Khagendra Haloi, v. On the Death of Binapani Talukdar Her Legal Heirs Prakash Talukdar and Anr,

JUDGMENT AND ORDER (CAV) Heard Mr. R. Sarma, learned counsel representing the appellant as well as Mr. N.K. Kalita, learned counsel appearing for the respondents.

¶2This is a Regular Second Appeal under Section 100 of the Code of Civil Procedure (CPC) whereby the judgment dated 16.12.2009 and the decree dated 28.01.2010 passed by the court of learned Civil Judge, Nalbari in Title Appeal No.11/2009, arising out of the judgment and decree dated 05.09.2009 passed by the court of learned Munsiff No.1, Nalbari in Title Suit No.02/2006, is under challenge.

¶3The present second appeal was admitted for hearing upon the following two substantial questions of law –

¶1Whether in absence of pleadings and prayer for partition, the learned lower appellate court can pass preliminary decree for partition?

¶2Whether on the basis of compromise petition filed before the learned trial court which ultimately was not acted upon by the parties, the learned lower appellate court can direct rectification of the sale deed no.470/888 without recording a finding that due intention of the parties to the instrument had not been reflected in the sale deed in question?

¶4On 25.03.1998, Shri Khagendra Nath Haloi borrowed ₹7,200/- from Lt. Binapani Talukdar. In lieu of that, he had allowed her to occupy 2 Bighas of land covered by Dag No.232 of KP Patta No.73 of Village-Batachara under Paschim Baska Mouza of Barama P.S. Khagendra Nath Haloi had Page No.# 3/5 executed a hand note also to that effect. Before expiry of hand note, Khangendra Nath Haloi offered the aforesaid money of ₹7,200/- to Lt. Binapani Talukdar but she refused to accept the money. Thereby, Lt. Binapani Talukdar continued to occupy the said land. Therefore, Khangendra Nath Haloi filed a suit praying for declaration of right, title and interest over the suit land and for recovery of the same.

¶5Lt. Binapani Talukdar filed a written statement and a counter-claim. She has admitted that she had given ₹7,200/- to Khagendra Nath Haloi and in lieu of that, he had allowed her to occupy 1 Bigha of land attached to the western boundary of another plot of 1 Bigha of land.

¶6Regarding the other plot of land, Lt. Binapani Talukdar has claimed that her deceased husband Lt. Basanta Talukdar had purchased the said plot of land from Khangendra Nath Haloi. She further claimed that at that time, a registered sale deed was executed. According to Binapani Talukdar, the said sale deed had mention erroneous Dag No. and Patta No. of the land sold. Lt. Binapani Talukdar further disclosed that Khangendra Nath Haloi had undertaken to make corrections of the sale deed at a subsequent stage and therefore, she continued to occupy the land.

¶7Lt. Binapani Talukdar has further stated that the plot of land that was given to her by Khangendra Nath Haloi when he took ₹7,200/- from her, was returned to him when he had returned the money. According to Lt. Binapani Talukdar, Khangendra Nath Haloi did not make any corrections in the sale deed as he had promised earlier.

¶8In the counter claim, Lt. Binapani Talukdar had prayed for a direction Page No.# 4/5 asking Khangendra Nath Haloi to rectify the sale deed by inserting correct dag number and patta number. She also prayed that her right, title and interest over the suit plot of land which her husband had purchased from Khangendra Nath Haloi should be declared.

¶9During the trial of the case, Khangendra Nath Haloi examined 3 witnesses and Lt. Binapani Talukdar examined 2 witnesses. On the basis of the evidence on record, the trial court decreed the suit of Khangendra Nath Haloi and the counter-claim of Lt. Binapani Talukdar was dismissed.

¶10The learned first appellate court partially allowed the appeal. The first appellate court declared the right, title and interest of Khangendra Nath Haloi over the plot of 1 Bigha land situated on the western side of the land that was allegedly purchased by the husband of Lt. Binapani Talukdar. The learned first appellate court directed Khangendra Nath Haloi to rectify the sale deed by which he had sold 1 Bigha of land to the deceased husband of Lt. Binapani Talukdar.

¶11I have considered the submissions made by the learned counsels of both sides.

¶12I find that the first appellate court's judgment did not comply with the provision of law as laid down in Order 41 Rule 31 of the Code of Civil Procedure. The first appellate court did not frame any point for determination.

¶13The framing of points for determination by the Appellate Court is only to enable it to concentrate and rivet its attention on the controversy between the parties and to facilitate the weighing and balancing of the evidence, facts and considerations appearing on both sides and to Page No.# 5/5 arrive at a conclusion on the merits of the controversy.

¶14The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory and if the judgment of the Appellate Court does not follow the provisions of Order 41, Rule 31, the judgment is vitiated.

¶15Therefore, the appeal is allowed. The judgment of the first appellate court is set aside. The case is remanded to the first appellate court 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.#o1/5 GAHC010005992010 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oRSA/124/2010ooooooooo KHAGENDRAoHALOI,o S/OoLATEoMAZINDRAoHALOI,oR/OoVILL.oBATACHARA,oMOUZAoPASCHIMo BASKA,oP.S.oBARAMA,oDIST.oBASKA,oASSAM. VERSUSo ONoTHEoDEATHoOFoBINAPANIoTALUKDARoHERoLEGALoHEIRSoPRAKASHo TALUKDARoandoANR,o CHANDANAoTALUKDAR AdvocateoforotheoPetitionerooooo:oMR.RoSARMAo AdvocateoforotheoRespondento:oMR.KoKONWARoo ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ::kPRESENTk:: THEkHON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA oo ooooooooooo For the Appellant ooooo: Mr. R. Sarma, oooooooooo Advocate. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooo For the Respondents : Mr. N.K. Kalita, Advocate. o oooooooooooooooooooo Date of Hearing :ooooooooo31.08.2023. oooooooooo Date of Judgment : 07.09.2023. Page No.# 2/5