Gauhati High Court
RSA/61/2025 on 4 August, 2025
GAHC010263742024
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
RSA No. 61/2025.
1. Syed Eusufor Rahman,
S/o Late Mahamud Ali,
Vill. - Bamungaon,
Mouza - Pubpar,
P.S. - Kamalpur,
Dist. Kamrup, Assam,
PIN - 781366.
2. Syed Musafar Rahman,
S/o Late Mahamud Ali,
Vill. - Bamungaon,
Mouza - Pubpar,
P.S. - Kamalpur,
Dist. Kamrup, Assam,
PIN - 781366.
3. Syed Maniruddin Ahmed,
S/o Late Mahamud Ali,
Vill. - Bamungaon,
Mouza - Pubpar,
P.S. - Kamalpur,
Dist. Kamrup, Assam,
PIN - 781366.
4. Syed Abdul Mannan,
S/o Late Mahamud Ali,
Vill. - Bamungaon,
Mouza - Pubpar,
P.S. - Kamalpur,
Page 1 of 20
Dist. Kamrup, Assam,
PIN - 781366.
5. Syed Salimuddin Ahmed,
S/o Late Mahamud Ali,
Vill. - Bamungaon,
Mouza - Pubpar,
P.S. - Kamalpur,
Dist. Kamrup, Assam,
PIN - 781366.
...... Appellants.
-Versus-
1. Syeda Runuma Begum,
W/o Syed Tazul Islam,
D/o Late Jamir Uddin Ahmed,
Vill. - Bamungaon,
Mouza - Pubpar,
P.S. - Kamalpur,
Dist. Kamrup, Assam,
PIN - 781366.
2. Syed Tazul Islam,
S/o Syed Mamtaz Ali,
Vill. - Baedol (Balabari),
P.S. - Rangia,
Dist. Kamrup, Assam,
PIN - 781366.
(Presently residing at Vill. - Bamungaon, Mouza - Pubpar, P.S. - Kamalpur,
Dist. Kamrup, Assam, PIN - 781366)
...... Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellants :- Mr. B.K. Bhagawati.
Advocate for the respondents :- Mr. P. Sarmah.
Date of Hearing :- 21.07.2025.
Date of Judgment & Order :- 04.08.2025.
Page 2 of 20
JUDGEMENT & ORDER (CAV)
Heard Mr. B.K. Bhagawati, learned counsel for the appellants
and Mr. P. Sarmah, learned counsel for the respondents.
2. In this appeal, under Section 100 of the CPC, the appellants
have put to challenge the correctness or otherwise of the judgment
dated 09.07.2024, along with decree dated 14.08.2024, passed by
the learned Additional District Judge, Rangia (first appellate court
hereinafter), in Title Appeal No. 06/2015.
2.1. It is to be noted here that vide impugned judgment dated
09.07.2024 and decree dated 14.08.2024, the learned first appellate
Court had dismissed the appeal preferred by the appellants against
the judgment dated 11.08.2015 and decree dated 18.08.2015,
passed by the learned Civil Judge, Kamrup (Amingaon) (trial court
hereinafter) in Title Suit No. 148/2014.
3. For the sake of convenience and also to avoid confusion, the
parties herein this appeal, are referred to, in the same status, as
they appeared in the title suit.
Background Facts:-
4. The background facts, leading to filing of the present appeal,
are adumbrated herein below:-
"The appellants, as plaintiffs had instituted a title suit, being
Title Suit No. 148/2014, before the learned trial Court for
declaration of right, title, interest, ejectment, recovery of
possession and permanent injunction.
At first, the case was instituted in the Court of learned
Civil Judge No. 3, Kamrup (Guwahati) and thereafter, it was
transferred to the Court of learned Civil Judge, Kamrup
(Amingaon).
The case of the plaintiffs is that their father was the
absolute owner and possessor of a plot of land measuring 3
kathas 17 lechas situated at village Bamungaon, covered by
Patta No. 79 and Dag No. 1258, as described in the Schedule
„A‟ of the plaint.
It is the pleaded case of the plaintiffs that their father
had purchased the aforesaid plot of land about 50 years back
and they had been residing in the said plot of land by
constructing a house and after the death of their father, the
entire plot of land was mutated in the name of the plaintiff
No. 1 for and on behalf of all the legal heirs of Late
Mahamood Ali. However, dispute arose relating to 1 katha 18
lechas of land in the said Dag and Patta, which their father
had purchased from Tamizuddin Ali and the same is the suit
land as described in the Schedule „B‟ of the plaint.
Further pleaded case of the plaintiffs is that their father,
during his lifetime, had allowed his younger brother,
Jamiruddin Ahmed (since deceased) to stay in one part of
the suit land, measuring about 18 lechas and Late
Jamiruddin Ahmed was the permissive occupier in respect of
the suit land, now occupied by the defendants as described
in the Schedule „B‟ and after his death both the defendants
continued to live in the same house standing on the suit land
in which the father of the defendant No. 1 used to live
during his lifetime free of cost.
Further pleaded case of the plaintiffs is that their father
allowed the father of the defendant No. 1, to occupy the
house as permissive occupier on the condition that Late
Jamiruddin Ahmed would vacate the same as and when the
same is required by Late Mahamod Ali. But, when the
plaintiffs asked the defendants to vacate the suit land and
the house, the defendants refused to do the same. Then, in
the month of February, 2007, the defendants took an
attempt to occupy the land measuring about 1 katha which is
part of Schedule „A‟ land forcefully and to that regard, the
plaintiff No. 1 filed an application, under Sections 145/146
Cr.P.C. and upon the same, Misc. Case No. 38M/2007 was
registered in the court of learned Executive Magistrate,
Rangia and the said case is still pending for disposal.
Thereafter, on 07.08.2009, the plaintiffs received one
notice in Misc case No. 1/2007-08 from the Court of learned
Sub-Divisional Officer (Civil), Rangia for cancellation of the
name of plaintiff No. 1 from the land measuring 3 kathas 17
lechas and the plaintiffs‟ right, title and interest over the
schedule land has been clouded and therefore, they
approached the learned trial Court by filing the said title suit.
The defendants had contested the suit by filing written
statement, wherein they have taken a stand that the suit is
bad for non-joinder of necessary parties as the pattadar of
the suit patta are not made party and that Late Jamiruddin
Ahmed used to reside and possess a plot of land measuring
1 katha 18 lechas covered by Dag No. 1258 of K.P. Patta No.
79 of village Bamungaon, under certain terms and conditions
with the original pattadar, Late Hasar Ali in the year 1983
and since then, the predecessor-in-interest of the defendant
used to reside in the said plot of land by constructing an
Assam Type house without any disturbance from any corner
till 29.08.2008. Then, on 29.08.2008, the legal heir of Late
Hasar Ali, Mohd. Tameez Ali, executed a registered sale
deed, vide Registered Sale Deed No. 1708, dated
29.08.2008, in favour of defendant No. 1 for 1 katha 18
lechas 11 poa of land covered by Dag No. 1258 of K.P. Patta
No. 79 of village Bamungaon.
Further pleaded case of the defendants is that the
plaintiff No. 1 by misleading the then Circle Officer, Kamalpur
Revenue Circle mutated his name over the entire plot of land
belonging to Late Hasar Ali and the said chitha mutation was
granted on 29.06.1999, without having any possession over
the land and subsequently, the learned Sub-Divisional
Magistrate, Rangia, vide a Misc. Case No. 1/2007-08 under
Section 115 and 116 of the CPC read with Section 151 of
Assam Land Revenue Regulation Act, 1886 cancelled and set
aside the said chitha mutation, dated 29.06.1999, vide its
order dated 31.03.2010. Accordingly, the said order was
recorded in Dag Chitha on 04.11.2010. They have denied the
plaintiff or the predecessor-in-interest of the plaintiffs of
having any right, title, interest and possession over the suit
land. They have also denied that Late Mahamood Ali, father
of the plaintiffs had purchased the Schedule A plot of land
individually or jointly with Late Jamiruddin Ahmed by
registering a sale deed executed by the original landlord.
Upon the aforementioned pleadings, made by the parties,
the learned trial Court had framed following issues:-
'(1) Whether there is any cause of action for
the suit?
(2) Whether the suit is bad for non-joinder of
necessary parties?
(3) Whether the plaintiffs have right, title
and interest over A schedule land?
(4) Whether Jamiruddin Ahmed (since deceased),
the father of the defendant No. 1 was the
permissive occupier of the plaintiffs in
respect of B schedule land?
(5) Whether the plaintiffs are entitled to a
decree for ejectment of the defendants
from B schedule property?
(6) Whether the plaintiffs are entitled to a
decree for recovery of possession of the
suit land?
(7) Whether the plaintiffs are entitled to a
decree as prayed for or any other reliefs
the parties are entitled to?'
Thereafter, taking the evidence adduced by the parties
and after hearing both the parties, the learned trial court,
vide judgment and decree dated 11.08.2015, had dismissed
the suit of the plaintiffs with cost.
Then, being aggrieved, the plaintiffs filed an appeal,
being Title Appeal No. 06/2015, under Section 96 read with
Order 41 Rule 1 of the CPC and thereafter, hearing both the
parties, the learned first appellate Court had dismissed the
title appeal vide impugned judgment dated 09.07.2024 and
thereby, affirmed the finding of the learned trial Court."
Submissions:-
5. Mr. Bhagawati, learned counsel for the appellants submits that
the learned trial Court in the judgment, dated 11.08.2015, had
recorded a finding that the plaintiffs did not exhibit any document
and in the appendix of the aforesaid judgment also, it has
mentioned plaintiffs‟ exhibits as nil. Mr. Bhagawati producing the
certified copy of evidence-in-affidavit filed by the plaintiffs submits
that in the said affidavit, the plaintiffs have exhibited the copy of
Jamabandi of Schedule A land as Exhibit - 1; the copy of revenue
payment receipt as Exhibit - 2; and the copy of mutation notice as
Exhibit - 3. But, the learned trial Court as well as the learned first
appellate Court had failed to take into account of the same and also
failed to take into account that the vendor of the defendant had no
saleable right and as such, on the strength of Exhibit - „C‟, they
cannot claim any right. Mr. Bhagawati further submits that even it is
accepted that the plaintiffs had exhibited no documents, yet, from
the documents exhibited by the defendants as Exhibit - A, B & C,
the claim of the plaintiffs stands established.
5.1. Further, Mr. Bhagawati submits that this appeal is preferred
suggesting following substantial questions of law :-
‚(a) Whether the findings of the learned courts
below are perverse on account of non-
appreciation of the materials on record in its
proper perspective?
(b) Whether the findings of the learned courts
below on the basis and consideration of the
Exhibit - A, B and C are sustainable in law
since the said exhibits/documents were neither
filed by the defendants along with their
written statement nor any leave of the court
was obtained while exhibiting the same as
required under Order VIII of the CPC?
(c) Whether the Exhibit - C, i.e. the Sale Deed
can confer right and title in favour of the
defendants in absence of saleable right of the
vendor of Exhibit - C and absence of entry of
his name in the record of rights and title
documents at the time of execution of Exhibit
- C? and
(d) Whether the decision of the learned courts
below is sustainable in law given that the
learned courts below relied upon the entry in
the Jamabandi (Exhibit - B) in favour of the
defendants, but failed to appreciate and
consider the entry available in the Exhibit -
B in favour of the plaintiffs?‛
5.2. Therefore, Mr. Bhagawati has contended to admit this appeal
on the aforementioned substantial questions of law and to call for
the record and to decide the same after hearing both the parties.
6. On the other hand, Mr. Sarmah, learned counsel for the
respondents submits that though the plaintiffs in their evidence-in-
affidavit have marked three exhibits, yet, the said documents were
never produced before the court and that the record also does
indicate so and that the plaintiffs cannot rely upon the strength or
weakness of the case of the defendants. Mr. Sarmah further submits
that as the plaintiffs have failed to produce any documents before
the court to establish its case, the learned courts below had rightly
dismissed the suit of the plaintiffs and as such, no substantial
questions of law, as suggested by the learned counsel for the
appellants involved here in this appeal and therefore, it is contended
to dismiss the same.
Consideration of this Court :-
7. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the memo of appeal as well
as the grounds mentioned therein and also gone through the
judgment dated 09.07.2024, passed by the learned first appellate
Court and also the judgment dated 11.08.2015, passed by the
learned trial Court.
8. It appears from the judgment of the learned trial Court that
while dealing with issue No. 3, i.e. whether the plaintiffs have right,
title and interest over the Schedule A land, the learned trial Court
had found that though the plaintiffs in their plaint as well as in their
evidence has claimed that their father, Late Mahmud Ali was the
owner and possessor of the Schedule A land and had purchased the
same about 50 years back and had been in occupation of the entire
Schedule A land and also using the same for residential purpose and
that their father purchased the Schedule B land from Tamizuddin
and to buttress their claim, the plaintiffs had examined 4 witnesses,
but on perusal of the cross-examination of PW1, Syed Musafar
Rahman it is found that he contradicted the content of the plaint by
stating that their elder brother, Eusufur Rahman purchased the suit
land from one Tazul Islam and he admitted that there is no sale
deed in respect of the Schedule „A‟ land. Similarly PW2, Syed
Salimuddin Ahmed also admitted that the name of their father is not
in the patta, but, his elder brother, Eusufur Rahman's name is there
in the suit patta and that the actual owner Tamizuddin did not
execute any sale deed in favour of Eusufur Rahman.
8.1. Thereafter, discussing Section 54 of the Transfer of Property
Act, 1882, the learned trial Court had held that a sale deed is
required to be stamped and registered under Section 54 of the said
Act and under Section 17 of the Indian Registration Act when the
value of the immovable property is above Rs. 100/-, before it can
confer a valid title upon the vendee. After that, it had found that the
plaintiffs had failed to show as to how they have procured title over
the Schedule A land from its original owner and on the contrary the
plaintiffs witnesses as discussed above, clearly stated that no sale
deed has been executed in respect of the Schedule „A‟ land with its
original owner, Tamizuddin.
9. Further, the learned trial Court had observed that the
defendants, on the other hand, have claimed that the defendant No.
1 had purchased the Schedule „B‟ land from its original owner,
Tamizuddin by executing a registered deed, vide Sale Deed No.
1708/08 on 29.08.2008. In respect of the said claim, the defendants
adduced their evidence, wherein the DW1, Syeda Runuma Begum
stated that her father has been possessing the suit land since 1983
under certain terms and conditions with the original pattadar, Late
Hasar Ali and in the year 2008, she purchased the suit land from its
original owner, Tamizuddin vide registered Sale Deed No. 1708/08
and she also exhibited the sale deed, as Exhibit -„C‟. As per the said
exhibit, it is clear that the original owner, Tamizuddin Ali had sold
the suit land to defendant No. 1 on 29.08.2008. The DW-3 also
supported the evidence of DW1.
9.1. On the basis of the aforesaid evidence, both oral as well as
documentary, the learned trial court had observed that in absence
of any valid sale deed, in respect of the Schedule „A‟ land, the
plaintiffs could not prove their right, title and interest over the suit
land. But, on the contrary, the defendant No. 1 had purchased the
suit land from its owner by duly executing a registered sale deed
and therefore, she has right, title and interest over the suit land.
10. It also appears that the learned trial court while discussing the
issue No. 4, i.e. whether Jamiruddin Ahmed (since deceased), the
father of the defendant No. 1 was the permissive occupier of the
plaintiffs in respect of the Schedule „B‟ land, had arrived at the
finding that the plaintiffs have no right, title and interest over the
Schedule A land and it is an admitted fact that Schedule „B‟ land is a
part of the Schedule „A‟ land and as such, the plaintiffs themselves
have no right, title and interest over the Schedule „A‟ land and as
such, the question of the defendant No. 1's father, Late Jamiruddin
Ahmed being the permissive occupier of the Schedule B land under
the plaintiffs does not arise at all.
11. The learned first appellate Court had also affirmed the finding,
so recorded by the learned trial Court, in respect of the issue No. 3
corresponding to issue No. 1 and had observed that the plaintiffs
have failed to trace out title as to how they have acquired right, title
and interest over the Schedule „A‟ land.
11.1. In respect of the issue No. 4 corresponding to issue No. 2,
the learned first appellate Court had observed that in view of the
finding of the issue No. 1, that the plaintiffs have no right, title and
interest over the Schedule „B‟ land, which is a part of Schedule „A‟
land and on the contrary, it was proved that the defendant No. 1
had purchased the Schedule „B‟ land from Tamijuddin Ali, vide
registered sale deed (Exhibit -„C‟) as Tamijuddin Ali was the
recorded pattadar of the suit land, which is proved by the DW-1,
vide Exhibit - „F‟, Haat Chitha and nowhere, the plaintiffs could be
able to establish that Jamir Uddin was the permissive occupier of
the Schedule „B‟ land. Rather from the cross-examination of PW-3, it
appears that during the lifetime of Jamir Uddin and after his death
Runuma Begum continuously possessing in a home situated in the
disputed land.
12. That, perusal of the judgment of learned trial Court, dated
11.08.2015, indicates that the plaintiffs did not exhibit any
document as the appendix of the aforesaid judgment indicates the
plaintiffs‟ exhibits as nil. Though, the certified copy of evidence-in-
affidavit filed by the plaintiffs that has been produced before this
Court by Mr. Bhagawati indicates that the plaintiffs had marked the
copy of Jamabandi of Schedule „A‟ land as Exhibit - 1; the copy of
revenue payment receipt as Exhibit - 2; and the copy of mutation
notice as Exhibit - 3, yet the same were never produced and
exhibited before the learned trial Court. The learned counsel for the
respondents has rightly pointed this out during hearing.
13. Though Mr. Bhagawati submits that even if it is accepted that
the plaintiffs had exhibited no documents, yet, from the documents
exhibited by the defendants as Exhibit - A, B & C, the claim of the
plaintiffs stands established, Mr. Sharmah has contoverted the said
contention and submitted that the plaintiffs cannot rely upon the
strength or weakness of the case of the defendants. There appears
to be substance in the submission of Mr. Sharmah, as because it is
well settled in the case of Union of India & Ors. vs. Vasavi
Co-Op. Housing Society, reported in (2014) 2 SCC 269,
wherein Hon‟ble Supreme Court dealing with the burden of proof, in
establishing right, title, interest and possession of suit property held
as under:-
14. At the outset, let us examine the legal
position with regard to whom the burden of proof
lies in a suit for declaration of title and
possession. This Court in Maran Mar Basselios
Catholicos v. Thukalan Paulo Avira reported in
AIR1959 SC 31 observed that ‚in a suit for
declaration if the plaintiffs are to succeed,
they must do so on the strength of their own
title.‛ In Nagar Palika, Jind v. Jagat Singh,
Advocate (1995) 3 SCC 426, this Court held as
under:-
‚the onus to prove title to the property
in question was on the plaintiff. In a
suit for ejectment based on title it was
incumbent on the part of the court of
appeal first to record a finding on the
claim of title to the suit land made on
behalf of the plaintiff. The court is
bound to enquire or investigate that
question first before going into any
other question that may arise in a suit.‛
15. The legal position, therefore, is clear that
the plaintiff in a suit for declaration of title
and possession could succeed only on the
strength of its own title and that could be done
only by adducing sufficient evidence to
discharge the onus on it, irrespective of the
question whether the defendants have proved
their case or not. We are of the view that even
if the title set up by the defendants is found
against, in the absence of establishment of
plaintiff's own title, plaintiff must be non-
suited.‛
14. In the instant case, the plaintiffs had failed to prove any
documents so as to establish the right, title and interest over the
suit land. And in that view of the matter, it cannot be accepted that
the plaintiffs have succeeded in discharging its burden. Thus, no
fault can be found with the finding of the learned trial Court as well
as the learned first appellate Court.
15. The submission of Mr. Bhagawati, the learned counsel for the
appellants that the learned Courts below had failed to take into
account that the vendor of the defendant had no saleable right and
as such, on the strength of Exhibit - „C‟, they cannot claim any right,
also left this court unimpressed in as much as the same had never
been raised before any of the learned Courts below. Moreover, this
is a question of fact and to deal with the same the evidence has to
be appreciated and sitting in second appeal, this court is not entitled
to re-appreciate the evidence. Reference in this context can be
made to the following decisions of Hon‟ble Supreme Court :-
(i)Santosh Hazari v. Purushottam Tiwari reported
in (2001) 3 SCC 179, wherein a three-Judge Bench
of Hon'ble Supreme Court has delineated the
scope of Section 100 CPC. The Court observed
that an obligation is cast on the appellant to
precisely state in the memorandum of appeal the
substantial question of law involved in the
appeal and which the appellant proposes to urge
before the Court. In the said judgment, it was
further mentioned that the High Court must be
satisfied that a substantial question of law is
involved in the case and such question has then
to be formulated by the High Court. According to
the Court the word substantial, as qualifying
'question of law', means--of having substance,
essential, real, of sound worth, important or
considerable. It is to be understood as
something in contradistinction with--technical,
of no substance or consequence, or academic
merely. However, it is clear that the
legislature has chosen not to qualify the scope
of 'substantial question of law' by suffixing
the words 'of general importance' as has been
done in many other provisions such as Section
109 of the Code and Article 133(1)(a) of the
Constitution.
(ii) In Kamti Devi v. Poshi Ram, reported in
(2001) 5 SCC 311 Hon'ble Supreme Court has came
to the conclusion that the finding thus reached
by the first appellate court cannot be
interfered with in a second appeal as no
substantial question of law would have flowed
out of such a finding.
(iii) In Thiagarajan v. Venugopalaswamy B. Koil
reported in (2004) 5 SCC 762, Hon'ble Supreme
Court has held that the High Court in its
jurisdiction under Section 100 CPC was not
justified in interfering with the findings of
fact. The Court observed that to say the least
the approach of the High Court was not proper.
It is the obligation of the courts of law to
further the clear intendment of the legislature
and not frustrate it by excluding the same. This
Court in a catena of decisions held that where
findings of fact by the lower appellate court
are based on evidence, the High Court in second
appeal cannot substitute its own findings on
reappreciation of evidence merely on the ground
that another view was possible.
(iv) Again, in the case of State of
Kerala v. Mohd. Kunhi reported in (2005) 10 SCC
139, Hon'ble Supreme Court has reiterated the
same principle that the High Court is not
justified in interfering with the concurrent
findings of fact. This Court observed that, in
doing so, the High Court has gone beyond the
scope of Section 100 of the Code of Civil
Procedure.
(v) In Madhavan Nair v. Bhaskar Pillai reported
in (2005) 10 SCC 553, Hon'ble Supreme Court has
observed that the High Court was not justified
in interfering with the concurrent findings of
fact. This Court observed that it is well
settled that even if the first appellate court
commits an error in recording a finding of fact,
that itself will not be a ground for the High
Court to upset the same.
(vi) In Chandrika Singh v. Sarjug Singh reported
in (2006) 12 SCC 49, Hon'ble Supreme Court has
again reiterated the legal position that the
High Court under Section 100 CPC has limited
jurisdiction. To deal with cases having a
substantial question of law, this Court observed
as under:
‚12. ... While exercising its jurisdiction
under Section 100 of the Code of Civil
Procedure, the High Court is required to
formulate a substantial question of law
in relation to a finding of fact. The
High Court exercises a limited
jurisdiction in that behalf. Ordinarily
unless there exists a sufficient and
cogent reason, the findings of fact
arrived at by the courts below are
binding on the High Court.‛
16. Besides, there is concurrent finding of facts by both the
learned courts below. And in view of the concurrent finding of facts
by the learned trial court as well as by the learned first appellate
court and also considering the submissions of learned counsel for
both the parties, this court is of the view that no substantial
question of law as suggested by the learned counsel for the
appellants, flows out from the impugned judgments and decrees, so
passed by the learned courts below. All the suggested substantial
questions of law appears to be a pure questions of facts and as held
herein above, sitting in second appeal, this court is not entitled to
re-appreciate the facts and reverse the finding of the learned trial
court as well as the learned first appellate court. It is well settled
that concurrent finding of facts are binding upon this court.
17. In the result, I find no substantial question of law as
suggested by the learned counsel for the appellants is involved in
this appeal and accordingly, the same stands dismissed.
JUDGE
Comparing Assistant
