Gauhati High Court
Abhishek Shah vs Radhya Shyam Sarkar And 3 Ors on 24 June, 2025
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GAHC010193272022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/170/2022
ABHISHEK SHAH
S/O SHRI SHYAM SUNDAR SHAH,
RESIDENT OF 2ND FLOOR, CHOWDHURY COMPLEX, AK AZAR ROAD,
REHABARI, PS PALTAN BAZAR, GUWAHATI 781008, KAMRUP M ASSAM
VERSUS
RADHYA SHYAM SARKAR AND 3 ORS.
S/O LATE CHINTA HARAN SARKAR, RESIDENT OF SATABDI PATH, BYE
LANE NO. 2. SANKAR HOTEL, JYOTIKUCHI WARD NO. 16, PO
BIROVANAGAR, PS FATASIL AMBARI, GUWAHATI 781034, KAMRUP M
ASSAM
2:SRI RAVI PAUL
S/O LATE ANIL PAUL
RESIDENT OF BISHNUPUR
PO GOPINATH NAGAR
PS BHARALUMUKH
GUWAHATI 781009
KAMRUP M ASSAM
3:SRI SUBHASH CH. DAS
S/O LATE SURENDAR CH. DAS
RESIDENT OF RAILWAY COLONY
BADARPUR
DIST KARIMGANJ
ASSAM 788806
4:SRI SUMAN DAS GUPTA
S/O SUNIL DAS GUPTA
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RESIDENT OF KALAPAHAR
NEAR SANI MANDIR
GUWAHATI 781018. KAMRUP M ASSA
Advocate for the appellant : Mr. B.D. Deka.
Advocate for the respondent : Mr. S. Chauhan, for respondent No. 1.
Date of hearing : 06.05.2025
Date of judgment : 24.06.2025
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (CAV)
Heard Mr. B.D. Deka, learned counsel for the appellant. Also heard Mr. S.
Chauhan, learned counsel for the respondent No. 1.
2. This second appeal, under Section 100 of the CPC, is directed against the
judgment and decree dated 30.05.2022, passed by the learned Civil Judge No.
2, Kamrup(M) at Guwahati, in Title Appeal No. 51/2016.
2.1. It is to be noted here that vide impugned judgment and decree dated
30.05.2022, the learned Civil Judge No. 2, Kamrup(M) at Guwahati (‘first
appellate Court’, for short) had allowed the appeal by reversing the judgment
and decree dated 04.06.2016, passed by the learned Munsiff No. 1, Kamrup(M)
at Guwahati (‘trial Court’, for short), in Title Suit No. 133/2009.
3. For the sake of convenience, and to avoid confusion, the parties herein are
referred to in the same status, as they appeared in the suit.
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4. The background facts, leading to filing of the present appeal, are briefly
stated as under:-
“The appellant herein, namely, Sri Abhishek Shah as plaintiff, had
instituted a suit against the defendant/respondent No. 1 herein, namely,
Sri Radhya Shyam Sarkar, for declaration of plaintiff’s right, title and
interest over the suit land and also for recovery of possession and
permanent injunction. The case of the plaintiff is that Late Dandiram
Kumar and Raheswar Kumar were the exclusive owner and possessor of a
plot of land covered by Patta No. 25. After disposal of land by various
manner, a plot of land measuring 3 bighas 4 kathas 7½ lechas remained
in the hands of Sri Ananta Kumar, son of Late Dandi Ram Kumar; Sri Arun
Kumar and Sri Jagadish Kumar, both sons of Raheswar Kumar and these
three persons jointly executed a power of attorney appointing and
empowering Sri Ranjit Kumar Dey, son of Late Dasarath Kumar Dey, vide
registered deed No. 5299, dated 16.10.1996, to sell the above referred 3
bighas 4 kathas 7½ lechas of land. Thereafter, Sri Ranjit Kumar Dey on
the strength of the aforesaid power of attorney, being deed No. 5299,
dated 16.10.1996, sold 1 katha 5 lechas of land out of the aforesaid total
land of 3 bighas 4 kathas 7½ lechas to Sri Ravi Paul by executing a
registered deed of sale, bearing deed No. 3421/98, dated 23.06.1998.
Thereafter, Sri Ravi Paul, after seven years, sold the aforesaid land to one
Sri Subhash Chandra Das, vide registered deed of sale, bearing No.
5835/04, dated 03.08.2004. Thereafter, Sri Subhash Chandra Das had sold
out the suit land to Shri Abhishek Shah/the plaintiff; vide registered sale
deed No. 17096, dated 17.12.2007, through his power of attorney holder
Sri Suman Das Gupta the power of attorney being deed No. 3152 dated
Page No.# 4/2907.06.2006, which was executed by Subhas Chandra Das in favour of
Suman Das Gupta authorising him to sell his land. At the time of execution
of the sale deed by Sri Ranjit Kumar Dey in favour of Sri Ravi Paul, the
boundary of the land was shown wrongly, and as such vide respective
rectification deeds, all the subsequent purchasers, right from Sri Ravi Paul
had their boundary of sale deeds rectified. Thereafter, in the month of
March, 2008, when plaintiff, along with Smti. Moutushi Dutta started
construction of boundary wall and was about to affix a gate on the
southern side of the land, the defendant appeared and started claiming
the suit land to be his own and forcibly tried to enter upon there, but
could not succeed. However, finally the defendant in a most illegal and
arbitrary manner, forcibly entered upon the suit land, with the help of
some hired ladies and took possession of the same.
The defendant No.1 had contested the suit by filing written statement
wherein he had denied all the claims of the plaintiff. He further stated
that his predecessors-in-interest, namely, Sunil Kar and Baloram Kar had
purchased a plot of land measuring 2 kathas 10 lechas from Sri Dandi
Ram Das, son of Harendra Nath Das and Md. Anowar Hussain Dewan, son
of Sonaullah Dewan, both residents of Guwahati, vide registered sale deed
No. 5373/1984, dated 04.05.1984. Said Dandi Ram Das and Md. Anowar
Hussain had purchased the land from Sri Satya Ram Kumar and Sri
Narayan Chandra Kumar, both sons of Late Dhani Ram Kumar of Maligaon,
Guwahati and Sri Satya Ram Kumar and Sri Narayan Chandra Kumar had
purchased the land from one Sri Nandi Ram Kumar, son of Late Ganga
Ram Kumar of Maligaon, Guwahati, vide deed No. 22/51, dated
04.01.1951. The defendant No.1 had purchased 2 kathas 10 lechas of land
Page No.# 5/29which includes the suit land, from Sunil Kar and Baloram Kar, vide deed
No. 298, dated 28.03.2005, after disposal of the proceeding under
Sections 145/146 of Cr.P.C., vide order dated 29.11.2004 and took
possession of the land and became the absolute owner, and since then, he
has been possessing the same by constructing rooms thereon and started
living there.
On the other hand, the proforma defendant Nos. 2 and 3 have
admitted the claims being made in the pleading of the plaintiff in their
written statement.
Upon the aforesaid pleadings, the learned trial Court had framed the
following issues:
(1) Whether the plaintiff’s vendor had acquired title
to the suit property?
(2) Whether the plaintiff’s vendor had delivered
possession of the suit land to the plaintiff?
(3) Whether the plaintiff has been dispossessed by the
defendant?
(4) Whether the plaintiff is entitled to the relief as
prayed for?
Thereafter, hearing learned counsel of both sides, the learned trial
Court had decreed the suit in favour of the plaintiff by granting the
following reliefs:
(a) A decree declaring plaintiff’s right, title and
interest and possession over the suit land
morefully described in the schedule of the plaint.
(b) A decree for recovery of khas and vacant possession
of the suit land morefully described in the
Page No.# 6/29schedule of the plaint.
(c) A decree for permanent injunction restraining the
main defendants, his agents, servants and employees
from disturbing the peaceful possession of the
plaintiff upon the suit land also restraining them
from entering upon the suit land more fully
described in the schedule of the plaint.
(d) Cost of the suit.
Being aggrieved, the defendant/respondent No. 1 herein, namely, Sri
Radhya Shyam Sarkar had filed an appeal, being Title Appeal No. 51/2016,
before the learned first appellate Court. In the said appeal, the learned
first appellate Court had formulated the following points for determination:
1) Whether the discussion made in issue Nos. 1, 2, 3 & 4
are bad in law and therefore the interference of
this court is required?
2) Whether there is any perversity in the judgment dtd.
04.06.2016, passed by learned Munsiff No. 1
Kamrup(M) Guwahati in T.S 133/2009?
3) Whether the interference of this court is necessary
against the judgment and decree passed in T.S. No.
133/2009?
Thereafter, hearing learned counsel of both sides, the learned first
appellate Court, vide impugned judgment and decree dated 30.05.2022,
allowed the appeal on contest and set aside the judgment and decree
dated 04.06.2016, passed by the learned trial Court, in Title Suit No.
133/2009, and consequently, dismissed the suit of the plaintiff.
Being aggrieved, the plaintiff has preferred the present appeal under
Section 100 of the CPC, which was admitted by this Court, vide order
dated 23.11.2022, on the following substantial questions of law:
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1. Whether the learned First Appellate Court committed
illegality by ignoring the Exhibit 2 viz. the General
Power of Attorney bearing Deed No.5299/1996 dated
16/10/1996 in deciding the authority of Sri Ranjit
Kumar Dey to execute the Deed of Rectification
bearing Deed No. 10193/2008 dated 18/07/2008 (viz.
Exhibit 4) and thereby arrived at a perverse finding?
2. Whether delayed execution of a rectification deed
correcting the boundaries contained in a sale deed,
would by itself raise a presumption against validity
of the title vested by the instrument?
3. Whether the finding recorded by the learned First
Appellate Court holding that there was omission to
mention the date of dispossession is contrary to the
pleadings on record, more particularly, the amended
plaint?
4. Whether the plaintiff could have been non-suited
merely upon his alleged failure to prove the factum
of previous possession and dispossession in a suit
based on title?
5. Whether the learned Court below was correct in
discarding the description of the suit land merely on
the ground of alleged discrepancies in the sale deeds
prior to rectification although the defendant had
never disputed the same?”
5. Mr. Deka, learned counsel for the appellant submits that the learned first
appellate Court while deciding the issue No. 1, came to an erroneous finding to
the effect that Sri Ranjit Kumar Dey had no authority to execute the deed of
rectification (Ext.4), since he was empowered by Sri Ananta Kumar, Sri Arun
Kumar and Sri Jagadish Kumar to execute any deed to facilitate disposal of the
land by the general power of attorney (Ext.2), dated 16.10.1996 and the
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learned first appellate Court had also committed illegality by ignoring Ext.2, the
general power of attorney, in deciding the authority of Sri Ranjit Kumar Dey to
execute the deed of rectification.
5.1. Mr. Deka also submits that the learned first appellate Court had given
undue importance to the factum of delay in execution of Ext. 4 and Ext. 12 i.e.
the rectification deeds from the date of execution of the sale deeds (Ext.3 and
Ext.11), but the execution of the said deeds were duly proved by the plaintiff.
Mr. Deka also submits that the learned first appellate Court had ignored the
amended plaint, wherein the date of dispossession was specifically mentioned
as 04.04.2009, and despite such pleading, the learned first appellate Court had
arrived at an erroneous finding that there is omission to mention the date of
dispossession.
5.2. Mr. Deka further submits that the plaintiff has claimed for recovery of
possession based on his periodic patta (Ext.15) comprising only of the suit land
and as such, the factum of possession or dispossession was not material to
adjudicate the claim. Mr. Deka also submits that the learned first appellate Court
had unnecessarily ventured to examine the boundary of the suit land described
in the sale deed and the rectification deed, in as much as the defendant never
disputed the boundary of the suit land, and that the entire patta land is
identifiable as per Order 7 Rule 3 of the CPC, and there is unbroken chain of
title, and as such, the finding, so far arrived at by the learned first appellate
Court, is erroneous and is liable to be interfered with by this Court.
6. Per contra, Mr. Chauhan, learned counsel for the respondent No. 1, submits
that it is a well-settled principle that the plaintiff has to prove his own case; he
cannot depend upon the weakness of the case of the defendant. He also
submits that the claim of title, on the basis of Jamabandi and Chitha, records of
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right which has no evidentiary value are not proof of title.
6.1. Mr. Chauhan has pointed out that Ext.1 is the chitha which is not a
document of title and on the basis of Ext.1, the plaintiff cannot claim title.
Secondly, Mr. Chauhan submits that in Ext.2, no boundary is mentioned, and the
learned first appellate Court had rightly held that the land is not identifiable.
6.2. Mr. Chauhan has also pointed out that the boundary and all documents
were rectified after ten years and rectification by Sri Ranjit Kumar Dey has no
value. It is the further submission of Mr. Chauhan that in the amended plaint, it
has not been mentioned when and at what time dispossession was done.
6.3. Further, Mr. Chauhan has pointed out that as many as eight tenants were
there in Ext.1 and as per Section 6 of the Assam Tenancy Act, 2021, tenants
have their right, title and interest and they are residing over the suit land for
more than thirty years.
6.4. Mr. Chauhan has pointed out that if Ext.2 is not believable, then all the
documents will go and that the issue No. 1 so formulated by the learned first
appellate Court, had rightly been decided and no interference is warranted, and
being the second appellate Court, this Court cannot go into the facts of the
case, but only on the points of law.
6.5. In support of his submission, Mr. Chauhan has referred to the following
decisions:
(i) Gokul Ch. Das and Ors. vs. Satish Ch. Das and Ors.,
reported in 1995 (2) GLJ 440.
(ii) Brahma Nand Puri vs. Nelei Puri, reported in AIR 1965 SC
1506.
(iii) Guru Amarjit Singh vs. Rattan Chand, reported in (1993)
Page No.# 10/294 SCC 349.
(iv) State of H.P. vs. Keshav Ram, reported in AIR 1997 SC
2181.
(v) Balwant Singh and Anr. vs. Daulat Singh, reported in
AIR 1997 SC 2719.
(vi) Gurunath Manohar Pavaskar and Ors. vs. Nagesh
Siddappa Navalgund and Ors., reported in (2007) 13 SCC
565.
(vii) Sheodhyan Singh and Ors. vs. Mst. Sanichara Kuer and
Ors., reported in AIR 1963 SC 1879.
(viii) Subhaga and Ors. vs. Shobha and Ors., reported in (2006)
5 SCC 466.
(ix) M/s Roy and Ors. vs. Sm. Nani Bala Dey and Ors., reported in AIR 1979 Cal 50. (x) Saljing A. Sangma and Anr. vs. Bilmoni A. Sangma, reported in 2013 (4) GLT 954.
(xi) Anu Das vs. Padumi Das, reported in 2007 (1) GLR 538.
7. In reply to the submission of Mr. Chauhan, learned counsel for the
respondent No. 1, Mr. Deka, learned counsel for the appellant submits that the
question is whether or not the riots were in possession or the defendants were
in possession of the suit land, but, the question is, as to whether Nandi Ram
Kumar had title to alienate the property or not, and under such circumstances,
Mr. Deka has contended to allow this appeal.
7.1. Mr. Deka has also submitted following chart, indicating the chain of title
of the plaintiff and the defendant:-
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“Plaintiff’ chain of title:
Date Name Mode Relevant document
1974-1986 Dandi Ram Kumar, Ext.1
Raheswar Kumar
original owners
of Dag No. 57 of
Patta No. 25
16.10.1996 Their LRs Power of Ext.2
(Ananta, Arun and Attorney
Jagadish) No.
appointed Ranjit 5299/96
Kumar Dey as
constituted
attorney
23.06.1998 Ananta, Arun and Sale Deed Ext. 3 Sale Deed, Ext.4
Jagadish through No. 3421 Rectification Deed, Ext.
Ranjit Kr. Dey /1998 5 Kuttcha Patta and
sold 1K 5L to Ext.6 Revenue Paying
Ravi Paul Receipt in the name of
Ravi Paul
03.08.2004 Ravi Paul sold 1K Sale Deed Ext.7 Sale Deed and
5L to Subhas No. 5835 Ext.8 Rectification in
Chandra Das /2004 the name of Subhash
Chandra Das
07.06.2006 Subhash Ch. Das Power of Ext. 9
appointed Suman Attorney
Das Gupta as No. 3152
constituted
attorney
17.12.2007 Subhash Ch. Das Sale Deed Ext.11 Sale Deed, Ext.12
through attorney No.17096/ Rectification Deed,
sold 1K 5L to 2007 Ext.13 Mutation
plaintiff Certification, Ext.14
Abhishek Saha Draft Jamabandi,Ext.15
Patta and Ext. 16 Land
Revenue Paying Receipt
in the name of Plaintiff
Page No.# 12/29Defendant’s chain of title:
Date Name Mode Relevant
Document
Nandi Ram Kumar NIL
original owner
03.01.1951 Nandi Ram Kumar sold 8 Bigha Sale Deed Ext. A
2 Katha 2½ Lechas in Dag No. No. 22
63 of Patta No. 61 to Satya
and Narayan Chandra Kumar
18.03.1983 Satya Ram Kumar and Narayan Sale Deed Ext. B
(SIC- Kumar sold to Dandi Ram Das No. 2401
16.03.1982) and Anowar Hussain in Dag No.
63 old/67 new of Patta No. 61
old/25 new
04.05.1984 Dandi Ram and Anowar Hussain Sale Deed Ext. C
sold to Sunil Kar and Boloram No. 5373
Kar
28.03.2005 Sunil Kar and Boloram Kar Sale Deed Ext. I
sold to Defendant No. 274
8. Having heard the submissions of learned counsel for both the parties, I
have carefully gone through the memo of appeal and the grounds mentioned
therein, and also perused the impugned judgment and decree dated
30.05.2022, passed by the learned first appellate Court, in Title Appeal No.
51/2016, and the judgment and decree dated 04.06.2016, passed by the
learned trial Court, in Title Suit No. 133/2009.
9. It appears that while deciding the issue No. 1, the learned trial Court held
that the plaintiff had pleaded that he bought the suit land from Sri Subhash
Chandra Das, who executed a power of attorney, being deed No. 3152, dated
07.06.2006, in favour of one Sri Suman Das Gupta to sell his land measuring 1
katha 5 lechas, and the boundary given in the said power of attorney was also
wrongly shown earlier and therefore, a deed of rectification, being deed No.
Page No.# 13/2910188, dated 18.07.2008, was executed. Thereafter, said Sri Suman Das Gupta,
being the attorney of Sri Subhash Chandra Das, ultimately sold the aforesaid 1
katha 5 lechas of land to the plaintiff by executing a registered deed of sale,
bearing No. 17096, dated 17.12.2007, and in view of the rectification deed, the
boundary in the sale deed was corrected and the dag number of the land
purchased by him is 67 (old)/1999 (new) of K.P. Patta No. 25/139 (old) and
830(new) of village Jyotikuchi, under Mouza Beltola, in the district of Kamrup.
The name of the earlier vendor Sri Ravi Paul and all other subsequent
purchasers in respect of the suit land were duly mutated confirming their
possession and they have been paying the land revenue in respect of the suit
land, and during the settlement operation, a certificate has been issued by the
settlement office confirming mutation in the name of Sri Abhishek Shah, and the
plaintiff has been possessing the suit land continuously by paying the land
revenue. The learned trial Court further held that Late Dandi Ram Kumar and
Raheswar Kumar were the exclusive owner and possessor of the total land
covered by Patta No. 25 and after disposal of land by various manner, a portion
of land measuring 3 bighas 4 kathas 7½ lechas remained in the hands of Sri
Ananta Kumar, son of Dandi Ram Kumar and Sri Arun Kumar and Jagadish
Kumar, both sons of Late Raheswar Kumar, and with a view to dispose of the
aforesaid 3 bighas 4 kathas 7½ lechas of land, said Sri Ananta Kumar, Sri Arun
Kumar and Sri Jagadish Kumar had jointly executed a power of attorney,
appointing and empowering Sri Ranjit Kumar Dey, son of Late Dasarath Kumar
Dey, being deed No. 5299, dated 16.10.1996, and being the power of attorney
holder, Sri Ranjit Kumar Dey sold 1 katha 5 Lechas of land out of the aforesaid
total land to Sri Ravi Paul by executing a registered deed of sale, bearing No.
3421/1998, dated 23.06.1998. Said Sri Ranjit Kumar Dey also delivered
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possession to Sri Ajit Chandra Das at the time of sale and also delivered
possession to Sri Ravi Paul upon the land covered by the present boundary.
Though it was wrongly shown in the aforesaid registered deed of sale, and Sri
Ravi Paul continued his possession upon the land he purchased within the
present boundary. The witnesses of the plaintiff have reiterated the said facts in
their examination-in-chief that Sri Ravi Paul had been peacefully possessing the
land for about six years and ultimately sold the same to one Sri Subhash
Chandra Das by executing a registered deed of sale, being No. 5835, dated
03.08.2004, and also delivered possession to Sri Subhash Chandra Das and said
Sri Subhash Chandra Das, after purchasing the land kept the same exclusively
under his possession for about two years, and from Sri Subhash Chandra Das,
the plaintiff bought the land as aforesaid. The plaintiff vide, Ext.1 i.e. draft
chitha; Ext.2 i.e. power of attorney and Ext.3 i.e. the certified copy of the sale
deed No. 3421/1998, dated 23.06.1998, and further exhibits, up to Ext.23 have
proved his case and also proved that the plaintiff had acquired ownership of the
suit land on the strength of Exts.2, 3, 7, 8 & 11 and Sri Subhash Chandra Das
was owner of the suit land and the same is proved by Exts. 3, 4, 5, 6, 7, 8, 9,
10, 11 & 12 and vendor of Sri Subhash Chandra Das, namely, Sri Ravi Paul, after
purchasing the suit land, vide Exts. 3 and 4 had mutated the land in his name
which is proved by Ext.5 i.e. katcha patta showing the land revenue in the name
of Ravi Paul and Ext.6 i.e. the revenue paying certificate also proved that Sri
Ravi Paul was regularly paying the revenue.
9.1. The learned trial Court further held that though the defendant denied the
ownership right of Sri Subhash Chandra Das, yet, the defendant had failed to
adduce any cogent evidence to prove this fact, and D.W.1 in his examination-in-
chief, had deposed that the suit land belongs to him and the plaintiff had no
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right, title and possession over the same as claimed by him, and that Sunil Kar
(his predecessor-in-interest) and others, who along with Baloram Kar had
purchased a plot of land measuring 2 kathas 10 lechas covered under K.P. Patta
No. 25, Dag No.67 with the specific boundaries, and the predecessors-in-
interest, Sunil Kar and Boloram Kar had purchased the same from one Sri Dandi
Ram Das, son of Harendra Nath Das and Md. Anowar Hussain Dewan, son of
Sonaullah Dewan, both of Guwahati, vide registered sale deed No. 5373/1984,
dated 04.05.1984 in the Office of Sub-Registrar, Guwahati. The said Dandi Ram
Das and Anowar Hussain purchased the land from one Satya Ram Kumar and
Narayan Chandra Kumar, both sons of Late Dhani Ram Kumar of Maligaon,
Guwahati, and Satya Ram Kumar and Narayan Chandra Kumar had purchased
the land from one Nandi Ram Kumar, son of Late Ganga Ram Kumar of
Maligaon, Guwahati, vide deed No. 22/51, dated 03.01.1951, and the defendant
bought the land from Sri Boloram Kar and Sri Sunil Kar, and the sale deed was
executed in his favour on 28.03.2005 and registered on the same day in the
Office of Sub-Registrar, Panikhaiti, Kamrup, Guwahati, vide deed No. 298/2005
and delivered possession of the land to the defendant. However, D.W.1 had
admitted that he could not say on going through the Ext.A, Ext.B and Ext.C as
to who bought whose land, and he had not produced the sale deed by which
Dandi Ram Das and Anowar Hussain bought the suit land, and they had failed
to prove that at the time of selling of the suit land, the vendors of Sunil Kar and
Boloram Kar had ownership right over the suit land.
9.2. The learned trial Court further held that in the plaintiff’s evidence, there
was chronological description as to how the plaintiff’s vendor became the owner
of the suit land; but in the evidence of the defendant, there is no chronological
description as to how the defendant’s vendor came into possession of the suit
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land and owned the suit land. The defendant had failed to prove as to how the
seller in the sale deeds i.e. Ext.A, Ext.B and Ext.C became the owners of the suit
land, and that the mutation of a person in the record of rights raises a
presumption that he is the owner of the land unless otherwise contrary is
proved. Ext.1, Ext.5 and Ext.6 proved that the names of predecessor-in-interest
of the plaintiff’s vendor (i.e. Dhani Ram Kumar and Raheswar Kumar and Ravi
Paul) had ownership right as their names find place in the record of rights and
the defendant had not rebutted the said presumption by adducing cogent
evidence, and therefore, the learned trial Court had decided the issue in
affirmative in favour of the plaintiff.
10. Thereafter, in respect of issue No. 2, after discussion of the evidence
adduced by the plaintiff and the defendant, the learned trial Court had held
that before purchasing the suit land, the plaintiff verified the land records of the
suit land and after satisfying himself that Sri Subhash Chandra Das was in
possession of the suit land, he decided to purchase the suit land, and after
purchasing the suit land, the seller had handed over the possession of the suit
land to the plaintiff and he had been possessing the same till the date of
dispossession. The plaintiff also established that his name had been mutated
over the said land and after completion of the settlement operation, final patta
was issued in his name which is evident from the Exts. 13, 14, 15 and 16.
10.1. The learned trial Court had held that the sale deeds submitted by the
defendant did not disclose any boundary and as such, it could not be
ascertained as to whether the suit land is as same as claimed by the defendant,
and the defendant had failed to show that his name had been mutated over the
suit land, and thereafter, the learned trial Court had arrived at a conclusion that
the plaintiff had exhibited the mutation certificate, periodic patta, draft
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jamabandi and sale deed before the Court to prove his ownership and
possessory right over the suit land and the witnesses examined by the plaintiff
had also corroborated the facts that the plaintiff was in possession of the suit
land, and thereafter, decided the issue No. 2 in favour of the plaintiff.
11. In respect of issue No. 3, the learned trial Court had arrived at the
finding that the plaintiff was in peaceful physical possession of the suit land till
the date of his dispossession. The learned trial Court also held that the
defendant in his written statement had pleaded that he constructed rooms on
the suit land and started living thereon with his family members, including his
sister, brother-in-law, nephew and also given on rent to tenants, which proved
that the plaintiff had been dispossessed by the defendant.
12. In respect of issue No. 4, the learned trial Court had held that the
plaintiff’s vendor had the title when the suit property was sold to the plaintiff,
and that the plaintiff’s vendor had delivered possession of the suit land to the
plaintiff. The learned trial Court further held that the plaintiff had been
dispossessed by the defendant, and on the other hand, the defendant had failed
to prove that the plaintiff was not the owner of the suit land as well as the
plaintiff was not in possession of the suit land, and that all the documents
exhibited by the plaintiff were in chronological order and in a sequence which
led to the presumption that the plaintiff was the owner of the suit land. The
learned trial Court also held that the defendant had failed to rebut the said
presumption, and though the defendant exhibited some documents to prove his
ownership right over the suit plot of land, but those documents were not
sufficient to hold that the defendant was the owner of the suit land, and it was
not proved as to how the vendors of the defendant acquired ownership as well
as saleable right over the suit plot of land, and further in the sale deeds
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exhibited by the defendant, there wasn’t any specific description of the
boundary of the land, and therefore, it could not be held that the land
mentioned in the sale deeds exhibited by the defendant is as same as the suit
land. Thereafter, the learned trial Court decided the issue No. 4 in affirmative
and in favour of the plaintiff.
13. Thereafter, in view of the affirmative finding in respect of issue Nos. 1, 2,
3 and 4, the learned trial Court held that the plaintiff is entitled to relief(s) as
prayed for and thereby, granted the relief(s).
14. On the other hand, learned first appellate Court, in respect of issue No.
1, had held that even though there was transfer of land measuring 1 katha 5
lechas, pertaining to Dag No. 67 and Patta No. 25, the said transfer took place
merely on pen and papers without the land being specifically identified, and for
the aforesaid reason, after elapse of ten years, from the date of execution of
the first sale deed, the purchasers including the plaintiff had to rectify his
boundaries just to establish his right over a plot of land covered by the disputed
dag and patta by way of citing a common boundary. Then it had held that even
if there are sale deeds and patta issued in the name of the plaintiff, but those
deeds, in absence of proper identification of the land under sale, cannot confer
right, title and interest to the plaintiff and his vendors over the suit land, which
is apparently not the land shown in the sale deeds of the plaintiff as well as his
vendor, thereafter, decided the issue No. 1 against the plaintiff.
15. In respect of issue Nos. 2 and 3, the learned first appellate Court had held
that perusal of Ext.1, the chitha of the year 1974-1986, revealed that there
were eight tenants under the landlord, Dandi Ram Kumar and Roheswar Kumar,
and khatian No. 52 was prepared under the Assam (Temporarily Settled Areas)
Tenancy Act, 1971, and as per Section 6 of the said Act, an occupancy tenant
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has permanent, heritable and transferable right of use and occupancy in the
land of his occupancy/holding. Further, as per Section 7 of the said Act, on the
death of tenant, right of the immovable property descends in the same manner,
as other immovable property, and a tenant gets protection from ejectment
except as provided under Chapter IX of the said Act, and in the case in hand,
from Ext.1, the chitha, it was apparent that there were eight occupancy tenants
over the entire land, and hence unless, it has been shown that the tenancy is
forfeited in compliance with Section 50 of the said Act, it is to be presumed that
the land under the disputed dag and patta is still in occupation of the tenants.
Moreover, it is the duty of the plaintiff, to prove that the suit land is presently
not under khatian or that the tenancy has been forfeited complying due
procedure of law, but no any such steps has been taken by the plaintiff. The
learned first appellate Court further held that the pleadings of the plaintiff was
surreptitiously silent regarding the status of the tenants, whose possession,
revealed to be more than 36 years old from the year 1973 i.e. date of
endorsement on the chitha, till the date of filing of the suit in the year 2009,
and that being the position, it had been held that plaintiff had failed to prove
the possession of the original pattadars, not to speak of his own possession
over the land, covered under Patta No. 25, Dag No. 65,(SIC-67).
15.1. The learned first appellate Court further held that the record reveals that
the suit was filed on 21.03.2009 and amendment application, to insert the fact
of the alleged dispossession, was filed immediately after one year from filing of
the suit, and even if it is presumed that during pendency of the suit, the plaintiff
was dispossessed, then it was a new event which could had been narrated by
the plaintiff precisely with date, in as much as time of dispossession, relating to
the subject matter of a suit which is sub-judice before a Court of law, and
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hence, omission to mention the date of dispossession, gives rise to probability
that the incident of dispossession is not true. Therefore, the learned first
appellate Court held that the plaintiff had failed to prove his dispossession from
the suit land.
15.2. The learned first appellate Court further held that under Section 101 of
Indian Evidence Act, it is the duty of the plaintiff to prove his right, title and
interest and the same has been discussed by Hon’ble Supreme Court in the case
of Gurunath Manohar Pavaskar & Ors.(supra). Thereafter, the learned
first appellate Court decided the issue Nos. 2 and 3 against the plaintiff.
16. In respect of issue No. 4, the learned first appellate Court had held that
the plaintiff is not entitled to any relief as granted by the learned trial Court, and
accordingly, set aside the judgment and decree dated 04.06.2016, passed by
the learned trial Court, in Title Suit No. 133/2009.
17. From the above discussions, and also from the record of the learned trial
court as well as from the record of learned first appellate court and also from
the submission of learned counsel for the parties, it appears that the learned
first appellate Court, while deciding the issue Nos. 1, 2, 3 and 4, had ignored
the Ext. 2 i.e. the general power of attorney, being Deed No. 5299/1996, dated
16.10.1996, in deciding the authority of Sri Ranjit Kumar Dey to execute the
deed of rectification, No. 10193/2008, dated 18.07.2008 (Ext.4). Though some
mistakes had been committed in describing the boundary in the Ext.2, yet, the
same was detected later on and was rectified accordingly; vide deed of
rectification, bearing deed No. 10193/2008, dated 18.07.2008. Had the learned
first appellate Court had considered these two exhibits, i.e. Ext.2 and 4 in its
proper perspective, then the learned first appellate Court would not have arrived
Page No.# 21/29
at the conclusion discussed herein above. The finding so recorded by the
learned first appellate court, thus, appears to be perverse. And here involves the
first substantial question of law.
17.1. The learned first appellate court however, had held that-
(i) Even though there was transfer of land measuring 1 katha 5
lechas, pertaining to Dag No. 67 and Patta No. 25, the said transfer
took place merely on pen and papers;
(ii) There is absence of proper identification of the suit land;
(iii) Even if there are sale deeds and patta issued in the name of
the plaintiff, the same, in absence of proper identification of the land,
cannot confer right, title and interest to the plaintiff and his vendors over
the suit land;
17.2. But, in view of the evidence brought on record and also in view of the
documents exhibited and relied upon by the plaintiff, the finding so arrived at by
the learned first appellate court appears to unjustified. It appears from the
evidence on record of the learned trial court that the plaintiff had bought the
suit land from Sri Subhash Chandra Das, who executed a power of attorney,
being deed No. 3152, dated 07.06.2006, in favour of one Sri Suman Das Gupta,
to sell his land measuring 1 katha 5 lechas. However, the boundary given in the
said power of attorney was incorrectly described for which rectification deed No.
10188, dated 18.07.2008, was executed. It also appears that Suman Das Gupta,
being the attorney of Sri Subhash Chandra Das, ultimately sold the aforesaid 1
katha 5 lechas of land to the plaintiff by executing a registered deed of sale,
bearing No. 17096, dated 17.12.2007. The boundary of the land was corrected
in view of the rectification deed, and the dag number of the land purchased by
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him is 67 (old)/1999 (new) of K.P. Patta No. 25/139 (old) and 830(new) of
village Jyotikuchi, under Mouza Beltola, in the district of Kamrup.
17.3. It also appears that the name of the earlier vendor Sri Ravi Paul and
subsequent purchasers of the suit land, were duly mutated which confirms their
possession and they have been paying the land revenue in respect of the suit
land. A certificate was also issued during settlement operation, by the
Settlement Office confirming mutation in the name of Sri Abhishek Shah, and
the plaintiff has been possessing the suit land continuously by paying the land
revenue.
17.4. It is fact that claim of title on the basis of Jamabandi and Chitha, records
of right which has no evidentiary value are not proof of title. Mr. Chauhan,
learned counsel for the respondent has rightly pointed this out during argument.
And the decisions referred by him also strengthened his submission. In the case
of Keshav Ram (supra) while answering a question, as to whether the entry in
the settlement papers recording somebody’s name could create or extinguish
title in favour of the person concerned? Hon’ble Supreme Court has held that at
any rate such an entry in the Revenue papers by no stretch of imagination can
form the basis for declaration of title in favour the plaintiffs. Again in the case of
Balwant Singh (supra) taking note of its earlier decision in Smt. Sawarni
vs. Smt. Inder Kaur & Other (1996 (7) JT SC 580), Hon’ble Supreme
Court has held that as noticed already, mutation entries will not convey or
extinguish title in the property. In the case of Smt. Sawarni (supra), it was
held as under:-
“Mutation of a property in the revenue record does not
create or extinguish title nor has it nay presumptive
Page No.# 23/29value on title. It only enables the person in whose
favour mutation is ordered to pay the land revenue in
question. ……….”
This Court also in the case of Gokul Ch. Das(supra) relying upon two
decisions of Hon’ble Supreme Court in Guner Amarjit Singh vs. Pattern
Chand reported in (1994) Supp(1) SCC 7 and also in the case of
Nagarpalika Jind vs. Jagatsingh reported in (1995) 3 SCC 426, has
held that in view of a series of decisions the established position of law is that
claim of title on the basis of Jamabandi and Chitha, records of right which has
no evidentiary value are not proof of title.
17.5. However, as held by Hon’ble Supreme Court in the case of Amarjit
Singh (supra), if the entries are made in the regular course of duty, the
entries may furnish presumptive rebuttable evidence of being correct. In the
case in hand, this presumption remains unrebutted. Besides, as pointed out by
Mr. Deka, the learned counsel for the appellant, apart from entries in the
revenue record, jamabandi and revenue payment receipt and draft chitha
(Ext.1); there are many other documents, including the land patta (Exhibit-15)
to show that the plaintiff had acquired ownership and possession of the suit
land and these are Exts.- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 & 12. Thus, there appears
to be substance in the submission of Mr. Deka. In view of above, this Court
afraid the decisions referred by Mr. Chauhan, learned counsel for the respondent
would not come into his assistance. Though Mr. Chauhan submits that if Ext.2 is
not believable then the entire case will go. But, in the given facts and
circumstances, this Court finds no ground to disbelieve the same.
17.6. It also appears that Late Dandi Ram Kumar and Raheswar Kumar were
the exclusive owner and possessor of the total land covered by Patta No. 25,
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and after disposal of land by various manner, a portion of land measuring 3
bighas 4 kathas 7½ lechas remained with Ananta Kumar, son of Dandi Ram
Kumar and Sri Arun Kumar and Jagadish Kumar, both sons of Late Raheswar
Kumar. And with a view to dispose of the aforesaid 3 bighas 4 kathas 7½ lechas
of land, said Sri Ananta Kumar, Sri Arun Kumar and Sri Jagadish Kumar had
jointly executed a power of attorney, appointing and empowering Sri Ranjit
Kumar Dey, vide deed No. 5299, dated 16.10.1996. And Ranjit Kumar Dey,
being attorney, sold 1 katha 5 Lechas of land out of the aforesaid total land to
Ravi Paul, vide sale deed No. 3421/1998, dated 23.06.1998. And Ranjit Kumar
Dey also delivered possession to Sri Ajit Chandra Das at the time of sale and
also delivered possession to Sri Ravi Paul upon the land covered by the present
boundary. It is also evident that Ravi Paul had been peacefully possessing the
land for about six years and the same being sold to one Subhash Chandra Das,
vide registered sale deed No. 5835, dated 03.08.2004, and he delivered
possession to Sri Subhash Chandra Das. And Subhash Chandra Das, after
purchasing the land kept the same exclusively under his possession for about
two years, till the plaintiff bought the same. Thus, from the evidence so brought
on record and the exhibits , i.e. Ext.1 i.e. draft chitha; Ext.2 i.e. power of
attorney and Ext.3 i.e. the certified copy of the sale deed No. 3421/1998, dated
23.06.1998, and further exhibits, up to Ext.23 goes a long way to establish, at
least by preponderance of probability, that the plaintiff had acquired ownership
and possession of the suit land on the strength of Exts. 2, 3, 4, 5, 6, 7, 8, 9, 10,
11 & 12.
17.7. On the other hand, the evidence adduced by the defendant appears to
be insufficient to establish as to how the seller in the sale deeds i.e. Ext.-A, Ext.-
Page No.# 25/29
B and Ext.-C became the owners of the suit land. The D.W.1 had admitted that
he could not say on going through the Ext.-A, Ext.-B and Ext.-C as to who
bought whose land. He even could not produce the sale deed by which Dandi
Ram Das and Anowar Hussain bought the suit land. It also could not be proved
that at the time of selling of the suit land, the vendors of Sunil Kar and Boloram
Kar had ownership right over the suit land.
17.8. Thus, in given facts and circumstances on the record the first substantial
question of law has to be answered in affirmative and accordingly, the same
stands answered.
18. Further, it appears that the deed of rectification was executed on
18.07.2008, after detection of the mistake in the Ext.2. Indisputably, there is
some delay in execution of the same. And here the second substantial question
of law is involved. However, this delay in execution of correcting boundaries
contained in the sale deeds (Exts. 3 and 11), to the considered opinion of this
Court, does not raise any presumption against the validity of the title vested by
the instrument. There appears to be unbroken chain of title of the plaintiff’s
predecessor-in-interest. And further it appears that the entire plot of land in
question is identifiable and as such the requirement of Order 7 Rule 3 CPC
stands satisfied with. Exhibit 15 is the patta comprising of only the suit land. Mr.
Deka, the learned counsel for the appellant has rightly pointed this out in his
argument and there appears to be substance in his submission.
18.1. Though the learned first appellate court had held that the suit land is not
identifiable and Mr. Chauhan, learned counsel for the respondent also supported
the said contention by referring some decisions, yet said submission left this
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Court unimpressed in view of the discussion made in the foregoing para. I have
gone through the decision referred by him in the case of Gurunath Manohar
Pavaskar (supra), wherein Hon’ble Supreme Court has held that it is for the
plaintiffs to prove that there does not exist any ambiguity as regards description
of the suit land in the plaint with reference to the boundaries as mentioned
therein. Again in the case of Subhaga (supra), Hon’ble Supreme Court has
held that a property can be identified either by boundary or by any other
specific description is well established and that even if there was any
discrepancy, normally, the boundaries should prevail.
18.2. Since in the case in hand, the boundary has been rectified by a
rectification deed (Ext.-12), the suit land is clearly identifiable and as such the
requirement of Order 7 Rule 3 CPC stands satisfied with. Therefore, this Court is
unable to record concurrence with the finding so recorded by the learned first
appellate court in this regard.
18.3. It is, however, true that as submitted by Mr. Chauhan, the learned
counsel for the respondent, the plaintiff has to establish his case from his own
evidence and documents and his case cannot stand on the weakness of the
defendant’s case. Though the learned trial Court had made some observation in
respect of the weakness of case of the defendant, yet the same appears to be
contrary to the established proposition of law. However, discarding the same
also the other materials placed on record had gone a long way to establish the
case of the plaintiff by preponderance of probability. Thus, this Court is of the
view that the second and fifth substantial questions of law are involved herein
and the same have to be answered in negative and answered accordingly.
Page No.# 27/29
19. It also appears that the plaintiff had filed amended plaint. And a bare
perusal of the same indicates that the plaintiff had specifically stated the date of
dispossession as 04.04.2009. However, the date so mentioned therein,
eschewed consideration of the learned first appellate court. Therefore, the
finding so recorded by the learned first appellate Court that there was omission
to mention the date of dispossession, is contrary to the amended pleading and
consequently incorrect, though however, specific time has not been mentioned
therein. And here involves the third substantial question of law and in the given
facts and circumstances on the record, the same has to be answered in
affirmative and stands answered accordingly.
20. Further, it appears that the plaintiff, through his exhibits and also though
the evidence adduced by his witnesses, clearly established that he was under
the possession of the suit property after purchase of the same continuously and
was paying land revenue and exhibited land revenue receipts to support his
contention, and he also established his dispossession from the suit land on
04.04.2009.
21. Also, the evidence of the defendant that he has been residing in the suit
land by constructing a house with his family members and letting some of the
land to tenants, established a factum of dispossession, and even if the
possession and dispossession could not have been proved by the plaintiff, he
could not have been non-suited as the title over the land is clearly established
by the Exts. 1, 2, 3, 4, 7, 8 & 11 and also by the revenue paying receipt (Ext.6)
and periodic patta (Ext.15).
22. Though a contention is being made that as many as eight tenants were
there in Ext.1 and as per Section 6 of the Assam Tenancy Act, 2021, tenants
have their right, title and interest and they are residing over the suit land for
Page No.# 28/29
more than thirty years and the learned first appellate Court also held that unless
tenancy is forfeited in compliance with Section 50 of the Assam (Temporarily
Settled Areas) Tenancy Act, it is to be presumed that the land under the
disputed dag and patta is still in occupation of the tenants and that the
pleadings of the plaintiff was silent regarding the status of the tenants, whose
possession, revealed to be more than 36 years old from the year 1973, till the
date of filing of the suit in the year 2009, and consequently held that plaintiff
had failed to prove the possession of the original pattadars, not to speak of his
own possession over the land, covered under Patta No. 25, Dag No. 67, yet, it
appears that it was not the case of any of the parties and no issue was framed
on this count by the learned trial court. Moreover, the finding, so arrived at on
the basis of entries in the Chitha by the learned first appellate court, appears to
be unacceptable in view of the discussion and finding recorded in the foregoing
para.
23. Under the aforementioned facts and circumstances, this Court finds that
the fourth substantial question of law is not involved herein and even it involves,
in the given facts and circumstances, the same has to be answered in negative.
And accordingly, the same stands answered.
24. I have carefully considered the submissions of Mr. Chauhan, the learned
counsel for the respondent and gone through the other decisions referred by
him. There is no quarrel at the Bar about the proposition of law laid down in the
cases referred Mr. Chauhan. But, in the given factual matrix, the same are found
to be not applicable in all force, and therefore, detail discussion of the same are
found to be not necessary to decide the present appeal.
25. In view of the findings recorded herein above, the impugned judgment and
decree dated 30.05.2022, so passed by the learned first appellate Court, in
Page No.# 29/29
setting aside the judgment and decree dated 04.06.2016, passed by the learned
trial Court, is interfered with being erroneous, arbitrary and illegal. Accordingly,
the impugned judgment and decree of the learned first appellate court, dated
30.05.2022, stands set aside and quashed. Consequently, the judgment and
decree dated 04.06.2016, passed by the learned trial Court stands restored and
affirmed.
26. In terms of above, this second appeal stands disposed of. Send down the
records of learned Courts below along with a copy of this judgment and order.
The parties have to bear their own costs.
JUDGE
Comparing Assistant