Gauhati High Court

Page No.# 1/ vs Sri Sudama Chauhan And 10 Ors on 24 August, 2022

                                                               Page No.# 1/10

GAHC010017232020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : RSA/75/2020

         SRI JOY RAM CHAUHAN AND 5 ORS
         S/O LATE LAXMI PRASAD CHAUHAN (NUNIA) R/O REHABARI, M.A.
         ROAD, GUWAHATI-8, KAMRUP (M), ASSAM.

         2: JOY PRAKASH CHAUHAN
          S/O LATE LAXMI PRASAD CHAUHAN (NUNIA) R/O REHABARI
          M.A. ROAD
          GUWAHATI-8
          KAMRUP (M)
         ASSAM.

         3: MUKH RAM CHAUHAN
          S/O LATE LAXMI PRASAD CHAUHAN (NUNIA) R/O REHABARI
          M.A. ROAD
          GUWAHATI-8
          KAMRUP (M)
         ASSAM.

         4: SURENDRA KUMAR CHAUHAN
          S/O LATE LAXMI PRASAD CHAUHAN (NUNIA) R/O REHABARI
          M.A. ROAD
          GUWAHATI-8
          KAMRUP (M)
         ASSAM.

         5: HARI PRASAD CHAUHAN
          S/O LATE LAXMI PRASAD CHAUHAN (NUNIA) R/O REHABARI
          M.A. ROAD
          GUWAHATI-8
          KAMRUP (M)
         ASSAM.

         6: SRIRAM CHAUHAN
          S/O LATE LAXMI PRASAD CHAUHAN (NUNIA) R/O REHABARI
                                                           Page No.# 2/10

M.A. ROAD
GUWAHATI-8
KAMRUP (M)
ASSAM

VERSUS

SRI SUDAMA CHAUHAN AND 10 ORS
S/O LATE RAMU CHAUHAN, R/O HOUSE NO. 4, A.K. AZAD ROAD,
REHABARI, GUWAHATI-8, DIST. KAMRUP (M), ASSAM.

2:SMTI JHARNA CHAUHAN
W/O SRI SUDAMA CHAUHAN
 R/O HOUSE NO. 4
A.K. AZAD ROAD
 REHABARI
 GUWAHATI-8
 DIST. KAMRUP (M)
ASSAM.

3:PHUL DEVI CHAUHAN
W/O OF LATE SITA RAM CHAUHAN
 R/O REHABARI
A.K. AZAD ROAD
 GUWAHATI-8
 DIST. KAMRUP (M)
ASSAM.

4:BISWANATH CHAUHAN (NUNIA)
 S/O OF LATE SITA RAM CHAUHAN
 R/O REHABARI
A.K. AZAD ROAD
 GUWAHATI-8
 DIST. KAMRUP (M)
ASSAM.

5:BIMAL CHAUHAN (NUNIA)
 S/O OF LATE SITA RAM CHAUHAN
 R/O REHABARI
A.K. AZAD ROAD
 GUWAHATI-8
 DIST. KAMRUP (M)
ASSAM.

6:CHANDAN CHAUHAN (NUNIA)
 S/O OF LATE SITA RAM CHAUHAN
 R/O REHABARI
A.K. AZAD ROAD
                                                 Page No.# 3/10

             GUWAHATI-8
             DIST. KAMRUP (M)
             ASSAM.

            7:BIJOY CHAUHAN (NUNIA)
             S/O OF LATE SITA RAM CHAUHAN
             R/O REHABARI
            A.K. AZAD ROAD
             GUWAHATI-8
             DIST. KAMRUP (M)
            ASSAM.

            8:SMTI DEVI CHAUHAN
            W/O SRI NATH CHAUHAN
             R/O KALIBARI SAMSAN ROAD
             GWALA PATTY
            ALIPURDUAR 736123
             DIST. JALPAIGURI
             NORTH BENGAL
            WEST BENGAL.

            9:SMTI JOY MOTI CHAUHAN
            W/O RAMESH CHAUHAN
             R/O CHANDMARI
             NEAR OFFICE OF THE ASSAM TRIBUNE
             GUWAHATI-3
             DIST. KAMRUP (M)
            ASSAM.

            10:SMTI RITA KUMAR CHAUHAN
            W/O SRI TEZU CHAUHAN
             R/O KALIBARI
             NEAR PANITANKI
             GUWAHATI RAILWAY STATION
             GUWAHATI-1
             DIST. KAMRUP (M)
            ASSAM.

            11:SAMRATI CHAUHAN
             W/O SRI CHANDAN CHAUHAN
             R/O BELTOLA
             NEAR LAXMI MANDIR
             BAN LAXMI PATH
             GUWAHATI 17
             DIST. KAMRUP (M)
            ASSAM

Advocate for the Petitioner   : MR S ALI
                                                                              Page No.# 4/10


Advocate for the Respondent : MR. B C DAS

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Appellants : Mr. A. Ikbal, Advocate

For the Respondents : Mr. A. Sattar, Advocate.

             Date of Hearing                :        23.08.2022
                Date of Judgment                :       24.08.2022

                         JUDGMENT AND ORDER (CAV)

Heard Mr. A. Iqbal, learned counsel representing the appellants as well as Mr. A. Sattar, learned counsel appearing for the respondents.

2. This is a regular second appeal under Section 100 of the Code of Civil Procedure (CPC) whereby the judgment and decree dated 16.09.2019 passed by the court of the Addl. District Judge (FTC) No.3, Kamrup (M) at Guwahati in Title appeal No.25/2013, confirming and upholding the judgment and decree dated 27.09.2013 passed by the court of the Civil Judge No.2, Kamrup (M) at Guwahati in Title Suit No.17/2007, is under challenge.

3. The case of the appellants in a nutshell- Lakshmi Prasad Nunia and Sitaram Nunia were brothers. They inherited some lands from their predecessors. Out of their ancestral land, they sold of a part of it and the remaining portion of the land was partitioned amongst themselves. In that partition, a plot of land measuring 4 kathas and 8 lechas of Dag No.650 of KP Patta No.553 under Ulubari Mouza went to the share of Page No.# 5/10

Lakshmi Prasad Nunia and after his death, the appellants, being his legal heirs, inherited that property. Sitaram Nunia @ Chauhan was suffering from cancer and in need of money. Therefore, he sold his share of land to other persons. Sitaram Nunia @ Chauhan left behind his wife and children.

4. After the death of Sitaram Nunia @ Chauhan, his legal heirs were in dire straits. Therefore, out of sympathy, the appellants allowed them to live in a portion of their land measuring 10 lechas covered by Dag No.650 of KP Patta No.553. The appellants even allowed the widow of Sitaram Nunia @ Chauhan to construct a few rented houses for earning their livelihood. Thereafter, the respondent Sudama Chauhan got the names of the legal heirs of Sitaram Nunia @ Chauhan mutated in the land records where it was shown that the wife of Sudama Chauhan had purchased 1 Katha 10 lechas of land out of 2 Kathas 10 lechas of land.

5. Therefore, the appellants filed the suit seeking right, title and declaration of the said 1 katha 10 lechas of land. It is claimed that Sudama Chauhan had fraudulently executed a sale deed No.393 dated 29.04.2005 for selling the land to his wife Jharna Chauhan.

6. It is stated that Sudama Chauhan actually came to occupy a rented house situated over the said 1 katha 10 lechas of land as a tenant from the month of February, 2000. He was paying monthly rent to the wife of late Sitaram Nunia @ Chauhan.

7. At that time, Lakshmi Prasad Chauhan, the predecessor of the appellants was alive and after his death on 11.01.2003, the entire land devolved upon the appellants. The name of late Sitaram Nunia @ Page No.# 6/10

Chauhan was deleted from the land records. After the death of Lakshmi Prasad Nunia @ Chauhan intended to mutate their names in the land records and then only they came to know that the names of the widow of late Sitaram Nunia @ Chauhan and his children were already mutated in respect of the land. They, therefore, filed an appeal before the Assam Board of Revenue. The appellants further came to know that Sudama Chauhan also managed to have the name of late Sitaram Nunia @ Chauhan mutated in respect of the entire land. The Assam Board of Revenue dismissed the appeal filed by the appellants. Hence, they filed the suit before the court below.

8. Sudama Chauhan and his wife Jharna Chauhan contested the case by filing a joint written statement. They have claimed that the widow and children of late Sitaram Nunia @ Chauhan had executed the sale deed no.393 dated 29.04.2005 in respect of the suit land. They further claimed that the appellants are strangers to the said sale deed and therefore they have no locus standi to challenge the same. According to the respondents Sudama Chauhan and his wife Jharna Chauhan, the appellants have concealed the name of those people whom late Sitaram Nunia @ Chauhan had sold his land.

9. On the basis of the pleadings of the parties, the trial court framed the following issues:

i) Whether there is cause of action for the suit?

ii) Whether the suit is maintainable?

iii) Whether after amicable settlement between Lakshmi Prasad Nunia and Sita Ram Nunia land measuring 4 Kathas 8 Page No.# 7/10

Lecha of Dag No.650 of K.P. Patta No.553 of village Ulubari under Mouza Ulubari fell into the share of Laxmi Prasad Nunia, the predecessor-in-interest of present plaintiffs? If so, whether the name of Sita Ram Nunia was deleted from the revenue record?

iv) Whether the defendant no.1 without the knowledge of plaintiffs got the suit land mutated in the name of dead person Sita Ram Nunia?

v) Whether the defendant no.1 fraudulently got executed the Sale Deed No.393/05 dated 29.4.2005 in the name of his wife defendant no.2 by deceiving the defendant nos.3 to 7 taking advantage of their ignorance? If so, whether the sale deed is liable to be cancelled?

vi) Whether the plaintiffs are entitled to recovery of khas possession of the suit land?

vii) To what other relief/reliefs the parties are entitled?

Additional issues -

i) Whether the suit is bad for necessary parties?

ii) Whether the plaintiffs have locus standi to file the suit against the defendants on the alienation of 1 Katha 10 Lecha of land by its real owner impleading said real owner?

10. Both sides examined witnesses and ultimately the trial court dismissed the suit of the appellants.

11. The first appellate court agreed with the judgment of the trial court Page No.# 8/10

and dismissed the appeal.

12. I have gone through the judgment of the first appellate court. At this stage, the provision of law as contained in Order 41 Rule 31 of the Code of Civil Procedure is relevant and 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;

(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."

13. The spirit of the provision is to ensure that the appellate court must record reasons for the decisions and is to focus attention of the court to rival contentions of the parties which arises for determination and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal under Section 100 of the code of Civil Procedure.

14. For writing an essay on any subject, there is no specific rules but for writing a judgment by a court of law, there are some guiding rules which must be followed.

15. The first appellate court is also a court of records. It can appreciate Page No.# 9/10

the evidence adduced by the trial court. In fact, it is an extension of a trial court. First appeal is valuable right for a litigant because second appeal under Section 100 of the Code of Civil Procedure is not maintainable as a routine.

16. The point for determination formulated by the first appellate court is that whether the judgment and decree passed by the trial court is perverse and needs interference.

17. In my considered opinion, the first appellate court failed to formulate points for determination. The impugned first appellate court judgment is nothing but an essay and it is not allowed by law. The first appellate court has to formulate specific point/points for determination and to decide all those with reasons for decisions.

18. In my considered opinion the first appellate court judgment fail to comply with the provision of law as laid in Order 41 Rule 31 of the Code of Civil Procedure. Such a judgment is not sustainable in law.

19. The appeal is allowed. The impugned first appellate court judgment is set aside.

20. The matter is remanded to the court of the Addl. District & Sessions Judge (FTC) No.3, Kamrup(M), Guwahati for passing a fresh judgment, albeit in compliance with Order 41 Rule 31 of CPC. Both sides are

directed to appear before the appellate court on 30 th of September, 2022. The parties shall have liberty to submit fresh oral arguments.

Send back the LCR.

JUDGE Page No.# 10/10

Comparing Assistant