HON BLE MR. JUSTICE SUMAN SHYAM

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM & ARUNACHAL PRADESH) RSA 39/ Mofida khatun. Wife of Monuruz Zaman Hazarika. 2. Md. Toufique Zaman Hazarika. Son of Monuruz Zaman Hazarika. Both residents of Bhogdoimukh, Near Bhogdoimukh Masjid. A.T. Toad, Jorhat VERSUS - Taslima Begum Hazarika. Wife of Anisul Haque. Resident of Bhogdoimukh. A.T. Road, Jorhat, Assam. Appellants/ Defendants. BEFORE Respondent/ Plaintiff HON BLE MR. JUSTICE SUMAN SHYAM Advocate for the Appellant :- Mr. B Kaushik. Advocates for the Respondent :- Mr. D. Das, Sr. Advocate. Mr. A. Das. Date of Hearing & Judgment : JUDGMENT & ORDER (ORAL) Heard Mr. B. Kauskhik, learned counsel appearing for the appellants. Also heard Mr. D. Das, learned senior counsel assisted by Mr. A. Das, learned counsel for the respondent. Page 1 of 8

2 (2) This appeal has been preferred against the judgment and decree of reversal passed by the learned Civil Judge, (Senior Division), Jorhat in Title Appeal No.3/2000 by setting aside the judgment and decree dated passed by the learned Civil Judge (Junior Division) No.1 Jorhat in Title Suit No.21/97. (3) The case of the plaintiff/respondent in brief is that the plaintiff is the granddaughter of Dr. Mehta Hussain, who was the original owner of the suit land. After the death of Dr. Mehtab Hussain, the suit property devolved upon his wife, Nafisa Khatoon (since deceased). The plaintiff had been taken care of by the wife of Dr. Mehtab Hussain i.e., Nafisa Khaton and she has been brought up by Nafisa Khatoon as her adopted child since the time the plaintiff was aged 2 years. It is the case of the plaintiff that during her life time, Nafisa Khaton had let out a two room house standing over the suit land to one Ranjit Chakrabarty (since deceased) and one Babuli Bora on condition of payment of monthly rents. Nafisa Khatoon executed a registered power of attorney bearing No.936 dated in favour of the plaintiff empowering and authorizing her to look after her entire property and to collect rent from the tenants. (4) It is the further case of the plaintiff that on , Nafisa Khatoon gifted the said two rooms to the plaintiff which was duly accepted by her. On completion of the gift as well as acceptance of the same by the plaintiff, Nafisa Khatoon had duly communicated the said fact to her tenants by writing letters, pursuant whereto Babuli Bora being one of the tenants, had been paying monthly rent to the plaintiff regularly. Subsequently, the aforesaid two rooms were damaged being Page 2 of 8

3 run down by speeding night super bus. On , the defendants taking advantage of the said accident illegally and forcibly attempted to construct a house over the suit land by erecting wooden post. The plaintiff raised objection against such illegal construction which was not heeded to by the defendants. As such, having no alternative, the plaintiff instituted a proceeding under Section 145 of the Code of Criminal Procedure before the Sub-Divisional Magistrate, Jorhat. Even during the pendency of the aforesaid proceeding, the defendants made attempts to construct the house over the suit land, despite there being an order of attachment of the suit land. Being situated thus, the plaintiff was compelled to institute the suit, praying for declaration of her right, title and interest over the suit property and also for delivery of possession and for other consequential reliefs. (5) The defendants contested the plaintiff s suit by filing written statement, wherein they have taken the formal plea regarding the maintainability of the suit. The defendant No.1 is the daughter and defendant No.2 is the grandson of Nafisa Khatoon. The defendants categorically took a stand that after the death of Dr. Mehtab Hussain, the defendant No.1 and her mother Nafisa Khatoon were enjoying the land and the houses described in schedule-a and schedule-b to the plaint. The said room was given in rent by the defendants to different tenants and she used to collect the monthly rent. The defendants further alleged that the plaintiff managed to get a deed of power of attorney executed by Nafisa Khatoon which was subsequently cancelled vide deed of revocation dated , which fact was deliberately suppressed by the plaintiff. The defendants have also denied that the suit land was never gifted to the plaintiff by Nafisa Khatoon as claimed by her. Page 3 of 8

4 (6) On the basis of the pleadings available on record, the learned trial Court framed the following issues:- (i) Whether there is any cause of action for the suit? (ii) Whether the suit is properly valued and proper court fee has been paid? suit land? (iii) Whether the plaintiff has right, title and interest over the (iv) Whether the suit premises hs been in the possession of the defendants? (v) To what relief/reliefs the parties are entitled? (7) The parties to the proceeding adduced evidence both oral and documentary based on materials on record and after hearing the parties, the learned trial Court dismissed the suit filed by the plaintiff on contest by the judgment and decree dated passed in Title Suit No.21/97. (8) Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff as appellant preferred Title Appeal No.3/2000 before the Court of Civil Judge (Senior Division) Jorhat. The said Title Appeal was allowed by the learned Civil Judge (Senior Division) Jorhat by the judgment and decree dated , reversing the judgment and decree passed by the learned trial Court, thereby decreeing the suit filed by the plaintiff. (9) The aforesaid judgment and decree dated passed in Title Appeal No.3/2000 has been carried in appeal before this Court by Page 4 of 8

5 the defendants/appellants in the present second appeal which was admitted to be heard by this Court on the following substantial question of law:- Whether the learned lower appellate court erred in law in decreeing the suit of the respondent by declaring her right, title and interest in the suit land on the basis of oral evidence relating to the gift and the document Ex-6? (10) Mr. B. Kaushik, learned counsel for the appellants submits that the plaintiff/respondent having claimed the property on the basis of a gift made by Nafisa Khatoon, it was incumbent upon her to prove and establish the said fact by leading evidence. Mr. Kaushik submits that under the Mohammedan Law, even though a oral gift is permissible, yet in order to become a valid gift 3 (three) essential conditions namely, (i) a declaration of gift by the donor, (ii) an acceptance of the gift expressed or implied by or on behalf of the donee and (iii) delivery of possession of the subject to the gift by the donor to the donee is essential. The plaintiff having failed to establish the same, the learned trial Court had rightly dismissed the suit. However, the said judgment and decree of dismissal passed by the trial Court has been reversed by the First Appellate Court without recording any proper or valid reason as per requirement of law. In that view of the matter the judgment and decree under appeal, submits Mr. Kaushik, is not sustainable in the eye of law and hence, liable to be set aside. (11) Per contra, Mr. D. Das, learned senior counsel submits that there is no dispute that the three conditions as referred to above are essential for a oral gift to be valid under the Mohammedan Law. However, submits Mr. Das, from a reading of the evidence of PW-1 and Page 5 of 8

6 PW-2 it will be evident that the plaintiff has been able to adduce sufficient evidence to meet the requirements of all the three conditions so as to clothe the transaction to be a valid gift under the Mohammedan law. Mr. Das further submits that the fact that Nafisa Khatoon herself communicated to the tenants about the gift followed by confirmation of handing over/delivery of possession of the tenanted premises as would be evident from Ex-6. Hence, there was no scope to conclude that the claim of oral gift of the suit property is without substance. He, therefore, submits that the evidence of PW-1 and PW-2 was sufficient for the learned First Appellate Court to arrive at the conclusion leading to the plaintiff suit being decreed and as such, the question of law proposed by the appellant/defendants does not arise for adjudication in the present appeal. (12) I have considered the rival submissions made by the learned counsel for the parties and have also examined the materials on record. On perusal of the judgment and decree under appeal, I find that the learned First Appellate Court has reversed the judgment and decree passed by the trial Court. But the learned Court below has not recorded any independent finding in respect of each of the material issues nor has the Court below given proper reasons for arriving at the conclusion as recorded by the impugned judgment. (13) The First Appellate Court is the final Court of facts and is also empowered to decide question of law involved in the appeal. Order 41 Rule 31 CPC enjoins the duty upon the First Appellate Court to frame points of determination and give decisions thereon by citing proper reasons for the decisions. That apart the learned First Appellate Court is Page 6 of 8

7 also required to indicate the relief which the appellant is entitled to, if the decree sought to be reversed is held to be valid. It is therefore, apparent that if the decree under appeal be reversed by the Appellate Court then in that event the First Appellate Court would be required to record the independent finding on each of the material issues upon proper appreciation of the material evidence available on record. The finding and conclusions must be supported by proper reasons. If a decree is reversed by the Appellate Court without following the aforesaid procedure then the same would be vitiated on the ground of being in contravention of Order 41 Rule 31 of the CPC. (14) In the present case also it is apparent that the First Appellate Court has not given proper reasons supporting decision leading to reversal of decree under appeal. There is no finding based on reasoning as to whether the essential ingredients of an oral gift under Mohameddan Law has been satisfied by the plaintiff in this case and if so then on what basis and in what manner. An answer to the aforesaid question would have a decisive bearing in the outcome of the suit. Such being the possession, the judgment and decree under appeal is not sustainable in the eye of law and hence, liable to be set aside and quashed. (15) From the materials available on record, this Court is of the opinion that since the First Appellate Court has not recorded reasons leading to reversal of the decree passed by the trial Court, hence, the materials available on record is not sufficient for this Court to answer the question of law framed at the time of admission of the appeal as in the absence of reasons recorded by the Court below, particularly in case of a judgment of reversal, it is not possible to critically appreciate the Page 7 of 8

8 argument advanced by the learned counsel for the parties. Such being the position, this Court is left with no option but to remand the matter back to the First Appellate Court so as to pass a reasoned judgment and decide the appeal on merit. Accordingly, the matter stands remanded to the First Appellate Court for the purpose of decision of the Title Appeal No.3/2000 on merit without being influenced by any of the observation made hereinbefore. (16) Having regard to the fact that the suit itself is a very old one having been instituted in the year 1997, an endeavour shall be made by the Court below to dispose of the appeal within a period of 6 months from the date of receipt of the records, if necessary, by holding day to day hearing. The parties are directed to appear before the First Appellate Court on The appeal stands allowed to the extent indicated hereinbefore. Registry to send back the LCR urgently. JUDGE Anamika Page 8 of 8