Page No.# 1/6 vs Md. Rahim Ali And 5 Ors
2021 Latest Caselaw 3501 Gua

                                                               Page No.# 1/6

GAHC010256992018




                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : RSA/302/2018

         MD.SAFIR ALI and 7 ORS,
         S/O Md. SAFIR ALI VIIAGE MADHAPUR PO MAROWA, MOUZA-
         BAHJANI,PS-MUKALMUA, DIST NALBARI

         2: MD. MATLEB ALI

          S/O LATE SAMSHER ALI

         3: MD. JAKIR HUSSAIN

          S/O MD. ROUSHAN ALI

         4: SAYED RAFIQUR RAHMAN

          S/O LATE MANSIR ALI

         5: MD. GIAS ALI

          S/O LATE RAJAT ALI

         6: MD. HABIBAR RAHMAN

          S/O LATE FARJAN ALI

         7: MD. JEHERUL ISLAM

          S/O MD. YAKUB ALI

         8: MD. SONASHAH

          S/O LATE RAJAT ALI
          ALL ARE R/O VILL. MADHAPUR
          P.O. MAROWA
          MAUZA BAHJANI
                                                              Page No.# 2/6

             P.S. MUKALMUA
             DIST. NALBARI

            VERSUS

            MD. RAHIM ALI and 5 ORS,
            VIIAGE MADHAPUR PO MAROWA, MOUZA-BAHJANI,PS-MUKALMUA,
            DIST NALBARI

            2:MD. BUJIR ALI

             S/O LATE SHAHNUR ALI

            3:MD. MAJIBAR RAHMAN

             S/O LATE SHAHNUR ALI

            4:MD. FARJAN ALI
             S/O LATE SHAHNUR ALI

            5:MUSTT. JAHEDA BIBI

             D/O LATE SHAHNUR ALI

            6:MAIKAN BIBI

             D/O MIGHO ALI
             W/O LATE SHAHNUR ALI
             ALL ARE R/O VILL. MADHAPUR
             P.O. MOROWA
             MAUZA BAHJANI
             P.S. MUKALMUWA
             DIST. NALBARI
             ASSAM



Advocate for the Petitioner   : MS. A K CHOUDHURY

Advocate for the Respondent : MR. K KALITA

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH Page No.# 3/6

Date of hearing : 16.12.2021.

Date of judgment :              16.12.2021.



                     JUDGMENT AND ORDER (Oral)

Heard Mr. D. Choudhury, learned counsel appearing for the appellants and Mr. I. H. S

aikia, learned counsel appearing on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure challenging the judgment

and decree dated 24.06.2014 passed by the learned Civil Judge, Nalbari in Title Appeal No.34/2013

whereby the judgment and decree dated 15.12.2012 passed by the learned Munsiff No.2, Nalbari in

Title Suit No.31/2002 was upheld.

3. The learned counsel for the appellants, during the course of argument, has placed on record

three substantial questions of law which the counsel urges should be formulated for the purpose of

disposal of the instant appeal. Let me take the said formulations and see as to whether the said

questions can at all be formulated as substantial questions of law at this stage under Order XLI Rule II

of the CPC. The first question of law which was formulated by the learned counsel for the appellants is

as to whether the findings of the appellate court in deciding the Issue No.5 is without consideration of

the defendants' right over the Schedule-Kha land by virtue of Ext-Kha i.e. the wakf nama and whether

the finding as to the plaintiffs right, title and interest over the Schedule-Kha land is perverse to the

evidence on record. For determination of the lis between the parties, it is relevant to take note of as to

whether the said question of law can at all be considered to be substantial on the basis of the foundation

laid in the suit.

4. The case of the plaintiffs is that vide Exts-2, 3, 4 and 8 the plaintiffs had purchased in total an

area of 1 katha 16 lechas of land in Dag No.238 and on the basis thereof taking into consideration the Page No.# 4/6

allegation that the defendants had dispossessed the plaintiffs from the Schedule-Kha land, the suit was

filed seeking declaration of the plaintiffs' right over the Schedule-Kha land, for recovery of khas

possession in respect of the Schedule-Kha land and for permanent injunction. In the plaint it has been

specifically mentioned at paragraph 6 that the vendor of the plaintiffs had by their wakf nama

transferred 1 katha 10 lechas of land under Dag No.238 and other dags to Madhapur Hatkhala Supar

Masjid Committee. The said paragraph has been denied in paragraph 7 of the written statement. Further

to that, in paragraph 8, the case of the defendants is that the land under Dag No.238 and Dag No.239

wherein Morowa Bazar is situated was owned by Late Matiur Rahman and Late Matiur Rahman

allowed to continue the bazaar over the said land and on the basis thereof the said Morowa Bazar is

running. There is no whisper in the written statement as regards the wakf nama.

5. The learned counsel for the appellants had produced before this Court the wakf nama dated

27.09.1973 which was exhibited as Ext-Kha in the Title Suit. I have perused the schedule mentioned in

the wakf nama as well as also perused the schedule mentioned in the plaint. From a perusal of the

schedule mentioned in the plaint, more particularly the Schedule-Kha it goes to show that the to the

north of the said land there is the land of under possession of the Masjid Committee. It is a trite

principle of law that while framing the substantial question of law it has to be seen as to whether the

said question of law involved in the said case has a foundation laid down in the pleadings and the

question should emerge from the substantial question of fact arrived by the Courts of facts. An entirely

new point raised for the first time before the High Court is not a question involved in the case unless it

goes to the root of the matter. In the instant case, there is no averment in the written statement as

regards the wakf nama. In fact, as already stated in paragraph 7 of the written statement, the statements

pertaining to the wakf nama has been denied by the defendants. In paragraph 8, as already stated herein

above, the defendants have claimed their right on the basis of being allowed to possess by one Late

Matiur Raman. Further to that, there is not even a plea to that effect in the written statement that Page No.# 5/6

Schedule-Kha land falls within the ambit of Ext-Kha (wakf nama). Under such circumstances, the said

question of law so raised to be formulated cannot, in my opinion, be a substantial question for the

purpose of the instant proceedings.

6. The next question of law which was urged to be formulated was as to whether the declaration of

right, title and interest of the plaintiffs over the suit land without proving the source of the title of the

vendors and whether this finding is based on no evidence and pleading.

7. I have perused the impugned judgment and decree passed by the learned First Appellate Court

wherein while discussing Issue No.5 the learned First Appellate Court has duly taken note of Exts-2, 3,

4 and 8 which were the original deeds of sale produced before the trial court which was adduced as

evidence by the plaintiffs in support of their claim. In the written statement filed by the defendants they

have not denied the deeds of sale on the basis of which the plaintiffs have claimed their right, title and

interest over the suit land. Their only statement made in the written statement was that those sale deeds

are only paper transactions. I have also perused the impugned judgment and decree of the trial court

dated 15.12.2012 wherein also the trial court has duly taken into consideration the relevant principles

of law while appreciating the said deeds of sale.

8. At this stage, it is also relevant to take note of as to who are the defendants or the appellants

before this Court. A perusal of paragraph 16 of the judgment of the trial court show that the defendants

who have adduced evidence as DWs-1 and 2 have admitted that they are tenants of the Masjid

Committee and they were allowed to hold the land and possess the same on the basis of the wakf nama.

The Masjid Committee is not before the Court or has even challenged the legality and validity of the

deeds of sale. Under such circumstances, the said question of law, which has been sought to be

formulated, in my opinion, cannot be a substantial question of law for disposal in respect of the instant

second appeal.

Page No.# 6/6

9. The 3rd question of law which was urged to be formulated as a substantial question of law is as

to whether the plaintiffs could prove that the Schedule-Kha is the land which they purchased by dint of

Exts-2, 3, 4 and 8. This is a finding of fact which has already been held by both the Courts below

holding inter-alia that the Schedule-Kha land is the land of the plaintiffs on the basis of Exts-2, 3, 4 and

8. Further to that, it is also relevant to take note of that there is no pleadings in the written statement

that the Schedule-Kha land is not the land falling within the land conveyed vide Exts-2, 3, 4 and 8.

Even there is no pleading to that effect that Schedule-Kha land falls in Ext-Kha. Under such

circumstances, the said question cannot be said to be a question of law to be framed as a substantial

question of law for the purpose of the instant appeal.

10. In view of the above, the instant appeal stands dismissed.

No costs.

JUDGE

T U Choudhury

Comparing Assistant