RSA 264/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B. LOKUR The appellant is aggrieved by a judgment and decree dated 5.6.2006 passe d by the learned Civil Judge, Barpeta in T. Appeal No.50 of 2005. The respondents had filed a civil suit claiming right, title and interes t over certain properties situated in Village Itarbitha in Barpeta District. The respondents also claimed possession of the property described in Schedule-A to the plaint including Dag No.174 at Village Itarbitha. The Trial Judge framed the following issues :- 1) Whether there is any cause of action for the suit against defendant No.1 (A) and 1(B) ? 2) Whether the plaintiffs have suppressed the fact relating to sell of land out of A schedule land to defendant Anandaram Nath ? 3) Whether the plaintiffs have right, title and interest over 6Bs. 5Ls in d ag No.179, 1 K 4 Ls in dag no.173, 1B 0K 2 Ls in dag No.177 and 1K 3 Ls in dag N o.279 of land under K.P. Patta No.71 at Village Itarbhata ? 4) Whether the defendants forcefully occupied major portion of plaintiffs l and in dag No.174 in the month of Dec.199 ? 5) Whether the plaintiffs are entitled to get a decree as prayed for ? 6) What other relief or reliefs the parties are entitled to? It appears that before the Trial Court, the respondents adduced oral evi dence of three witnesses, but the appellant did not produce any witness in suppo rt of his case. On the basis of the materials on record, the Trial Court by a Judgment a nd Decree dated 24.6.2005 decided all the issues in favour of the respondents an d decreed the suit with cost. It was declared that the respondents have a right, title and interest on land in Dag No.174, Dag No.173, Dag No.177 and Dag No.279 . The appellants were also required to deliver possession to the respondents of the suit land and the revenue authorities were directed to partition the aforesa id land by issuing separate patta and dag. Being aggrieved, the appellant challenged the judgment and decree which challenge came to be rejected by the Civil Judge, Barpeta by the appellate judgm ent and decree dated 5.6.2006. The appellant is now before me in a regular second appeal. On hearing learned counsel for the parties and on going through the reco rds of the case, the following substantial questions of law are framed for consi deration:- (1) Whether the first appellate Court was right in rejecting the appeal file d by the appellant by merely endorsing the view of the learned Trial Judge ? (2) Whether the judgment of the first appellate Court is perverse since the issues framed by the Trial Court have not been addressed with proper application of mind ? The first substantial question of law is answered in the negative, while the second substantial question of law is answered in the affirmative. The Appellate Court has noted that Issue No.3 is the crux of the case, b ut apart from saying that the Trial Judge has nicely discussed the issue, the Appellate Court has not given any finding whatsoever and without discussing the evidence on record it has come to the conclusion that Issue No.3 should be decid ed in favour of the respondents. With regard to Issue No.4, the only discussion by the Appellate Court is that since the appellant did not lead any evidence to support his case, that is sue must be decided in favour of the respondent. The first Appellate Court faile d to take into consideration that it is for the respondents to prove the case. M erely because the appellant did not produce any evidence in support of his case, though a Written Statement was filed denying the averments made in the plaint, a decree could not be passed against the appellant. I am afraid that on going through the judgment and order passed by the A ppellate Court it is quite clear that there is no application of mind to the iss ues raised in the appeal nor is there any discussion, let alone any meaningful d iscussion of the evidence and based thereon a decision on the issues framed by t he Trial Judge. Under the circumstances, the appeal is allowed and the judgment and decr ee dated 5.6.2006 passed by the Appellate Court in T. Appeal No.50 of 2005 is se t aside. The Civil Judge, Barpeta will re-hear the matter and pass a judgment and decree on the merits of the case after hearing learned counsel for the parties. The parties will appear before the Appellate Court on 29th September, 20 11. The appeal stands disposed of.