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Basaratali Vs. Sheikh Mahomed Roshan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.421
AppellantBasaratali
RespondentSheikh Mahomed Roshan and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 203 - judgment of appellate court, contents of--judgment of reversal. - .....no. 3 remained unaffected. it has also been contended that, apart from this, the judgment of the district judge being a judgment of reversal of the decision of the first court, is not one which is sufficient in law; and i think that this objection has been fully made out. in reversing a decision of the first court the lower appellate court should state the facts and also the points which are raised before it; and then its decision on such point and the reasons for that decision. we should not be left to spell out the meaning of the lower appellate court by gathering together portions of findings both from the judgment of the first court and the judgment in appeal. the points which have been raised before us, and which should be taken into consideration by the learned district judge on.....
Judgment:

Woodroffe, J.

1. It has been contended on behalf of the plaintiff-appellant, that on the findings as they now stand in the judgment of the lower appellate Court, he should have succeeded and that the lower appellate Court should have held that the defendants Nos. 1 and 2 did not derive any title by virtue of the kobala of the 29th Falgon 1312, M.S., and that the title of the defendant No. 3 remained unaffected. It has also been contended that, apart from this, the judgment of the District Judge being a judgment of reversal of the decision of the first Court, is not one which is sufficient in law; and I think that this objection has been fully made out. In reversing a decision of the first Court the lower appellate Court should state the facts and also the points which are raised before it; and then its decision on such point and the reasons for that decision. We should not be left to spell out the meaning of the lower appellate Court by gathering together portions of findings both from the judgment of the first Court and the judgment in appeal. The points which have been raised before us, and which should be taken into consideration by the learned District Judge on the re-hearing of the appeal are as follows:--It is contended that the Court of appeal below, having found the transaction between the defendant No. 3 and the defendants Nos. 1 and2 to be not bona fide and the kobala dated the 29th Falgon 1312, M.S., set up by the defendants Nos. 1 and 2, to be not a genuine transaction, was in error in law in holding that so long as the kobala of the 29th Falgon 1312, M.S., was in existence the defendant No. 3 could not assert any saleable interest in the property and could convey nothing to the plaintiff. It has been contended that there ought to be a finding as to whether the defendants Nos. 1 and 2 obtained possession by virtue of that transaction, having regard to the fact that the property was under Rs. 100 in value. Therefore, there should be a finding on the question, whether or not there was an effectual sale by the defendant No. 3 to the defendants Nos. 1 and 2 by virtue of delivery of possession.

2. There is, in addition to the grounds I have stated, another ground in the following terms, namely, that the findings of the lower appellate Court that the plaintiff's purchase was purely speculative and that no consideration-money passed is based, not upon a consideration of the evidence on the record but upon surmises and is not a legal finding. Before us, it has also been contended that this question was not relevant to the case. I desire to express no opinion on either of these latter points. I merely mention them in order that they may be taken into consideration by the learned District Judge in rehearing the appeal.

3. With these remarks, I would remand the case to the District Judge in ord.3r that he may re-hear the appeal and pass a judgment in accordanc3 with law.

4. The costs of this appeal will abide the result.

Teunon, J.

5. I agree.


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