Gauhati High Court
Atul Ch. Saikia vs Gautam Borah & 2 Ors on 3 December, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 177/2009
1. Sri Atul Chandra Saikia,
S/o Late Jogesh Saikia,
R/o Duliagaon,
Mouza - Garamur,
District- Jorhat,
Assam.
...... Appellant
-Versus-
1. Sri Gautam Boruah,
S/o Sri Ganesh Boruah,
R/o Duliagaon,
Mouza - Garamur,
District - Jorhat,
Assam.
2. Sri Jogneswar Dutta,
S/o late Sisuram Dutta,
R/o Duliagaon,
Mouza - Garamur,
District - Jorhat,
Assam.
..... Respondent
3. Sri Ramesh Kumar Malpani, S/o Murulidhar Malpani, Reside of Jorhat, Page 1 of 21 RSA 177/2009 Assam.
.... Proforma Respondent
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellant : Mr. PS Deka
Advocate
For the Respondents : Mr. J Roy
Advocate (R-1)
Date of Hearing : 03.12.2015
Date of delivery of
Judgment and Order : 03.12.2015
JUDGMENT AND ORDER (ORAL )
In this second appeal, appellant has challenged the judgments and decrees passed by the learned courts below whereby the suit was dismissed.
2. The appellant, as plaintiff, instituted Title Suit No. 24/2004 in the Court of learned Civil Judge (Sr. Divn.) No. 1 at Jorhat on 17.06.2004 stating that land measuring 1K out of 2K 10L covered by old Dag No. 40 (new Dag No. 372) of annual Patta No. 11 which has been converted into 372/956 of periodic Patta No. 200 of Dulia Gaon in the district of Jorhat originally belonged to one Jogneswar Dutta. He sold the land to one Narayan Chandra Bora on 01.02.1961 by executing registered sale deed No. 310. Narayan Chandra Bora on turn sold the land to Nagendra Nath Boruah on 19.04.1965 by executing registered sale deed No. 1457. Nagendra Nath Boruah thereafter by executing registered sale deed Page 2 of 21 RSA 177/2009 No. 2652 sold the entire land to Ramesh Kumar Malpani on 24.02.1966. This Ramesh Kumar Malpani is the proforma defendant No. 3 in this case whereas the original owner Jogneswar Dutta has been impleaded as principal defendant No.
2. Plaintiff claimed to have entered into an oral agreement for purchase of this land from Ramesh Kumar Malpani (Pro-forma defendant No. 3) and subsequently he came into possession of the land in the year 1985 and made the land fit for residential purpose. Thereafter he claims to have constructed a house on the land in the year 1991 after obtaining a katcha sale deed from the proforma defendant No. 3 in respect of that suit land. He claims to occupy the land from last 20 years without any interruption. But the defendant No. 1 made attempt to enter the suit land on several occasions and ultimately on 31.08.2003, he made the last endeavour to occupy the land by removing the boundary fencing. At that time defendant No. 1 also claimed to have purchased the land from defendant No. 2. The plaintiff, therefore, initiated a proceeding under section 145 of Code of Criminal Procedure before the District Magistrate at Jorhat. The proceeding was drawn up and the suit land was attached under section 146 (I) of Code of Criminal Procedure. Since, the question of title arose in the proceeding which a learned Executive Magistrate cannot decide, plaintiff became compelled to institute the suit praying for decree for:
(i) Declaring the possession of the plaintiff over the suit land with confirmation of the same;
(ii) Grant of permanent injunction restraining the Defendant No. 1 and his workmen, servants etc from entering into the suit land in future;
Page 3 of 21 RSA 177/2009
(iii) Declaring that the defendant No. 2 has no right to sell the suit land to the defendant No. 1;
(iv) Declaring any sale made by the defendant No. 2 to defendant No. 1 in respect of the suit land to be illegal and void;
(v) Cost of the suit;
(vi) Grant any other reliefs as the court deems fit and proper
and for which act of kindness etc.
3. Upon receipt of summons, only defendant No. 1 appeared. The defendants No. 2 and 3 did not appear and so the proceeding was held ex-parte against the defendants No. 2 and 3 and on contest against the defendant No. 1.
Defendant No. 1 by filing written statement denied averments of facts made in the plaint. In paragraph 11 of the written statement, he made out a case of his own stating that he purchased a plot of land measuring 2K 10L in Dag No. 372/956 pertaining to PP No. 200 from three persons, namely, Jogneswar Dutta, Ajay Dutta and Guneswari Dutta vide registered sale deed No. 1385 dated 04.09.2002 and subsequently got his name duly mutated in the records of rights. According to the defendant No. 1, plaintiff was never in possession of the land and he has no locus-standi to claim any right over the suit land. He denied the possession of the plaintiff from 1985 over the suit land and further stated that one Pranab Dutta and one Suren Kalita @ Bulu have been possessing two rooms on the suit land as tenants and they have already assured the defendant to vacate the land as its tenants.
Page 4 of 21 RSA 177/2009
4. He specifically asserted that suit land was never sold out to anybody else by Ajay Dutta, Jogneswar Dutta and Guneswari Dutta prior to execution of sale deed dated 04.09.2002 in favour of the defendant No. 1. Coming to the question of proceeding under section 145 of the Code of Criminal Procedure it is further pleaded that the aforesaid proceeding, numbered as Misc. Case No. 250/2003, has been dropped by the learned Executive Magistrate. With these averments, the defendant No. 1 prayed that the suit be dismissed on cost.
5. After perusal of the aforesaid pleadings of the parties it would appear that the plaintiff stated to have claimed possession over the suit land on the basis of the title of his vendor, namely, proforma defendant No. 3 who did not contest the proceeding and did not deny the averments made by the plaintiff. The plaintiff did not claim any title for himself but claimed right to continue possessing the same on the basis of purchase by katcha sale deed from proforma defendant No. 3 who, according to the plaintiff, has right, title and interest with respect to the suit land on the basis of purchase by registered sale deed. But the learned trial court perhaps without noticing the averments made by the parties in their respective pleadings and may be on the basis of argument put forward by the learned counsel for the parties framed following 5 (five) issues:-
1. Whether there is cause of action for the suit?
2. Whether the plaintiff has right, title and interest over the suit land?
3. Whether the plaintiff has possession over the suit land?
4. Whether the plaintiff is entitled to the relief prayed in the plaint?
5. To what relief/ reliefs the parties are entitled?
Page 5 of 21 RSA 177/2009
6. The parties did not object to framing of the issues by filing any application before the learned trial court or High Court but proceeded to lead their respective evidence. Plaintiff examined as many as 5 witnesses including himself as PW 1. In his examination-in-chief the plaintiff reiterated the story stated by him in the plaint as to possession of the suit land for over 20 years on the basis of purchase by unregistered sale deed from the original title holder as well as oral agreement to sell the land and he complained that on 16.07.2004 and 17.07.2004 defendant No. 1 by engaging his men sought to dispossess the plaintiff from the suit land. He exhibited certified copy of sale deed No. 310 dated 01.02.1961 executed by defendant No. 2 in favour of Narayan Chandra Bora as Ext. 1, certified copy of sale deed No. 1457 dated 18.04.1965 executed by Narayan Chandra Bora in favour of Nagendra Nath Bora as Ext. 2, certified copy of sale deed No. 1871 executed by Nagendra Nath Bora in favour of Ramesh Kumar Malpani on 24.02.1966 as Ext. 3, the katcha sale deed dated 23.04.1991 in original as Ext. 4 and a report in Misc. Case No. 250/2003 as Ext. 5 without objection. The Exhibits 1 to 4, however, were admitted into records under objection. In course of cross examination, the plaintiff could not disclose as to when the annual patta land had been converted into periodic patta land but claimed that Pranab Jyoti Dutta and Bulu Dutta have been in possession of the suit land as tenants under him. A suggestion was given to him to the effect that land covered by Ext. 3 and the suit land are two different lands, although, the schedule of Ext. 3 and Ext. 4 are the same. Another suggestion was put forward to him in course of cross examination that signature of Ramesh Kumar Malpani appearing in Ext. 4 katcha sale deed dated 23.04.1991 is a forged one which, Page 6 of 21 RSA 177/2009 however, he denied and continued claiming that he got possession of the suit land from Ramesh Kr. Malpani.
7. Pranab Jyoti Dutta and Bulu Dutta are PW 2 and PW 3 in the case who claimed that they are occupying two rooms of the suit land as tenants of the plaintiff. PW 4, Babul Baruah, stated that he knows both the parties to the suit and deposed that he has found plaintiff occupying the suit land for over 20 years.
In course of cross examination, he stated that he knew plaintiff since 1985. PW 5, Maheswar Kalita, is yet another independent witness claiming that he saw the plaintiff occupying the suit land for over 20 years last and that plaintiff had filled up the land and made fit for construction of house. According to him, the plaintiff purchased the land from Ramesh Kumar Malpani which was originally annual patta land and he was a witness to Ext. 4 sale deed. It appears that the basic purpose of examining of PW 5 was to prove that Ramesh Kumar Malpani had executed sale deed in favour of the plaintiff. In course of cross examination, he gave description of the boundaries. Krishna Gopal Barua who is the Lat Mandal of the area was examined as PW 6 in the case orally. He stated that there was 3K 8L of land in Dag No. 372 which was initially annual patta land in the name of Jogneswar Dutta. Out of this land, 2K 10L was converted into periodic patta land and thereupon a new Dag under Dag No. 956 was carved out. The land covered by a new dag was part of 2K 10L of the annual patta land and there was a proceeding under section 145 Cr.P.C. being Misc. Case No. 250/2003 with respect to the said land. He claimed that in the aforesaid proceeding he submitted a report and Ext. 5 is the copy of the same report. He identified the signature on the report to be his signature vide Ext. 5(1). According to him, in Page 7 of 21 RSA 177/2009 the original land of Dag No. 372, there was 3K 8L in all out of which only 2K 10L was converted into periodic patta and still 18 L remained under annual patta. According to him, nobody is showed to be in occupation of this land measuring 18L. He further claimed that out of 2K 10L of land covered by P.P. No. 200 and Dag No. 956, plaintiff is in occupation of 1K 5L. But in course of cross examination, he admitted that in Ext. 5 he did not make mention of the boundaries of the land under possession of the plaintiff.
8. Defendant No. 1 examined himself as DW 1 and one Kuladhar Kalita as DW 2. According to DW 1, the land covered by Dag No. 372/956 and PP No. 200 belonged to Jogneswar Dutta, Ajay Dutta and Guneswari Dutta who by executing a registered sale deed No. 1385 dated 04.09.2002 sold 2K 10L to him after obtaining necessary permission from the authorities. Ext. A is the said sale deed and by Ext. B order dated 10.01.2003 he obtained mutation in his favour. He has proved Jamabandi Ext. C to show that his name has been incorporated in place of his vendor. According to him, plaintiff never constructed any residential building in the year 1991 and that he all along has been in possession of the land. He also exhibited other documents like Ext. D, Ext. E, Ext. F, Ext. G and Ext. H as to sketch map, trade licence etc. In Course of cross examination, DW 1 could not say what was the Dag number when the land was under annual patta. He could not say if there was any sale deed in favour of Narayan Chandra Bora when the land was covered by the annual patta. But he admitted that he did not ask Jogneswar Dutta to be his witness although he was living at that time. According to him, the land became periodic only in the year 1997. He claimed to have purchased the land in Dag No. 372 and stated the boundary of the land. Page 8 of 21 RSA 177/2009
9. Kuladhar Kalita examining himself as DW 2 stated that he knows both the plaintiff and the defendant No. 1 and that he was aware that the defendant No. 1 purchased 2K 10L of land from Jogneswar Dutta, Ajay Dutta and Guneswari Dutta and after that he has been in possession of the land. He also admitted that Pranab Jyoti Dutta and Suren Kalita have been in possession as tenants. In course of cross examination, he admitted that the suit land originally belonged to Jogneswar Dutta.
10. Upon consideration of the materials on record, the learned trial court passed judgment and decree on 26.09.2006 holding that plaintiff having claimed to have purchased the land by Ext. 4 which is katcha sale deed, no title has flown to him. On the other hand on perusal of Ext. A and Ext. C, it appears that the defendant No. 1 purchased the land by registered sale deed and acquired title thereto. Issue No. 2 was accordingly decided against the plaintiff and in favour of the defendant No. 1. Coming to issue No. 3, the learned trial court held that ''the plaintiff has possession over some portion of the suit land having his pucca house rented out to various persons. However, from the evidence of the witnesses discussed hereinabove, it cannot be ascertained with certainty that plaintiff has possession over remaining portion of the suit land which is still lying vacant". Accordingly, issue No. 3 was decided in favour of the plaintiff. Having found that plaintiff did not have a registered sale deed in his favour, issue No. 4 was decided against the plaintiff. Similarly having found that there was no cause of action for the suit and the plaintiff was not entitled to any relief, issues No. 1 and 5 were also decided against him. With these findings, the learned trial court dismissed the suit in entirety.
Page 9 of 21 RSA 177/2009
11. The plaintiff challenged the judgment and decree of the learned trial court before first appellate court leading to registration of Title Appeal No. 70/2006 in the court of learned District Judge at Jorhat who by judgment and decree dated 01.09.2009 dismissed the appeal. The learned first appellate court does not appear to have framed any point for determination as is required under Order XLI Rule 31 of the Code of Civil Procedure. The issues framed by the learned trial court were also not decided by the learned first appellate court. But coming to paragraph 10 of the impugned judgment, the learned first appellate court held that the plaintiff not having made appropriate pleading to show that his possession is adequate, in continuity, in publicity and in extent so as to show that it is adverse to the true owner and so plaintiff has to show adverse possession. Ultimately in paragraph 12, the learned first appellate court found that plaintiff failed to establish that he had perfected his title over the entire suit land by adverse possession or that the land was transferred to him by registered sale deed. A bare perusal of the judgment and decree passed by the learned first appellate court it appears that the learned first appellate court was engaged in deciding as to whether plaintiff had properly pleaded and proved a case of adverse possession. In so doing, it was not noticed that the plaintiff neither claimed title at all nor did he speak of perfect title by adverse possession. The learned first appellate court also did not notice that in the absence of prayer for declaration of title either in the plaint or by leading evidence, the learned first appellate court was not required to frame an issue in regard to title of the plaintiff over the suit land. It also escaped the notice of the learned first appellate court that plaintiff instituted the suit on the basis of the title of the Page 10 of 21 RSA 177/2009 proforma defendant No. 3 who, according to him, had acquired a valid right, title and interest on the basis of registered sale deed (Ext. 3). The vendor of the proforma defendant No. 3 on turn had purchased the suit land from one Narayan Chandra Bora by registered sale deed Ext. 2 and this Narayan Chandra Bora had purchased land from the original owner Jogneswar Dutta by a registered sale deed Ext. 1 and so prima facie it appears that the plaintiff traced devolution of title by transfer from his vendor, namely, the proforma defendant No. 3 and thereafter he claimed that he obtained possession over the land in 1985 on the basis of an oral agreement for purchase of the suit land and he got a katcha sale deed executed in his favour by proforma defendant No. 3. His further case is that he made construction on the suit land in the year 1991. Had the learned first appellate court proceeded to frame the points for determination as is required under Order XLI Rule 31 of the Code of Civil Procedure, in that event perhaps it would have come to light as to what was the case of the plaintiff and to what extent was the case of the plaintiff denied by the defendant and as to what was the crux of the dispute between the parties.
12. It is this judgment which has been brought under challenge in the present appeal by the plaintiff and this court while admitting the second appeal framed following substantial questions of law:-
1. Whether there was failure of justice on the part of the learned lower appellate court by deciding the appeal without following the mandatory provision of law said down in Order XLI Rule 31 of the Code of Civil Procedure, 1908?
Page 11 of 21 RSA 177/2009
2. Whether the issue No. 2 relating to the Title of plaintiff vis-a-vis the defendant No. 2 in respect of the suit land was decided correctly and whether the defendant No. 1's title is decided on the basis of no evidence?
3. Whether the refusal of relief by both the Courts below resulted in miscarriage of Justice?
13. I have heard Mr. PS Deka, learned counsel for the appellant and Mr. J Roy, learned counsel for the respondent No. 1. No one has put up appearance on behalf of other two respondents. I have perused the lower court records including depositions of the witnesses and the documents adduced by them.
14. The first substantial question of law framed by this court appears to be the foundation of the second appeal and the same is taken up for decision first. Mr. PS Deka, learned counsel for the appellant, argues that from perusal of the provision of Order XLI Rule 31 of the Code of Civil Procedure, it appears that it is a mandatory provision of law and so strict compliance of the same is necessary. However, Mr. PS Deka could not produce any judgment to show that it has already been settled by preponderance of judicial pronouncement that provision of Order XLI Rule 31 of Code of Civil Procedure is a mandatory provision of law.
15. Per contra, Mr. J Roy, learned counsel for the respondent No. 1, would argue that Order XLI Rule 31 of Code of Civil Procedure does not have any default clause attached to it and so it is barely directory in nature. Mere recital of the word 'shall' in Order XLI Rule 31 of the Code of Civil Procedure cannot ipso facto convert the same to a mandatory provision of law. Having heard the learned counsel for the parties it appears that although Order XLI Rule 31 of Page 12 of 21 RSA 177/2009 Code of Civil Procedure contains the word 'shall' but nothing has been provided thereafter as to what would happen if this provision of law is not complied with. It is to be noted that a similar mention provision of the word 'shall' occurs in Order VIII Rule 1 of Code of Civil Procedure providing that defendant is duty bound to submit written statement within a period of 30 days from the date of service of notice subject to the proviso. But even that provision of law was held to be directory by the Hon'ble Supreme Court. Like the provision of Order VIII Rule 1, the provision of Order XLI Rule 31 of the Code of Civil Procedure also appears to be a procedural provision. This provision being merely procedural in nature, substantial compliance of the same may be sufficient. The question as to nature and character of the provision of Order XLI Rule 31 of Code of Civil Procedure came up for consideration before this court in the case of K. Ibohal Singh v. Ch. Iboyaima Singh and others reported in (1993) 1 GLR 325. In paragraph 19 of this judgment, this court was of the view that there must be substantial compliance of the provision of the Rule 31 of the Order XLI of the Code of Civil Procedure. However, in the body of the paragraph it was observed that the judgment of the first appellate court must mention the point for determination and give decision thereon and also the reasons. Paragraph 19 of this judgment is quoted below:-
"19. The first appellate court being the last court of facts, it is its duty to discuss the entire evidence on record. Without discussing the facts, the first appellate court cannot come to any conclusion. Rule 31 of Order XLI of the Code of Civil Procedure prescribes the procedure for writing an appellate judgment. The judgment of the first appellate court must mention the point for Page 13 of 21 RSA 177/2009 determination and give decision thereon and also the reasons. It is incumbent on the final court of facts (first appellate court) to discuss all evidences on record and give its finding. While reversing the decision it must give reasons and indicate the source of reasons. Even on concurring a judgment, oral evidence should be summarised and give reason for accepting or rejecting the appeal. A judgment which does not discuss the reason and also the oral evidence on record is vitiated by the error of procedure. There must be substantial compliance of the provisions of Rule 31 of the Order XLI of the Code of Civil Procedure."
16. In the case of Sudhir Chandra Mitra v. Md. Sujauddin Ahmed and others reported in (1995) 3 GLT 610, the argument as to compliance of Order XLI Rule 31 of the Code of Civil Procedure was again considered by this court. In paragraph 5 of this judgment this court found full force in the submission of the learned counsel for the appellant that Order XLI Rule 31 of Code of the Civil Procedure requires the appellate court to state the points for determination, the decision thereof, the reasons for decisions and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Even in the aforesaid judgment this court had found on perusal of the appellate judgment that the learned Assistant District Judge having considered the evidence led by the parties and having agreed with the reasons of the learned Munsiff in favour of his conclusion on the points for determination, there was compliance of the provision of Order XLI Rule 31 of the Code of Civil Procedure. This judgment also does not show that the provision of Order XLI Rule 31 of the Code of Civil Procedure was found to be mandatory.
Page 14 of 21 RSA 177/2009
17. The provision of Order XLI Rule 31 of the Code of Civil Procedure is quoted below for ready reference:-
"Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and shall state -
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
18. Although the provision requires the first appellate court to state the points for determination, the decision thereon, the reasons for decision etc. but it does not say that such points for determination should be framed as is done in case of framing of issues under Order XIV Rule 1 of the Code of Civil Procedure. Order XIV Rule 1 requires framing of issues and in Clause (5) of Order XIV Rule 1 it is prescribed that at the first hearing of the suit, the Court shall after reading the plaint and the written statement, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Thus, Order XIV Rule 1 requires framing of issues at the first hearing of a suit but that is not so in the case of Order XLI Rule 31 of the Code of Civil Procedure. When an appeal is set for hearing before a first Appellate Court, the first Appellate Court is to pass judgment in writing and the judgment should state the points for determination, the decision thereon and the reasons for the decisions etc. So on perusal of the provision of Order XLI Rule 31 Page 15 of 21 RSA 177/2009 it appears that framing of points for determination as in the case of Order XIV Rule 1 is not mandated. On the other hand, as in the case of trial, the High Court is required to frame a substantial question of law at the time of entertaining a second appeal and only on framing of such substantial question of law, High Court derives jurisdiction to decide the same. Thus, both at trial stage as well as second appellate stage framing of issues or framing of substantial question of law, as the case may be, appears to be the point of initiation of adjudicatory exercise whereas the same is not the case in first appellate court where first appellate court is required to record the point for determination while writing a judgment. Nevertheless, after perusal of the memo of appeal as well as the impugned judgment and the records, it is necessary for the first appellate court first to decide as to what is the cause of the dispute between the parties and thereupon to proceed to decide the issues on full application of mind. In this regard, paragraph 15 of the judgment of the Hon'ble Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 may be profitably referred to :-
"15. ...........The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the Page 16 of 21 RSA 177/2009 view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of Page 17 of 21 RSA 177/2009 the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
19. The Hon'ble Supreme Court has found that first appeal being a valuable right of parties and this being the last court of fact and law, the judgment of the first appellate court must reflect its conscious application of mind and recording of findings on all the issues arisen along with the contentions put forward by the parties. On consideration of the provision of Order XLI Rule 31 of the Code of Civil Procedure in the light of what has been observed by the Hon'ble Supreme Court in the aforesaid quoted paragraph of the case of Sontosh Hazari (supra), it can be inferred that framing of points for determination though may not be mandatory in its form but for the sake of substantial compliance of this provision first appellate court is required to see that basic points of discord between the parties are duly and consciously addressed on the basis of the materials available on record. This means that irrespective of whether the first appellate court's judgment is a judgment of affirmation or reversal, the first appellate court is duty bound to consider the respective case of the parties and thereupon to ensure that the points of variance between the parties are adjudicated in accordance with law.
20. Having understood the provision of Order XLI Rule 31 of the Code of Civil Procedure in such manner, it is to be seen as to whether in the present case the learned first appellate court has duly and substantially complied with the provision or not. At the cost of repetition it is stated that plaintiff never prayed for declaration of his title over the suit land. What he wanted is that his vendor Ramesh Kumar Malpani acquired valid right, title and interest with respect to the Page 18 of 21 RSA 177/2009 suit land by virtue of purchase on the basis of registered sale deed. He entered into oral agreement with the plaintiff in the year 1985 for sale of the same on payment of valuable consideration and accordingly handed over possession of the land to him. Plaintiff having entered into possession of the land in the year 1985 continued possessing the same uninterruptedly. He obtained an unregistered sale deed in his favour from his vendor Ramesh Kumar Malpani in the year 1991 which has been exhibited as Ext. 4 in the present case. In view of the provision of Section 47 of the Registration Act, 1909, such unregistered sale deed may not have conferred any title on the plaintiff but by virtue of section 49 of the Act, he is entitled to make use of the document for collateral purpose. Perhaps realising such limitation of his right over the suit land, plaintiff did not make any prayer for declaration of right, title and interest with respect to the suit land and restricted his prayer for declaration of right and confirmation of possession over the suit land. There is no doubt that even a suit for possession is maintainable and Section 34 of the Act recognises a relief for declaration of any legal character or right. The plaintiff, however, made another prayer for negative declaration that defendant No. 2 was not entitled to transfer the suit land to anyone after having derived his title by sale to Narayan Chandra Bora on 01.02.1961 by registered sale deed (Ext. 1). The defendant No. 1 came forward and pleaded that the defendant No. 2 did not make any sale of the suit land in favour of anybody prior to execution of his sale deed (Ext. A) and so he denied acquisition of title by the vendor of the plaintiff and not that of the plaintiff. Under such circumstances, point on which the parties varied within the meaning of Order XIV Rule 1(5) of the Code of Civil Procedure is as to whether the vendor Page 19 of 21 RSA 177/2009 of the plaintiff had any title to the suit land and not as to whether the plaintiff had title at all. Plaintiff having restricted his prayer for declaration of right and possession, the learned trial court does not appear to have proceeded correctly in exercise of jurisdiction under Order XIV Rule 1(5) of the Code of Civil Procedure to frame an issue on the title of the plaintiff. This could have been a point for determination before the learned first appellate court but the learned first appellate court also proceeded in the same way. The learned trial court had observed that plaintiff did not acquire any right with respect to the suit land by virtue of purchase vide Ext. 4, unregistered sale deed. Plaintiff having not made any prayer for declaration of title over the suit land, no such finding was called for from either of the learned courts below. This means that the learned first appellate court did not reflect its conscious application of mind and findings on all issues arisen along with the contentions put forth by the parties to the appeal. In view of yardstick suggested vide observations made by the Hon'ble Supreme Court in the above quoted paragraph 15 of the case of Sontosh Hazari (supra), the first substantial question of law has to be decided in favour of the appellant and against the respondents holding that the learned first appellate court had not substantially complied with the provision of Order XLI Rule 31 of the Code of Civil Procedure and accordingly, the first substantial question of law is decided.
21. Since the first substantial question of law is the centre of gravity of the appeal and since it has been decided in favour of the appellant plaintiff already, decision on other two substantial questions of law would be mere academic and so avoidable. Accordingly, on the basis of the decision of this court in regard to first substantial question of law, the impugned first appellate court's judgment Page 20 of 21 RSA 177/2009 and decree is hereby set aside and the matter is remanded to the learned first appellate court for framing appropriate points for determination and thereupon to hear the parties in the light of pleadings and evidence adduced by them. The second appeal stands allowed.
22. The parties shall appear before the learned first appellate court on 21 st Decem ber, 2015 to receive necessary orders. Registry shall transmit the records in the mean time. However, any observation made in this judgment shall not influence the learned first appellate court in arriving at any decision after hearing the parties.
23. No order as to costs.
JUDGE BiswaS Page 21 of 21 RSA 177/2009