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Hafiz Mahomed Ali Vs. Assanullah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal932
AppellantHafiz Mahomed Ali
RespondentAssanullah
Cases ReferredDoolee Chand v. Mussumut Oomda Begum
Excerpt:
judgment of the appellate court, contents of - the code of civil procedure (act xiv of 1882), section 574--remand under sections 566 and 587. - .....for determination; (b) the decision thereupon; (c) the reasons for the decision; and (d) when the decree appealed against is reversed or varied, the relief to which the appellant is entitled.' an appellate court is required to record these particulars in its judgment for the purpose of affording the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds with a view to enable them to exercise, if they see fit, and are so advised, the right of second appeal conferred by section 584 of the code. if a district judge could dispose of appeals coming before him in a judgment of this kind, the right of second appeal might be altogether neutralized. we think that, under the circumstances, we ought not in the present state of the record, to deal.....
Judgment:

Field, J.

1. In this case the plaintiff sued to recover possession of certain lands, alleging that they were re-formations on the original site of mouzah Atrap, which belonged to him and the defendants jointly, in the respective shares of 9 annas and 7 annas.

2. The defendants pleaded limitation, and, amongst other matters, alleged that the lands were re-formations, not on the original site of mouzah Atrap, but upon the original site of mouzah Jhulkai, which was, and is, in the exclusive possession of the defendants themselves. A number of questions were raised in the pleadings, which were embodied in the six issues raised by the Subordinate Judge who tried the case.

3. The Subordinate Judge gave the plaintiff a decree. Against that decree an appeal was preferred, and the following, amongst other objections, were taken in the grounds of appeal: First,, an objection as to the boundaries of the two mouzahs; secondly, that the plaintiff had not proved his possession within twelve years of any portion of the land in dispute, and that he was, therefore, barred by limitation, and that the finding of the Subordinate Judge on this point was against the weight of evidence; thirdly, that the evidence as to the plaintiff's alleged possession was worthless and not reliable; fourthly, that the ijarah pottah filed by the plaintiff was collusive and not proved; and even assuming that it had been proved, there was no evidence that the lands in dispute were part and parcel of the lands specified in the pottah; fifthly, that a copy of the kabuliat had been improperly admitted as evidence, and that the original kabuliat itself had not been proved; sixthly, that the plaintiff's witnesses were his dependants and were not reliable; seventhly, that according to the weight of evidence re-formation had commenced in 1269, and had been completed in 1272, in which case the plaintiff would be barred, and that the Subordinate Judge had found against the weight of evidence that the reformation commenced in 1273, and the land became fit for use and cultivation in 1275; eighthly, that the identification of the land by the ameen was imperfect and erroneous, and the ameen ought to have been called and examined as a witness; ninthly, that upon the evidence, the proper finding should have been that the land belonged to the defendant's mouzah Jhulkai, and that the defendants had been in possession of the disputed lands for more than twelve years before the institution of the suit.

4. These were substantial grounds of appeal, which it was incumbent on the Judge of the Court below to decide. He has, however, disposed of the appeal in a very perfunctory manner. After referring to some of the points dealt with by the Subordinate Judge, he says: 'There is no ground whatever for appeal. The lands belong to Atrap, and the plaintiff is not barred. The appeal is dismissed.' There can be ho doubt that a judgment of this kind is not sufficient compliance with the requirements of the Code of Civil Procedure, Section 574 of which provides as follows: 'The judgment of the Appellate Court shall state (a) the points for determination; (b) the decision thereupon; (c) the reasons for the decision; and (d) when the decree appealed against is reversed or varied, the relief to which the appellant is entitled.' An Appellate Court is required to record these particulars in its judgment for the purpose of affording the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds with a view to enable them to exercise, if they see fit, and are so advised, the right of second appeal conferred by Section 584 of the Code. If a District Judge could dispose of appeals coming before him in a judgment of this kind, the right of second appeal might be altogether neutralized. We think that, under the circumstances, we ought not in the present state of the record, to deal with the appeal now before us, and that the best course will be to remand the case to the present District Judge of Mymensingh, in order that, having heard the points taken in the petition of appeal argued, he may determine the questions raised thereby, and submit his finding thereupon to this Court. In the case of Doolee Chand v. Mussumut Oomda Begum 18 W.R. 473 the state of the record was somewhat similar, and Couch, C.J., said: 'The proper course, it seems to us, would be, not to reverse the decree, but to require the Judge of the Appellate Court to state the reasons. The Court would retain the case in special appeal, but it would return the proceedings to the lower Court and require the Judge to state the reasons. There may be cases where that could not be done, in consequence of the death of the Judge or of his removal; but where it can be done, that is the course which ought to be adopted.' In the present instance we are informed that Mr. Kirkwood, whose decree is now under appeal, is no longer the Judge of Mymensingh. The course suggested in the passage just cited is therefore not open to us. We think, however, that the course which we take is warranted by the provisions of Section 566 read with Section 587 of the Code of Civil Procedure. The lower Appellate Court has, in our opinion, omitted to determine certain questions, namely, the questions raised in the petition of appeal to that Court, which appear to us essential to the right decision of the case; and we therefore now refer these questions for trial to the Court of the District Judge of Mymensingh. The case will remain on our file, and on receipt of the District Judge's findings, we shall proceed to dispose of the appeal. It will be open to the appellant, within seven days after the receipt by this Court of those findings, to amend his grounds of appeal, and to the respondents to take any grounds of cross-appeal which they may be advised.


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