defendants were occupying their respective purchased land and the boundaries are also demarcated by pillars which is also supported by Ext.E. It was also held that apart from PW-1, the plaintiffs did not adduce any oral evidence to support their claim of encroachment of land by the defendants. Therefore, by referring to the evidence of PW-1, as the PW-1 had stated that 0.38 decimal land was in their possession, it was held that the evidence of DW-1 clearly showed that the story of encroachment of land by the defendants is false. Accordingly, the issue was decided against the plaintiffs. In view of the decision in respect of issues No.3, 4 and 5, issue No.1 was decided in the negative by holding that the plaintiffs had failed to show that there was any cause of action for the suit. Accordingly, issue No.6 was also decided against the plaintiffs.
9) In respect of issue No.8 relating to counter-claim, the learned trial Court had referred to the Inspection Report (Ext.E) and held that it supported the claim of the defendants that the branches of the trees extended to the path, and that according to the DW-2, it had created obstruction to the defendants to obtain electricity connection. However, as per evidence of PW-1 the defendants were now having electricity connection and that as per DW-2, the dispute between the parties was settled by village elders and the plaintiffs had cut the branches of the trees and the defendants had obtained electricity connection. Accordingly, as the plaintiffs had removed the tree branches, the counter-claim was held to Page No.# 7/14 have been rendered infructuous and the issue was decided against the defendants. In respect of issue No.7, it was held that the tree branches were removed by the plaintiffs after local inspection of the Court, as such, it was held that there was no counter-claim for the suit. As a result, the suit as well as the counter-claim was dismissed.
10) The learned first appellate Court, did not frame any point of determination. However, by referring to evidence of the witnesses, the said learned Court had recorded a finding that the issues were rightly decided by the learned first appellate Court and accordingly, the appeal was dismissed on contest.
11) At the outset, the learned counsel for the appellants has very meticulously referred to the various provisions of (i) The Assam Land and Revenue Regulation, 1886, (ii) The Assam (Temporarily Settled Areas) Tenancy Act, 1971, (iii) The Assam Land Holding (Adoption of Relationship under the Assam Land and Revenue Regulation, 1886 in the Acquired Permanently Settled Estates) Act, 1974, (iv) The Goalpara Tenancy Act, 1929, and
(v) the Sylhet Tenancy Act, 1936. Reference was made to the same to explain the land laws prevailing in the District of Karimganj and to explain the way and manner of acquiring right of a land-holder, jote rights and tenancy right.
12) The learned counsel for the appellants has submitted that the learned Courts below had erred in law and on facts in dismissing the suit of the appellants merely because the PW-1 had made a mistake in mentioning the plaintiff's land to be 0.38 decimal instead of 0.37 decimal and in this connection, by relying on the case of R. Kapilnath (Dead) through LRs. Vs. Krishna, (2003) 1 SCC 444, it is submitted that where the plaintiff had claimed higher right, but has been able to prove only a lesser right or entitlement to relief, the plaintiff would not be disentitled from succeeding in his suit for the lesser right sustained by him. It is submitted that the learned first appellate Court had failed to frame any points of determination and therefore, it had miserably failed to comply with the mandate of the provisions of Order XLI Rule 31 CPC, which according to him has vitiated the first appellate judgment and decree. It is submitted that the judgment passed by the learned first appellate Court is non-est in the eye of law, as various issues framed by the learned trial Court has not Page No.# 8/14 been discussed and in this regard, it is submitted that the learned first appellate Court had merely copied the judgment passed by the learned trial Court without applying judicial mind and that reference is only made to decision on issues No.1, 5, 7 and 8.
13) Perused the LCR received. The land covered by Schedule-I of the plaint is land measuring 0.37 decimal, covered by Dag No. 1087, Settlement Survey Khatian No. 389, Mouza- Umarpur Part-I, Pargana- Chapghat, and the boundaries are - East: Defendant's homestead land, West: four cubit wide road under defendant's title, North: PWD Road, South:
Defendant's homestead land and in the south thereof, plaintiffs' cultivable land. The land covered by Sl. No.1 of Schedule-2 is land measuring 0.05 decimal within the land of Schedule-I with the following boundaries - East: Plaintiffs' homestead, West: four cubit wide road under defendant's title, North: PWD Road, South: Defendants' house. The land covered by Sl. No. 2 of Schedule-2 is land measuring 1 jasti- 8 pon with the following boundaries - East: remaining land of the Schedule, West: four cubit wide road under defendant's title, North: PWD Road, South: land of Sl. No.1.
14) The defendants have described their land relating to Dag No. 598/ 1087, Decennial Mahal Darutibund Khatian No. 389, Kitta Konapara, Mouza- Umarpur Part-I, Pargana- Chapghat in the Schedule appended to their written statement as follows:- (Para No.1) Homestead land measuring 0.16 acre, bounded as follows- East: Roise Uddin & Ors., West: Originally Mazid Ali's land, presently defendant's own land, North: land of Para No.2, i.e. the passage in the western part and the plaintiffs in the eastern part, South: land of para-
3. (Para-2) Passage measuring 0.04 acre, bounded as follows - East: Plaintiffs, West: Ashan Ali & Ors., North: PWD Road, South: land of Para-1. (Para-3) Homestead land measuring 0.07 acre covered by Dag No. 1086, Settlement Survey Khatian No. 391, Mouza, Kitta and Mahal as above, the boundaries being- East: land of para-4, West: Originally Mazid Ali's land, presently defendant's own land, North: land of Para-1, South: Azizur Rahman's land. (para-4) Land measuring 0.16 acre in Dag No. 1086, Settlement Survey Dag No. 391, with the following boundary - East: Ashanur Raja Choudhury, presently the plaintiffs, West: land of para-3, North: Roise Uddin and others, South: land sold by Azizur Rahman.
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15) It appears that there has been a blunder in the drafting of the plaint. In paragraph 2 of the plaint, it has been stated to the effect that 1 powa land was sold by Hiralal Dey to defendant No.2 on 04.05.1987. However, without amending the plaint, the PW-1 in his evidence- on- affidavit has stated that "... Hiralal Dey, vide sale deed No. 971 dated 4/5/87 transferred one powa of land within Ist Schedule land of the plaint accompanied with delivery of possession in favour of plaintiff No.2, Roise Ali of this suit ..." The said sale deed has been marked as Ext.2 by the PW-1. Thus, the appellants- plaintiffs have been able to plead and prove that the plaintiff No.1, 2 and Moiob Ali, father of plaintiffs No. 3 to 6 had purchased land measuring 0.30 decimal vide Regd. Sale Deed No. 2120 dated 26.11.1987 (Ext.3) and received possession thereof. Accordingly, in light of pleading in paragraph 2 of the plaint, the appellants- plaintiffs had not been able to prove purchase of 1 powa land vide Ext.2, because the evidence tendered by PW-1 in respect of Ext.2 is contrary to the pleadings made in the plaint.
16) However, on examining the sale deed i.e. Ext.3, it is seen that the appellants No.1 and 2 and father of appellants No.3 to 6 had purchased a plot of land measuring 0.30 acre vide Sale Deed No. 2120 dated 26.11.1987 and in the schedule thereof there is a mention about 4 hand (cubit) wide road. Thus, Ext.3 is a documentary evidence to show that the land purchased by the appellants No.1 and 2 and the father of appellants No.3 to 6 was bounded by 4 cubit wide road.
17) From the LCR, it is seen that on 02.03.2002, the appellants had filed a petition No. 767/21 with a prayer for local inspection of the suit land and the learned trial Court had ordered that the local inspection shall be carried out on 04.03.2002 after Court hours. Accordingly, on 04.03.2002, at about 4.40 pm., the local inspection of the suit land was carried out. As per Memorandum of Local Inspection (Ext.5), it has been mentioned, inter-alia, that "Towards west of the suit land and homestead of the plaintiffs, there is a path measuring 7 (seven- feet) X 5 (five- inch) of the defendant which runs from the aforesaid P.W.D. road to the homestead of the defendants along north to south direction ." It is seen that in terms of order XXVI Rule 10(2) CPC, the report by the Commissioner regarding local inspection i.e. Ext.E is an evidence in the suit.
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18) The case of the appellants is that there was a 4 (four) cubit road on the western side of the Schedule-I land and that the respondents had encroached 1 cubit land to include it in the road. To examine the said plea, it is seen that in the Schedule to the registered sale deed dated 26.11.1987 (Ext.3), in the west of the purchased land, it is mentioned that there is a 4 (four) hand (cubit) wide road/ path. According to the British Weights and Measures as well as Indian Weights and Measures, one cubit is equivalent to 18 inches. In Ext.E, i.e. the Memorandum of local inspection, the Commissioner has recorded that the said path was having a width of 7 feet- 5 inches, which is equivalent to about 89 inches. Therefore, if one cubit is 18 inches, 4 cubits would be 72 inches (i.e. 18 inches X 4 = 72 inches). Hence, through Ext.E proved by the DW-1, it has been established that the path towards the homestead land of the respondents is 1 inch less than 5 cubits i.e. 89 inches. Thus, from the description of path in Ext.3, there appears to be force in the submissions by the learned counsel for the appellant that the suit path is almost one cubit more than 4 cubits. From the rough sketch map of the suit land discloses existence of old pucca pillars between the path and the land of the appellants and moreover, there also exists one old pillar on the western side of the path of the respondents and that the said rough sketch map also discloses that the newly constructed low boundary wall appears to be in a straight line over 5 old pucca pillars. In light of contents of Ext.3, which discloses the existence of 4 cubit wide road of the respondents in western side of land purchased by the appellants and a specific finding recorded in Ext.E regarding existence of 7'5" (seven feet five inch) road on western side of appellants' land, the appellants have been able to make out a case that the learned Courts below committed gross error in not appreciating the evidence on record.
19) It is seen that merely because the PW-1 had made a mistake in stating in his cross examination that by two sale deeds, they had purchased 0.38 decimal land, the learned trial Court had disbelieved the claim that the appellants had purchased 0.37 decimal land. Although in respect of issue No.5, the learned trial Court had referred to Ext.E, but the said learned Court failed to appreciate that in the rough sketch map contained therein, the path was found to be 7 feet 5 inches wide in course of local inspection, which if converted into inches would be 89 inches, but 4 cubit wide path situated to the west of the appellants land, if converted to inches would be 72 inches, which prima facie discloses that the land of the path had increased from 4 cubits to 1 inch less than 5 cubits, as such, the learned Courts Page No.# 11/14 below have failed to appreciate that Ext.E provides credibility to the claim of the appellants.
20) It is seen that despite entries made in Ext.E, which discloses that at the time of local inspection, the suit path was about 1 cubit larger than 4 cubit wide path mentioned in Ext.3, both the learned Courts below had misdirected itself in dismissing the suit without making any effort to find out whether the respondents had encroached over any portion of the land owned and/or possessed by the appellants, which are described in plots No.1 and 2 of Schedule-2 of the plaint.
21) It is seen that although in his evidence- on- affidavit, the PW-1 had claimed right in respect of 0.37 decimal, but in his cross examination, the PW-1 had mentioned that by two sale deeds, he had purchased land measuring 0.38 decimal. It is on this count that the learned trial Court had decided issue No.3 by presuming that the plaintiffs had not described the land correctly and issue No.3 was decided against the plaintiffs. It is seen that the reply by the PW-1 in his cross examination related to purchase of land and not with regard to boundaries of the suit land. Thus, the cross- examination of PW-1 had been read out of context, which is found to have vitiated the finding by the learned trial Court in respect of issue No.3. Thereafter, by relying on the decision on issue No.3, the other issues No.1, 4 and 5 were decided against the appellants- plaintiffs.
22) The appellants are not aggrieved by the finding of the learned trial Court on issue No.2 by holding that the suit is not bad for defect of parties or in respect of issues No.7 and 8 relating to dismissal of counter-claim. Hence, there is no requirement for this appellate Court to re-visit the issue Nos.2, 7 and 8, which was decided in favour of the appellants.
23) Accordingly, the recast substantial question of law is answered by holding that that the learned first appellate Court below had erred in law in dismissing the appeal entirely on alleged evidence of DW-1 in cross examination that he claims 0.38 decimals of land pertaining to Schedule-1 although Exhibits 2 and 3 discloses the same to be 0.37 decimals and not decreeing the suit for 0.37 decimals.
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24) In this connection, the learned first appellate Court did not comply with the provisions of Order XLI Rule 31 CPC by not framing any point of determination and moreover, there was no discussion on any other issues except issues No. 1, 5, 7 and 8. Thus, the learned first appellate Court did not give its finding on issue No.2 and the most relevant issues No.3 and 4 were not re-appreciated by the learned first appellate Court.
25) In view of the discussions above, the finding recorded by the learned trial Court as well as by the learned first appellate in respect of issue No.5 cannot be sustained on facts and the finding by both the learned Courts are vitiated by erroneous appreciation of evidence on record. The finding recorded by the learned trial Court on issues No.1 and 3 to 6 is not sustainable as the learned trial Court had misread the cross- examination of PW-1 and failed to appreciate the Memorandum of Local Inspection (Ext.E), specifically with regard to the width of passage.
26) Thus, the manner in which the learned first appellate Court had dealt with the first appeal is not at all sustainable because the first appellate Court is the last Court of facts and a duty is cast on the learned first appellate Court to decide all the issues framed for trial by appreciating the pleadings and evidence on record. In the case of Ramchandra Sakharam Mahajan V. Damodar Trimbak Tanksale, (2007) 6 SCC 737, the Supreme Court of India had held that the duty of first appellate court is to independently appraise evidence in light of pleadings. In the case of C. Venkata Swamy Vs. H.N. Shivanna, (2018) 1 SCC 604 , it was also held that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant and that the jurisdiction of the first appellate court, while hearing the first appeal, is very wide like that of the trial court and it is open to the appellant to attack all findings of fact and/or law in first appeal and that it is the duty of the first appellate court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference. Accordingly, the first appellate judgment and decree dated 18.08.2008, passed by the learned Civil Judge, Karimganj in Title Appeal No. 41/2006 is set aside.
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27) The first appellate proceeding i.e. Title Appeal No. 41/2006 is remanded for a fresh decision by the learned first appellate Court, i.e. Civil Judge, Karimganj. The learned first appellate Court shall hear the said appeal afresh, and while doing so, the said learned Court shall appreciate the statements made in paragraph 2 of the plaint, wherein the appellants- plaintiffs had stated that 1 powa land was sold to the defendant No.2, which is contrary to contents of sale deed dated 04.05.1987 (Ext.2), and to appreciate Ext.E, i.e. the Memorandum of Local Inspection, specifically with regard to the measurement of the width of the path leading to the homestead land of the respondents. On receipt of the LCR on remand, the learned first appellate Court shall give reasonable opportunity of hearing to both sides and shall give a fresh decision on issues No.1 to 6 on the basis of materials available on record without granting any opportunity to the parties to amend the pleadings or to adduce fresh evidence at appellate stage. The order of remand is within the scope of Rule 23A of Order XXIII CPC. It is clarified that while deciding the matter afresh, the learned first appellate Court shall not be influenced by any observations made herein.
28) In view of the order of remand, there is no necessity to deal with the case of R. Kapilnath (supra) cited by the learned counsel for the appellant.
29) The appellants, who are represented by their learned counsel shall appear before the learned trial Court, i.e. Court of Civil Judge, Karimganj on 21.01.2020 and by producing the certified copy of this judgment, seek further instructions from the said learned Court. It is made clear that if for some reason the said date of 21.01.2020 is a Court holiday, then the appellants- plaintiffs shall appear before the learned trial Court on the next working date without fail.
30) The learned first appellate Court shall hear the appeal on priority basis by giving short dates and by restricting grant of unnecessary adjournment to both sides.
31) Let the LCRs be expeditiously returned.
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32) The Court Master shall inform Mr. R.C. Paul and Ms. S. Roy, learned counsel
on record for the respondents about the passing of this judgment and order and about the fixing of the date of appearance of the parties before the learned first appellate Court on 20.01.2020.
JUDGE Comparing Assistant