1. Heard Ms. R. Choudhury, learned counsel representing the appellants. None appeared for the respondents.

2. This is a regular second appeal under Section 100 of the Code of Civil Procedure whereby the judgment and decree dated 28.08.2015 passed by the Civil Judge, Karimganj, in Title Appeal No. 39/2012 arising out of the judgment and decree dated 02.07.2012 passed by the Munsiff No. 1, Karimganj in Title Suit No. 214/2015.

3. The case of the appellants (plaintiff before the trial court) is as under:

The appellants claimed that they had inherited a parcel of land as described in the first schedule of the plaint. They had claimed that the respondents have illegally occupied a portion of the said land which is described in the second schedule of the plaint.

4. The first schedule land was originally settled in the name of Hasid Ali, the predecessors of the appellants. After his death, his sons inherited the land.

5. During the settlement operation in the years 1960-1968, the first schedule land was recorded in the names of the sons, daughters and the wife of late Hasid Ali. Even in the last settlement operation also, same thing was done, though the name of Asma Khatun was also recorded in respect of the said land. The appellants claimed that it was erroneous and illegal as because Asma Khatun did not have possession and title over that land.

6. Subsequently, there was an amicable partition between the children of late Hasid Ali. In that settlement, Abdul Khalique, the son of late Hasid Ali got the suit land and became the absolute owner of the same.

7. The present appellants Hazi Ala Uddin and others are the sons of late Abdul Khalique. After the death of Abdul Khalique, they inherited the property.

8. The respondents are neighbors of the appellants. About five years prior to filing this suit by the appellants, the residential house of the respondents was gutted in a fire. They became homeless. Therefore, they requested the appellants to give them temporary shelter in the suit land. This request was conceded to. The respondents constructed a temporary house over the suit land.

9. After that, the respondents constructed two other temporary houses in the suit land. In fact, the respondents never left the suit land. In the month of January, 2005, the appellants requested the respondents to leave the suit land. They did not do so. Finally, the appellants filed a suit praying for declaration, right, title and interest over the entire first schedule land and recovery of possession of the second schedule land.

10. The respondents contested the case by filing a written statement. They have claimed that they as well as the appellants had common ancestral. According to the respondents, they along with the appellants jointly inherited the entire property. The respondents have stated that their father late Ajim Miya was the absolute owner of the suit property and he inherited the same from his forefathers. They have also stated that there was an amicable family partition and by way of that partition, Ajim Mia became the absolute owner of the second schedule property.

11. After the death of Ajim Mia, his successors have also amicable partition of the suit land and by that partition, the respondent Joynal Abedin became absolute owner of the property.

12. The respondents have stated that the appellants had illegally got their names recorded in the land records in respect of the suit property.

13. The respondents have stated that that Abdul Khalique, the predecessor of the appellants had illegally executed a Sale Deed No. 5854 dated 19.05.1976 in favour of the Smti. Asma Khatun. According to the respondents, the said Sale Deed had an erroneous description of the property and therefore Asma Khatun illegally got her name registered in respect of the suit property.

14. Upon the pleadings of the parties, the trial court framed the following five issues:

i) Is there any cause of action for the suit

ii) Whether the suit is maintainable in its present form and manner

iii) Whether the plaintiffs have right, title and interest over the suit land

iv) Whether the plaintiffs are entitled to get the decree as prayed for

v) To what relief/reliefs the plaintiffs are entitled to.

15. The appellants and the respondents examined three witnesses each in support of their cases. Finally, the trial court decreed the suit of the appellants declaring their right, title and interest over the first schedule property.

16. The respondents preferred an appeal against the said judgment. The first appellate court allowed the appeal and set aside the judgment of the trial court.

17. I have heard the learned counsel for the appellant at length.

18. This appeal was admitted for hearing upon the following two substantial questions of law:

i) Whether the learned first appellate court below committed error in reversing the judgment of the trial court

ii) Whether the finding of the learned first appellate court that the plaintiff has failed to prove exclusive title of the suit land is perverse

19. The learned trial court framed the Issue No. 3 to decide as to whether the appellants have right, title and interest over the suit land. On the basis of the oral as well documentary evidence on record, the trial court had held that the appellants have right, title and interest over the suit land. The reason for that decision is based on the fact that since the names of the appellants are recorded in the land records it gave rise to the presumption under Section 41(2) of the Assam Land and Revenue Regulation Act, 1886. The trial court’s decision was helped by a decision of this court that was rendered in Keshab Kalita and others vs. Thanuram Kalita and others, reported in 2008 (suppl.) GLT 313 .

20. I have carefully gone through the first appellate court’s judgment. I find that without giving a proper answer to the decision of the trial court in Issue No. 3, the appellate court has set aside the trial court’s judgment.

21. In Vinod Kumar v. Gangadhar, (2015) 1 SCC 391, the Supreme Court has laid down the principles to be borne in mind while disposing a first appeal and held --

15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5)

“3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948 ] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171 ] SCC p. 758, para 5.)

22. In Laliteshwar Prasad Singh v. S.P. Srivastava, (2017) 2 SCC 415 , it was held-- 12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasoning based on evidence. Order 41 Rule 31 CPC reads as under:

“31. Contents, date and signature of judgment.—The judgment of the appellate court shall be in writing and shall state—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein.”

It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties.”

23. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. The learned first appellate court did not specifically answer all the issues and failure to answer all the issues is against the law and therefore, the first appellate court judgment is bad in law.

24. For the aforesaid reason, the judgment of the first appellate court is not sustainable in law and stands set aside. Accordingly, the appeal is allowed. The case is remanded to the first appellate court for passing a fresh judgment in accordance with the procedure as laid down by law, albeit after hearing oral arguments of both sides.

25. Send back the LCR.