Rahman Ali and Others vs Seher Ali and Others

Ranjan Gogoi, J.—Heard Mr. S.A. Laskar, learned Counsel for the Appellants and Mr. D.C. Mahanta, learned Sr. Counsel appearing for the Respondents.

This second appeal by the Defendants is against the judgment and decree dated 16.8.96 passed by the learned lower appellate Court in title Appeal No. 10/95, reversing the decree dated 23.12.94 passed by the learned trial Court in Title Suit No. 154/89 dismissing the Plaintiffs'' suit.

A perusal of the judgments and decrees passed by the learned Courts below would go to show that on the basis of the respective pleadings of the parties, as many as 11 issues had been framed in the suit. Issues No. 7, 8, 9 and 10 are the material issues. Both sides had led elaborate oral and documentary evidence in support of their respective cases.

The learned lower appellate Court while reversing the judgment and decree under challenge before the said Court, does not appear to have at ail considered the oral and documentary evidence adduced by the parties while coming to the conclusion that the Plaintiffs are entitled to a declaration of right, title and interest over the suit land. Learned Counsels for the parties are agreed that such infirmity in the judgment and decree under challenge in the present appeal, is ex facie apparent from a perusal of the judgment and decree passed by the learned Court below. Non consideration of the evidence and materials adduced by the parties in support of the conclusions reached particularly in a case of reversal of the decree gives rise to a substantial question of law. In that view of the matter, I am of the considered view that the judgment and decree dated 16.8.96 passed by the learned Assistant District Judge, Dhubri in Title Appeal No. 10/95 cannot be allowed to stand. Accordingly the aforesaid judgment and decree dated 16.8.96 shall stand set aside and the matter shall stand remanded to the learned lower appellate Court below for a de novo disposal of Issues No. 7, 8, 9 and 10 framed in the suit. Such de novo disposal shall be made by the learned lower appellate Court within 6 (six) months from the date of receipt of the record and on the basis of the evidence and materials already on record.

Second Appeal stands allowed as indicated above.