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Gauhati High Court
RSA/50/2025 on 4 August, 2025
GAHC010010632025
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
RSA No. 50/2025.
1. Matiar Rahman,
S/o Late Abdul Hoque Sarkar,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
2. Saukat Ali @ Showkat Ali,
S/o Matiar Rahman,
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
3. Farhad Ali,
S/o Matiar Rahman,
Vill. - Sariyatpur, P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
4. Ibrahim Khan,
S/o Nayan Khan,
Vill. - Sariyatpur, P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
5. Fakar Uddin,
S/o Late Sabed Ali,
Vill. - Digjani,
Presently residing at Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
Page 1 of 24
...... Appellants/Defendants.
-Versus-
1. Golam Mustafa,
S/o Abdul Rezzaque,
Vill. - Sariyatpur, P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
2. Safiqul Islam,
S/o Abdul Rezzaque,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
3. Rousanara Khatun,
D/o Shah Alom,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
...... Respondents/Plaintiffs.
4. Ikbal Farid,
S/o Abdul Kader,
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
5. Jaherul Islam,
S/o Abdul Kader,
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
6. Mujahidul Islam,
S/o Abdul Kader,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
Page 2 of 24
Pro-forma Respondents/Pro-forma Defendants.
7. Lal Khan,
S/o Nayan Khan,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
8. Nasir Uddin Ahmed,
S/o Late Afaz Uddin,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
9. Abdul Basit,
S/o Late Ajgar Ali,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
10. Jalal Khan,
S/o Abdul Khan,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
11. Taij Uddin,
S/o Sabed Ali,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
12. Saidur Rahman,
S/o Abdus Salam,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
13. Sanowar Hussain,
S/o Abdus Salam,
Page 3 of 24
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
...... Pro-forma Respondents/ Defendants.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellants :- Mr. M.K. Sarma.
Date of Hearing :- 04.08.2025.
Date of Order :- 04.08.2025.
ORDER
Heard Mr. M.K. Sarma, learned counsel for the appellants.
2. In this appeal, under Section 100 of the CPC, the appellants
have put to challenge the correctness or otherwise of the judgment
dated 24.10.2024 and decree dated 05.11.2024, passed by the
learned Additional District Judge, Barpeta (first appellate court
hereinafter), in Title Appeal No. 07/2020.
3. It is to be noted here that vide impugned judgment, dated
24.10.2024, and decree, dated 05.11.2024, the learned first
appellate Court had dismissed the Title Appeal No. 07/2020 and
thereby affirmed the judgment and decree, dated 26.02.2020,
passed by the learned Civil Judge, Barpeta (trial court hereinafter), in
Title Suit No. 51/2014, whereby the learned trial Court had decreed
the suit in favour of the plaintiffs.
Page 4 of 24
4. Herein, the status of the parties, as indicated in the Title Suit
No. 51/2014, is adopted for the purpose of convenience and to avoid
confusion.
Background Facts:-
5. The background facts, leading to filing of the present appeal,
are adumbrated herein below:-
“The respondents herein, as plaintiffs, had instituted one title
suit, being Title Suit No. 51/2014, praying for amongst other:-
(a) Decree for declaration that the ‘A-1’ schedule
land is a part of ‘A’ schedule land; the ‘B-1’
schedule land is a part of ‘B’ schedule land;
the ‘C-1’ schedule land is a part of ‘C’
schedule land; the ‘D-1’ schedule land is a part
of ‘D’ schedule land; and the ‘E-1’ schedule
land is a part of ‘E’ schedule land, which the
plaintiff No. 3, namely Roushanara Khatun
purchased the ‘A-1’ schedule land within the ‘A’
schedule land; the plaintiff Nos. 1 & 2, namely
Golam Mustafa and Safiqul Islam purchased the
‘B-1’ schedule land within the ‘B’ schedule
land; plaintiff Nos. 1 & 2, namely Golam Mustafa
and Safiqul Islam purchased the ‘C-1’ schedule
land within the ‘C’ schedule land; the plaintiff
No. 1, namely Golam Mustafa purchased the ‘D-1
schedule land within the ‘D’ schedule land; the
plaintiff No. 1, namely Golam Mustafa purchased
the ‘E-1’ schedule land within the ‘E’ schedule
land.
(b) Decree for declaration of right, title and
interest of the plaintiff No. 3, namely
Roushanara Khatun over the ‘A-1’ schedule land
Page 5 of 24
within the ‘A’ schedule land; the plaintiff Nos.
1 & 2, namely Golam Mustafa and Safiqul Islam
over the ‘B-1’ schedule land within the ‘B’
schedule land; the plaintiff Nos. 1 & 2, namely
Golam Mustafa and Safiqul Islam over the ‘C-1’
schedule land within the ‘C’ schedule land; the
plaintiff No. 1, namely Golam Mustafa over the
‘D-1’ schedule land within the ‘D’ schedule
land; the plaintiff No. 1, namely Golam Mustafa
over the ‘E-1’ schedule land within the ‘E’
schedule land.
(c) Decree for declaration that the main defendants
have no any manner of right, title and interest
over the ‘A-1’ schedule land within the ‘A’
schedule land, over the ‘B-1’ schedule land
within the ‘B’ schedule land; over the ‘C-1’
schedule land within the ‘C’ schedule land; over
the ‘D-1’ schedule land within the ‘D’ schedule
land; and over the ‘E-1’ schedule land within
the ‘E’ schedule land.
(d) Decree for declaration that on 25.04.2014, the
main defendant Nos. 1 – 6 illegally and
forcefully dispossessed the ‘A-1’ schedule land;
the main defendant Nos. 6 & 7 illegally and
forcefully dispossessed the ‘B-1’ schedule land;
the main defendant Nos. 9 & 10 illegally and
forcefully dispossessed the ‘C-1’ schedule land;
the main defendant Nos. 11 & 12 illegally and
forcefully dispossessed the ‘D-1’ schedule land;
and the main defendant No. 7 illegally and
forcefully dispossessed the ‘E-1’ schedule land.
Therefore, the main defendants can be treated as
the mere trespassers of the ‘A-1’, ‘B-1’, ‘C-1’,
‘D-1’ and ‘E-1’ schedule land within the ‘A’,
‘B’ ‘C’, ‘D’ and ‘E’ schedules land respectively
Page 6 of 24
and accordingly, the main defendants are liable
to be evicted from the ‘A-1’, ‘B-1’, ‘C-1’, ‘D-
1’ and ‘E-1’ schedules land within the ‘A’, ‘B’,
‘C’, ‘D’ and ‘E’ schedules land respectively,
removing any structure and structures there from
and to deliver the khas possession in favour of
the plaintiffs respectively.
(e) Decree for permanent injunction restraining the
main defendants to re-enter into the ‘A-1’, ‘B-
1’, ‘C-1’, ‘D-1’ and ‘E-1’ schedule land within
the ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ schedules land
respectively, creating any obstruction and
disturbance of peaceful enjoyment of the
plaintiffs after so eviction.
(f) Decree for any other relief or reliefs in favour
of the plaintiffs and cost against the
defendants.
The case of the plaintiffs is that one Nripendra Nath Ray
was the original pattadar of a plot of land measuring 1 Bigha 0
Katha 0 Lecha, covered by Dag No. 127 (old) 616 (New); 1
Bigha 0 Katha 0 Lecha, covered by Dag No. 124; 3 Bighas 1
Katha 15 Lechas, covered by Dag No. 170 (old) 640 (new); 1
Bigha 2 Kathas 10 Lechas, covered by Dag No. 127 (old) 605
(new); and 0 Bigha 4 Kathas 0 Lecha, covered by Dag No. 127
(old) 615 (new) of periodic patta No. 79, at village Saryiatpur,
under Titapani Mouza, P.S. – Kalgachia, within the district of
Barpeta.
The aforesaid plot of land is described as schedule -„A‟ –
„E‟ respectively in the plaint. Said Nripendra Nath Ray died
leaving behind his legal heirs, namely, Samarendra Kr. Ray,
Page 7 of 24
Ramendra Kr. Ray, Bhupendra Kr. Ray, Amarendra Kr. Ray,
Atindra Kr. Ray and Somendra Kr. Ray. After the death of
Nripendra Nath Ray, the names of his legal heirs were mutated
vide order dated 24.06.2013.
Thereafter, the legal heirs of Nripendra Kr. Ray sold 1
Bigha 0 Katha 0 Lecha of land, out of schedule ‘A’ in favour of
plaintiff No. 3, vide registered Sale Deed No. 989, dated
29.11.2013, which is described as schedule ‘A-1’ land. Another
plot measuring 1 Bigha 0 Katha 0 Lecha of land, out of
schedule ‘B’ has been sold in favour of plaintiff Nos. 1 & 2, vide
registered Sale Deed No. 992, dated 29.11.2013, which is
described as schedule „B-1′ land. Those legal heirs of Nripendra
Kr. Ray also sold 1 Bigha 2 Kathas 5 Lechas of land, out of
schedule ‘C’ land in favour of plaintiff Nos. 1 & 2, vide
registered Sale Deed No. 992, dated 29.11.2013, which is
described as schedule ‘C-1’ land. Similarly, 1 Bigha 2 Kathas 10
Lechas of land, out of schedule ‘D’ land has been sold in favour
of plaintiff No. 1, vide Sale Deed No. 993, dated 29.11.2013,
which is described as schedule ‘D-1’ and another plot of land
measuring 0 Bigha 4 Kathas 0 Lecha of land out of schedule ‘E’
land has been sold in favour of plaintiff No. 1, vide Sale Deed
No. 993, dated 29.11.2013, which is described in schedule ‘E-
1’.
After purchase, all the three plaintiffs, being the brothers
and sisters, through their common parents have been enjoying
their purchased land being a common property. As such, the
Page 8 of 24
main defendants have no right, title and interest over the
schedule A-1, B-1, C-1, D-1 and E-1 land. But, suddenly on
25.04.2014, main defendant Nos. 1 – 6 along with their fellow
men entered into the schedule „A-1‟ land and illegally and
forcefully dispossessed the plaintiff No. 3 from the said land
and started to cultivate over it; the main defendant Nos. 6 & 7
along with their fellow men entered into „B-1‟ schedule land
and illegally and forcefully dispossessed plaintiff Nos. 1 & 2 and
occupied it as well as started to cultivate over the same; the
main defendant Nos. 9 & 10 along with their fellowmen
entered into „C-1‟ schedule land and illegally and forcefully
disposed plaintiff Nos. 1 & 2 and occupied the same and also
started cultivation over it; the main defendant Nos. 11 & 12
along with their some fellowmen entered into „D-1‟ schedule
land, whereas the main defendant No. 7 along with some
fellowmen entered into „E-1‟ schedule land and illegally and
forcefully dispossessed plaintiff No. 1 and occupied it and
started to cultivate over the same.
The plaintiffs had made several requests to vacate the
said land, but, the defendants denied to vacate the same and
therefore, the plaintiffs had approached the learned trial Court,
by filing Title Suit No. 51/2014, for declaration of right, title
and interest of the plaintiffs along with consequential reliefs.
The defendant Nos. 1 – 10 had filed their written
statements and challenged the maintainability of the suit on
various counts. They had also denied the statements made in
Page 9 of 24
the plaint and their stand is that the sellers of the plaintiffs
being landlords of the suit land, who do not possess and
cultivate the suit land and that they had been possessing the
same through their tenants who have been paying share of
crops of the land regularly. Accordingly, the suit land was
settled by the Government with the occupancy tenants in the
year 1971 by granting ‘Rayati Khatian’ and their names are
recorded in the revenue records and they are recorded tenants
as well as legal heirs and relatives of the recorded tenants.
Another stand taken by the defendants is that they had
inquired and came to know that without issuing any notice to
the recorded occupancy tenants and without following the
procedure laid down by law, the Additional Deputy
Commissioner, Barpeta passed several orders on 04.05.2013,
arbitrarily.
Further stand of the defendants is that the said order
does not extinguish the right of the defendants and that the
plaintiffs had purchased the suit land from their land lords on
papers and they have no right, title and interest to recover
Khas possession of the suit land by evicting the occupancy
tenants including the defendants.
The defendants had also stated that out of the suit land,
covered by Dag No. 127, the Government had issued ‘Rayati
Khatian’ in favour of Alfaz Mia for 1 Bigha 2 Kathas 5 Lechas; in
favour of Kazimudin for 2 Bighas 0 Kahta 10 Lechas in one plot
and 1 Bigha 2 Kathas 10 Lechas in another plot; in favour of
Page 10 of 24
Intaz Ali for 15 Lessas; in favour of Zafar Ali for 3 Kathas 8
Lechas; in favour of Abdul Karim for 1 Katha 18 Lechas; in
favour of Polu Mia for 2 Bighas 1 Katha 5 Lechas; and in favour
of Hari Mia for 1 Bigha. Again out of the suit land covered by
Dag No. 124, the Government issued Rayati Khatian in favour
of Salim Mia for 1 Katha 2 Lechas and in favour of Hari Mia for
1 Bigha.
Another stand of the defendants is that they are tenants
as well as legal heirs and near relatives of the recorded tenants
and are possessing the suit land by cultivating and residing in
the suit land by constructing their residential houses therein
and that neither the sellers of the plaintiffs were in possession
of the suit land nor the plaintiffs obtained possession of the
suit land at any point of time. As such, according to them, the
suit is devoid of merit and is liable to be dismissed.
Upon the aforesaid pleadings of the parties, the learned
trial Court had framed following issues for determination:-
(i) Whether there is any cause of action for the
plaintiff’s suit?
(ii) Whether the ‘A-1’ schedule land is a part of
the ‘A’ schedule land and the ‘B-1’ schedule
land is a part of the ‘B’ schedule land and
the ‘C-1’ schedule land is a part of the ‘C’
schedule land ‘D-1’ schedule land is a part of
the ‘D’ schedule land and ‘E-1’ schedule land
is a part of the ‘E’ schedule land?
(iii) Whether the plaintiff No. 3, namely Roushanara
Khatun purchased the ‘A’-1′ schedule land andPage 11 of 24
the plaintiff Nos. 1 & 2, title and interest
upon the ‘C-1’ schedule land and the plaintiff
No. 1 namely Golam Mustafa has right, title
and interest upon the ‘D-1’ schedule land and
plaintiff No. 1, namely Golam Mustafa has
right, title and interest over the ‘E-1’
schedule land?
(iv) Whether the plaintiff No. 3, namely Roushanara
Khatun has right, title and interest upon the
‘A-1’ schedule land and the plaintiff Nos. 1 &
2, namely Golam Mustafa and Safiqul Islam have
right, title and interest upon the ‘B-1’
schedule land and the plaintiff Nos. 1 & 2,
namely Golam Mustafa and Safiqul Islam have
right, title and interest over the ‘C-1’
schedule land and the plaintiff No. 1, namely
Golam Mustafa has right, title and interest
over the ‘D-1’ schedule land and plaintiff No.
1, namely Golam Mustafa has right, title and
interest over the ‘E-1’ schedule land?
(v) Whether the main defendant Nos. 1 – 6
illegally and forcefully dispossessed the ‘A-
1′ schedule land the main defendant Nos. 6 & 7
illegally and forcefully dispossessed the ‘B-
1’ schedule land the main defendant Nos. 9 &
10 illegally and forcefully dispossessed the
‘C-1’ schedule land, the main defendant Nos.
11 & 12 illegally and forcefully dispossessed
the ‘D-1’ schedule land and the main defendant
No. 7 illegally and forcefully dispossessed
the ‘E-1’ schedule land on 25.04.2014?
(vi) Whether the order of the Additional Deputy
Commissioner, Barpeta, dated 04.05.2013, is
ultra-vires and is inoperative in the eye of
law?
Page 12 of 24
(vii) Whether the main defendants can be treated as
the mere trespassers of the ‘A-1′, B-1’, C-1,
D-1 and E-1 schedule land within the ‘A’, ‘B’,
‘C’, ‘D’ and ‘E’, schedule land respectively?
(viii) Whether the main defendants are liable to be
evicted from the ‘A-1’, ‘B-1’, ‘C-1’, ‘D-1’
and ‘E-1’ schedule land within the ‘A’, ‘B’,
‘C’, ‘D’ and ‘E’ schedule land respectively
removing any structure and structures there
from and to deliver the khas possession in
favour of the plaintiffs respectively?
(ix) Whether the plaintiff is entitled to a decree
as prayed for?
(x) To what relief(s) the parties are entitled?
Thereafter, recording evidence and hearing both the
parties, vide judgment and decree dated 26.02.2020, the
learned trial Court decreed the suit by granting following
reliefs:-
(a) It is declared that plaintiff No. 3 has right,
title and interest over schedule ‘A-1’ land;
plaintiff Nos. 1 & 2 have right, title and
interest over schedule ‘B-1’ and ‘C-1’ land
and plaintiff No. 1 has right, title and
interest over scheduled ‘D-1’ and ‘E-1’ land.
(b) It is declared that defendants are mere
trespasser over schedule ‘A-1’ to schedule ‘E-
1’ land and they are liable to be evicted
removing structures etc. therefrom.
(c) Permanent injunction is granted against the
defendants from entering and creating
Page 13 of 24
disturbance in the suit schedule ‘A-1’ to ‘E-
1’ land.
(d) Cost of the suit.
Then, being aggrieved, the appellants herein had
preferred an appeal, being Title Appeal No. 07/2020,
challenging the judgment and decree, so passed by the learned
trial Court. The learned first appellate Court, had formulated
four points for determination:-
(i) Whether the learned trial court had rightly
decided the issue Nos. 3 & 4, wherein the
learned trial court had held that the
plaintiffs have the right, title and interest
over the suit land?
(ii) Whether the learned trial court had rightly
decided the issue No. 6, wherein the learned
trial Court had held that the defendants do
not have the locus standi to challenge the
cancellation of the Rayati Khatians as they
are not the occupancy tenants or their
successors and that the same cannot be held to
be ultra vires?
(iii) Whether the learned trial court had rightly
decided the issue Nos. 5, 7 & 8, wherein the
learned trial court had held that the
defendants are merely trespassers and liable
to be evicted from the suit land? and
(iv) Whether the learned trial court had rightly
decided the issue Nos. 1, 2, 9 & 10?
Thereafter, hearing both the parties and considering the
facts and circumstances on the record, the learned first
Page 14 of 24
appellate Court, vide judgment dated 24.10.2024, and decree
dated 05.11.2024, had dismissed the appeal with cost.”
Being aggrieved, the appellants herein preferred this regular second
appeal under Section 100 of the CPC.
Submission:-
6. Mr. Sarma, learned counsel for the appellants submits that
both the learned courts below while dealing with the factum of
possession had recorded a perverse finding and that at no point of
time, the plaintiffs were in possession of the suit land and the
allegation of dispossessing of the plaintiffs, by the defendants, is a
false contention. Mr. Sarma further submits that the appellants
herein had file one petition, under Order 41 Rule 27 of the CPC for
allowing them to adduce additional evidence, being Petition No.
1146/2023. But, the said petition was dismissed by the learned first
appellate Court separately, vide order dated 24.10.2024, and that
the grounds for rejection of the aforesaid petition are not at all
tenable. And therefore, the present appeal is preferred by suggesting
following substantial questions of law:-
(i) Whether the learned courts below was wrong in
declaring and confirming the right, title and
interest of the respondents/plaintiffs over
the suit land in absence the proof of Exhibit
Nos. 6, 7 & 8 (i.e. the Sale Deed No. 989/13,
992/13 and 993/13) in accordance with Section
65 of Evidence Act (Now Section 60 of
Bharatiya Sakshya Adhiniyam, 2023)?
(ii) Whether the learned first appellate court was
wrong in dismissing the petition No.
Page 15 of 24
1146/2023, filed under Order 41 Rule 27 of
the CPC, while the un-demolished possession
of the appellants over the suit land, which
also contradicts the delivery of possession
in terms of Exhibit Nos. 6, 7 & 8 is
sustainable?
(iii) Whether the learned courts below was wrong in
discarding the Exhibit Nos. A, B, C & D (i.e.
Rayati Khatians), which derives the
possession of the appellants/defendants over
the suit land and also contradicts the
delivery of possession of the suit land in
terms of Exhibit Nos. 6, 7 & 8 and thereby,
the impugned judgment and decree is
sustainable?
(iv) Whether the learned courts below was wrong in
not dealing with Sections 58 & 65 of
Limitation Act, 1963 and the provision of
Assam (Temporarily Settled Areas) Tenancy
Act, 1971 particularly Section 19 of the said
Act while affirming the judgment and decree
of the learned trial court?
(v) Whether the findings of the learned courts
below are perverse to the extent of the
findings about the possession of the
appellants/defendants over the suit land and
thereby, the same is sustainable?
6.1. Mr. Sarma has referred following case laws of Hon‟ble
Supreme Court in support of her submission :-
(i) Mehrunnisa (Smt) and Others vs. Visham Kumari
(Smt) and Another, reported in (1998) 2 SCC 295;
and
Page 16 of 24
(ii) Kulwant Kaur and Others vs. Gurdial Singh
Mann (dead) by LRS. and Anothers, reported in
(2001) 4 SCC 262.
Findings of this court :-
7. Having heard the submission of Mr. Sarma, learned counsel
for the appellants, I have carefully gone through the memo of appeal
as well as the grounds mentioned therein and also gone through the
impugned judgment, dated 24.10.2024 and decree dated
05.11.2024, passed by the learned first appellate Court, in Title
Appeal No. 07/2020 and also gone through the judgment and decree
dated 26.02.2020, passed by the learned trial Court, in Title Suit No.
51/2014 and also perused the case laws referred by Mr. Sarma.
8. That a perusal of the memorandum of appeal presented before
this Court reveals that the appellant had not mentioned any grounds
for appeal. It had only mentioned the suggested substantial question
of law. There is no whisper about the grounds giving raise to
substantial question of law.
9. It appears that in respect of the pleading of the parties relating
to right, title and interest of the plaintiffs over the suit land, the
learned trial Court, had framed the issue No. 4, and from the
evidence so led by the parties, had arrived at a finding that the
plaintiff Nos. 1, 2 & 3 have purchased their respective plots of land
viz. schedule „A-1‟ to schedule „E-1‟, from the rightful owner and as
such, they have right, title and interest over their respective
purchased plots of land.
Page 17 of 24
9.1. Further, it appears that while dealing with issue Nos. 5, 7 & 8,
the learned trial Court had held that in the light of the evidence on
record, it appears that the defendants are not legal heirs of the
Rayoti Khatian Holders nor they claim their right, title and interest
through the original pattadar directly over the suit land and as such,
it is candidly clear that they have no right, title and interest over the
suit land. The learned trial Court also held that during the cross-
examination, DW-2 and DW-5 stated that they know schedule „A-1‟
land, which is occupied by defendant Nos. 1 – 6; schedule „B-1‟ land
is occupied by defendant Nos. 6 & 7; schedule „C-1‟ land is occupied
by defendant Nos. 9 & 10; and schedule „D-1‟ land is occupied by
defendant Nos. 11 & 12. The DW-2 also stated that schedule „E-1‟
land is occupied by defendant No. 7. Thereafter, the learned trial
Court went on to record that it is an admitted fact that the plaintiff
Nos. 1, 2 & 3 have purchased schedule „A-1‟ to „E-1‟ land by
registered sale deed from the rightful owners, whereas defendant
Nos. 1 – 7 and 9 – 12 are occupying the said land without any right,
title and interest whatsoever and as such, they are not only mere
trespassers but also liable to the evicted there from. Thereafter,
decided the said issues in affirmative.
10. And from a perusal of the impugned judgment of the learned
first appellate Court, in respect of issue Nos. 5, 7 & 8, had held that
the suit land originally belonged to one Nripendra Nath Ray and after
his death, the same was developed by his legal heirs and thereafter,
the plaintiffs have purchased the same vide registered sale deed and
thereafter, it had held that the plaintiffs have the right, title and
interest over the suit land.
Page 18 of 24
10.1. The learned first appellate Court also held that though the
defendants had contended that they and their predecessors are the
occupancy tenants in respect of the suit land, yet, they have
miserably failed to prove the same and therefore, the status of the
defendants is nothing but that of a trespasser and as such, they are
liable to be evicted.
10.2. Having examined the aforementioned finding of the learned
trial Court as well as the learned first appellate Court, in the light of
the submission of Mr. Sarma, learned counsel for the appellants and
also in the facts and circumstances of the record, this Court is of the
view that finding so recorded by the learned courts below, cannot be
said to be perverse on account of misreading or misinterpretation of
the evidence on record.
11. Though Mr. Sarma, learned counsel for the appellants,
referring to the decision of Mehrunnisa (Supra), submits that the
learned courts below had acted on an assumption not supported by
any evidence in respect of possession and failed to consider the
documents of the defendants, yet it appears that the present case is
factually distinguishable from the said case. And as such, the ratio
laid down in the said case would not be applicable in all force to the
given facts and circumstances on the record of the present case.
Besides, it is the pleaded case of the plaintiffs that the defendants
had dispossessed them on 25.04.2014, from schedule „A-1‟, „B-1‟, „C-
1‟, „D-1‟ and schedule „E-1‟ land and started cultivation over the
same.
Page 19 of 24
12. It also appears that the learned first appellate Court had held
that the present appellants are not the occupancy tenants and the
Exhibit Nos. 6, 7 & 8, i.e. the Rayati Khatians, based on which the
defendants have been claiming their right, title and interest and also
claiming their possession of the suit land, yet, the same has already
been cancelled, and the petition filed by the appellants, before the
learned first appellate Court, under Order 41 Rule 27 of the CPC is
also dismissed for adducing additional evidence. The finding so
recorded appears to be based on the evidence so adduced by the
parties and supported by the reason and the same seems to be not
unreasonable or the result of non consideration of relevant evidence.
The Rayati Khatians, based upon which the defendants had claimed
the title over the suit land had already been cancelled by the
revenue authority. And barring the same they had failed to produce
any document to substantiate their claim of title over the suit land.
And the same appears to be duly taken note of by both the learned
courts below.
13. Thus, having examined the impugned judgment and decree so
passed by the learned first appellate Court as well as learned trial
Court, in the light of the submission of Mr. Sarma, learned counsel
for the appellants, and also in the light of the given facts and
circumstances on the record, this Court is of the view that no
substantial questions of law, as suggested in by Mr. Sarma, flows out
from the impugned judgment and decree so passed by the learned
first appellate Court.
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14. I have also gone through the other decision referred by Mr.
Sarma, learned counsel for the appellants in Kulwant Kaur
(supra) and I find that the said decision also would not come into
his assistance since no element of perversity could be demonstrated
by Mr. Sarma in the impugned judgment and decree.
15. Moreover, there is concurrent finding of facts by both the
learned courts below. Sitting in second appeal, this Court is not
entitled to re-appreciate the evidence. Reference in this context can
be made to the following decisions of Hon‟ble Supreme Court :-
(i)Santosh Hazari v. Purushottam
Tiwari, reported in (2001) 3 SCC 179, wherein a
three-Judge Bench of Hon’ble Supreme Court has
delineated the scope of Section 100 CPC. The
Court observed that an obligation is cast on the
appellant to precisely state in the memorandum
of appeal the substantial question of law
involved in the appeal and which the appellant
proposes to urge before the Court. In the said
judgment, it was further mentioned that the High
Court must be satisfied that a substantial
question of law is involved in the case and such
question has then to be formulated by the High
Court. According to the Court the word
substantial, as qualifying ‘question of law’,
means–of having substance, essential, real, of
sound worth, important or considerable. It is to
be understood as something in contradistinction
with–technical, of no substance or consequence,
or academic merely. However, it is clear that
the legislature has chosen not to qualify the
scope of ‘substantial question of law’ by
suffixing the words ‘of general importance’ as
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has been done in many other provisions such as
Section 109 of the Code and Article 133(1)(a) of
the Constitution.
(ii) In Kamti Devi v. Poshi Ram, reported in
(2001) 5 SCC 311 Hon’ble Supreme Court has came
to the conclusion that the finding thus reached
by the first appellate court cannot be
interfered with in a second appeal as no
substantial question of law would have flowed
out of such a finding.
(iii) In Thiagarajan v. Venugopalaswamy B. Koil,
reported in (2004) 5 SCC 762, Hon’ble Supreme
Court has held that the High Court in its
jurisdiction under Section 100 CPC was not
justified in interfering with the findings of
fact. The Court observed that to say the least
the approach of the High Court was not proper.
It is the obligation of the courts of law to
further the clear intendment of the legislature
and not frustrate it by excluding the same. This
Court in a catena of decisions held that where
findings of fact by the lower appellate court
are based on evidence, the High Court in second
appeal cannot substitute its own findings on
reappreciation of evidence merely on the ground
that another view was possible.
(iv) Again, in the case of State of
Kerala v. Mohd. Kunhi, reported in (2005) 10 SCC
139, Hon’ble Supreme Court has reiterated the
same principle that the High Court is not
justified in interfering with the concurrent
findings of fact. This Court observed that, in
doing so, the High Court has gone beyond the
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scope of Section 100 of the Code of Civil
Procedure.
(v) In Madhavan Nair v. Bhaskar Pillai, reported
in (2005) 10 SCC 553, Hon’ble Supreme Court has
observed that the High Court was not justified
in interfering with the concurrent findings of
fact. This Court observed that it is well
settled that even if the first appellate court
commits an error in recording a finding of fact,
that itself will not be a ground for the High
Court to upset the same.
(vi) In Chandrika Singh v. Sarjug
Singh, reported in (2006) 12 SCC 49, Hon’ble
Supreme Court has again reiterated the legal
position that the High Court under Section 100
CPC has limited jurisdiction. To deal with cases
having a substantial question of law, this Court
observed as under:
‚12. … While exercising its jurisdiction
under Section 100 of the Code of Civil
Procedure, the High Court is required to
formulate a substantial question of law
in relation to a finding of fact. The
High Court exercises a limited
jurisdiction in that behalf. Ordinarily
unless there exists a sufficient and
cogent reason, the findings of fact
arrived at by the courts below are
binding on the High Court.‛
16. And in view of the concurrent finding of facts by the learned
trial Court as well as by the learned first appellate Court and also in
absence of any ground giving raise to substantial question of law as
Page 23 of 24
suggested, and further considering the submissions of learned
counsel for the appellants, this Court is of the view that no
substantial question of law as suggested by the learned counsel for
the appellants, flows out from the impugned judgments and decrees,
so passed by the learned courts below. It is well settled that
concurrent finding of facts are binding upon this Court.
17. In the result, the memorandum of appeal is summarily
rejected, leaving the party to bear its own cost.
JUDGE
Comparing Assistant
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