Jharkhand High Court
Smt. Sogra Khatoon vs Md. Jashim And Others on 8 January, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 98 of 2017
Smt. Sogra Khatoon... ...Appellant/Respondent/Plaintiff
Versus
Md. Jashim and others ... Respondents/appellants/defendants
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Ram Prakash Singh, Advocate
For the Respondents : Mr. Vibhor Mayank, Advocate
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10/08.01.2025 Learned counsel for the parties are present.
2. This appeal has been admitted for final hearing vide order dated
02.11.2018 on the following substantial questions of law:-
"I. Whether the learned Lower Appellate Court
while reversing the judgment of the Learned Lower Court
have committed serious error of law in not considering that
certain registered document relating to land take effect
against the unregistered document in view of provision as
contained in Section 50 of the Registration Act?
II. Whether the unregistered agreement dated
21.09.1991 would superseded over the registered sale deed
dated 31.07.1992 which is prior in time?
III. Whether the learned Lower Appellate Court
while recording the finding have committed serious error
by holding that the unregistered agreement dated
21.09.1991 is part of Exhibit A?
IV. Whether the finding recorded by the learned
Lower Appellate Court suffers from perversity in as much
as unregistered agreement dated 21.09.1991 is part of
Exhibit A without examining the documentary evidence
available on the record to its true perspective?
V. Whether the judgment and decree passed by the
Learned Lower Appellate Court suffers from the vices of
perversity and the same is contrary to the admissible
evidence available on the records?
VI. Whether the learned Lower Appellate Court
while reversing the well considered and reasoned order
passed by the learned Trial Court should have specifically
advert its own reasoning by meeting the reasons assigned
at para-7 of the Trial Court judgment?"
3. The learned counsel for the appellant who was the plaintiff
before the Court submits that the suit was decreed in favour of the
plaintiff and the same has been reversed by the Appellate Court and
therefore this second appeal is against the judgement of reversal. He
has further submitted that the learned Trial Court after considering
both the oral and documentary evidences on record and also the
boundaries of the property involved in the registered sale deed no.
5937 dated 31.07.1992 (Exhibit-1) and registered sale deed dated
12.08.1991 (Exhibit-A) has come to the conclusion that the properties
are not one and the same. The learned counsel submits that the
Appellate Court while reversing the decree has considered the point
for determination as issue nos. 3 and 4 framed by the learned Trial
Court but no finding has been recorded in connection with the
aforesaid finding of the learned trial court. Rather, there is no
discussion in the appellate court's judgment in connection with the
aforesaid finding recorded by the learned Trial Court. He has also
submitted that the learned Appellate Court while deciding the appeal
has proceeded under the assumption that the property covered by
Exhibit-A and Exhibit-1 are the same and has applied Section 48 of
the Transfer of Property Act which is applicable only when the
identity of the property is one and the same. The learned counsel has
also submitted that the learned Appellate Court has recorded that in
exhibit-A there were two vendors namely Raju Karmakar and his
brother Niranjan Karmakar whereas the plaintiff had purchased the
property (exhibit-1) only from Raju Karmakar.
4. The learned counsel submits that the last substantial question of
law which has been framed by this court i.e. issue no. 6 is attracted in
the present case and in such circumstances the matter is fit to be
remanded to the First Appellate Court for fresh consideration. He has
also submitted that the answer to the aforesaid substantial question of
law will have a direct bearing on all other substantial questions of law
which have been framed by this Court and therefore there may not be
any limited remand and all the points be left open for consideration of
the learned Appellate Court while deciding the appeal afresh.
5. The learned counsel appearing on behalf of the respondents
while opposing the prayer has not been able to show any discussion by
the appellate court with regard to the aforesaid findings which have
been recorded by the learned Trial court in paragraph 7 of the Trial
Court's judgment. However, he has submitted that the learned
Appellate Court has rightly drawn adverse inference on account of the
fact that the plaintiff never appeared before the learned Trial Court as
a witness. He has also submitted that the Appellate court's judgment
does not call for any interference.
6. At the request of the learned counsel for the respondents, post
this case for further hearing tomorrow i.e. 9.1.2025 at 2:15 P.M. to be
taken up as a first case.
7. Let this matter be treated as part heard.
(Anubha Rawat Choudhary, J.)
Binit
