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Upendra Nath Saha Vs. Adhar Chandra Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in63Ind.Cas.436
AppellantUpendra Nath Saha
RespondentAdhar Chandra Saha and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 31 - appellate court, judgment of, omitting to set out any part of evidence, whether in accordance with law. - .....collusive and fraudulent transaction. in a remand judgment extending over four printed pages, the learned subordinate judge in the court of first instance held that the aforesaid compromise was in fast tainted by collusion and fraud. on appeal the learned district judge reverses that finding in some four sentences, in which he in fast sets out no part of the evidence which leads him to the conclusion at which he has arrived. it is true that he says that he has followed the learned subordinate judge's argument and has examined the evidence on the point. but this is not sufficient to enable us to say whether in fact the learned district judge did properly appreciate the subordinate judge's argument or correctly and accurately appreciated the evidence. as he says himself, he proceeded to.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff for declaration of his title to and recovery of possession of 7 cottas 1 chattak of land. One of the material issued decided in the Court below was the question whether the compromise arrived at in the previous suit between the present defendant No. 1, who was the plaintiff in that suit, and the present defendants Nos. 2 to 6, who were the defendants in that suit, was a collusive and fraudulent transaction. In a remand judgment extending over four printed pages, the learned Subordinate Judge in the Court of first instance held that the aforesaid compromise was in fast tainted by collusion and fraud. On appeal the learned District Judge reverses that finding in some four sentences, in which he in fast sets out no part of the evidence which leads him to the conclusion at which he has arrived. It is true that he says that he has followed the learned Subordinate Judge's argument and has examined the evidence on the point. But this is not sufficient to enable us to say whether in fact the learned District Judge did properly appreciate the Subordinate Judge's argument or correctly and accurately appreciated the evidence. As he says himself, he proceeded to decide the matter without going 'too far' into details. It would be more correct to say that he proceeded to decide the matter without going into details to all. We cannot accept this judgment as one in accordance with law and we, therefore, set aside the decree made in the Court of first appeal and return the appeal to that Court to be re-admitted and heard and decided in accordance with law.

2. We may observe that one of the contentions of the respondents is that the appeal to this Court is concluded by the District Court's findings of fact. But the District Judge's observations on the issues which he purports to decide we can treat only as incidental remarks, and not as reasoned decisions of the questions arising on the issues. When the District Court proceeds to hear and decide this appeal afresh, we may point out that it is desirable that he should examine and discuss all the questions that arise in the case and to come to findings on each and all of them.

3. The decree of the District Judge is, therefore, set aside and the appeal remanded for fresh decision in accordance with law.

4. Costs of this hearing will be costs in the case.


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