SECOND APPEAL No.329 OF 1997 ------ Against the judgment and decree dated 26.09.1997 passed by Additional District Judge, Katihar in Title Appeal No.20 of 1995 (05/1997) setting aside judgment and decree dated 29.8.1995 passed by learned Subordinate Judge, III, Katihar in Title Suit No.37 of 1979 (06/1990). ------ 1. Nasim Ahmad Ansari 2. Shamim Ahmad Ansari 3. Shakil Ahmad Ansari Sons of Zafar Ahmad Ansari 4. Zafar Ahmad Ansari son of Abdul Gani All residents of Koolipara in the town of Katihar, P.S. and P.O. Katihar, District-Katihar. -- Plaintiffs-Respondents-Appellants. Versus 1. Mumtaz Ahmad 2. Imtiyaz Ahmad 3. Imran Ahmad 4. Ehtesham Ahmad 5. Md. Aaisar Alam, all sons of Late Gayasuddin Residents of village-Bathnaha, P.S.Kanti, District-Muzaffarpur and at Barbiana, Katihar, P.S. and District-Katihar. 6. Hazra Khatoon widow of late Md. Gayasuddin. 7. Ishrat Sultana 8. Furhat Sultana 9. Nihal Sultana 10.Nizhat Sultana -- Defendants-Appellants-Respondents. ------ For the appellants : Mr. Raghib Ahsan, Senior Advocate. Mr. Nadim Seraj, Advocate. For the respondents : M/s. Abbas Haider & Md. Kamil Akhtar, Advocates. ------ WITH SECOND APPEAL No. 02 OF 1998 ----- Against the judgment and decree dated 26.09.1997 passed by Additional District Judge, Katihar in Title Appeal No.21 of 1995 (06/1997) affirming judgment and decree dated 29.8.1995 passed by learned Subordinate Judge, III, Katihar in Title Suit No.25 of 1979 (05/1990). ------- 1. Mumtaz Ahmad 2. Imteyaz Ahmad 3. Imran Ahmad 4. Ehtesham Ahmad 5. Md. Aisar Alam, all sons of Late Gayasuddin Residents of village-Bathnaha, P.S.Kanti, District-Muzaffarpur and Mohalla Tarbanna, Katihar. 6. Hazra Khatoon widow of late Md. Gayasuddin - 2 - Residents of village-Bathnaha, P.S.Kanti, District-Muzaffarpur and Mohalla Tarbanna, Katihar 7. Nizkat Sultana wife of Md. Soiba resident of village Bathnaha, P.S. Kanti, District Muzaffarpur and at Katihar 8. Furhat Sultana, resident of village Nirtut, P.S. Maruiyai, District-Muzaffarpur. 9. Nikhet Sultana wife of Abdul Zaffar resident of village Pochet, P.S.Pukri Pakian, District-Muzaffarpur. 10. Ishrat Sultana, wife of Md. Soib resident of village Pukri Pakian, P.S.Karja, District-Muzaffarpur. --Plaintiffs-Appellants-Appellants. Versus 1. Nasim Ahmad Ansari 2. Samim Ahmad Ansari 3. Sakil Ahmad Ansari sons of Jabbar Ahmad 4. Jabbar Ahmad Ansari son of Late Abdul Gani. Respondent 2nd Set. 5. Md. Safizzama 6. Khalique Uzzama sons of Late Hazi Bashir Ahmad 7. Bibi Jamla Khatoon, 7(a)Bibi Shamima Banu, 8. Bibi Shamshad Banu, daughters of Late Hazi Bashir 9. Bibi Zamila Khatoon W/o Late Hazi Bashir Ahmad. All residents of Saudagarpatti, Kishanganj, P.S. Kishangaj and District Kishanganj. Defendants 3rd Set -Respondents 3rd Set- Respondents. ----- For the appellants : M/s. Abbas Haider & Md. Kamil Akhtar, Advocates For the respondents : Mr. Raghib Ahsan, Senior Advocate Mr. Vijay Kumar Prasad, Advocate ------ P R E S E N T Hon’ble Mr. Justice S.N.Hussain ------ S. N.Hussain,J. Heard learned counsel for both the parties in both the second appeals. 2. Second Appeal No.329 of 1997 has been filed by plaintiffs-respondents- appellants challenging the judgment and decree of the learned court of appeal below. The said second appeal arises out of Title Suit No. 37 of 1979 (06/1990) which was filed by Nasim Ahmad Ansari and others for eviction of Gyasuddin Ahmad (predecessor of Mumtaj Ahmad and others) on the grounds of default in payment of rent and bonafide personal requirement. The said suit was decreed on both the grounds by learned Subordinate Judge-III, Katihar, vide judgment and decree dated 29.08.1995 - 3 - against which Mumtaj Ahmad and others filed Title Appeal No.20 of 1995 (05/1997) which was allowed by learned Additional District Judge,II, Katihar, vide judgment and decree dated 26.09.1997 setting aside judgment and decree of the trial court. Against the said judgment and decree of the learned court of appeal below, Nasim Ahmad Ansari and others filed S.A.No.329 of 1997 which was admitted on 19.07.1999 on the basis of substantial question of law formulated by the court. 3. Second Appeal no.02 of 1998 arises out of Title Suit No.25 of 1979 (05/1990) which was filed by Gyasuddin Ahmad (predecessor of Mumtaj Ahmad and others) against Md.Safiuzzama (vendor of Nasim Ahmad Ansari and others) for specific performance of contract vide agreement for sale dated 05.04.1972, but the said suit was dismissed by learned Subordinate Judge, III, Katihar, vide judgment and decree dated 29.09.1995. Against the aforesaid judgment and decree of the trial court, Mumtaj Ahmad and others filed Title Appeal No.21 of 1995 (06/1997) which was also dismissed by learned Additional District Judge, II, Katihar, vide judgment and decree dated 26.09.1997. Against the said judgments and decree of both the learned courts below, Second Appeal No.02 of 1998 has been filed on behalf of Mumtaz Ahmad and others and the said second appeal was admitted on 19.07.1999 and substantial question of law was framed. 4. From the facts and circumstances of the case, it is quite apparent that plaintiffs of the first suit were defendants in the second suit, whereas the plaintiffs in the second suit were defendants in the first suit and the subject matter of the suit was the same property. The dispute in T.S.No.37 of 1979 was as to whether there was any tenancy between the parties, whereas the dispute in T.S.No.25 of 1979 was as to whether there was any agreement for sale between them. Both the title suits were made analogous and the following common issues were framed by the trial court with regard to both the suits:- ISSUES (i) Are the suits as framed maintainable? - 4 - (ii) Have plaintiffs of T.S. 25/79 and T.S. 37/79 got valid cause of action for the suit against the defendants? (iii) Are the suits barred by Law of Limitation? (iv) Are the suits bad for non-joinder of parties? (v) Is the alleged Bainanama dt. 5.4.72 purported to have been executed by Safiuzzame, defendant no.1 of T.S. 25/79 valid, genuine, legal and operative? (vi) Whether the plaintiff of T.S. 25/79 was ready and willing to perform his part of contract or not? (vii) Whether the land in dispute measuring 7 dhurs had fallen in the share of defendant no.1 of T.S. 25/79 after so-called partition between the heirs of Late Nazir Ahmad and Basir Ahmad? (viii) Whether the defendants 2nd party of T.S. 25/79 are bonafide purchaser for value of the suit premises without any previous notice or knowledge of the alleged Bainanama dt. 5.4.72 from the legal heirs of Late Basir Ahmad? (ix) Whether the defendant of T.S. 37/79 is tenant in the suit premises under the plaintiffs and whether the defendant is liable to pay rent to the plaintiffs for the same? (x) Whether there is relationship of land-lord and tenant between plaintiff and defendant of T.S. 37/79 or not? (xi) Whether the defendants of T.S. 37/79 were the owner of the shop room in suit? (xii) Whether the plaintiff of T.S. 25/79 was permitted by the defendant Md. Safiuzzame to construct the shop room in suit at his cost on the land in suit in the name of defendant Md. Safiuzamma and whether the said plaintiff Gyasuddin of T.S. 25/79 constructed the disputed shop room on the suit land and was paying rent at the rate of Rs.50/- per month? (xiii) Whether a vacant piece of land measuring 7 dhur in dispute was given on rent to Gyasuddin or whether he was given shop room on rent constructed by the heirs of Late Basir Ahmad? (xiv) Whether the plaintiff of T.S. 37/79 require the suit premises for the personal need of the sons of defendant no.5 Jafar? (xv) Whether the requirement of the plaintiff of T.S. 37/79 can be met by partial eviction of the plaintiffs of T.S. 25/79 and defendant of T.S. 37/79 from the suit premises? (xvi) Whether a notice u/s. 6 of T.P. Act is necessary to be served on defendant of the T.S. 37/79 for determining his tenancy in respect of the suit shop or not? (xvii) Whether the plaintiffs of T.S. 37/79 are entitled to a decree for eviction of the defendant from the suit premises and whether they are entitled to a decree for arrears of rent against Gyasuddin or not? (xviii)Whether the suit premises was allotted to Safuzamma by other heirs of Late Basir Ahmad in oral partition on 5.4.72 or in 1973 and alleged dt. of partition? (xix) Whether Ext.6 the alleged Bainanama dt. 5.4.72 is a document of Bainanama simpliciter or it is a deed of Bainanama coupled with a deed of tenancy of Gyasuddin under the heir of Late Basir Ahmad and whether Ext.6 requires compulsory registration or not? (xx) Whether the plaintiffs of both the suit are entitled to a decree as claimed for?” - 5 - 5. After hearing the parties, including evidence, learned trial court by a common judgment and separate decrees dated 29.08.1995 decreed Title Suit No.37 of 1979 for eviction but dismissed Title Suit No.25 of 1979 for specific performance of contract. Thereafter two title appeals were filed against both parts of the judgment and decrees of the learned trial court by Mumtaz Ahmad and others and the said title appeals were also considered together. However, the court of appeal below dealt with issues framed by the trial court without formulating any separate points to be considered in the appeals while hearing both the appeals together. The said title appeals were decided by a common judgment dated 26.09.1997 by which the learned lower appellate court allowed the appeal against the decree of eviction and dismissed the appeal against the decree by which specific performance of contract was refused. 6. Before this court also, both the second appeals were considered on 19.07.1999 and were admitted by separate orders. In Second Appeal No.329 of 1997, following substantial question of law was formulated:- “Whether the appellants are entitled to the relief as claimed for even on the finding recorded by the appellate court reversing that of the trial court?” In Second Appeal No.02 of 1998, following substantial question of law was formulated:- “Whether the appellate court committed error in holding that the pleadings of the plaintiff was not in accordance with Form 47 and 48 of the Appendix to the Code of Civil Procedure and while holding so, the court made out a third case?” 7. Now both the cases have come together before this court for final hearing and for deciding the substantial questions of law already framed in the two second appeals. 8. It transpires from the judgment and decrees of the learned court of appeal below that while deciding the two title appeals, it had violated the specific provision of Rule 31 of Order XLI of the Code of Civil Procedure as the court had not applied its - 6 - mind to the points involved in the appeals and failed to specify any such point on which the pleadings and evidence had to be considered for deciding the two separate and distinct sets of matter in issue in the two suits. From the above mentioned judgment of the learned court of appeal below, it appears that due to violation of the aforesaid specific provision of law it had confused itself with regard to the pleadings and evidence with respect to the diverse nature of the claims of the parties in the two suits and appeals. 9. Furthermore, while considering the common issues framed by the trial court and the mixed findings of the trial court regarding both the suits, the learned court of appeal below has also mixed up all the issues while deciding both the appeals by a common judgment, due to which the said substantial questions of law as framed by this court in both the cases separately have arisen. It may noted in this connection that the pleadings and evidence of the parties in both the suits were of complete different nature as in one case relationship of landlord and tenant as well as ground for eviction were to be considered, whereas in the other suit the effect of the deed of agreement for sale was to be considered and mixing up the completely distinct pleadings, evidence and issues involved in both such matters have led to the confusing decision by the learned court of appeal below. 10. The learned court of appeal below completely misdirected itself on the question of title failing to appreciate that there was no dispute at all between the parties that the original owner of the suit premises was Md. Safiuzzama. The learned lower appellate court merely on the ground that the property as well as the parties involved in both the suits were common assumed that the matters in both the suits were common and had to be decided together failing to appreciate that the matters in issue in both the suits were neither directly nor substantially common in both the appeals. The matters in issue in both the appeals were completely distinct and different and the pleadings and evidence with regard to both the matters in issue were also completely distinct and - 7 - different. Hence, there was no reason at all to decide both the suits together by a common judgment and following the procedure adopted by the trial court. 11. Considering the aforesaid facts and circumstances of the case and also considering that the learned court of appeal below is the final court of facts, both the second appeals mentioned above are allowed and both the impugned judgment and decrees dated 26.09.1997 passed by learned Additional District Judge, II, Katihar in Title Appeal No.20 of 1995 (05/1997) as well as in Title Appeal No.21 of 1995 (06/1997) are set aside and the matter is remanded to the learned court of appeal below to consider afresh both the title appeals separately framing separate points to be decided in the title appeals as per the provision of Order XLI Rule 31 of the Code of Civil Procedure and after hearing the parties on the same pleadings and evidence, decide the said two title appeals separately on the basis of the respective points framed therein with special reference to the substantial questions of law, which were framed by this court as mentioned above. 12. Learned District Judge, Katihar, is directed to place both the title appeals before an appropriate court immediately so that both the appeals should be heard by the same court one after the other and decided by separate judgments within six months from the date of receipt of the records. 13. Since both these second appeals have been disposed by this court, let the records of the case be sent down along with a copy of this order by special messenger to the court below, if the cost for the same is deposited by learned counsel for either parties by tomorrow. ( S.N.Hussain,J.) Patna High Court Dated, the 12th February, 2009. N.A.F.R. Sunil.