Gauhati High Court
Page No.# 1/ vs Md.Nurul Hoque Barbhuiya And 2 Ors on 25 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/10
GAHC010105972011
2025:GAU-AS:2263
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/6/2011
MUSTT. ANUWARA BEGUM BARBHUIYA and 2 ORS
W/O LATE ABDUL SALAM BARBHUIYA
2: MUSTT. MORIOM NESSA
3: MUBEJJIL HUSSAIN BARBHUIYA
D/O and S/O LATE ABDUL SALAM BARBHUIYA
VILL. BILPAR DUMKAR
P.O.
P.S. and DIST. HAILAKAND
VERSUS
MD.NURUL HOQUE BARBHUIYA and 2 ORS
2:MD. JOYNUL HOQUE BARBHUIYA
S/O LATE HILAL UDDIN BARBHUIYA
VILL. BILPAR DUMKAR
P.O.
P.S. and DIST. HAILAKANDI.
3:MD. ABDL WAHID CHOUDHURY @ PUTUL HOQUE CHOUDHURY
S/O LATE YUSUB ALI CHOUDHURY HAILAKANDI TOWN
WARD NO.
For the Appellant(s) : Mr. M. H. Saikia, Advocate
For the Respondent(s) : Mr. M. H. Rajbarbhuiyan, Advocate
Page No.# 2/10
Date of Hearing : 25.02.2025
Date of Judgment : 25.02.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. M. H. Saikia, the learned counsel appearing on behalf of the
appellants and Mr. M. H. Rajbarbhuiyan, the learned counsel appearing on
behalf of the respondents.
2. The instant appeal is filed under Section 100 of the Code of Civil
Procedure, 1908 challenging the judgment and decree dated 31.03.2010
passed in Title Appeal No.1/09 by the Court of the learned Civil Judge,
Hailakandi (hereinafter referred to as ‘the First Appellate Court) whereby the
judgment and decree dated 29.11.2008 passed in Title Suit No.134/2006 by
the learned Court of the Munsiff No.1, Hailakandi (hereinafter referred to as
‘the learned Trial Court’) was affirmed.
3. It is seen from the records that vide an order dated 04.05.2011, the
instant appeal was admitted by formulating a substantial question of law
which reads as under:
“Whether the Courts below failed to find that the suit is not maintainable
under the provisions of Section 32-A of the Registration Act, 1908, Order VI
Rule 15 CPC and Order VII Rule 11(b) and (c) CPC read with the provisions
of the suit valuation and Court fees Act?”
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4. The question which arises for consideration in the instant Appeal is as
to whether the said substantial question of law is involved in the present
appeal. For ascertaining the same, this Court finds it relevant to take note of
the brief facts which led to the filing of the instant appeal.
5. The respondents herein as plaintiffs had instituted a suit being Title
Suit No.134/2006. In the said suit, it was the case of the plaintiffs that one
Samsul Haque Mazarbhuiyn who was the original owner of a plot of land
vide registered Deed of Sale bearing No.7424 dated 29.10.1974 transferred
the said plot of land to one Abdul Salam Barbhuiya and Abdul Wahid
Choudhury. Late Abdul Salam Barbhuiya pursuant to the purchase was in
occupation of the western part of the said plot of land and the eastern part
was under the occupation of Late Abdul Wahid Choudhury on the basis of an
amicable partition. After the amicable partition, Late Abdul Salam Barbhuiya
had constructed one commercial structure on the plot of land and got a
municipal holding number bearing No.65/68 of Hailakandi Town, Ward No.2.
6. Pursuant thereto, the plaintiff No.1 entered into an agreement dated
08.05.1997 for tenancy with Late Abdul Salam Barbhuiya. Subsequent
thereto, Late Abdul Salam Barbhuiya transferred his share of the land in
favour of the defendant No.1 vide a registered Deed No.2267 dated
26.04.1997. The land was specifically described in Schedule-II to the plaint.
7. It is the further case of the plaintiffs that in the first part of July, 2002,
the defendant No.1 on account of her financial necessity, proposed to sell
the land described in Schedule-II to the plaintiffs which was under the
occupation of the plaintiffs at a consideration of Rs.43,000/- and in that
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regard had executed an agreement for sale on 25.07.2002 and the plaintiffs
paid an amount of Rs.10,000/-. The remaining consideration was to be paid
on or before 31.03.2003 and the defendant No.1 was to execute and register
the Sale Deed in favour of the plaintiffs.
8. It is the further case of the plaintiffs that on 04.01.2003, the defendant
No.1 after receipt of the consideration of Rs.33,000/-, executed the Deed of
Sale however, the said Deed of Sale was not registered on account of the
permission not being obtained from the Municipal Board, Hailakandi and
from the Deputy Commissioner, Hailakandi to effect registration thereupon.
It is the case of the plaintiffs that the plaintiffs had requested the defendant
No.1 to sign on the permission forms so that the necessary permissions
could be obtained. However, the defendant No.1 did not sign those
documents. Rather, the defendant No.1 had executed a Deed of Sale dated
06.01.2003 in favour of the defendant Nos. 2 and 3 who were the son and
daughter of the defendant No.1. It is under such circumstances, the suit was
filed by the plaintiffs seeking a declaration that the agreement dated
25.07.2002 was legally valid and binding and for a direction to the defendant
No.1 to register as per the provisions of the Indian Registration Act, 1908; a
decree declaring that the Sale Deed executed by the defendant No.1 in
favour of the defendant Nos. 2 and 3 bearing deed No.44 dated 06.01.2003
is illegal, fraudulent, collusive and invalid in the eye of law and is liable to be
cancelled; a decree for permanent injunction restraining the defendants,
their agents etc. from disturbing in the possession of the Schedule-II land by
any illegal means.
9. Pursuant to the filing of the said suit, the defendant Nos. 1 and 2
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jointly filed a written statement. In the written statement, various pleas were
taken as regards the maintainability of the suit. It is apposite herein to
mention the pleas taken as the same have relevance to the substantial
question of law so framed by this Court vide the order dated 04.05.2011.
The pleas were that the suit was barred under the principles of estoppels,
waiver, acquiescence; it was barred under the provisions of the Specific
Relief Act, 1963 and the Code of Civil Procedure, 1908; it was barred under
the provisions of the Indian Registration Act, 1908 and that the suit merely
for registration is not legally tenable without relief for specific performance
and also for want of required permission for sale or No Objection Certificate
from the concerned authorities. In addition to that, the further preliminary
objections were taken as regards non-joinder of necessary parties and the
defendant No.3 who was a minor, the suit was not filed through his next
friend.
10. On merits, it is the case of the defendants that Late Abdul Salam
Barbhuiya and proforma defendant No.4 was the owner of 1 Katha 10
Chattaks and 11 Gondas of land which have been specifically described in
Schedule-I to the plaint. The proforma defendant No.4 sold away his half
portion i.e. 13 Chattaks 5 Gondas 2 Koras to Saidur Rahman Mazumdar son
of Late Abdulla Mia Mazumdar for valuable consideration. Late Abdul Salam
Barbhuiya sold away his half share measuring 13 Chattaks 5 Gondas 2 Koras
to the defendant No.1 vide the registered Sale Deed dated 24.06.1997. It
was admitted that there was a Bharanama/tenancy agreement executed by
and between Late Abdul Salam Barbhuiya as owner and one Samsuddin
Choudhury as tenant on 12.03.1997. It was stated that there was no lease to
the said Samsuddin Choudhury continued and there was receipt of advance
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rent from time to time. It was stated that in the early April, 2002 the
defendant No.1 received advance rent of Rs.80,000/- to be adjusted at the
rate of Rs.100/- per month as against the agreed monthly rent of Rs.450/- in
respect to her premises. The said Samsuddin Choudhury had a pan shop-
cum-stationary shop therein and has been in continuous possession of the
same. It was further stated that the land and house of the defendant No.1 is
in the eastern portion of the land of Saidur Rahman Mazumdar who was the
purchaser from the proforma defendant No.4. It was denied that there was
any legal or valid bainama or agreement of sale as alleged in the plaint. It
was stated that there was no deed of sale executed legally and properly and
there was no reason or necessity to sell the land and house of the defendant
No.1 in the suit patta and dags to the plaintiffs.
11. On the basis of the said pleadings, four issues were framed. They
were:
"(i) Is there any cause of action?
(ii) Is the suit maintainable under the provisions of the Specific Relief
Act?
(iii) Whether the sale deed dated 04.01.2003 was duly executed?
(iv) Whether the plaintiffs are entitled to get a decree as prayed for?”
12. On behalf of the plaintiff, evidence of three witnesses were adduced
and various documents were exhibited and on behalf of the defendants, the
evidence of two witnesses were adduced and the certified copy of Deed of
Sale dated 06.01.2003 was exhibited. The learned Trial Court vide its
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judgment and decree dated 29.11.2008 decreed the suit in favour of the
plaintiffs holding inter alia that the plaintiffs are entitled to get registration of
the Sale Deed i.e. Exhibit-5 from the defendants for the suit land and the
plaintiffs are further entitled to get cancellation of the registered Sale Deed
dated 06.01.2003 i.e. Exhibit-8.
13. It is relevant to take note of that the learned Trial Court while deciding
the said Issue No.2, came to a categorical opinion on the basis of evidence
that the plaintiff through PW-1 corroborated that due to non-cooperation of
the defendant No.1, the Sale Deed could not be registered without the NOC
from the authority and for non-cooperation of the defendant No.1, the NOC
could not be obtained. It was further opined that since Exhibit-4, which is an
agreement for Sale could be specifically enforced under the provisions of the
Specific Relief Act, 1963, the suit was maintainable in its present form. In
respect to Issue No.3, the learned Trial Court came to opinion that as the
defendant No.1 had executed the unregistered Deed of Sale on 04.01.2003
and as such the Sale Deed in favour of the defendant Nos.2 and 3 by the
defendant No.1 was not valid as the defendant No.1 had no right to transfer
vide the Deed of Sale dated 06.01.2003. It was also held that the said Deed
of Sale dated 06.01.2003 was liable to be cancelled as it was collusive and
invalid. The learned Trial Court further held while deciding the Issue No.4
that the plaintiffs had fully established their case and are entitled to the
relief to the extent that the plaintiffs have a right to get registration of the
Sale Deed i.e. Exhibit-5 from the defendants for the suit land and entitled to
get cancellation of the Sale Deed dated 06.01.2003 i.e. Exhibit-8.
14. Being aggrieved, the defendant Nos. 1 and 2 preferred an appeal
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which was registered as Title Appeal No.1/09. The learned First Appellate
Court vide a judgment and decree dated 31.03.2010 dismissed the appeal.
In doing so, the learned First Appellate Court directed that the appellant
No.1 was bound to register the Sale Deed dated 04.01.2003 as per the
terms and conditions on the Bainanama dated 25.07.2002. It was further
opined and ordered that the registered Sale Deed No.44 dated 06.01.2003
was illegal and invalid document. Being aggrieved, the present appeal has
been preferred.
15. This Court heard the learned counsels appearing on behalf of the
appellant as well as the respondents in respect to the substantial question of
law which was formulated by this Court. The substantial question of law
which was formulated is on the question as to whether the suit was
maintainable in terms with Section 32A of the Registration Act, 1908 or
under Order VI Rule 15 of the Code or under Order VII Rule 11(b) and 11(c)
of the Code read with the provisions of the Suit Valuation and the Court Fees
Act.
16. This Court during the course of hearing enquired as to whether the
pleas so taken as regards maintainability was at all agitated before the
learned Trial Court as there is no foundation in the pleadings or the issues so
framed before the learned Trial Court. The learned counsel appearing on
behalf of the appellants could not answer to the same. Be that as it may, this
Court finds it relevant to take note of that the question of applicability of
Section 32A of the Registration Act, 1908 would arise only at the time when
the document is placed for registration. Admittedly, the Deed of Sale though
executed on 04.01.2003 but it was not submitted for registration as there
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was no permission obtained from the authorities concerned. Under such
circumstances, Section 32A of the Registration Act, 1908 cannot be said to
have any relation without the document being placed for registration.
17. Order VI Rule 15 of the Code is a provision incorporated as to how the
pleadings are to be verified. Nothing could be shown as regards the defect in
the verification so made in the pleadings.
18. Order VII Rule 11(b) and (c) relates to rejection of the plaint on
account of deficit court fee or when the relief is undervalued. It is however
relevant to take note of that in terms of Order VII Rule 11(b) and (c), a suit
cannot be rejected out rightly. The learned Trial Court has to give an
opportunity to the plaintiff to rectify the said defect. Nothing has been
shown by the learned counsel for the appellant in that regard. Additionally,
nothing is also apparent from the Lower Court Records.
19. Apart from the above, it is also seen that such issues were not raised
and the learned Trial Court had also not mentioned anything in its judgment.
Consequently, the applicability of Order VII Rule 11(b) and (c) of the Code
have no relevance to the present Appeal.
20. Accordingly, this Court is of the opinion that the substantial question of
law so formulated in the present appeal is not a substantial question of law
involved.
21. Consequently, the instant appeal stands dismissed with costs
quantified at Rs.11,000/-. In addition to that, the plaintiffs would be entitled
to costs throughout the proceedings.
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22. The Registry is directed to forthwith return the LCR to the learned
Court below.
JUDGE
Comparing Assistant
