P L D 1957 Dacca 607 (PLP)

RAHMAN, J.‑This appeal is against the decision of the Subordinate Judge, Jessore, in Title Appeal No. 124 of 1949, reversing that of the Munsif, 1st Court, Magura, in Title Suit No. 72 of 1948. The plaintiff who is the appellant before me instituted this suit for recovery of khan possession of the suit lands appertaining to a jama of Rs. 2‑13‑7 coverted by plots Nos. 2428 and 2429 in C. S. khatian No. 812/2 of Mauza Srikol, upon declaration of the plaintiff's title to the said lands. The plaintiff's case briefly was that this land originally belonged to one Fakir Muhammad in rayati right. This Fakir Muhammad died childless but ‑leaving as his heirs, his widow Aziran Nessa and his brother's son Samdu Meah. The name of the said brother was said to be Tafu Meah. The plaintiff claim ed to have purchased the interest of the said Samdu Meah in this land by a registered kabala Exh. 1, executed on the 20th of Falgoon 1949, B. S. corresponding to the 4th of March 1943. Although by this document the said Samdu purported to transfer the entire 16 annas share in the suit lands it is conceded by the plaintiff that Samdu could only do so to the legal extent of 12 annas which was the proper share that he inherited in the property of Fakir Muhammad the widow Aziran Nessa having the remaining 4 annas. The plain tiff further claimed that he had also subsequently acquir ed the window's 4‑annas share as well in the benami of one Nehaia Khatun by another registered patta, Exh. 2, executed on the 29th of Baishakh, 1950 B. S. corresponding to the 13th of March, 1943. In pursuance of the above transfers, the plaintiff claimed to have been in peaceful possession of the entire suit lands until the defendants 1 and 3, who were at loggerheads with him, taking advantage of his absence from home due to his employment as a peon in the Court of the Munsif at Magura, wrongfully caused, with the assistance of defendant No. 2, a but of jute sticks to be con structed on plot No. 2429 sometime in the middle of Asar, 1353 B. S. (corresponding to 1946 A. D.), and thus dispossess ed the plaintiff. Hence the suit to which Nehala Khatun had also been added as pro forma defendant No. 4: Defendants Nos. 1 to 3 contested the suit and their de fence, inter alia, was that at the time of the death of Fakir Muhammad. Tafu had only one son living, whose name, how ever was not Samdu but Hamdu Meah and that the said Hamdu never sold or conveyed his share in property to the plaintiff. They also disputed that the said Nehala Khatun was the benamader of the plaintiff or that Aziran Nessa had transfer red her 4‑annals share to the said Nehala Khatun. Defendants Nos. 1 and 2 further claimed, that they had been in possession of the suit lands for the last 12 or 13 years by virtue of a purchase from the said Hamdu Meah under a kabala. Exh. A, executed on the 24th of February 1948, and that since then they had all along been in peaceful possession and enjoyment of the said property. On these pleadings, the following 4 issues were raised in the trial Court (1) Has the plaintiff acquired any title to the land by his kahala dated 4th March 1943? (2) Is the patta dated 13th March 1943, valid? Has plaintiff acquired title to the extent of 4 annals' thereunder to the suit land? (3) Is the story of possession and dispossession true? (4) Is the plaintiff entitled to khas possession in the suit land? Upon a consideration of the pleadings of the parties, the learned Munsif came to the view that the defendants had not specifically ‑challenged the genuiness of the plaintiff's kabala Exh. 1 on the specific ground that it was a forgery or that it purported to have been executed by a person who never existed; for, their case rather appeared to be that even if such a person as Samdu existed, and he executed the kabala, Exh. 1, he was not the heir of Fakir Muhammad and, therefore, he had no share which he could transfer by that kabala. Again, the learned Munsif also took the view that upon the pleadings of the parties there was no categorical denial that Samdu was a son of tafu, but what the defendants really meant was that, even if Tafu had such a son named Samdu he was not alive at the time of the death of Fakir Muhammad. Having thus clarified the issues arising upon the pleadings, the learned Munsif took up the consideration of the evidence and came to the conclusion that upon the evidence adduced it had been sufficiently established that Samdu Miah was the son of Tafu Meah and that he was alive at the time of Fakir Muhammad's death; therefore, the plaintiff had acquired good title by his purchase under the kabala, Exh.

1. With regard to defendants' case that Hamdu was the son of Tafu Meah, who inherited from Fakir Muhammad, the learned Munsif felt that the evidence adduced by the defence to establish this fact was unreliable and did not sufficiently establish the identify of the said person claimed by the defendants to the Hamdu Meah. In this view of the matter, the learned Munsif held that the kabala, Exh. 1, was good and did validly transfer a 12 annas interest in the property of Fakir Muhammad to the plaintiff: With regard to the plaintiff's claim of having acquired also the other 4 annas share of Aziran Nessa, the learned Munsif found in favour of the plaintiff, as the said Nehala Khatun who had been made a pro forma defendant in the suit, did not contest the suit and, on behalf of the other defendants, their pleaders stated during the arguments that they would not contest this claim of the plaintiff. Again the learned Munsif, upon the evidence adduced in the cases came to the conclusion that the plaintiff's story of possession and dispossession had also been satisfactorily established and decreed the suit in full on contest with costs. The defendants preferred an appeal against this decree and the learned Subordinate Judge in a brief judgment con sidered only one question, namely, whether Samdu or Hamdu inherited the property of Fakir Muhammad, reversed the finding of the learned Munsiff and held that Hamdu was the person who had inherited from Fakir Muhammad, but since he had, admittedly upon the evidence of the plaintiff himself, not executed any kabala in favour of the plaintiff, the kabala of the plaintiff, Exh. 1, did not give him any title to the suit lands. This finding was, according to the learned Subordinate Judge, sufficient to entitle him to dismiss the suit in its entirety. The plaintiff has come up on appeal to this Court against this judgment, and the main ground upon which it is attacked is that it is not a proper judgment of reversal in so far as the specific items of the evidence relied upon by the learned Munsif for the purpose of coming to the findings of fact had not been considered by the lower appellate Court ; furthermore, that the lower appellate Court had acted with material irregularity of procedure in dismissing the suit in its entirety without considering and reversing the findings of the learned Munsif with regard to issues Nos. 2 and 3 raised at the trial. In support of his contention, the learned Advocate ap pearing for the appellant has relied on‑ the decision in the case of Umaram Gogoi v. Puruk Chand Oswal and others (A I R 1925 Cal. 993), where Mukheriez, J. pointed out that "it would be intolerable if a Court were required to give all its reasonings in its judgment, or notice all the evidence which influence its decision, But the position is wholly different where a Court takes upon itself to reverse a finding of the trial Court on a question of fact". He then went on to consider each of the specific facts relied upon by the trial Court and to see how far the lower appellate Court had dealt with that particular question and after that came to the conclusion that, since the lower appellate Court had ignored these facts and circumstances altogether, its findings even, though of facts, could not be accepted as binding in second appeal. Again in the case of A. H. Muhammad Ismail & Co. v. Sachidananda Bhattacharjee (40 C W N 769), Nasim Ali and Edgeley, JJ., interfered in a second appeal on the ground that the lower appellate Court had not applied its mind to the facts and circumstances on which the trial Judge had based his decisions. It is significant that .in this case also the finding of the lower appellate Court challenged in second appeal was upon a point, which had not been specifically raised in the written state ment, but evidence had in respect thereof been allowed to be adduced at the trial and the same had been considered by the trial Court. As against this, the learned Advocate for the respondents has contended that, even when reversing a judgment, the lower appellate Court is not bound to deal seriatim with all the reasons given by the first Court and to specifically notice each and every item of evidence relied upon by the trial Court and, in support of this contention, he has placed reliance on the decision of Sir Lawrence Jenkins, Chief Justice, and Sir Asutosh Mookerjee, J., in the case of Jatra Mohan Nandi v. Pitamar Mistri (19 C L J 385), where their Lordships held to that effect. In the present case, so far as the finding of the lower appellate Court on the question of the validity of the kabala. Exh. 1, executed on the 4th March 1943, is concerned, I accept the above contention of the learned Advocate for the respondents which also coincides with the view that I have already held in an earlier judgment of mine in Second Appeal No. 232 of 1951, delivered on the 10th of January 1957. In my view, even in the case of a judgment of reversal the lower appellate Court is not bound to deal seriatim with the reasonings of the trial Court or to notice each and every particular item of evidence relied upon by the trial Court if it has given different reasons of its own for coming to the conclusion that the findings of the trial Court cannot be accepted. From this, however, it does not follow that the judgment in the present case is a judgment in accordance with law. It is, as pointed out by the learned Advocate for the appellant, manifest, that Issue No. 2, namely, as to the validity of the patra, dated the 13th of May 1943, was a very material issue in this case and, if that issue has not been reversed, the learned Advocate for the appellant is entitled to say that the right to at least 4 annas share in the suit lands has gone uncon sidered altogether. The question of possession and dispossession, which was also not considered by the lower appellate Court, was, in my view, a material question since there was an averment in the written statement that the defendants had been in possession for 12 or 13 years. The plaintiff was out of possession and, unless he succeeded in establishing his title upon the basis that he laid claim to it as well as possession and dispossession within 12 years immediately proceeding the suit, he could not be put back into possession: The failure, therefore, to consider this issue was also a material error or defect in the procedure in the present case. For the reasons stated by me above, it is clear that the judgment and decree of the lower appellate Court must be set aside. I, therefore, allow this appeal, set aside the judgment and decree of the lower appellate Court and remand the appeal for re‑hearing in accordance with law. The lower appellate Court will deal with each of the issues raised at the trial and give its decision thereon together with its reasons after due consideration of all the evidence on record. The costs of this appeal will abide the result of the re‑hearing in the Court below. Z. A. S. Appeal allowed.