Gauhati High Court
Khagendra Haloi vs On The Death Of Binapani Talukdar ... on 7 September, 2023
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GAHC010005992010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/124/2010
KHAGENDRA HALOI,
S/O LATE MAZINDRA HALOI, R/O VILL. BATACHARA, MOUZA PASCHIM
BASKA, P.S. BARAMA, DIST. BASKA, ASSAM.
VERSUS
ON THE DEATH OF BINAPANI TALUKDAR HER LEGAL HEIRS PRAKASH
TALUKDAR and ANR,
CHANDANA TALUKDAR
Advocate for the Petitioner : MR.R SARMA
Advocate for the Respondent : MR.K KONWAR
:: PRESENT ::
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Appellant : Mr. R. Sarma,
Advocate.
For the Respondents : Mr. N.K. Kalita,
Advocate.
Date of Hearing : 31.08.2023.
Date of Judgment : 07.09.2023.
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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.
2. This 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.
3. The present second appeal was admitted for hearing upon the
following two substantial questions of law -
1. Whether in absence of pleadings and prayer for partition, the
learned lower appellate court can pass preliminary decree for
partition?
2. Whether 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?
4. On 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
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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.
5. Lt. 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.
6. Regarding 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.
7. Lt. 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.
8. In the counter claim, Lt. Binapani Talukdar had prayed for a direction
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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.
9. During 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.
10. The 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.
11. I have considered the submissions made by the learned counsels of
both sides.
12. I 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.
13. The 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
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arrive at a conclusion on the merits of the controversy.
14. The 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.
15. Therefore, 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
