Sri Kamaleshwar Thakuria and Anr v. Smti. Subhadra Thakuria and Ors

JUDGMENT AND ORDER (CAV) Heard Mr. H.K. Sarma, learned counsel appearing for the appellants as well as Mr. B. Islam, learned counsel representing the respondents.

¶2This is a Regular Second Appeal under Section 100 of the Civil Procedure Code

(CPC) where the judgment dated 03.05.2019 passed by the learned Civil Judge (Sr. Div.) No.3, Kamrup (M), Guwahati in Title Appeal No.27/2017, is under challenge.

¶3Late Kahiram Thakuria was the predecessor of the appellants as well as the respondents. He had four sons, namely-Narayan Thakuria, Ram Charan Thakuria, Dharmeshwar Thakuria and Nabin Thakuria.

¶4Late Kahiram Thakuria used to purchase plots of lands by the money of the joint income of the family. Sometimes, he also used to sell some of his lands.

¶5After the death of Kahiram Thakuria, his sons jointly occupied the lands left behind by him. The sons also, used to purchase lands and sometimes they used to sell their lands.

¶6The son Nabin Thakuria (since deceased) had two sons, namely-Kamaleshwar Thakuria and Mohan Thakuria.

¶7Late Nabin Thakuria had occupied a plot of land measuring 2 Bighas 2 Kathas Page No.# 5/10 and 19 Lechas covered by Dag No.103 of K.P. Patta No.110 situated in Dimoria Mouza in the district of Kamrup.

¶8Late Kahiram Thakuria had purchased a plot of land measuring 7 Bighas 9 Lechas in the name of his son Ram Charan Thakuria. The said purchase was made on the basis of a registered sale deed. At that time, it was agreed that the aforesaid land measuring 7 Bighas 9 Lechas shall be transferred and mutated in favour of late Nabin Thakuria.

¶9After the death of Nabin Thakuria, his legal heirs continued to reside over the said plot of land by constructing dwelling houses.

¶10After the death of Kahiram Thakuria, his four sons started to live separately but the properties left behind by late Kahiram Thakuria, remained unpartitioned.

¶11The sons of late Nabin Thakuria used to occupy the aforesaid 2 Bighas 2 Kathas 19 Lechas of land. On the eastern side of this plot of land, the land of one Rabindra Ram Dutta is situated.

¶12In the month of March, 1959, Rabindra Ram Dutta wanted to sell his plot of land measuring 4 Bighas 10 Lechas covered by Dag No.102 of KP Patta No.109. Late Nabin Thakuria wanted to purchase the said land. Accordingly, the sale deed was executed on 10.03.1959.

¶13After the purchase of 4 Bighas 10 Lechas land covered by Dag No.102 of KP Patta No.109, the total land occupied by late Nabin Thakuria became 7 Bighas 9 Lechas. Late Nabin Thakuria also got himself mutated in the land records.

¶14In the year 1974, Ram Charan Thakuria died and in the year 1987, Nabin Thakuria expired.

¶15Ram Charan Thakuria had left behind his two sons, namely-Purna Chandra Thakuria and Santaram Thakuria.

¶16In the year 1990, Santaram Thakuria died.

¶17Santaram Thakuria during his lifetime and Purna Chandra Thakuria had Page No.# 6/10 mutated their names in the land records in respect of the joint family property.

¶18Since the land, measuring 7 Bighas 9 Lechas was purchased by late Kahiram Thakuria in the name of late Ram Charan Thakuria, during his lifetime Ram Charan Thakuria never staked his claim over the property that was occupied by late Nabin Thakuria.

¶19Late Purna Chandra Thakuria, the son of Ram Charan Thakuria, never filed an application for mutation of his land in respect of the land occupied and purchased by late Nabin Thakuria.

¶20Although Purna Chandra Thakuria being the son of late Ram Charan Thakuria is entitled to inherit his father's properties, he did not stake his claim over the properties of late Nabin Thakuria because of a promise made by his father.

¶21After the death of Santaram Thakuria, his wife and daughters got their names mutated in respect of the land occupied by Nabin Thakuria and also got the name of Purna Chandra Thakuria deleted from land records. It is alleged that the aforesaid mutation was done without issuing notice to other legal heirs.

¶22In the meantime, some portion of the land occupied by late Nabin Thakuria was acquired by the Government for widening of the National Highway.

¶23Thereafter, for the remaining lands, the sons of late Nabin Thakuria filed application for mutating their names in respect of the land that was occupied by late Nabin Thakuria. Mutation was done accordingly.

¶24The said matter ultimately reached the Revenue Board because the said mutation was cancelled by the Addl. Deputy Commissioner, Kamrup. The Revenue Board dismissed the appeal filed by the sons of late Nabin Thakuria.

¶25Therefore, the sons of late Nabin Thakuria filed the suit before the trial court seeking declaration of their right, title and interest over the suit land.

¶26The defendants, i.e. the wife and their daughters of late Santaram Thakuria as well as Purna Chandra Thakuria had contested the case by filing a written statement. Page No.# 7/10

¶27They denied all the averments of the plaint and prayed for dismissal of the suit.

¶28On the basis of the pleadings of the parties, the trial court framed the following issues:

¶1Whether the plaintiffs had paid adequate court fee or not?

¶2Whether there is any cause of action for the suit?

¶3Whether the plaintiffs had right, title, interest over the suit land?

¶4Whether the suit is barred by limitation?

¶5Whether the plaintiffs are in possession of the suit land?

¶6Whether the plaintiffs are entitled to the decree as prayed for?

¶7To what other reliefs if any, the parties are entitled to?

¶29The plaintiffs and the defendants examined some witnesses. On the basis of the evidence on record, the trial court dismissed the suit.

¶30The plaintiffs filed the Regular First Appeal in the court of the Civil Judge No.3 (Sr. Div.), Kamrup (M), Guwahati.

¶31The first appellate court framed two points for determination as under:

¶1Whether the suit is maintainable in the eye of law?

¶2Whether the suit land was purchased by late Kahiram Thakuria during his lifetime?

¶32The learned first appellate court answered these two points for determination against the plaintiffs/appellants and dismissed the appeal.

¶33The second appeal was admitted for hearing upon two substantial questions of law, which are as under:

¶1Whether the appellants/plaintiffs who are the legitimate successors of late Nabin Thakuria can be deprived of their share of inherited paternal property/suit property inspite of having verbal family settlement of inherited properties/purchased properties amongst the four sons namely-late Narayan Thakuria, late Ramcharan Thakuria (the father-in-law)/(grandfather of defendants/respondent nos.1, 2, 3 and 4), late Dharmeswar Thakuria and Nabin Thakuria (the father of plaintiffs/appellants) of late Kahiram Thakuria (since deceased) which (family settlement) in fact, took place before the death of Ram Charan Thakuria (father-in-law)/(grandfather of defendants /respondent nos.1, 2, 3 and 4) in the year 1974 and also before the death of Nabin Thakuria (the father of the plaintiftfs/appellants) in the year 1987? Page No.# 8/10

¶2Whether the appellant court's judgment failed to comply with the provision of law as laid down in Order 41 Rule 31 of the Code of Civil Procedure?

¶34I have considered the submissions made by the learned counsel of both sides.

¶35The Supreme court in Malluru Mallappa v. Kuruvathappa, (2020) 4 SCC 313 has held as under—

"16. In VinodKumar v. Gangadhar [Vinod Kumar v. Gangadhar, (2015) 1 SCC 391: (2015) 1 SCC (Civ) 521] this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under: (SCC p. 395, para 15) "15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words : (SCC pp. 530-31, paras 3-4) '3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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.

¶4The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The 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. Sitting as a court of first appeal, it was the duty of the High Court [H.V. Sreenivasa Murthy v. B.V. Nagesha, 2008 SCC OnLine Kar 837] to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , SCC p. 188, para 15 and Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , SCC p. 758, para 5.)'"

¶36In Shasidhar v. Ashwini Uma Mathad [Shasidhar v. Ashwini Uma Mathad, (2015) 11 SCC 269] , it was held as under : "21. Being the first appellate court, it was, therefore, the duty of the High Court [Shasidhar v. Ashwini Uma Mathad, 2012 SCC OnLine Kar 8774] to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read Page No.# 9/10 with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law."

¶37Reverting to the case in hand, I have found that the learned appellate court, in the name of drawing up point for determination, has actually framed two new issues and answered those two issues. It is not allowed by law.

¶38An appeal is a remedial concept determined as an individual's right to seek justice against an unjust decree/order by referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal with appeals from original decrees known as First appeals. An appeal under CPC is a legal process in which a higher forum reviews the decision of a lower forum on both legal and factual grounds. The word appeal has nowhere defined in the Code of Civil Procedure. The term appeal means the judicial examination by a higher court of the decision of an inferior court. Appeal in other word means the removal of a cause from an inferior court to superior court for purpose of testing the soundness of the decision of inferior court. An appeal in legal parlance is held to mean the removal of a cause from an inferior subordinate to superior tribunal or forum in order to test and scrutinize the corrections of impugned decisions.

¶39The appellate court is bound to determine whether the judgment passed by the lower court is correct or not. In the case in hand, I have found that in the name of drawing up points for determination, the appellate court has actually framed two new issues which are factual issues and are to be proved by adducing evidence. The appellate court has answered these two issues against the appellants though no evidence was adduced by the parties to that effect. This is not allowed by law.

¶40The appellate court has failed to analyze and to express its opinion as to whether the trial court had rightly or erroneously decided the issues framed by it. Rather, the appellate court has passed a new trial court judgment. This is also not allowed by law.

¶41Therefore, the impugned judgment is bad in law for non-compliance of Page No.# 10/10 provisions of law as laid down in Order 41 Rule 31 of the Code of Civil Procedure.

¶42The appeal is allowed. The impugned judgment dated 03.05.2019 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Title Appeal No.27/2017, is set aside.

¶43The case is remanded to the first appellate court for passing a fresh judgment after hearing oral arguments of both sides. Send back the LCR.

JUDGE Comparing Assistant

PageoNo.#o1/10 GAHC010181292019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oRSA/223/2019ooooooooo SRIoKAMALESHWARoTHAKURIAoANDoANRo S/O-oLATEoNABINoTHAKURIA,oR/O-oVILL.-oDAULGURI,oP.O.oANDoP.S.o KHETRI,oDIST.-oKAMRUP(M),oASSAM. 2:oSRIoMOHANoTHAKURIA oS/O-oLATEoNABINoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAMo VERSUSo SMTI.oSUBHADRAoTHAKURIAoANDoORS.o W/O-oLATEoSHANTAoRAMoTHAKURIA,oR/O-oVILL.-oDAULGURI,oP.O.oANDoP.S. KHETRI,oDIST.-oKAMRUP(M),oASSAM,oPIN-o782403. 2:SMT.oANAMIKAoTHAKURIA oD/O-oLATEoSHANTAoRAMoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM oPIN-o782403. 3:RAJUoTHAKURIA oD/O-oLATEoSHANTAoRAMoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM oPIN-o782403. 4:SMT.oBARNALIoTHAKURIA PageoNo.#o2/10 oD/O-oLATEoSHANTAoRAMoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM oPIN-o782403. 5:ONoTHEoDEATHoOFoRESPONDENToNOo5 o(PURNAoCHANDAoTHAKURIA)oHISoLEGALoHEIRS oREPRESENTEDoBY- 5.1:ARUPoTHAKURIA oS/O-oLATEoPURNAoCHANDRAoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM 5.2:SMTIoANJUoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM 5.3:SMTIoKUSUMoTHAKURIA oD/OoOFoLATEoPURNAoCHANDRAoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM 5.4:SMTIoJAMINIoTHAKURIA oD/OoOFoLATEoPURNAoCHANDRAoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM 5.5:SMTIoSABITAoTHAKURIA oD/OoOFoLATEoPURNAoCHANDRAoTHAKURIA oR/O-oVILL.-oDAULGURI oP.O.oANDoP.S.oKHETRI oDIST.-oKAMRUP(M) oASSAM 6:STRUCKoOFF oVIDEoORDERoDATEDo30.07.2022 Page No.# 3/10 7:STRUCK OFF VIDE ORDER DATED 30.07.2022 8:STRUCK OFF VIDE ORDER DATED 30.07.2022 9:STRUCK OFF VIDE ORDER DATED 30.07.2022 10:STRUCK OFF VIDE ORDER DATED 30.07.2022 11:STRUCK OFF VIDE ORDER DATED 30.07.2022 12:STRUCK OFF VIDE ORDER DATED 30.07.2022 13:STRUCK OFF VIDE ORDER DATED 30.07.2022 14:STRUCK OFF VIDE ORDER DATED 30.07.2022 15:STRUCK OFF VIDE ORDER DATED 30.07.2022 16:STRUCK OFF VIDE ORDER DATED 30.07.2022 17:STRUCK OFF VIDE ORDER DATED 30.07.2022 18:STRUCK OFF VIDE ORDER DATED 30.07.2022 19:STRUCK OFF VIDE ORDER DATED 30.07.202 Advocate for the Petitioner : MR H K SARMA Advocate for the Respondent : MR S HUSSAIN (r Page No.# 4/10 :: PRESENT :: THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA For the Appellants : Mr. H.K. Sarma, Advocate. For the Respondents : Mr. B. Islam, Advocate. Date of Hearing : 21.05.2024. Date of Judgment : 14.06.2024.