Gauhati High Court
Page No.# 1/ vs Gopi Das And Ors on 21 April, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/11
GAHC010041382025
2025:GAU-AS:4758
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/26/2025
KRISHNA PATOWARY AND ANR
S/O LATE RADHA RAM PATOWARY R/O MONAHKUCHI, P.S HAJO, P.O.
BARAMBOI, DISTRICT - KAMRUP (ASSAM)
2: DILDAR ALI
S/O MD. KADIR ALI R/O MONAHKUCHI
P.S HAJO
P.O. BARAMBOI
DISTRICT - KAMRUP (ASSAM
VERSUS
GOPI DAS AND ORS
S/O LATE NAREN DAS .R/O MONAHKUCHI, P.S HAJO, PO BARAMBOI,
DISTRICT - KAMRUP (ASSAM) PIN CODE-781104
2:CHANDRA DAS
S/O LATE JIBAN DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
3:ON THE DEATH OF SASHANDHAR DAS HIS LEGAL HEIRS SABYA DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
4:NABAJIT DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
Page No.# 2/11
5:BISWAJIT DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
6:SAGARIKA DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
7:SANTI DAS
S/O LATE JIBAN DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
8:DILIP DAS
S/O LATE JIBAN DAS
R/O MONAHKUCHI
PS HAJO
P.O BARAMBOI
DISTRICT - KAMRUP (ASSAM) PIN CODE- 781L04
9:THE CIRCLE OFFICER
OFFICE OF THE HAJO REVENUE CIRCLE
P.S. HAJO
DISTRICT - KAMRUP (ASSAM
For the Appellant(s) : Mr. A. Sattar, Advocate
: Mr. Z. Mukit, Advocate
For the Respondent(s) : None appears.
Date of Hearing : 21.04.2025
Date of Judgment : 21.04.2025
Page No.# 3/11
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. A. Sattar, the learned counsel appearing on behalf of the
appellants.
2. This is an appeal under Section 100 of the Code of Civil Procedure,
1908 (for short ‘the Code’) challenging the judgment and decree dated
29.11.2024 passed by the Court of the learned Civil Judge (Senior Division),
Kamrup at Amingaon (hereinafter referred to as the learned First Appellate
Court) in Title Appeal No.41/2018 whereby the appeal preferred by the
appellants were dismissed thereby affirming the judgment and decree dated
20.08.2018 passed by the learned Munsiff, Kamrup at Amingaon (hereinafter
referred to as the learned Trial Court) in Title Suit No.261/2014.
3. The instant appeal is taken up at the stage of Order XLI Rule 11 of the
Code to ascertain as to whether there is any substantial question of law
which can be formulated in terms with Section 100(4) of the Code.
4. Mr. A. Sattar, the learned counsel appearing on behalf of the appellants
proposed the following question of law to be a substantial question of law
involved in the instant appeal:
“Whether the learned Courts below were right in declaring the right,
title and interest of the plaintiffs over 4 Kathas of land without
discussing and deciding the saleable rights of the vendors i.e. the
defendant Nos. 1 to 4 based on the evidence led by the parties?”
Page No.# 4/11
5. To ascertain as to whether the said question of law is a substantial
question of law that can be formulated, this Court finds it relevant to take
note of the brief facts which led to the filing of the instant appeal.
6. For the sake of convenience, the parties herein are referred to in the
same status as they stood before the learned Trial Court.
7. The respondent No.1 herein as plaintiff had instituted a suit being Title
Suit No.18/2010 which was re-numbered as Title Suit No.261/2014. The
case of the plaintiff in the suit is that he vide a registered Deed of Sale
bearing deed No.76 dated 24.01.2008 purchased a plot of land admeasuring
4 Kathas covered by Dag No.619 of K.P Patta No.57 situated at village
Moanhkuchi under Mouza Hajo out of a total land of 4 Bighas 1 Kathas 19
Lechas of the said patta for consideration of Rs.20,000/-. The plaintiff upon
purchase of the said suit land was delivered the physical possession by the
defendant Nos. 1 to 4 of the said suit.
8. It is the further case of the plaintiff that the defendant Nos. 5 and 6
tried to persuade the plaintiff to transfer the said land to them which the
plaintiff refused and thereupon threatened the plaintiff with dire
consequences as well as to dispossess the plaintiff from the suit land. It is
the further case of the plaintiff that on 15.08.2010, the plaintiff was
dispossessed by the defendant Nos. 5 and 6 and thereupon the Circle
Officer, Hajo vide order dated 16.09.2010, unilaterally, illegally and arbitrarily
cancelled the mutation of the plaintiff from the revenue records without
issuance of any notice. It is under such circumstances, the plaintiff filed a
suit seeking declaration of right, title and interest and possession over the
suit land; for declaration that the Sale Deed No.76 dated 24.01.2008 is valid
Page No.# 5/11
and binding upon the defendants; for a decree for recovery of khas
possession by evicting the defendants, their men, agents, servants,
attorneys, labourers and any other person or persons claiming under them;
for permanent injunction as well as for declaration that the order dated
16.09.2010 passed by the Circle Officer is illegal, inoperative and unlawful.
9. It is seen that pursuant to the summons being issued, the defendant
Nos. 5 and 6 appeared and filed their written statement wherein their
specific contention taken is that the defendant Nos. 1 to 4 did not have the
right to transfer 4 Kathas of land in favour of the plaintiff inasmuch as the
predecessor-in-interest of the defendant Nos. 1 to 4 had already alienated
his right, title and interest over more than 2 Kathas 14½ Lechas of land in
favour of the defendant No.5. In addition to that, the defendant denied the
title of the plaintiff and sought for dismissal of the suit. On the basis of the
pleadings, the learned Trial Court framed 5 (five) issues which being relevant
are reproduced herein under:
"(i) Whether there is a cause of action in the suit?
(ii) Whether the plaintiff has right, title and interest in the suit land by
virtue of purchase through registered sale deed no.76 dated 24.01.08?
(iii) Whether the plaintiff was in possession of the suit land and whether
he was dispossessed by the defendant nos. 5 and 6 at the instigation of
defendant nos. 1 to 4?
(iv) Whether the cancellation of mutation of the plaintiff by Circle Officer,
Hajo was illegal?
(v) Whether plaintiff is entitled to decree as prayed for?”
Page No.# 6/11
10. On behalf of the plaintiffs, three witnesses were examined and four
documents were exhibited. On behalf of the defendants, five witnesses were
examined and six documents were exhibited.
11. For the purpose of deciding whether the question of law which have
been proposed can be formulated as a substantial question of law, it is
relevant to take note of Issue No.(ii) which have been framed by the learned
Trial Court.
12. The learned Trial Court upon taking into account the evidence on
record and more particularly Exhibits 1 and 5 which have been proved in
original, came to a categorical finding that the plaintiff had ownership over
the suit land. It is also very pertinent to take note of that the learned Trial
Court had categorically taken note of the case of the defendant to the effect
that the predecessor of the defendant Nos. 1 to 4 had alienated 2 Kathas
14½ Lechas of land to the defendant No.5 and came to a finding that the
version of the defendant Nos. 5 and 6 that the predecessor of the
defendants have sold 2 Kathas 14½ Lechas of land to the defendant No.5
cannot be said to have been proved. Paragraph No.8 of the said judgment of
the learned Trial Court being an analysis of the evidence and the finding
arrived at in respect to the Issue No.(ii) which is pertinent to the question of
law so proposed is reproduced herein under:
“8. Although defendant nos. 5 and 6 have taken a plea in their written
statement that the predecessor of defendant nos.1 to 4 had already alienated 2
kathas 14½ lechas of the suit land to defendant no.5 and thereby the defendant
nos. 1 to 4 does not have the title to sell the entire suit land to the plaintiff and
the same has been deposed by DW3, DW4 and DW5. It is an admitted position
that the suit land have been inherited by defendant nos. 1 to 4 from their father
Page No.# 7/11late Jiban Das. However regarding the claim of defendant nos. 5 and 6 that the
predecessor of defendant nos. 1 to 4 have sold the 2 kathas 14½ lechas to
defendant no.5, which has been stated in the evidence on affidavit of DW3, DW4
and DW5, but DW3 (defendant no.5 himself) has stated in his cross examination
that the said land was purchased not by him but his father from the predecessor
of the defendant nos. 1 to 4, which is contradictory to his own evidence, since Ext
A shows defendant no.5 himself as one of the purchasers. Even if it is considered
that 2 kathas 14½ lechas land was purchased by the father of defendant no.5,
however, the same has been stated to be made vide unregistered deed (Ext B)
and as such Ext B cannot be taken into account since it is inadmissible as
evidence. Again PW4 (defendant no. 6) deposed in his cross examination that a
portion of the suit land was purchased by him which contradicts his deposition as
well as pleading that the land was purchased by defendant no.5. Therefore, such
evidence adduced on the part of defendant nos. 5 and 6, creates a doubt as to the
reliability of their evidence. Thereby, the version of the defendant nos. 5 and 6
that the predecessor of defendant nos. 1 to 4 have sold the 2 kathas 14½ lechas
to defendant no.5 cannot be said to be proved.
Accordingly, on the basis of preponderance of probabilities, it appears that
the evidence on record regarding the ownership of the suit land tilts in favour of
the plaintiff.
Hence this issue is decided in affirmative and in favour of the plaintiff.”
13. It is further seen that the learned Trial Court vide a judgment and
decree dated 20.08.2018 decreed the suit in favour of the plaintiff by
granting the reliefs as sought for. Being aggrieved, the defendant Nos. 5 and
6 who are the appellants herein had preferred an appeal which was
registered and numbered as Title Appeal No. 41/2018. The learned First
Appellate Court vide a judgment and decree dated 29.11.2024 dismissed the
said appeal. It is pertinent to mention that the learned First Appellate Court
Page No.# 8/11
also duly dealt with the said contention of the defendant Nos. 5 and 6 as
regards a sale being made in favour of the defendant No.5 by the
predecessor-in-interest of the defendant Nos. 1 to 4 and observed that the
plaintiff had the right, title and interest over the land described in the
schedule below to the plaint. The findings of facts arrived at by the learned
First Appellate Court at paragraph number 24 and 25 being relevant for the
purpose of the instant appeal is reproduced herein under:
“24. This Court has considered the rival submissions made by both the parties
and perused the case record. Two of the defendants in the Title Suit, i.e Chandra
Das and Santi Ram Das, who are the respondent no – 2 and 4 in the instant
appeal, have been examined in the Title Suit as DW1 and DW2. Both the
witnesses have categorically stated in their evidence that the suit land, which was
an ancestral plot of land was partitioned between their predecessors-in-interest
and his brother, which led to the father of the respondent number 2 – 5 being
allotted the four kathas of land, which is the suit land in the title suit. Both the
witnesses have categorically stated that they had the right, title and interest over
the four kathas of land that they had transferred in favour of the respondent
number – 1 and that it was owing to partition between their predecessor-in-
interest and his siblings. The learned counsel has submitted that none of the legal
hairs of late Jibon Das have any objection to the transfer of the suit land in favour
of the respondent number – 1, and hence the contention of the learned Counsel
for the appellant ought to be rejected. This court has also considered the
Zamanbandi of the suit land, which has been submitted by the plaintiff and which
has been marked as Exhibit 2. The Exhibit 2 clearly shows mutation of the name
of Chandra, Sashadhar Das, Shanti Das and Dilip Das, in place of their deceased
father late Jiban Das, by right of inheritance. After their names were mutated,
they had alienated the suit land in favour of the respondent number – 1 vide a
registered sale deed bearing number 76, dated 24.01.2009, which has been
marked as Exhibit 5 in the title suit. As the suit land was transferred through the
Page No.# 9/11execution of a sale deed, which requires permission to be obtained from the
revenue authorities, it can therefore, be presumed that necessary formalities with
regard to the obtaining of the sale permission, during the course of which the
revenue authorities verify the ownership and possession over the suit land of the
seller must have been undertaken by the revenue authorities, leading to the
permission being granted for execution of the sale deed. In such a scenario, the
execution of the sale deed by respondent number 2 – 5 in favour of the
respondent number – 1 cannot be challenged merely on flimsy grounds.
25. The DW1 and DW2 have categorically stated in their evidence regarding
partition of the ancestral property left behind by their grandfather, which was
inherited by their father. Although the plaintiff and his witnesses and the DW1 and
DW2 were cross examined at length, nothing adverse could be brought on record
by the learned Counsel for the defendant number five and six, in order to prove
that the defendant number 1 – 4 did not have the legal right to sell the suit land,
in favour of the plaintiff. The defendants have failed to examine any witness, who
could prove that the defendant number 1 – 4 did not have right, title and interest
over the suit land, prior to its transfer, in favour of the plaintiff. In such a scenario,
acting on the basis of preponderance of probabilities, this Court has to rely on and
agree with the contentions raised by the learned counsel for the respondents that
the respondent number 2 – 5 had right, title and interest over the suit land, prior
to its transfer in favour of the respondent number – 1. Although, the learned trial
court has not discussed in detail about the saleable right of the defendant number
1 – 4 in respect of the suit land, the learned trial court has nonetheless held the
sale deed that was executed by them in favour of the plaintiff to be legally binding
and a valid document, which goes to show that the defendant 1 – 4 had the right
to sell the suit land in favour of the plaintiff. The learned trial court has rightly
discussed and held that the defendant number – 5 had acquired right, title and
interest over the suit land on the strength of the sale deed executed in his favour
by the defendant number 1 – 4. No illegality or irregularity on the part of the
learned trial court in arriving at the decision could be proved by the learned
Page No.# 10/11counsel for the appellant, for which the contention has to be rejected outright.
Moreover, the appellants are strangers to the suit land and their locus to question
the sale of the suit land, which was owned and possessed by one Jiban Das, and
was later inherited by the defendant no – 1 and 4, who sold it to the defendant no
– 5, is also doubtful.”
14. Being aggrieved, the present appeal has been filed.
15. The question which arises for consideration before this Court is as to
whether the question so proposed by the learned counsel appearing on
behalf of the appellants can at all be formulated as a substantial question of
law. In the foregoing paragraphs of the instant judgment, this Court has duly
taken note of the finding of facts arrived at by the learned Trial Court as well
as by the learned First Appellate Court in respect to the question so
proposed by the learned counsel appearing on behalf of the appellants. The
said finding of facts have been concurrently arrived at by the learned Trial
Court as well as the learned First Appellate Court on the basis of evidence on
record and on the basis thereof have come to a categorical finding that the
plaintiff had right, title and interest over 4 kathas of land. It is a well settled
proposition of law that the findings of fact sans any perversity cannot be
interfered with in the second appellate stage.
16. This Court further takes note of that the Deed of Sale on the basis of
which the plaintiff has claimed the right, title and interest over the suit land
have also not been challenged by the defendant Nos. 5 and 6 who are the
appellants in the instant proceedings. Furthermore, it is the claim of the
appellants that the schedule land was only transferred vide Exhibit-B which
admittedly was an unregistered document in favour of the defendant No.5.
Section 49 of the Registration Act, 1908 read with Section 54 of the Transfer
Page No.# 11/11
of Property Act, 1882 forbids such transfer.
17. Considering the above, this Court is of the opinion that the instant
appeal lacks merit and the question of law so proposed cannot be
formulated as a substantial question of law in terms with Section 100(4) of
the Code.
18. Accordingly, this Court finds no merit in the instant appeal for which
the appeal stands dismissed. However in the facts of the instant case, this
Court is not inclined to impose any costs.
JUDGE
Comparing Assistant
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