Ikram Hussain and Others vs Ramani Nath and Another

A.H. Saikia, J.—Heard Mr. B.K. Goswami, learned sr. counsel assisted by Ms. T. Goswami, learned counsel and Mr. P.K. Baruah, learned sr. counsel assisted by Mr. A. Dasgupta, learned counsel.

This Second Appeal has been carried out from the Judgment and decree dated 13.12.1994 passed by learned Assistant District Judge, Darrang at Mangaldoi, in Title Appeal No. 5 of 1993 reversing the Judgment and decree dated 7.3.1993 passed by the learned Munsiff No. 1, at Mangaldoi in Title Suit No. 72 of 1988.

Mr. Goswami, learned sr. counsel at the very outset of his argument has submitted that the learned appellate Court totally failed to delve upon the Ext. namely the Ext. 4 (sale deed dated 1.2.1973), Ext. Kha the Jamabandi of Patta No. 313 of 1930-31 and Ext. No. 6 (sale deed dated 9.6.1973), upon which the vendors of the appellant/ defendant have been claiming their title, in order to properly appreciate those and as such, it is contended that the finding arrived at by the learned Judge, confronted with absolute perversity and the same is not tenable under the law. At the same breath, Mr. Baruah, learned sr. counsel for the respondents has also pleaded that learned Asstt. District Judge in arriving at the decision ought to have discussed with much elaboration Ext. 2 as well as Ext. Kha as mentioned above.

I have perused the impugned Judgment and decree and upon careful scrutiny of the same, it clearly appears that the appellate Court has tailed to discuss and appreciate the above mentioned documents which have been projected as the sole basis of the claim for declaration of right, title and interest in favour of the parties in deciding issue Nos. 4 and 5.

Mr. Goswamu, learned sr. counsel has submitted that it is the paramount duty of the Courts below to give a proper interpretation and construction of the documents which are relied on to decide the right, title and interest of the parties. In the instant case, the said interpretation as well as construction was not forthcoming on the face of the appellate Judgment itself. To bring home this point, Mr. Goswami has relied upon a recent decision of the Apex Court reported in Santakumari and Others Vs. Lakshmi Amma Janaki Amma (D) By Lrs. and Others, In the said case the Apex Court has observed as follows :-

"11. As is seen the question is of interpretation of the three documents. It is not correct to say that the second Appellate Court has not formulated the question of law. The second Appellate Court has categorically stated that there is a substantial question of law between the parties inasmuch as the construction of the documents under which the claim to property is made is a substantial question of law. That construction of documents would be a substantial question of law is now a well settled proposition. This proposition has been settled as far back as the judgment of the Privy Council in the case of Guran Ditta v. T. Ram Ditta reported in AIR 1928 PC 172. It has since been reaffirmed by this Court in the case of Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others, and the case of Neelu Narayani V/s. Lakshmanan, (1999) 9 SCC 237 Thus we see no substance in the contention that no question of law had been formulated."

In the light of the aforesaid judicial decision, it can be safely held that the question of construction of such documents itself is a substantial question of law. In the instant case those documents already mentioned hereinabove had not been interpreted and constructed by the appellate Court and as such, I am of the view that those documents are needed to be re-scrutinised by the appellate Court. In that view of the matter, it is felt that the ends of justice would be satisfied, if the entire matter is remanded back for reconsideration and re-appreciation of the above materials available on record. I order accordingly.

Consequently, the impugned Judgment and order dated 13.12.1994 is hereby set aside and quashed. The entire case has been remanded back to the file of the learned Assistant District Judge, now redesignated as Civil Judge (Sr. Division) at Mangaldoi for re-appreciation of the documents referred hereinabove. Send down the records forthwith. Appeal is allowed without costs.

Since this order is passed in presence of the learned counsel for the parties, the respective parties are directed to appear before the Civil Judge (Sr. Division) Mangaldoi on 17.6.2002 to obtain further orders. Considering the long pendency of the matter, the learned Civil Judge shall make an endeavour to dispose of the matter expeditiously preferably within six months from the date of appearance of the parties.