Anuwara Sultana Islam and 5 Ors v. On the Death of Md. Nadir Shah His Legal Heir Md. Janba Ali and Ors

JUDGMENT AND ORDER (CAV) Heard Mr. B. Chakraborty, learned counsel representing the appellants as well as Mr. G. Choudhury, learned counsel appearing for the respondents.

¶2This is a Regular Second Appeal under Section 100 of the Code of Civil Page No.# 4/6 Procedure (CPC) whereby the judgment dated 10.12.2009 passed by the court of learned Addl. District Judge (FTC), Sivasagar in Title Appeal No.8/2007, reversing the judgment and decree dated 14.06.2007 passed by the court of learned Civil Judge, Sivasagar in Title Suit No.8/1995, is under challenge.

¶3Since the year 1980, the appellants have been in occupation of a plot of land measuring 5 Bighas 1 Katha and 6 Lechas covered by Dag No.255 of PP No.80 (old)/9 (new) of Dui Ali Majgaon, Mouza-Nagarmohal, District Sivasagar. In the year 1983, the appellants sold 3 Kathas 15 Lechas of their land to Md. Najiur Rahman. In the same year, they sold another plot of land measuring 3 Kathas 10 Lechas to Balubul Hazarika. In this way, after selling a total land of 1 Bigha 2 Kathas 5 Lechas, the appellants continued to occupy 3 Bighas 4 Kathas and 1 Lecha of land.

¶4On 04.11.1994, the respondents tried to occupy a part of the said plot of land by erecting bamboo fencing. The respondents allegedly claimed that their names were mutated in respect of the said land. The appellants found out that Md. Najiur Rahman, Khalilur Rahman and Nur Md. had got their names mutated in the land records in the month of November, 1994 in respect of the said land. The appellants then moved the revenue authorities challenging the aforesaid facts.

¶5The respondents again on 26.12.1994, wrongly entered into the suit land and began erecting bamboo fencing covering an area of 2 Bighas 2 Kathas 10 Lechas. Finally, the appellants filed the suit against the respondents praying for declaration of their right, title and interest over the suit land and for recovery of the vacant possession of the said land.

¶6The respondents contested the case by filing a written statement. They Page No.# 5/6 denied all the allegations made in the plaint.

¶7On the basis of the pleadings of the parties, the trial court framed 11 nos. of issues. During the trial, the appellants examined two witnesses whereas the respondents examined 4 witnesses.

¶8On the basis of the evidence on record, the trial court decreed the suit in favour of the appellants.

¶9The first appellate court reversed the findings of the trial court.

¶10I have gone through the impugned judgment of the appellate court.

¶11At this stage, Order 41 Rule 31 of the Code of Civil Procedure is relevant. It reads as under: "31. 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 there in."

¶12The judgment of the first appellate court reveals that the court failed to draw up a point for determination. The appellate court judgment further reveals that there is no issue wise discussion. Under Section 96 of the Code of Civil Procedure, an appeal is a continuation of proceedings of the original court and court of first appeal must record its findings after dealing with all issues of law as well as facts. Writing of a judgment by a court of law, is guided by certain legal provisions. Order 41 Rule 31 of the CPC lays down Page No.# 6/6 the contents, which should be there in a first appellate court judgment. If it is not there, then it is not a judgment at all.

¶13Under the aforesaid circumstances, I find that the appellate court judgment is not at all sustainable in law. Therefore, the appeal is allowed. The impugned appellate court judgment passed in Title Appeal No.08/2007 is set aside.

¶14The case is remanded to the appellate court at Sivasagar for passing a fresh judgment after compliance of the provisions of Order 41 Rule 31 of the Code of Civil Procedure. Send back the LCR. JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010004572010 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oRSA/42/2010ooooooooo ANUWARAoSULTANAoISLAMoando5oORSo 2:oMRS.oELIZAoSULTANA o 3:oMRS.oSALEHAoSULTANA o 4:oMS.oMERISAoSULTANA o 5:oMS.oWAHEEDAoSULTANA o 6:oMD.oIFTIKARoALI o1oTOo5oAREoALLoDAUGHTERSoANDoNO.o6oISoTHEoSONoOFoLATEoZUBAIDoALI ANDoAREoALLoRESIDENTSoOFoJENGANIKATIAoDUIoALIoMAJGAON oMOUZA-NAGARMAHAL DIST.oSIVASAGAR oASSAMo VERSUSo ONoTHEoDEATHoOFoMD.oNADIRoSHAHoHISoLEGALoHEIRoMD.oJANBAoALIo ANDoORSo S/OoLATEoMD.oNADIRoSHAH 2:MUSTT.oMULUKIoBEGUM Page No.# 2/6 W/O LATE MUR MOHAMMAD. 3:MD. SIRAJ ALI S/O LATE NUR MOHAMMAD. 4:MD. SARIF ALI S/O LATE NUR MOHAMMAD. 5:MUSTT. SAZU BEGUM D/O LATE NUR MOHAMMAD 1 TO 5 ALL R/O JENGANIKATIA NATIONAL HIGHWAY MOUZA-NAGARMAHAL DIST. SIVASAGAR ASSAM. 6:MD. NAJIUR RAHMAN S/O LATE EYAR MOHAMMAD. 7:MD. KHOLILUR RAHMAN S/O LATE EYAR MOHAMMAD. 8:MD. ABTABUR RAHMAN S/O LATE EYAR MOHAMMAD 7 and 8 ARE ALL R/O JENGANIKATIA NATIONAL HIGHWAY MOUZA-NAGARMAHAL DIST. SIVASAGAR ASSAM. 9:MISMAI BEGUM D/O LATE ALAWATDIN R/O DEHAJAN BAGAN MOUZA-THOWRA DEMOW DIST. SIVASAGAR ASSAM. 10:MERI BEGUM Page No.# 3/6 D/O LATE ALAWATDIN R/O DEOPANI BAGAN MISAJAN DIST. SIVASAGAR ASSAM. 11:BULBUL HAZARIKA S/O LATE LIYAKAT HAZARIKA R/O STATION CHARIALI DIST. SIVASAGAR ASSAM Advocate for the Petitioner : MR.B CHAKRABORTY Advocate for the Respondent : MR. G CHOUDHURY :: PRESENT :: THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA For the Appellants : Mr. B. Chakraborty, Advocate. For the Respondents : Mr. G. Choudhury, Advocate and Ms. Shweta Sarma, Advocate. Date of Hearing : 16.05.2023 Date of Judgment : 26.05.2023.