Gauhati High Court
Abdul Hannan vs On The Death Of Tasrifa Khatoon Her ... on 10 June, 2021
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GAHC010130792013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/149/2013
ABDUL HANNAN
S/O ABDUL JOBBAR, R/O RAJABARI NEAR MASJID, BLOCK NO. 13,
JORHAT, ASSAM.
VERSUS
ON THE DEATH OF TASRIFA KHATOON HER LEGAL HEIRS MD. WAKIL
AHMED SON and ORS
MD. SAFIL AHMED SON
2:KAFIL AHMED
S/O SAKIL AHMED
BOTH RESIDENTS OF LICHUBARI
DANISH NAGAR JORHAT
Advocate for the Petitioner : MR.A IKBAL
Advocate for the Respondent : MR. D MAZUMDAR
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
Date : 10-06-2021
Heard Mr. S. Ali, learned counsel appearing for the appellant. Also heard Mr. D.
Mazumdar, learned senior counsel appearing for the respondents.
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• This is an regular second appeal u/s 100 of the Code of Cvivil Procedure 1908,
challenging the Judgment and decree dated 08.03.2013 passed by the learned Civil Judge,
Jorhat, in Title Appeal No. 18/2012 whereby the judgment and decree dated 09.06.2012
passed by the Munsif No. 1, Jorhat in T.S. No. 17/09 was affirmed.
3) The present appellant was monthly tenant in respect of a house, situated upon one
Katha of land owned by Musrifa Khatoon. She was an aunt of the deceased respondent
Tasrifa Khatoon. The aforesaid property was gifted to the deceased respondent by her aunt.
Therefore, the present appellant became tenant under the deceased respondent Tasrifa
Khatoon.
4) Thereafter, Late Tasrifa Khatoon asked the appellant to vacate the house because of
her bonafide requirement. It may be stated that one part of the aforesaid house was already
in possession of Late Tasrifa Khatoon.
5) Finally, Late Tasrifa Khatoon and her son filed the suit T.S. No. 17/2009 before the
Court of the learned Munsif praying for evicting the appellant.
6) The present appellant contested the suit by filing a written statement. He admitted in
his written statement, that Late Tasrifa Khatoon allowed him to occupy the aforesaid land.
Regarding the house standing therein, the appellant claimed that he had built the aforesaid
house. On the basis of the pleadings, the learned Tribunal framed the following issues for
adjudication:
(i) Is there any cause of action for the suit?
(ii) Whether the suit is barred by the law of limitation?
(iii) Whether the suit is bad for non-joinder of necessary parties?
(iv) Whether the defendant is a monthly tenant under the plaintiffs in respect of
the suit premises?
(v) Whether the defendant is a defaulter in respect of payment of rent?
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(vi)Whether the plaintiffs require the suit premises for bonafide requirement?
(vii)Whether the plaintiffs are entitled to recovery of Khas possession of the suit
land by evicting the defendant?
(viii)Whether the plaintiffs are entitled to decree for recovery of arrears of rent as
mentioned in Schedule B t the plaint?
(ix) To what extent reliefs are the parties entitled?
7) Both sides examined witnesses during the trial. Finally the Court of the Munsif decreed
the suit directing the eviction of the present appellant from the suit land.
8) The appellant, filed the appeal before the Court of learned Civil Judge Jorhat, which
was numbered as Titled Appeal No. 8/12. The appellant Court dismissed the appeal.
9) I have carefully gone through the impugned Judgment. Here at this stage, order XLI
Rule 31 may be quoted:
31. Contents, date and signature of judgment - The judgment of the Appellate Court
shall be in writing and shall state -
(a) the point for determination;
(b) the decision thereon;
(c) the reasons for the decision;
(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.
10) Thus, the law has mandated that the first appellate Court has to formulate point for
determination. Unfortunately, the first appellate Court failed to formulate any point for
determination. Therefore, the judgment passed by the first appellate Court is bad in law.
11) Moreover, the appellate Court failed to decide all the issues, as because the Court of
first appeal can re appreciate the evidence and can come to a different conclusion from the
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trial Court.
12) For the aforesaid two reasons, the Judgment passed by the first appellate Court is
not a judgment in accordance with the provision of law laid down by order XLI Rule 31 of
Code of Civil Procedure, 1908. Hence, the appeal is allowed. The judgment passed by the
first appellate court is set aside. The matter is remanded back to the first appellate Court for
passing fresh judgment after hearing both the sides.
With the aforesaid direction, the appeal stands disposed of.
JUDGE
Comparing Assistant
