Gauhati High Court
Page No.# 1/5 vs Matiur Rahman And 5 Ors on 7 August, 2024
Page No.# 1/5
GAHC010008042010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/246/2010
JAHANARA BEGUM and 2 ORS
D/O AYTON NESSA
2: ANOWARA KHATUN
D/O AYTON NESSA.
3: ROWSHANARA BEGUM
D/O AYTON NESSA
ALL ARE R/O VILL. KHANGRA
MOUZA-CHENGA
P.S. DIST. BARPETA
ASSAM
VERSUS
MATIUR RAHMAN and 5 ORS
S/O LATE SULTAN
2:AZIZUR RAHMAN
S/O LATE SULTAN
ALL ARE R/O VILL. KHANGRA
MOUZA
CHENGA
P.S. DIST. BARPETA
ASSAM.
3:MUST. AYTON NESSA
W/O LATE SULTAN.
4:DILUWARA KHTUN
Page No.# 2/5
D/O AYTON NESSA
ALL ARE R/O VILL. KHAGRA
MOUZA-CHENGA
P.S. DIST. BARPETA
ASSAM.
5:ANTAZ ALI
S/O LATE ABDUL GANI
R/O KHAGRAGAON
MOUZA-CHENGA
P.S.
DIST. BARPETA
ASSAM.
6:TOMEJ ALI
S/O LATE RAMEZ MADBAR
R/O VILL. KHANGRA
MOUZA-CHENGA
P.S.
DIST. BARPETA
ASSAM
Advocate for the Petitioner : MR.B SINHA, MR.M GOGOI,MR.T DEWAN
Advocate for the Respondent : MR.A R SIKDAR, MR.M AHMED,MR.N AHMED,MR.M H
TALUKDAR,MD.A HUSSAIN,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 07.08.2024
1. Heard Mr. B. Sinha, learned counsel for the petitioner. Also heard Mr. A. R.
Sikdar, learned counsel for the respondent.
2. This Regular Second Appeal has been filed by the appellants impugning
the judgment and decree dated 08.09.2009 and 15.09.2009 respectively in Title
Appeal No. 27/2008 by the Court of learned Civil Judge, Barpeta wherein the
judgment and decree dated 05.06.2008 passed by the learned Munsiff No. 1,
Barpeta in connection with Title Suit No. 18/2007 which was filed by the present
appellants was dismissed.
Page No.# 3/5
3. This second appeal has been filed against the concurrent filing of both
the Courts, namely, the Trial Court as well as the First Appellate Court
dismissing the suit of the present appellants.
4. The brief facts of the case is that the present appellants are the
daughter of one Ayoton Nessa who claimed shares of suit land which is the land
measuring 19 Bighas, 8 Lechas which is more fully described in the scheduled to
the plaint filed by the appellant before the Trial Court. The respondent Nos. 1
and 2, Motiyar Rahman and Azizur Rahman, who were the brothers of the
present appellants contested the suit by claiming that the suit land gifted to
them by their mother Ayoton Nessa. The Trial Court after considering
the pleadings, framed 5 issues, namely,
"1. Whether there is cause of action of the suit?
2. Whether the suit is barred by law of limitation and section 34 of the
Specific Relief Act?
3. Whether the plaintiffs have right, title, interest and possession over
the suit land?
4. Whether the deed No. 893/03 dated 17/6/06, deed No.1240/06
dated 4.8.06, deed No.492/06 dated 5.3.04 and deed No. 493/04
dated 5.3.04 are forged and fraudulent?
5. Whether the chitha mutation dated 9.6.90, 9.5.90 and 20.12.92 are
liable to be declared as null and void?"
5. The Court of learned Munsiff No. 1, Barpeta decided the issues in
favour of the present respondents and decided the issue No. 3 against the
present appellant holding that the appellants have no right, title and interest or
possession over the suit land.
Page No.# 4/5
6. Being aggrieved by the judgment of the Trial Court, the appellants filed
the first appeal before the court of learned Civil Judge, Barpeta which was
registered as Title Appeal No. 27/2008. However, the Appellate Court after
hearing both the parties refused to interfere in the judgment of the Trial Court
and affirmed the judgment of the Trial Court dismissing the suit of the present
appellants.
7. Being aggrieved by the judgment of the Trial Court as well as the
Appellate Court, the appellants have filed the instant regular second appeal.
8. Before discussing anything else in this appeal, it is pertinent to mention
herein that in the memo of appeal filed by the present appellants, the
substantial question of law has not been formulated by the appellants. Though,
some grounds of the appeal were taken by the appellants in their memo of
appeal as if the appeal is a regular first appeal and not second appeal under
Section 100 of the Code of Civil Procedure.
9. It is pertinent to mention herein that the Section 100(3) of the Code of
Civil Procedure provides that in an appeal preferred under Section 100, the
memorandum of appeal shall precisely state the substantial question of law
involved in the appeal. By not complying with the mandate of Section 100(3) of
the Code of Civil Procedure in this case, the present second appeal is not
maintainable on that count only.
10. However, as this is a very old appeal pending since 2010, it appears that
this case was listed on several occasion, however, no substantial question was
formulated by this Court.
11. It appears from order dated 29.05.2024, passed by this Court that on
that day, the appellants proposed a set of substantial question of law to be
Page No.# 5/5
formulated in this appeal. However, on perusal of the said draft substantial
question of law proposed by the appellants, it was ordered that this Court was
prima facie of the opinion that same cannot be formulated as substantial
question of law. The appellants were granted some more time for the ends of
justice.
12. Today, also the learned counsel for the appellants has produced the
sheet of paper containing draft substantial question of law. However, he fairly
admits that these questions are same set of substantial question of law which
were proposed before the Court on 29.05.2024.
13. As there is already a finding of this Court on 29.05.2024 that the
substantial question of law proposed by the appellants cannot be formulated as
substantial question of law. Hence, this Court is not inclined to entertain the
same set of substantial question of law.
14. In view of the above, this Court is of considered opinion that the
appellants has not complied with the mandate of Section 100(3) of the Code of
Civil Procedure as well as on perusal of the materials available on record, this
court is also of considered opinion that no substantial question of law is involved
in this second appeal and accordingly the second appeal is dismissed at the
admission stage itself.
JUDGE
Comparing Assistant
