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Appeals from Appellate Decrees Nos. 1568 and 1569 of 1961, decided on 1st June 1966.

Second appeal-- Finding of fact‑First appellate Court in arriving at finding need not refer to every item of evidence or document considered by trial Court‑Mere non‑consideration, by first appellate Court, of a particular material on record or finding of trial Court‑Does not entitle appellant in second appeal to relief and High Court will not interfere with decision of first appellate Court‑Civil Procedure Code (V of 1908), O. XLI, r. 31.

It is undoubtedly correct to say that the lower appellate Court should take into consideration the entire evidence in the case, but it is not essential that it should refer to every item of evidence or document considered by the trial Court. The judgment of the lower appellate Court cannot be considered bad simply on account of the fact that it does not comply with the requirements of Order. XLI, rule 31, of the Code of Civil Procedure. If there has been a substantial consideration of all the relevant points or questions required to be determined in the suit or appeal, there is substantial compliance with the provisions of the above rule. Mere non‑consideration, therefore, of a particular material on record or finding of the trial Court by the Court of appeal below does not entitle the appellants in a second appeal to relief. It is not essential that the first Court of appeal should consider and deal with all the findings and materials referred to in the judgment of the trial Court. On the other hand, it is enough if the first Court of appeal considers points essential for decision of the case with reference to evidence on record and comes to conclusions on points upon which the decision of the case is dependent. If such course is followed by the first appellate Court, the High Court will not interfere with his decision.

A. H. Md. Ismail & Co. v. Sachidananda Bhattacharjee 40 C W N 769 considered.

Abed Ali Shaikh v. Sadek Ali Biswas and others 9 D L R 128; Abdul Jalil Molla v. Chand Sikdar (minor) and others 9 D L R 136 and Akhiluddin Molla v. Panchu Molla and others P L D 1957 Dacca 607 ref.

Azizul Islam for Appellants.

Md. Behtar Ali for Respondents Nos. 1 and 2.

These two appeals arise out of the same judgment and are being disposed of by this one judgment.

These appeals by the plaintiffs arise out of the following circumstances: Plaintiffs instituted two suits being Title Suit No. 23 of 1958 and Title Suit No. 24 of 1958 in the Court of the learned Munsif, 2nd Court, Gopalganj, for setting aside the decrees passed in two rent suits as fraudulent and collusive.

The plaintiffs' case, in both the suits, briefly stated, is that they have been residing in West Bengal from before the Partition. Nuruddin Ahmad looked after their properties from 1950 since after the death of their father. The defendants in collusion and without the consent and knowledge of the plaintiffs filed Rent Suits Nos. 62 and 63 of 1953 after forging the signatures of the plaintiffs in the plaints and the vakalatnamas in respect of two jamas of Rs. 8 and Rs. 1‑4‑0 respectively. They obtained compromise decrees in the two suits on the same day. The plaintiffs never settled and were all along in khas possession of the same through Nuruddin. Plaintiff No. 1 never came to this part of the country in 1953. The plaintiffs came to know of the decrees at the time of preparation of rent rolls in Jaistha, 1364 B. S.

The defendants contested the suits contending, inter alia, that the plaintiffs settled the land in their favour on receipt of nazar (premium) of Rs. 1,250, that it was also settled that the plaintiffs would file rent suits against the defendants and procure compromise decrees and accordingly the rent suits were filed and compromised and that plaintiffs Nos. 1 and 2 signed their names in the solenamas and plaintiff No. 3 signed his name in the plaints. The defendants are in possession of the suit land since Aswin, 1356 B. S. and they paid rent to the landlord and the Government.

Mr. Azizul Islam, the learned Advocate for the appellants, has canvassed only one point in these appeals. His contention is that the judgment of the lower appellate Court is not a proper judgment of reversal inasmuch as the learned Judge has not considered certain materials and findings upon which the learned trial Court based his decision. In this connection he has referred to the consideration by the learned Munsif of Exh. A, a certified copy of judgment in Miscellaneous Case No. 24 of 1958 under section 174(3) of the Bengal Tenancy Act but has alleged that this document has not received any consideration from the learned lower appellate Court.

The learned Munsif appears to have considered the aforesaid documents and observed in his judgment as follows:‑

"It has been next argued by the learned pleader for the defendant that the interest of the plaintiff has not been affected by the decrees and solenamas as per Miscellaneous Case No. 24/58 under section 174(3) Exh. A, the lands concerning the rent suits under reference have been made khas by their superior landlords and the plaintiffs have failed in that Miscellaneous Case on contest. I have gone through the relevant Miscellaneous Case and Schedules of rent suits thoroughly from records and register in Court and I find that the area of rent lands was 2'83 acres and that of Miscellaneous Case 3‑36 acres. It also appears therefrom that only land of khatian 872 of mouza Domarakandi was the subject‑matter of Miscellaneous Case No. 24 of 1958 and land of khatian 262 of the said mouza measuring '37 decimals was not the subject‑matter included in the rent suit. Rent Suit record also throw doubts as to the conduct of the parties."

It appears that the learned Subordinate Judge has not specifically considered Exh. A, but its non‑consideration has not affected the decision arrived at by him inasmuch as he proceeded to decide the case on other material points and rightly came to the conclusion that the plaintiffs signed the plaints and filed the rent suits in question as also the solenamas. In this connection he observed that Rashiklal Chakravarty, though appeared in Court and deposed, did not give his standard signature where for it did not become possible for the handwriting expert to give his opinion.

It may be observed that Exh. A is not quite relevant inasmuch as it only goes to show that the sale‑set‑aside case filed by the plaintiffs was dismissed. It would have been an important document if the sale was shown thereby to have been set aside.

It is also worthy of notice that the learned Munsif tried to draw certain materials from records and registers of rent suits etc., which were not put in evidence and the learned appellate Court had not the advantage of examining them as they did not form part of the evidence on record, and as such, were not before the appellate Court. The learned Munsif observed that rent suit records throw doubts as to the conduct of the parties but did not assign reasons for such observations.

In deciding the issues before, him the learned Subordinate Judge considered the question of possession of the suit land and came to the clear and definite finding that the plaintiffs are not in possession of the land but the defendants are. That finding of fact is also well grounded.

The learned Subordinate Judge thereafter elaborately discussed the question of payment of the premium of Rs. 1,250 for the lease and has come to the conclusion that the defendants did pay to the plaintiffs Rs. 1,250 in three instalments of Rs. 650, Rs. 300 and Rs. 300 respectively in the presence of witnesses.

In view of the above findings, the Court of appeal below decided against the plaintiffs and in my opinion, he was right in doing so.

The learned Advocate for the appellants urged that a finding of fact by the first appellate Court without considering material facts and circumstances whereon the trial Court based its decision is not binding in Second Appeal. In his support he cited the case of A. H. Md. Ismail & Co. v. Sachidananda Bhattaharjee (40 C W N 769). It was, of course, held in that case that a finding of fact by the first appellate Court without consideration of material facts and circumstances on which the trial Court based its decision is not binding in second appeal. But this is not the whole law on the subject. It is undoubtedly correct to say that the lower appellate Court should take into consideration' the entire evidence in the case, but it is not essential that it should refer to every item of evidence or document considered by the trial Court. The judgment of the lower appellate Court cannot be considered bad simply on account of the fact that it does not comply with the requirements of Order XLI, rule 31, of the Code of Civil Procedure. If there has been a substantial consideration of all the relevant points or questions required to be determined in the suit or appeal, there is substantial compliance with the provisions of the above rule. In this view I am fortified by the decisions in the cases of Abed Ali Shaikh v. Sadek Ali Biswas and others (9 D L R 128), Abdul Jalil Molla v. Chand Sikdar (minor) and others (9 D L R 136) and Akhiluddin Molla v. Panehu Molla and others (P L D 1957 Dacca 607), respectively.

It follows from the law as enunciated in the above cases that mere non‑consideration of a particular material on record or finding of the trial Court by the Court of appeal below does not entitled the appellants in a second appeal to relief. It is not essential that the first Court of appeal should consider and deal with all the findings and materials referred to in the judgment of the trial Court. On the other hand, it is enough if the first Court of appeal considers points essential for decision of the case with reference to evidence on record and comes to conclusions on points upon which the decision of the case is dependent. If such course is followed by the first appellate Court, the High Court will not interfere with his decision.

In the instant case the most important questions on which the decision of the suit was dependent were the questions of possession and payment of the premium for the lease. The lower appellate Court considered these two questions and decided them against the defendants.

It may further be observed that the question whether the plaintiffs‑appellants signed the plaints, vakalatnamas and the compromise petitions in the rent suits in question was also considered by the learned Subordinate Judge who observed that Rashik Lal Chakravarty came to depose that the signatures given in the plaintiffs and the vakalatnamas of the two rents suits were neither his nor of his brothers and still he did not give his standard signature to the handwriting expert for which reason the handwriting expert could not come to a definite conclusion whether the signatures in the plaints, and the vakalatnamas were his or not and that in such circumstances it could not be said that Rashik Lal Chakravarty was deposing truly.

No other ground taken in the memorandum of appeal was pressed before me.

In view of the above findings the appeals are dismissed and the judgment and decrees of the lower appellate Court are upheld. I leave the parties to bear their own costs of this Court.

K. B. A.

Appeal dismissed.

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