Page No.# 1/7 vs Tarun Barakakati
2025 Latest Caselaw 2974 Gua

Gauhati High Court

Page No.# 1/7 vs Tarun Barakakati on 10 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/7
                                                                                 2024:GAU-AS:3671
GAHC010118742023




                                                              2025:GAU-AS:1390

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

                                 Case No. : RSA/72/2024

            SANKAR BARKAKATI
            S/O LATE UMESH CHANDRA BARKAKATI,
            R/O TARUN RAM PHUKAN ROAD, CHIRING CHAPORI, P.O , P.S. AND
            DISTRICT DIBRUGARH, ASSAM, PIN 786001



            VERSUS

            TARUN BARAKAKATI
            S/O LATE UMESH CHANDRA BARKAKATI,
            R/O TARUN RAM PHUKAN ROAD, CHIRING CHAPORI, P.O , P.S. AND
            DISTRICT DIBRUGARH, ASSAM, PIN 786001



For the Appellant(s)       : Mr. D.K. Bagchi, Advocate


For the Respondent(s)      : None appears


Date of Hearing                         : 10.02.2025
Date of Judgment                         : 10.02.2025
                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                             JUDGMENT AND ORDER (ORAL)

Heard Mr. D.K. Bagchi, the learned counsel appearing on behalf of the appellant.

Page No.# 2/7 2024:GAU-AS:3671

2. This is an Appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 29.11.2022 passed in Title Appeal No. 06/2018 whereby the learned Court of the Civil Judge, Dibrugarh (hereinafter referred to as, "the First Appellate Court"), had dismissed the Appeal, thereby confirming the judgment and decree dated 05.01.2018 passed by the learned Munsiff No. 1, Dibrugarh (hereinafter referred to as, "the learned Trial Court") in Title Suit No. 145/2012.

3. The instant appeal is taken up at the stage of Order XLI, Rule 11 of the Code of Civil Procedure, 1908 to adjudicate as to whether any substantive question of law can be formulated in the instant appeal. To ascertain the said aspect of the matter, this Court has duly taken note of the judgments passed by both the learned Courts below.

4. From the materials on record, including the plaint and the written statement filed to the memo of appeal, it appears that the plaintiff had filed the suit being Title Suit No. 145/2012 before the Court of the learned Munsiff No. 1, Dibrugarh. In the said suit, the plaintiff claimed that he is the absolute owner of a plot of land admeasuring 0-Bigha-0-Katha-15.6 Lechas covered by Dag No. 455 (Ga) of Periodic Patta No. 254 situated at New Amolapatty Ward, under Dibrugarh Town Mouza in the District of Dibrugarh, Assam and he acquired right, title and interest over the said land by virtue of purchase and thereafter he duly mutated his name in the record of rights. The plaintiff further averred that he had purchased the land along with the house bearing Municipal Holding No. 232 of Ward No. 12, and thereafter he had reconstructed the said house as per his business requirement and was granted fresh Holding No. 719 in his name. The plaintiff further stated in his plaint that after reconstruction, the Page No.# 3/7 2024:GAU-AS:3671 plaintiff started a hotel business therein. Taking note of that the defendant being an unemployed younger brother, the plaintiff kept the defendant as his assistant in the said hotel and he also used to send the defendant to pay the electricity and gas bill of the hotel. Subsequently, the defendant on his own hanged a sign board as "Sankar Hotel" in front of the hotel and also started a pan shop in front of the said hotel. The plaintiff asked the defendant not to do it, which the defendant did not listen. In addition to that, the defendant also stopped to furnish the accounts of the plaintiff's hotel to the plaintiff. The plaintiff further stated that on 01.01.2005, the plaintiff allowed the defendant to run the hotel and thereafter on each and every first day of January extended his permission for running the hotel on a condition that the defendant would quit and vacate the premises as and when required by the plaintiff. It was also mentioned in the plaint that the plaintiff with intention to construct a two storied residential house on the said land after demolishing the present suit premises for his business purpose expressed his intention to the defendant with a request to vacate the hotel immediately within one month. Since the defendant did not vacate on one pretext or the other, the plaintiff was compelled to file the suit seeking, declaration that the plaintiff has right, title, interest and lawful possession of the suit premises standing on his own land; for a declaration that the defendant has no right, title and interest or lawful possession over the suit premises as described in the schedule and therefore is liable to be ousted or evicted from the suit premises after vacation and demolition of the pucca Pan Dala in front of the suit premises under his occupation; for recovery of khas possession or any other relief the defendant contest.

5. The defendant contested the suit by filing his written statement wherein Page No.# 4/7 2024:GAU-AS:3671 he had raised various objections to the maintainability of the suit. In addition to that, it is the case of the defendant that the suit land as well as the premises was purchased by the father of the plaintiff and the defendant in the name of the plaintiff in the year 1991. It was further mentioned that one Shri Mukutananda Barkakati had started the hotel and had engaged the defendant to make him accustomed to hotel keeping business and handling tactics. It was further mentioned that the said Shri Mukutananda Borkakati started the hotel and finally handed over to the defendant in the year 1997 and the defendant on the advice of his elder brother Sri Muktananda Borkakati hanged the sign board in his own name as "Sankar Hotel". It was also mentioned that the defendant has every right, authority, title, interest and lawful possession over the suit premises as it is a joint family property and the suit premises was utilized for the benefit of the whole undivided family. On the basis of the said pleadings, there were three issues framed which are reproduced herein under:

"i. Whether the suit is maintainable in its present form?

ii. Whether the plaintiff has right, title and interest over the suit land?

iii. Whether plaintiff is entitled to a decree as prayed for?"

6. On behalf of the plaintiff 3 (three) witnesses adduced evidence and the plaintiff further exhibited 9 (nine) documents. On behalf of the defendant, the defendant himself adduced evidence.

7. The learned Trial Court decreed the suit in favour of the plaintiff holding inter alia that the plaintiff had absolute right, title and interest over the suit premises. The learned Trial Court further decreed that the defendant, his men, agents or representatives etc were to vacate the suit premises and hand over Page No.# 5/7 2024:GAU-AS:3671 the khas possession of the same to the plaintiff after the demolition of the pucca pan dala erected in front of the suit premises.

8. Being aggrieved, an appeal was preferred by the defendant who is the appellant herein which was registered and numbered as Title Appeal No. 06/2018. The learned First Appellate Court vide the judgment and decree dated 29.11.2022 had dismissed the said appeal, thereby affirming the judgment and decree passed by the learned Trial Court. It is under such circumstances, the present appeal has been filed.

9. In the backdrop of the above, let this Court take note of the substantial questions of law which were proposed.

10. Mr. D.K. Bagchi, the learned counsel appearing on behalf of the appellant submitted that both the learned Courts below have passed the impugned judgment and decree thereby decreeing the suit in favor of the plaintiff without taking into consideration that the consideration amount paid in purchasing the schedule land was invested by the father of the plaintiff, as the plaintiff was not having any income at that relevant point of time as he was a minor. The said proposed substantial question of law in the opinion of this Court does not arise inasmuch as both the learned Courts below in their respective judgments have duly and carefully taken note of that the property was purchased by the plaintiff and the defendant failed to prove that the property was purchased out of the joint family income. Under such circumstances, the first substantial question of law which was formulated does not arise.

11. The second substantial question of law which was proposed is as to Page No.# 6/7 2024:GAU-AS:3671 whether the learned Courts below erred in law in not taking into consideration the evidence of PW2, the elder brother of both the parties who had stated in the cross-examination that the schedule land was purchased in the year 1991 and the plaintiff being under Matric had purchased the schedule plot of land at the age of about 20 years and also the affidavit appended with the plaint wherein it was stated that his age as on December, 2012 was 40 years. This Court, upon perusal of the impugned judgments passed by both the learned Trial Court as well as the learned First Appellate Court is of the view that both the learned Courts below have duly taken note of the evidence given by the PW2. During the course of the hearing, Mr. D.K. Bagchi, the learned counsel appearing on behalf the appellant has also provided the cross-examination of the PW2 wherein also it has been categorically mentioned that the suit land was purchased by the plaintiff. In addition to that, it is also relevant to take note of that the learned Trial Court in its judgment at paragraph Nos. 11 and 12, and the learned First Appellate Court in its judgment at paragraph Nos. 11.2 and 11.3 have duly taken note of the evidence of the plaintiff witness No. 2. Under such circumstances, it cannot therefore be said that there is any perversity in the impugned judgment and decree passed by the learned First Appellate Court, for which, the second substantial question of law which was formulated does not arise.

12. The third substantial question of law which was proposed is as to whether both the learned Courts below were justified in not taking into consideration that there is a nucleus with which a joint property could be acquired and there would be a presumption of a property being joint and the onus would shift on the person who claims it is to be self-acquired property to prove that he purchased the property with his own funds and not out of the joint family Page No.# 7/7 2024:GAU-AS:3671 nucleus that was available. The said question of law so proposed under no circumstances, in the opinion of this Court can be said to be a substantial question of law which can be formulated, taking into account that the defendant have failed to prove that there was any nucleus on the basis of which the suit property was purchased. Without discharging the initial burden, shifting of the burden does not arise.

13. In view of the above, as this Court does not find any substantial question of law which can be formulated in the instant appeal, the instant appeal therefore stands dismissed.

14. In the peculiar facts of the case, this Court is not inclined to impose costs.

JUDGE

Comparing Assistant