JUDGMENT
Ashwini Kumar Sinha, J.
1. This second appeal is by the plaintiffs against a judgment of reversal.
2. The plaintiffs/appellants brought a suit for partition of lands appertaining to Jamabandi Nos. 4 and 8 and asked for carving out a separate patti of 5/-annas share (fully described in the Schedule of the plaint.) in village Naketa Eaftakitta, in the district of Santhal Praganas.
3. The trial court held that the plaintiffs and the defendants first and second parties were in joint possession of the lands in suit consequently, there was both Unity of title and possession over the lands in suit and hence the suit was decreed.
4. Aggrieved by the judgment and decree of the trial court, the defendant first party perferred an appeal and the court of appeal below allowed the appeal, dismissed the suit and reversed the judgment and decree of the trial court. Hence the Present second appeal by the plaintiffs.
5. The learned Counsel for the plaintiffs/appellant advanced three submissions: Firstly, that the lower appellate court having completely ignored the vital and most important material evidences of the defendants witnesses themselves admitting that the parties were in joint possession as co-sharers (which were fully considered by the trial court). The judgment and decree of appeal below were not in accordance with law and needed to be interfered with secondly, the finding of the court of appeal below to the effect that the right, title and interest of the plaintiffs and defendant No. 3 had been extinguished by adverse possession of defendant No. 2 over the lands of Jamabandi No. 4 and also the finding that the defendant No. 1, though held the lands of Jamabandi No. 8 under invalid transfer, perfected his title by adverse possession over the lands of Jamabandi No. 8-E were not sustainable in law in view of the admissions of contesting defendants witnesses and lastly, that the court of appeal below having disbelieved the validity of Bajidava and gifts set up by the defendants, the plaintiffs could not be non suited without a finding of ouster, more so when the contesting defendants never pleaded the case of ouster muchless proved it.
6. The learned Counsel appearing for the contesting defendants/respondents, however, submitted that the oral gift was followed by the delivery of possession and in any view of the matter, the contesting defendants had perfected adverse possession and the finding of the court of appeal below to that effect could not be interfered within second appeal.
7. In order to appreciate the respective submissions advanced by the learned Counsel for the perties, it is pertinent to note the relevant facts. The parties to the suit are alleged to be sunny belonging to Hanafi sect of Islam. One Tengar Ali was the recorded tenant and owner of the suit properties appertaining to Jamabandi Nos. 4 and 8 of the village in question He had two sons, namely, Sk. Badruddin alias Sk. Bandhu (Defendant No. 1) and Sk. Karmullah (Defendant No. 2 and three daughters, namely, Bibi Asiran, Bibi Basiran and Bibi Dukhani. One Mosst. Kalari was the second wife of Tengar Ali (the recorded tenant) plaintiff No. 2, Sk. Maqbul is the husband of Bibi Dukhani, while Sk. Mairunddin and Sk. Mansur are her sons and Bibi Safidan is her daughter. Defendant No. 3, Bibi Kariman is his daughter of Bibi Basiran.
The plaintiffs’ case was that Sk. Tengar Ali died 25 years before, leaving behind his widow Kalari and the above named sons and daughters as his heirs and they inherited the suit lands and came in joint possession thereof. The defendants first party have been looking after the cultivation of the suit lands on their own behalf and also on behalf of their co-sharers including the plaintiffs. Bibi Basiran died leaving behind only one daugther, namely, defendant No. 3 and then defendants No. 1 and 2 and two sisters (Bibi Ashiran and Bibi Dukhni) succeeded to her shares and similarly, on the death of Mosst. Kalari 10 or 11 years ago, brother sons and her daughters Ashiran and Dukhni inherited her interest in the lands in suit. Plaintiffs’ further case was that on the death of the Bibi Dukhani in the year 1958, her husband (Plaintiff No. 2) and her sons and daughters plaintiffs No. 3 to 5) succeeded to her interest in the suit properties as her heirs. The plaintiff’s further case was that they constructed a house of their own on plot No. 137 in dispute which belongs to them exclusively and none-else have any share in that land.
8. Plaintiffs’ case, on facts pleaded, was that Bibi Asiran and Bibi Dukhani each inherited 2 annas share from her father and 4 paisas share from their mother and 2 paise share from their sister Bibi Basiran all of whom and predeceased them and that each of them held 2 annas 6 paisas share. Plaintffs’ further case was that on the death of Bibi Dukhani the plaintiffs jointly held and possessed the said /5/-annas share over which the plaintiffs were coming in joint possession of the extent of their respective shares.
The plaintiffs felt difficulties in joint enjoyment of the lands in suit and, accordingly, they demanded amicable partition which was refused by the defendants, which necessitated the filing of the suit.
9. The defendants first set contested the suit. The defendants second party supported the claim of the plaintiifs. Separate written statements were filed by defendants 1 and 2. The defence of defendant No. 2 was that Sk. Tengar Ali died about 30 years ago and since his death the entire lands recorded in his name in cultivation possession of Sk. Badruddin and Sk. Karmullah. Further defence was that neither the plaintiffs nor the defendants second party nor the heirs of Most. Besiran, Mosst. Kalari and Most. Dukhani had any interest, whatsoever, in the lands recorded in the name of Sk. Tengar Ali. Further defence was that Bibi Asiran, Bibi Basiran and Bibi Dukhani admitted the possession of the contesting defendants and executed Bajidava deeds in favour of the contesting defendants. In short, the only defence was that the defendants first party having perfected their title to the lands in suit appertaining to Jamabandi No. 4 by open continuous and adverse possession were the exclusive owners of the lands in suit and consequently, the partition suit was fit to be dismissed.
10. As already stated aove, defendant No. 1 had filed a separate written statement. His defence was that Sk. Tengar Ali, during his lifetime, had made a gift of lands of Jamabandi No. 8 in his favour and possession was duly delivered to him and since then he was in possession thereof in his own right openly and adversely to all concerned. Thus, his defence also was of the same nature as that of defendants No. 2.
11. I how take up the first submission, as already indicated above, advanced by the learned Counsel for the plaintiffs/appellants.
It is well settled that where the first appellate court in arriving at a finding of fact ignored very important evidence on the record, such a finding is not binding on the High court in second appeal. It is also well settled that every non-consideration of the reasons given by the trial court in a judgment of reversal is not enough for the High court to interfere with the judgment of the first appellate court. But, it is also well settled that when the court of first appeal reverses the judgment of the trial court, it is enjoined to consider the material evidence after taking into consideration the reasons given by the trial court. It is also well settled that before a finding of fact recorded by the first appellate court, while reversing the judgment of the trial court, can be held to be not binding, it must be shown on behalf of the appellant that non consideration of the evidences or reasons given by the trial court are material in nature. It is also well known that where the judgment of the first appellate court is one of reversal and the finding which it has arrived at is in the nature of an inference from the facts and circumstances of the case, its failure to take into consideration the very facts and circumstances upon which the findings of the trial court were based amounts to such an error as would justify the High Court in second appeal in interfering with the decision of the first appellate court. These are the well known Principles of law.
12. The learned Counsel for the plaintiffs-appellants has submitted that the defence witnesses themselves admitted joint possession of the parties and non-consideration of such vital and material evidence by the court of appeal below (when the trial court decreed the suit on such admissions) vitiates the finding of adverse possession in favour of the contesting defendants and, thus, the judgment and decree of the first appellate court was not in accordance with law and needed to be interfered with.
13. The learned Counsel for the respective parties took me to the judgment of the trial court as well as that of the lower appellate court in detail. It is pertinent to quote here a few findings of the trial court.
D.Ws. 19, 25, 26 and defendant No. 1 have also stated that plaintiff Maniruddin cultivated the suit lands jointly with the defendants…. D.WS. 18ml 9, 25 and 26 besides D.W 6 who has been examined on behalf of defendant No. 1 have stated that suit lands are Ijmal and jointly cultivated by plaintiffs and both the contesting defendants. D.Ws. 18, 19, 25 and 26 have also stated that Maniruddin had a house in Haftakita and he lived there.
On these evidences the trial court held that the plaintiffs and the contesting defendants were in joint possession of the suit lands and disbelieved the case of exclusive posession as set up by the contesting defendants. The trial also, for reasons stated in its judgment, held that unregistered Bajidava documents set up by the contesting defendants were not genuine and as such the rights and shares of the daughters of S.K. Tengar Ali in the suit lands were not extinguished.
14. The learned Counsel for the respective parties took me through the judgment of the court of appeal below in detail and 1 do not find consideration of the most vital and material evidence, i.e. the admissions (as quoted from the judgment of the trial court above) by the court of appeal below. The court of appeal below is the final court of fact and it is the bounden duty of the first appellate court to consider the vital and material evidences on the record while reversing the judgment of the trial court, more so when such vital/ material evidences were considered by the trial court.
15. Thus, on the very first submission advanced by the learned Counsel for the plaintiffs/appellants, the appeal must succeed. I hold that for non-consideration of most vital /material evidences (the admissions of the defence witnesses) which were fully considered by the trial court) the judgment and decree of the court of appeal below are not in accordance with law: when it was a judgment of reversal. I further hold that the court of appeal below, while reversing the judgment of the trial court, has not considered the reasons of the trial court also.
16. As the appeal succeeds on the very first point, the other points do not need to be considered.
17. In the result, the appeal suceeds and is allowed. The judgment and decree of the court of appeal below are set aside and the case is remanded to the court of appeal below for a fresh decision on the evidences already on the record and in accordance with law, after hearing the parties. However, there will be no order as to costs.