RSA 103/2001 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY Heard Mr. S.K. Ghosh, learned counsel for the appellant/defendant and Mr . B.R. Dey, learned Sr. counsel appearing for the respondent/plaintiff. This appeal by the defendant is directed against the judgment and decree dated 16.07.2001 passed by the learned Civil Judge (Sr. Division), Hailakandi, in Title Appeal No.30/2000, allowing the appeal preferred by the plaintiff by se tting aside the judgment and decree dated 21.08.2000 passed by the learned Civil Judge (Jr. Division) No.2, Hailakandi, in Title Suit No.67/1996, whereby and wh ereunder the suit of the plaintiff was initially dismissed. The appeal was admitted for hearing vide order dated 15.12.2001 on the f ollowing substantial questions of law:- 1) Whether the suit for specific performance of contract is not maintainabl e for non-compliance of Section 16(1)(c) & 17 of the Specific Relief Act, 1961? 2) Whether the Exhibit 1 is hit by Section 22 of Hindu Succession Act, 1956 ? Upon hearing the learned counsel for the parties the following substanti al question of law has also been formulated today and accordingly the appeal is heard on the said substantial question of law also today itself, as agreed to by the learned counsel for the parties:- Whether the First Appellate Court has passed the judgment in conformity with the provisions of Order 41 Rule 31 CPC? The present respondent as plaintiff instituted the said suit for specifi c performance of the contract contending inter alia that though the defendant in itially on 11.04.1996 (Ext.-1) executed a contract for sale, which was subsequen tly renewed vide another agreement for sale dated 11.09.1996 (Ext.-2) agreed to sale the suit land at Rs.25,000/-, out of which an amount of Rs.21,000/- has bee n paid and received, the defendant despite offering of the amount of Rs.4,000/- he did not execute the sale deed, a notice dated 08.11.1996 (Ext.-5) was issued to the defendant to execute the sale deed. It is also the pleaded case of the pl aintiff that despite receipt of the said notice, the defendant did not execute t he sale deed. Hence the plaintiff has instituted the suit for specific performan ce of the contract. The defendant on receipt of the summon entered appearance and filed the written statement contending inter alia that an amount of Rs.15,000/- was borrow ed by him from the plaintiff in the month of July, 1995 at the rate of 10% inter est per month and with a view to secure the payment of the said loan the plainti ff obtained the defendant’s signatures in three unwritten stamp papers. Accordin g to the defendant, though he has repaid the entire amount including the interes t, the said signed unwritten stamp papers have not been returned by the plaintif f and instead those papers have been converted to Bainanama i.e. the agreement f or sale. The further pleaded case of the defendant is that the land in question being the ancestral property and there being more than one inheritor and also th ere being no partition of the land amongst the inheritors, the defendant alone, in the absence of any partition, entered into any contract for sale and hence in any case by virtue of such contract of sale the plaintiff cannot institute the suit for specific performance of the contract. Based on the pleadings of the parties the Trial Court framed the followi ng issues for determination:- (1) Is there any cause of action? (2) Is the suit maintainable in its present form? (3) Whether the defendant duly executed the Bainanama in favour of the plain tiff? (4) To what relief or reliefs the parties are entitled? The Trial Court, on the basis of the evidence adduced by the parties, di smissed the suit vide judgment and decree dated 05.08.1999, against which the pl aintiff preferred Title Appeal No.19/1999, which has been allowed by the First A ppellate Court vide judgment and decree dated 15.05.2000 by setting aside the ju dgment and decree passed by the Trial Court and remanding the suit to the Trial Court directing to frame the following three issues as additional issues:- (i) Whether the defendant took a loan of Rs.15,000/- from the plaintiff with an interest @10% P.M. and the plaintiff obtained signature of the defendant on an unwritten stamped paper and even after the payment of entire loan amount with interest the plaintiff did not return the signed unwritten stamped papers to th e defendant and subsequently converted into Bainanama? (ii) Whether there was agreement for sale of the suit land for consideration of Rs.25,000/- and the defendant on receipt of Rs.21,000/- as advance executed t he Bainanama in question and agreed to Register the sale deed in time and in fav our of the plaintiff on receipt of the remaining amount of Rs.4,000/-? (iii) Whether the plaintiff was ever ready and willing to perform his part of contract and defendant failed and neglected to perform his part of contract? On remand the said additional issues were framed by the Trial Court as i ssue Nos.5, 6 and 7. None of the parties, however, has led further evidence on t he aforesaid three additional issues. The Trial Court, based on the evidence alr eady adduced, again dismissed the suit of the plaintiff, without, however, discu ssing any evidence relating to the additional issue No.5. The plaintiff, then, preferred Title Appeal No.30/2000, which has been a llowed vide judgment and decree dated 16.07.2001 by the learned Civil Judge (Sr. Division), Hailakandi, decreeing the suit of the plaintiff by setting aside the judgment and decree passed by the Trial Court. The Appellate Court has decided the issue No.5 against the defendant even without bothering to discuss any evide nce adduced by the parties. Hence the present appeal. The learned counsel appearing for the appellant has submitted that since the First Appellate Court vide judgment and decree dated 15.05.2000 passed in T itle Appeal No.19/1999 directed the Trial Court to decide the three additional i ssues, being issue Nos.5, 6 and 7, and the Trial Court having discussed the evid ence on record, dismissed the suit of the plaintiff, the Appellate Court ought n ot to have disturbed the judgment and decree passed by the Trial Court and decre ed the suit of the plaintiff, even without bothering to discuss any evidence rel ating to the issue Nos.5, 6 and 7. The learned counsel submits that the First Ap pellate Court being the final Court on facts, is required to discuss all the evi dence on record, more so, when it is a judgment of reversal. The learned counsel , therefore, submits that the judgment passed by the First Appellate Court may b e set aside and the appeal may be remanded to the said Court for deciding the sa me afresh, on the basis of the evidence already adduced by the parties. The learned Sr. counsel appearing for the respondent/plaintiff, on the o ther hand, supporting the judgment and decree passed by the Appellate Court, has submitted that though the Trial Court did not discuss any evidence relating to the issue No.5, the Appellate Court in paragraph 11 of the judgment, based on th e evidence adduced by the parties, has recorded the finding that the defendant/a ppellant could not substantiate the plea of taking loan and putting his signatur es in the unwritten stamp papers and hence the judgment passed by the Appellate Court needs no interference. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by the Courts below. As discussed above, pursuant to the judgment and decree dated 15.05.2000 passed by the First Appellate Court in Title Appeal No.19/1999, aforesaid addit ional issue Nos.5, 6 and 7 were framed by the Trial Court. The Trial Court thoug h did not record any finding relating to the issue No.5, the suit of the plainti ff, however, has been dismissed on the ground that the suit land being the un-pa rtitioned land of a joint family, decree for specific performance of the contrac t cannot be passed, based on the Exts.-1 and 2 contracts for sale. The said find ing has been set aside by the Appellate Court by holding that even in respect of the un-partitioned land, the contract for sale as well as the sale can be execu ted and such contract of sale as well as the sale shall be to the extent of the share of the defendant over the un-partitioned land. The First Appellate Court i n paragraph 11 of the judgment has recorded the finding that the defendant could not prove that the loan of Rs.15,000/- was obtained by him from the plaintiff a nd to secure the payment of the said loan, his signatures were obtained on three unwritten stamp papers, without, discussing the deposition of any witnesses exa mined either by the defendant or by the plaintiff in that respect. The additiona l issue Nos.6 and 7 have also been decided by the Appellate Court without discus sing the entire evidence on record. The First Appellate Court being the final Court on facts is required to discuss all the evidence on record, more so, when it is a judgment of reversal. In a judgment concurring with the finding of fact recorded by the Trial Court, t he Appellate Court need not discuss the evidence on record in details and a gene ral agreement of the finding based on the evidence is sufficient. In the instant case, since the First Appellate Court has set aside the j udgment and decree passed by the Trial Court without discussing the evidence on record in relation to the issue Nos.5, 6 and 7, the judgment and decree passed b y the First Appellate Court is set aside. The appeal is remanded to the First Ap pellate Court i.e. to the Court of the learned Civil Judge, Hailakandi, for deci ding Title Appeal No.30/2000 afresh, upon discussing the entire evidence on reco rd in relation to issue Nos.5, 6 and 7. The same shall be done within 2(two) mon ths from the date of appearance of the parties as directed by this Court by this judgment. The parties are directed to appear before the First Appellate Court o n 07.10.2013. Registry is directed to send down the records, so as to reach the First Appellate Court before the date fixed for appearance of the parties. The appeal preferred by the defendant/appellant is allowed to the extent indicated above. The parties are directed to bear their own cost throughout.