Page No.# 1/16 vs On The Death Of Mirza Beg His Legal Heirs ...
2025 Latest Caselaw 4699 Gua

Gauhati High Court

Page No.# 1/16 vs On The Death Of Mirza Beg His Legal Heirs ... on 20 August, 2025

                                                              Page No.# 1/16

GAHC010162372008




                                                         2025:GAU-AS:11114

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

                         Case No. : RSA/139/2008

         DHARMESWAR SAIKIA
         S/O LT. MOUA SAIKIA, SAAIMORIA GAON, PO. MAUT GAON, CHARIGAON
         MOUZA, JORHAT-1, DIST. JORHAT.



         VERSUS

         ON THE DEATH OF MIRZA BEG HIS LEGAL HEIRS AND ORS
         REPRESENTED BY-

         1.1:SRI RAJA BEG
          S/O LATE MIRZA BEG

         1.2:MRS FARIDA BEG
          D/O LATE MIRZA BEG
         R/O CHARAIMORIA
          CHARIGAON MOUZA
          JORHAT
          DIST. JORHAT

         1.3:MAFIDA BEG CHOUDHURY
          D/O LATE MIRZA BEG
         R/O CHARAIMORIA
          CHARIGAON MOUZA
          JORHAT
          DIST. JORHAT

         1.4:WAZIDA BEG
          D/O LATE MIRZA BEG
         R/O CHARAIMORIA
          CHARIGAON MOUZA
          JORHAT
          DIST. JORHAT
                                                        Page No.# 2/16


2:ON THE DEATH OF AMZER BEG HIS LEGAL HEIRS
 REPRESENTED BY-

2.1:SMTI DEVINA BEGG
 D/O LATE AMZER BEGG
 R/O CHARIMORIA
 CHARIGAON MOUZA
 JORHAT
 DIST-JORHAT
ASSAM
 PIN-785108

2.2:SMTI MINA BEGG
W/O LATE AMZER BEGG
 R/O CHARIMORIA
 CHARIGAON MOUZA
 JORHAT
 DIST-JORHAT
ASSAM
 PIN-

3:MUSTT. ELIZABETH BEG


4:ON THE DEATH OF RESPONDENT NO 4. (EMI BEG) HIS LEGAL HEIRS

REPRESENTED BY-

4.1:SOMIUL BEGG S/O LATE EMI BEG RESIDENT OF CHARAIMORIA CHARIGAON MOUZA JORHAT DISTRICT JORHAT ASSAM

4.2:JOMIUL BEGG S/O LATE EMI BEG RESIDENT OF CHARAIMORIA CHARIGAON MOUZA JORHAT DISTRICT JORHAT ASSAM

4.3:ROBIUL BEGG S/O LATE EMI BEG RESIDENT OF CHARAIMORIA CHARIGAON MOUZA JORHAT DISTRICT JORHAT ASSAM Page No.# 3/16

4.4:JAKARIA BEGG S/O LATE EMI BEG RESIDENT OF CHARAIMORIA CHARIGAON MOUZA JORHAT DISTRICT JORHAT ASSAM

5:BELZER BEG

6:SELZER BEG ALL ARE SONS AND DAUGHTERS OF LATE GEORGE BEG R/O CHARAIMORIA CHARIGAON MOUZA JORHAT DIST. JORHA

Advocate for the Petitioner : D C MAHANTA, MR.B GOSWAMI,MR P BHATTACHARYA,MS.T J MAHANTA,MR. T J MAHANTA,MR. B GOSWAMI,MS. P BHATTACHARYA

Advocate for the Respondent : MR. B ULLAH, MS.K ALI,MR. R J BORDOLOI ((R1(I), R1(II), R1(III),R5, R6),MR. R ALI (R1(I), R1(II), R1(III),R5, R6),MS. D SONOWAL ((R1(I), R1(II), R1(III),R5, R6),MD. K ALI,MR. R BORDOLOI

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

JUDGEMENT AND ORDER (CAV)

Date : 20-08-2025

The appellant in this case is Sri Dharmeswar Saikia and the respondent No. 1 in this case are :-

1 (i) Sri Raja Beg,

1 (ii) Mrs. Farida Beg,

1 (iii) Mafida Beg Choudhury and

1 (iv) Wajzda Beg.

Page No.# 4/16

2. The respondent No. 2 at present are :-

2 (i) Smti Devina Begg and

2 (ii) Smti Mina Begg.

3. The respondent No. 3 is Musst. Elizabeth Beg. The respondent No. 4 are :-

4 (i) Somiul Begg,

4 (ii) Jomiul Begg,

4 (iii) Robiul Begg and

4 (iv) Jakariya Begg, whereas the respondent No. 5 and 6 are Belzer Beg and Selzer Beg, respectively.

4. On death of respondent No. 1 Mirza Beg, his legal heirs have been impleaded, on death of respondent No. 2 Amzer Beg, his legal heirs have been impleaded and on death of respondent No. 4 Emi Beg, the legal heirs of respondent No. 4 have been impleaded as respondents in this appeal.

5. The substantial questions of law framed in this appeal are :-

"i) Whether the learned Lower Appellate Court erred in passing the impugned decree of reversal holding the appellant-plaintiff's suit to be neither maintainable in law nor in time in view of section 154 of the Assam Land and Revenue Regulation, 1886 and Article 65 of the Limitation Act, 1963?

ii) Whether the learned Lower Appellate Court erred in dismissing the suit of the appellant-plaintiff by misconstruing the import of the judgment and decree dated 23.07.1969 in T.S. No. 64/1962 and by disregarding other materials on record?"

6. The genesis of the case was that a title suit being T.S. No. 20/2006 was brought up by the appellant as plaintiff. Sri Dharmeswar Bora, S/O Late Mona Saikia (Bora), brought up this title suit against Musst. Mariam Beg, W/O Late George Beg, Mirza Beg, Amzar Beg, Musst.

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Elizabeth Beg, Emi Beg, Sri Belzer Beg and Sri Selzer, all sons and daughters of Late George Beg, as defendants. Sri Ajit Saikia, Sri Pradip Saikia, both sons of Niren Saikia, Smt Konmai Saikia, W/O Late Niren Saikia, Smt. Chenimai Bora, D/O Mona Saikia, Smt. Gunomai Bora, D/O Sri Mona Saikia, Sri Simanta Saikia, S/O Late Padma Saikia and Smt. Anu Saikia, S/O Late Padma Saikia and the S.D.C. of Jorhat East Circle, were arrayed as proforma defendants No. 8 to 15. The appellant will be referred to as the plaintiff whose suit was decreed by the Trial Court and the respondents (defendants hereinafter) preferred an appeal which was allowed by the Appellate Court.

7. The plaintiff and the proforma defendants No. 11 to 14 are the legal heirs of Late Mona Saikia, who purchased a parcel of land admeasuring 1 Bigha 2 Katha 2 ½ Lechas, appertaining to Dag No. 696, 698 and PP No. 159, situated at Maut Gaon, under Charigaon Mauza in the district of Jorhat, from Smt. Phaguni Chutia (since deceased). The land described under Schedule A of the plaint is the aforementioned land. A registered Sale Deed No. 4235/3708 was executed before the Sub-Registrar, Jorhat on 25.08.1971.

8. Before executing the Sale Deed dated 25.08.1971, Phaguni Chutia instituted a title suit being T.S. No. 64/62 before the Court of the Munsiff at Jorhat against Sri Niren Saikia, Smt. Sadari Saikia, Mona Saikia and Lomthai Kalita, claiming half of her share of the land ad measuring 2 Bighas 4 Kathas 5 Lechas of the same aforesaid PP No. 159 (Old PP No. 404) and Dag No. 696 (Old Dag No. 65). The suit was decreed against the defendants Niren Saikia and others, vide judgment and decree dated 23.07.1969 in T.S. No. 64/62, declaring right, title and interest of Phaguni Chutia over half of the share of the aforementioned land. It was also directed that Phaguni Chutia will be in joint possession of her share along with defendants No. 1, 2 and 3.

9. Phaguni Chutia and Sadari Chutia are sisters, and daughters of Late Kon Chutia, who had no male issue. Sadari Chutia erroneously sold the entire land to Lomthai Kalita @ Nitai on 11.01.1951, who in turn sold the land to Niren Saikia, defendant No. 1 of Title Suit No. 64/62 on 04.06.1956. Phaguni Chutia never sold her share of land either to Lomthai or Niren Saikia and hence, she instituted the Title Suit No. 64/62, claiming her half share of the entire land appertaining to P.P. No. 159 under Dag No. 696 and 698.

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10. It is contended that during the pendency of Title Suit No. 64/62, Niren Saikia, defendant No. 1 of T.S. No. 64/62 surreptitiously executed a Sale Deed and transferred the entire land measuring 1 Bigha 3 Kathas and 13 Lechas under Dag No. 698 of P.P. No. 159 to George Beg, without informing the owner Phaguni Chutia or without informing the Court. The Sale Deed is thus liable to be cancelled as Niren Saikia had no right, title over the half of the share of the land as per the judgment by the learned Court of Munisff, Jorhat in Title Suit No. 64/62. However, on the strength of the illegal transfer deed, George Beg mutated his name as per Order of Chitha Mutation, and separate Patta No. 627 was made illegally as per order passed in Chitha dated 18.10.1965 by the concerned S.D.C., proforma defendant No. 15. The mutation order was passed illegally, and notice was not issued to the co-pattadar at the time of passing the order of Mutation and Partition and as such, the order of Chitha Mutation and order of Partition dated 18.10.1965, is liable to be declared as illegal and inoperative in law as the learned S.D.C. has no jurisdiction to pass an order of Partition without notices to co- pattadars.

11. Phalguni's title as joint pattadar was confirmed by the decree in T.S. 62/64.

12. It is further submitted that Mona Saikia, the plaintiff's father, after purchasing the suit land from Phaguni Chutia, took possession of the suit land, but after the death of Mona Saikia, a portion of the land measuring 4 Kathas 6 ½ Lechas under Dag No. 698 of P.P. No. 159 was illegally occupied by the defendants since 15.10.1980 and the defendants' father constructed a pucca building, taking advantage of the absence of plaintiff. The aforementioned land alleged to be illegally occupied by the defendants, is specifically described in Schedule B of the plaint and this Schedule B of the plaint, will be referred to as the suit land.

13. It is further submitted that the parcel of land measuring 1 Bigha 12 Lechas under Dag No. 696 was inherited by the plaintiff's mother Smt. Sadari Chutia and by Phaguni Chutia. Thereafter, plaintiff's father Mona Saikia inherited the suit land and the name of Mona Saikia was mutated as per the order passed by the S.D.C. in M.C. Case No. 512/76-77 dated 05.12.1978. After the death of Mona Saikia, plaintiff and his brother's name Padma Saikia, were mutated as per order of Chitha mutation dated 11.02.1994.

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14. It is alleged that the defendants forcefully occupied the suit land shown in the Schedule of the plaint. The front portion of the suit land is vacant with some bamboo and mango trees standing thereon along with an old pond since the time of the original pattadar Kon Chutia. The Patta No. 627 was illegally prepared at the instance of defendants' father Late George Beg during his lifetime on the strength of the transfer Deed allegedly executed by Niren Saikia, husband of the proforma defendant No. 10, during the pendency of Title Suit No. 64/1962. The share of half of the land alleged to have been purchased by George Beg from Sri Niren Saikia, rightfully belongs to Late Phaguni Chutia, whose right and title has been declared as per judgment passed in Title Suit No. 64/1962.

15. It is further contended that the present defendants have no right, title over the suit land and the Patta No. 627 issued in their favour, is also liable to be declared as void ab initio and the Patta No. 627 is to be cancelled.

16. It is further submitted that the plaintiff being the eldest son of Late Mona Saikia, who legally purchased the suit land from Late Phaguni Chutia, who had right, title and interest over the suit land as per judgment and decree passed by the learned Court of Munsiff, Jorhat in Title Suit No. 64/1962, is the rightful owner of the suit land. It is further submitted that the Mutation and Partition order passed by the S.D.C. on 18.10.1965 whereby a separate Patta No. 627 was issued from the original Patta No. 159, is liable to be declared as non-operative in law. The cause of action according to the plaintiff arose on 23.07.1969, the date on which the judgment in Title Suit No. 64/1962 was passed and subsequently on 25.08.1971, the date on which the plaintiff's father purchased the suit land by executing registered Sale Deed, and so on and so forth.

17. Per contra, defendants No. 2 to 7 as well as defendants No. 8 to 9 have filed written statements. In addition, defendants No. 2 to 7 also filed additional written statement, taking a stance that the suit being in respect of partition granted under the provisions of the Assam Land & Revenue Regulation, 1886, is barred by Section 154 of the said Regulation. The plaintiff cannot challenge the partition in this Court. The defendant No. 1 Mariam Beg in the meanwhile passed away. The defendants have denied that Late Phaguni Chutia during her lifetime sold her share of land to Mona Saikia. It is contended that the predecessor-in-interest Page No.# 8/16

of the defendants purchased a parcel of land ad measuring 1 Bigha 3 Katha 13 Lechas on 06.02.1961 from Niren Saikia (since deceased). This transfer of land cannot be considered to be illegal. It is submitted that the sale was prior to institution of alleged Title Suit No. 64/1962.

18. It is contended by the defendants that the revenue records clearly depict that Late Mona Saikia purchased 1 Bigha 12 Kathas land appertaining to Dag No. 696 of PP No. 159 from Niren Saikia (since deceased). The defendants have stoutly denied that they have illegally occupied the suit land, as the suit land was under their exclusive possession since their predecessor-in-interest constructed the house over the suit land. It is admitted by the defendants that the names of plaintiff and Late Padma Sakia were mutated in respect of land covered by Dag No. 696.

19. It is contended that no part of the suit land is vacant, and the entire suit land has been in exclusive possession of the defendants. The defendants have also disputed the period of limitation challenging the Mutation and Partition, which is also beyond the jurisdiction of a Civil Court. The defendants have submitted that the issuance of PP No. 627 on partition was legal and valid. The defendants have prayed to dismiss the suit as they have been in continuous possession of the suit land since 1980.

20. The proforma defendants 8 and 9 stated through their written statement that their father Niren Saikia expired long back and they had no possession over the suit land. They also have no claim over the suit land.

21. I have considered the submissions at the Bar with circumspection.

22. Heard learned Senior Counsel Mr. T. J. Mahanta for the appellant and learned counsel Mr. R. Ali for the respondents.

23. The appellant is aggrieved by the reversal order. It is contended on behalf of the appellant that the First Appellate Court did not formulate the points for determination. It is also contended that the plaintiff's case is not barred by Section 154 of the Assam Land and Revenue Regulation 1886.

Page No.# 9/16

24. Raising this contention, learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Court in Manjula & Ors vs. Shyamsundar & Ors reported in (2022) 3 SCC 90, wherein it has been held and observed that:-

"8. Section 96 of the Civil Procedure Code, 1908 (for short "CPC") provides for filing of an appeal from the decree passed by a court of original jurisdiction Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:

(a) points for determination,

(b) the decision thereon;

(c) the reasons for the decision, and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment."

25. Reverting back to this case, it is held that the learned Appellate Court has painstakingly decided the matter on each issue. Issues are equivalent to points for determination. The nomenclature may not be similar but the issues between the parties to decide a particular case are the points that are taken up to determine the case. The learned Trial Court initially framed 6 (Six) issues and the Appellate Court delved into each and every issue. Rather, the Appellate Court elaborated on issue Nos. 5 & 6 in comparison to the decision of the learned Trial Court.

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26. The points for determination were taken up in the form of issues. Thus, it cannot be held that the decision suffers from any infirmity. Moreover, no substantial question of law was framed on this issue.

27. In view of my foregoing discussions, it is thereby held that in the instant case, it cannot be held that the learned Appellate Court did not comply with the requirements of Order XLI Rule 31 of the CPC, which led to the infirmity in the judgment.

28. Learned Senior counsel for the appellant/plaintiff laid stress in his argument that as the Sale Deed on the basis of which the plaintiff has claimed title, has not been challenged, the plaintiff has right, title and interest over the suit land.

29. Per contra, learned counsel for the respondents laid stress in his argument that the plaintiff is son of Sadari Chutia and the plaintiff, who is claiming inheritance right over the suit land, has not clearly shown how the plaintiff has become exclusive owner of the suit land.

30. At this juncture, it is germane to revert to the genesis of the case. Mona Saikia purchased a plot of land measuring 1 Bigha 2 Kathas 2 ½ Lechas covered by Dag Nos. 696 & 698 of P.P. No. 159 from Phaguni Chutia. Phaguni Chutia and her sister Sadari Chutia inherited 2 Bighas 4 Kathas 5 Lechas in Dag No. 696 of P.P. No. 159 from their mother Kon Chuta. Sadari Chutia sold the entire land to one Lamthai Kalita @ Nitai on 11.01.1951, which impelled her sister Phaguni Chutia to institute a Title Suit being T.S. No. 64/1962 to claim half of her share to the entire land alienated by Sadari Chuti i.e. plaintiffs' mother. Meanwhile, on 04.06.1956, Nitai sold the land to Niren Saikia and Niren Saikia was, thus, impleaded as principal defendant in T.S. No. 64/1962.

31. Learned Trial Court decreed the suit in favour of Phaguni Chutia, declaring her right over half of the share of the land, which was already sold by Sadari Chutia to Lamthai Kalita @ Nitai. The learned Court directed that Phaguni Chutia be handed over the possession of her share of the land along with the defendants Mariam Beg (since deceased), Mirza Beg (since deceased) and Amjar Beg (since deceased) as joint pattadars.

32. It has been claimed that during the pendency of T.S. No. 64/1962, Niren Saikia sold Page No.# 11/16

the suit land to Late George Beg, during his lifetime. George Beg got the land mutated in the record of rights and the suit land partitioned by the order of Revenue authorities. After obtaining the decree in T.S. No. 64/1962, Phaguni Chutia sold her share of land to Mona Saikia i.e. father of the plaintiff/appellant.

33. Now, the second substantial question of law is whether the learned Lower Appellate Court erred in dismissing the suit of the appellant-plaintiff by misconstruing the import of the judgment and decree dated 23.07.1969 in T.S. No. 64/1962 and by disregarding other materials on record.

34. According to the pleadings and evidence, vide judgment and order dated 23.07.1979 in T.S. No. 64/1962, one of the daughters of Kon Chutia, Smt. Phaguni Chutia obtained her right, title and share over half of the plot of land measuring 2 Bighas 4 Kathas 5 Lechas, which is equal to 1 Bigha 2 Kathas 2 ½ Lechas. This judgment was not challenged. Phaguni Chutia's sister Sadari Chutia prior to the decree, sold the entire plot of land to Lamthai Kalita @ Nitai on 11.01.1951. It was thereby held by the learned Trial Court that this Sale Deed was not valid, as without partition, Sadari Chutia had no right to sell the entire land inherited by Sadari Chutia as well as by Phaguni Chutia. This debars Nitai's right to sell the entire plot of land to Niren Saikia and thereafter, Niren Saikia's right to sell the land to Late George Beg, during his lifetime.

35. However, George Beg got the suit land partitioned by the order of Revenue authorities and his name mutated in the record of rights. However, it is in the evidence and the pleadings of the plaintiff that after the judgment and decree in T.S. No. 64/1962, Phaguni Chutia sold her share to Mona Saikia on 25.08.1971.

36. The respondents have disclosed through their pleadings and evidence that their predecessor-in-interest George Beg purchased the suit land from Niren Saikia on 06.01.1961 before institution of T.S. No. 64/1962. It is relating to this partition, the respondents have contended that the suit is barred under Section 154 of the Assam Land and Regulation, 1886. Regarding this issue, the substantial question of law No. (i) was framed that:

"(i) Whether the learned Lower Appellate Court erred in passing the impugned decree of Page No.# 12/16

reversal holding the appellant-plaintiff's suit to be neither maintainable in law nor in time in view of section 154 of the Assam Land and Revenue Regulation, 1886 and Article 65 of the Limitation Act, 1963?"

37. When the question of partition is raised, it is apparent that Sadari Chutia sold the entire land of Kon Chutia including Phaguni Chuta's share to Lamthai @ Nitai, who in turn sold the land to Niren Saikia, who in turn sold the same to George Beg, on 06.02.1961, vide registered Sale Deed, Exhibit -C.

38. Thereafter, Smt. Phaguni Chutia, by virtue of the judgment and decree in T.S. No. 64/1962, obtained her right over half of the share of the land, sold by Sadari to Nitai and then, Phaguni Chutia as well as George Beg had their share over half of the land i.e. 1 Bigha 2 Kathas 2 ½ Lechas, covered by Dag Nos. 696 and 698 of P.P. No. 159. George Beg got his part of land partitioned and the present appellant/plaintiff inherited the same as the T.S. No. 64/1962 has remained unchallenged. Phaguni Chutia's share has also remained unchallenged and thus, Mona Saikia and his predecessors have right, title and interest over half of the share of the land, originally belonging to Kon Chutia i.e. Phaguni Chutia's share.

39. By recapitulating the foregoing discussions, it can be deduced that Phaguni Chutia's share over her ancestral property has remained unchallenged. Indeed the entire ancestral property was illegally transferred by sale by Phaguni Chutia's sister Sadari Chutia (appellant's mother) to Lamthai, who in turn sold the land to Niren Saikia and Niren Saikia in his turn sold the land to George Beg. George Beg illegally got the land partitioned and this is the reason why the respondents have stated that now, a Civil Court cannot interfere with an order passed by the Revenue authorities, as the same is barred by Section 154 of the Assam Land and Revenue Regulation, 1886. It is apparent that the two siblings Sadari and Phaguni have inherited the entire land from their mother Kon Chutia. Sadari Chutia, who is also the plaintiff's mother sold the entire land to another person and finally, the land was purchased by the respondents' predecessor George Beg.

40. On the other hand, Sadari's sister Phaguni after obtaining a decree over half of the share in the aforementioned plot of land, sold the land to the appellant's father Mona Saikia, Page No.# 13/16

who is also Sadari Chutia's husband. This case thus gets entangled in knots. Now, it is clear that as T.S. No. 64/1962 has not been challenged, the appellant is indeed the owner of the property inherited from his father, which is half of the property of the siblings, Sadari and Phaguni. Without partition, Sadari had no right to sell the entire land to Lamthai and thus, when the land was finally transferred to George Beg as the last purchaser, George Beg was entitled only to half of the share of the property, which ought to have been equally divided between Phaguni and Sadari.

41. In the instant case, George Beg got his land mutated and a new Patta number was created as Patta No. 627 and this has been vehemently denied by the plaintiff. So far as Title Suit No. 64/62 is concerned, the plaintiff's father is the rightful owner of half of Phaguni Chutia's share out of the entire property measuring 2 Bighas 4 Kathas 5 Lechas. As the property has not been partitioned between both the sisters, now both the parties have staked their claim over a part of the property according to their own whims and fancies. This part of the property is the suit land. It has to be borne in mind that the decree is T.S. 64/62 clearly reflects that Phalguni had her share over half of the ancestor's property as co-pattadar.

42. At this juncture, it would be apt to refer to the decisions relied on by the learned counsel for the appellants.

43. Learned counsel for the appellant has relied on the decision of this Court in Urmila Bala Das vs. Bhubaneswar Das & Ors reported in 2002 (1) GLT 176 , wherein it has been held and observed that:-

" Regarding the first question there is no need to discuss it as a suit for declaration of title and injunction is never barred by section 154 (1) of the Assam Land and revenue Regulation. The second question also requires no discussion inasmuch the land Revenue Regulation has given a right to a person to cancel a mutation obtained illegally but that does not mean that the civil Court shall have no jurisdiction to give a declaration with regard to that That is what was prayed for by the plaintiff and the appellate Court rightly granted that prayer In view of that matter, there is no merit in this second appeal and the same shall stand dismissed. I leave the parties to bear their own costs."

44. The appellant has also relied on the decision of this Court in Daulatram Lakhani Page No.# 14/16

vs. The State of Assam & Ors reported in 1989 (1) GLR 131 , wherein it has been held and observed that:-

"22.From what has been stated above we would say that in a matter like the one at hand civil courts jurisdiction would not be barred in the following cases:

(1) when the order under Rule 18 is patently illegal or without jurisdiction; (2) where the remedy provided by the Regulation to adjudge the objection raised is not sufficient;

(3) where complicated questions relating to title are involved; or (4) where the plaintiff seeks declaration of his title over the land from which he is sought to be evicted.

23. As to points (3) and (4) above we would like to state that the assertion of title must be genuine and not a mere pretext a bona fide claim of having title and not having only a husk of title.

24. The above is our answer to the question referred by the learned single Judge.

Order accordingly. "

45. In the wake of the foregoing discussions, it is thereby held that the Appellate Court of the first instance has erroneously held that this case is barred by Section 154 of Land and Revenue Regulation, 1886.

46. Relating to the question of limitation, it is held that the Appellate Court has also erroneously held that this suit is barred by limitation under Article 65 of the Limitation Act, 1963. It has been held by the Hon'ble Supreme Court in Mallavva and Anr. Versus Kalsammanvara Kalamma (Since Dead) by Legal Heirs and Ors in Civil Appeal No. 14803 of

2024 arising out of SLP (Civil) No. 29135 of 2019 vide order dated 20th December, 2024 that :

"32. In C. Mohammad Yunus v. Syed Unnissa reported in AIR 1961 SC 808, it has been laid down that in a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief. In fact, a suit for a declaration of title to immovable property would not be barred so long as the right to such a property continues and Page No.# 15/16

subsists. When such right continues to subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle is that the suit for a declaration for a right cannot be held to be barred so long as Right to Property subsist."

47. Reverting back to this case, it would be pertinent to mention that the defendants have not claimed title by adverse possession and thus, the suit is not barred by limitation. They have stressed on their title over the suit land.

48. It is thereby held that the learned Appellate Court misconstrued the provisions of law laid down in Section 154 of the Assam Land and Revenue Regulation, 1886 as well as Article 65 of the Limitation Act, 1963 by holding that the plaintiff's suit is barred by aforementioned provisions of law. This answers the first substantial question of law.

49. I would also like to reiterate that without partitioning the land between Sadari Chutia and Phaguni Chutia, the sale of land by Phaguni Chutia as well as by Sadari Chutia is indeed not valid. This is the reason why the Title Suit No. 64/62 was decreed in favour of Phaguni.

50. Now, the plaintiff/appellant has alleged that after death of Mona Saikia, the land measuring 4 Kathas 6 ½ Lechas under Dag No. 698 of P.P. No. 159, has been illegally occupied by the defendants/respondents since 15.10.1980 and the defendants' father had constructed a pucca building taking advantage of the absence of the plaintiff. This plot of land is under Schedule B of the plaint and this plot of land is the suit land. The defendants/respondents have denied that they have encroached into the plaintiff's land and have submitted that they have already got their land partitioned.

51. When Title Suit No. 64/1962 has remained unchallenged, the title of Phaguni Chutia has also remained unchallenged, but Phaguni Chutia has transferred her share of land to Mona Saikia without a partition between her share of land and the land of Sadari Chutia or the land of the defendants. The sale of land by Phaguni Chutia also cannot be considered to be valid. It has been correctly held by the First Appellate Court that there is no evidence on record to show that Phaguni Chutia and the heirs of George Beg got the land of the original owner Kon Chutia partitioned between themselves, so that Phaguni could sell her share of land. The judgment of T.S. 64/62 is still alive and vide the judgment of T.S. 64/62, the heirs Page No.# 16/16

of George Beg as well as Phaguni Chutia are given joint possession of the land inherited by Phaguni and Sadari (now transferred to George Beg). Owing to such infirmities the first Appellate Court held that the title over the suit land never got transferred from Phaguni Chutia to Mona Saikia and thereby Mona Saikia had no title over the suit land. It would be also apt to mention that neither the T.S. 64/62 was challenged nor the sale deed, transferring the land to Niren Saikia or George Beg had ever been challenged.

52. The respondents have also submitted that the Sale Deed executed by Niren Saikia in favour of George Beg has also remained unchallenged. It is true that Phaguni Chutia did not challenge the Sale Deed but she brought up Title Suit No. 64/62 for a decree relating to her share of land inherited by her along with her sister Sadari Chutia. Hence, this predicament.

53. In view of my foregoing discussions, it is thereby held that the lower learned Appellate Court has not erred in dismissing the suit of the appellant/plaintiffs. The Appellate Court of first instance has not misconstrued the import of the judgment and decree dated 23.07.1969 in T.S. No. 64/62 by disregarding other materials on record. This answers the first substantial question of law.

54. Appeal is hereby dismissed as the appeal is bereft of merits. The impugned judgment and decree dated 18.06.2006 in Title Appeal No. 12/2007 is hereby upheld. No order as to costs.

55. Send back the original records of the learned Trial Court as well as the Appellate Court.

JUDGE

Comparing Assistant