Goutam Boruah vs Atul Ch. Saikia And 2 Ors
2021 Latest Caselaw 2160 Gua

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GAHC010060092021




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

                                  Case No. : RSA/86/2021

            GOUTAM BORUAH
            S/O- SRI GANESH BORUAH, R/O- DULIA GAON, MOUZA- GARAMUR, DIST.-
            JORHAT, ASSAM



            VERSUS

            ATUL CH. SAIKIA AND 2 ORS.
            S/O- LATE JOGESH SAIKIA, DULIA GAON, GARAMUR MOUZA,DIST.-
            JORHAT.

            2:JOGNESWAR DUTTA
             S/O- LATE SISURAM DUTTA
            GARAMUR MOUZA
             DJILA GAON
             DIST.- JORHAT
            ASSAM

            3:ROMESH KR. MALPANI
             S/O- MULIDHAR MALPANI
             JORHAT TOWN
             MARUWARI PATTY
             DIST.- JORHA

Advocate for the Petitioner   : MR A D CHOUDHURY

Advocate for the Respondent :
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                                   BEFORE
                    HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                       ORDER

10.09.2021 Heard Mr. A.D. Choudhury, learned counsel for the appellant.

2. This second appeal is preferred against the Judgment dated 23.12.2020 passed in Title Appeal No. 70/2006 by the Court of District Judge, Jorhat.

3. The learned counsel for the appellant submits that a title suit was originally preferred by the respondent No. 1 as a plaintiff which came to be dismissed by the learned Court of Civil Judge, Jorhat. One of the issues urged before the Trial Court was that the plaintiff became the owner of a portion of land stated to be under the possession of the appellant from the proforma defendant in the suit namely Sri. Ramesh Kr. Malpani. However, the same was admittedly purchased by way of an unregistered sale-deed. The Trial Court rejected the claim of the respondent No. 1 as a plaintiff and dismissed the title suit filed by the plaintiff.

4. Being aggrieved, the plaintiff preferred a Title Appeal being T.A. No. 70/2006 before the District Judge, Jorhat. The First Appellate Court overturned the Judgment of the Civil Judge by holding that the unregistered sale-deed on the basis of which respondent No. 1 as a plaintiff had claimed right, title and interest on the disputed plot of land was acceptable in law by placing reliance on proviso to Section 49 of the Registration Act, 1908.

5. The learned counsel for the appellant submits that the proviso to Section 49 is an exception to the main provision of the Registration Act, 1908 and is primarily meant for collateral evidences in matters relating to specific relief Act.

6. Upon hearing the learned counsel for the appellant and upon perusal of Page No.# 3/3

the ground urged in the appeal, this appeal is admitted on the following questions of law:

1. Whether proviso to Section 49 of the Registration Act, 1908 can nullify the Section 47 of the Registration Act, 1908 inasmuch as the proviso to Section 49 is an exception to Section 47 so far relating to admissibility as evidence of an unregistered document relating to a contract in a suit for specific performance?

2. Whether title can be granted in favour of the plaintiff on the basis of an unregistered sale deed against the defendant moreso on the admitted fact that the defendant had purchased the land by way of a registered sale deed?

3. Whether evidence of PW-5 (Lat Mondal) can be ignored in view of the fact that only 7 lechas of land is in possession of the plaintiff and the learned Court below declared possessory right over 1 Katha of land?

7. Call for the records of Title Appeal No. 70/2006 from the District Judge, Jorhat and Title Suit No. 24/2004 from the Civil Judge, Jorhat.

8. Steps be taken by registered A/D post as well as usual process within one week.

9. List the matter after receipt of the records.

JUDGE

Comparing Assistant