Page No.# 1/12 vs Md. Safiduddun Sarkar And Ors
2025 Latest Caselaw 2977 Gua

Gauhati High Court

Page No.# 1/12 vs Md. Safiduddun Sarkar And Ors on 10 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                          Page No.# 1/12

GAHC010010352023




                                                     2025:GAU-AS:1388

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

                            Case No.: RSA/126/2008

         MD. HURMUZ ALI PRAMANIK
         S/O LT. KAIRUDDIN PRAMANIK
         VILL. MANIPUR
         PART-I MAKRIJHORA
         PO. MAKRIJHORA
         PS. BAGRIBARI
         DIST. DHUBRI
         ASSAM.


          VERSUS

         MD. SAFIDUDDUN SARKAR and ORS
         S/O LT. MOKRAM ALI BEPARI
         VILL/PO. MAKRIJHORA.

         2:MD. ABDUL MAZID AHMED

         S/O MD. NASIRUDDIN AHMED
         VILL. SADHUBHASA
         1/2 PS. BAGRIBARI
         DISET. DHUBRI
         ASSAM

          3:ANIL KR. SAHA

         S/O LT. SATISH CH. SAHA
         VILL. BAGRIBARI
         ARAIANI
         PO/PS. BOGRIBARI
         ALL UNDER DIST. DHUBRI
         ASSAM.

          4:THE STATE OF ASSAM
                                                               Page No.# 2/12


          REP. BY THE COLLECTOR
          DHUBRI

          5:SETTLEMENT OFFICER

          DHUBRI
          4/5 PO
          PS/DIST. DHUBRI.




Advocate for the Appellant     : Mr. S. K. Ghosh, Advocate

Advocate for the Respondents : Mr. B. K. Sen, Advocate

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

                         Date of Judgment     : 10.02.2025
                        JUDGMENT AND ORDER (ORAL)

Heard Mr. S. K. Ghosh, the learned counsel appearing on behalf of the appellant and Mr. B. K. Sen, the learned counsel appearing on behalf of the respondents.

2. This is an Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the judgment and decree dated 31.03.2008 passed by the Court of the learned Civil Judge, Dhubri (hereinafter referred to as 'the First Appellate Court') in Title Appeal No.11/2005 whereby the said Appeal was dismissed and the judgment and decree passed by the learned Trial Court, i.e. the Court of the learned Civil Judge (Junior Page No.# 3/12

Division) No.1, Dhubri on 28.03.2005 in Title Suit No.167/1997 was affirmed.

3. It is seen from the materials on record, more particularly the order dated 17.11.2008 that two substantial questions of law were formulated which are reproduced herein under:-

A. Whether framing of two vital additional issues by the learned Trial Court after conclusion of argument behind the back of the parties and without affording a chance to the plaintiff to lead evidence on such issues has vitiated the impugned judgment for infraction of Order XIV Rule 4 of the Code of Civil Procedure?

B. Whether non-consideration of the provisions of the Assam (temporarily Settled Arrears) Tenancy Act, 1971 for deciding the suit has vitiated the impugned judgment?

4. The question arises in the instant Appeal as to whether the two substantial questions of law which were formulated by this Court under Section 100 (4) of the Code are involved in the instant Appeal.

5. The brief facts which led to the filing of the instant Appeal are as under:-

6. It is the case of the plaintiff who is the appellant herein that Late Purna Ch. Saha and Late Satish Ch. Saha jointly owned a plot of land admeasuring 18 bighas 2 kathas 14 lechas covered by Khatian No.58 at village Monipur Part-I under Bagribari Circle Page No.# 4/12

which was specifically described in Schedule-A to the plaint. It was stated that after the death of both the original landowners of Schedule-A land, their legal heirs amicably partitioned amongst themselves and they possessed the Schedule-A land.

7. The defendant No.3 is one of the sons of Late Satish Ch. Saha and got his share in Dag. No.13 in Schedule-A which has been more specifically described in Schedule-B to the plaint. Out of the said land which has been described in Schedule-B to the plaint, it is the further case of the plaintiff that on 17.02.1976 BS, a plot of land admeasuring 3 kathas 11 Lechas was handed over to the plaintiff and he was given a pattan by the defendant No.3. It is the case of the plaintiff that the plaintiff continued to remain in possession of the said land which was delivered and more specifically described in Schedule-C to the plaint for a period of 18 years thereby constructing a dwelling house.

8. It was further stated in the plaint that on the western boundary of Schedule-C land, Late Mokbul Hussain and Lake Abed Ali Khalifa had a plot of land. When the plaintiff got pattan over the Schedule-C land from the defendant No.3, Mokbul's share (eastern part) sold to one Jasimuddin Mondal, Azizul Hoque, Abdul Motin and the western part still possessed by the legal heirs of Late Abed Ali Khalifa. Jasimuddin had constructed a shop house and Azizul had been possessing the part of his Page No.# 5/12

purchased land which is the northern part adjacent to the western boundary of the plaintiff's Schedule-C land.

9. It was further mentioned that the defendant Nos.1 & 2 instituted a suit being Title Suit No.35/1980 against the plaintiff stating the facts that they purchased 1 bigha of land from the defendant No.3 vide Deed No.6771/1977 and got delivery of possession and constructed a house on the western part of the said land. It was also mentioned in the said suit that the defendant Nos.1 & 2 claimed that they had let out the house to the plaintiff from 01.07.1978 for a period of one year. After the expiry of the lease period as the plaintiff did not vacate the suit premises, the defendant Nos.1 & 2 filed Title Suit No.35/1980 for ejectment of the plaintiff from the suit house situated on the western side of the purchased land with an area of 35 ft X 20 ft, a house of CI Sheets (tin) measuring 29 ft X 14 ft. It was mentioned that Title Suit No.35/1980 was dismissed on 27.11.1981.

10. Thereupon, the defendant Nos.1 & 2 again instituted another suit being Title Suit No.10/1984 against the plaintiff for the suit house of Title Suit No.35/1980 and obtained a fraudulent, concocted, collusive decree from the Court of the Munsiff, Dhubri on 25.08.1984. The plaintiff thereupon preferred an Appeal which was registered and numbered as Title Appeal Page No.# 6/12

No.157/1984 in the Court of the ADJ, Dhubri which was dismissed on 20.07.1988. The plaintiff being further aggrieved preferred a Second Appeal being Second Appeal No.159/1988 before this Court. The said Appeal was also dismissed. It was further mentioned that on the basis of the decree which was passed in Title Suit No.10/1984 and the Deed of Sale being Deed No.6771/1977, the defendant Nos.1 & 2 were trying to evict the plaintiff. It is under such circumstances, the plaintiff sought for a decree that the plaintiff had tenancy, right, title and interest and possession over the Schedule-C land under the defendant No.3, landlord and entitled to get his name recorded expunging the names of the defendant Nos.1 & 2, if any, for Schedule-C land. The plaintiff further sought for the relief that the Deed of Sale being Deed No.6771/1977 be declared to be false, fraudulent, concocted, manufactured and the defendant Nos.1 & 2 have not acquired any right by dint of the said Deed of Sale over the Schedule-C land. A further declaration was sought for that the defendant No.3 had no saleable right to execute the Sale Deed No.6771/1977 for the Schedule-C land in favour of the defendant Nos.1 & 2, and as such, the Sale Deed No.6771/1977 and any record on the basis of the said Sale Deed were liable to be cancelled. In addition to that, the plaintiff also sought for a permanent injunction.

Page No.# 7/12

11. It is seen that the defendant Nos.1 & 2 had filed a written statement raising various preliminary objections as regards the maintainability of the suit. It was mentioned that the defendant Nos.1 & 2 were the owners of the suit land and the plaintiff was their tenant. It was further mentioned that the said defendants had purchased the suit land through a registered Deed of Sale being Deed No.6771/1977 on 24.10.1977 and got possession immediately after purchase. It was reiterated that the defendant No.3 had a right to sell it and the defendant Nos.1 & 2 have right, title and interest over the suit land and the house.

12. On the basis of the said pleadings, initially 6 Issues were framed. Subsequent thereto, 2 more Issues were framed. The Issue Nos.1 to 6 were framed earlier and Issue Nos.7 & 8 were framed after the arguments were over and before delivery of judgment. The said 8 Issues which were formulated by the learned Trial Court are reproduced herein under:-

"1. Is there any cause of action for the suit?

2. Whether the defendant No.3 has right to sell the suit land is favour of defendant No. 1 & 2?

3. Whether the plaintiff has right, title over the suit land?

4. Whether the sale deed No. 6771/77 is liable to be cancelled?

5. Whether the suit is barred by Principle of Res-judicata?

Page No.# 8/12

6. To what relief/ reliefs, the plaintiff is entitled?

7. Whether the suit is barred by limitation Act?

8. Whether the decree of TS No. 10/84 is fraudulent and collusive?"

13. On behalf of the plaintiff, five witnesses were examined and various other documents were produced. On behalf of the defendants, only one witness was examined. In addition to that, there were three court witnesses. The learned Trial Court upon hearing the parties dismissed the suit. Being aggrieved, an Appeal was preferred by the plaintiff which was registered and numbered as Title Appeal No.11/2005. The learned First Appellate Court vide the judgment and decree dated 31.03.2008 had also dismissed the Appeal thereby affirming the judgment and decree passed by the learned Trial Court. It is under such circumstances, the present Appeal has been preferred.

14. This Court has duly heard the learned counsels appearing on behalf of the parties in respect to the substantial questions of law which were formulated by this Court on 17.11.2008. Apart from that, this Court has also perused the materials on record including the LCR. The question therefore arises as to whether the two substantial questions of law which were formulated on 17.11.2008 are at all involved in the instant Appeal.

15. The first substantial question of law is as to whether the Page No.# 9/12

framing of two vital additional issues by the learned Trial Court after conclusion of the arguments behind the back of the parties and without affording a chance to the plaintiff to lead evidence on such issues have vitiated the impugned judgment for infraction to Order XIV Rule 4 of the Code of Civil Procedure.

16. This court finds it relevant to take note of Order XIV Rule 5 of the Code which stipulates that the Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it think fit and all such amendments or additional issues as may be necessary for determining the matter in controversy between the parties shall be so made or framed. Taking into account the above, the framing of the additional Issues before delivery of judgment in the opinion of this Court cannot be said to be contrary to law. It is pertinent to observe that if additional issues are framed, the Trial Court shall do so on such terms as it thinks fit.

17. This Court finds it relevant to take note of the additional issues which were framed. Issue No.7 is one of such additional issue. The said additional Issue No.7 is whether the suit was barred by limitation. This Court finds it relevant to take note of that the defendants had taken the plea of the suit being barred by limitation. The issue so framed was on account of the plaintiff seeking a declaration that the registered Sale Deed bearing Page No.# 10/12

No.6771/1977 was fraudulent, concocted, manufactured and liable to be cancelled. The learned Trial Court on the basis of the statements made in the plaint wherein reference was made to Title Suit No.10/1984 came to a finding that the suit challenging the Deed of Sale No.6771/1977 was barred by Article 59 of the

1st Schedule to the Limitation Act, 1963. This Court further finds it relevant to observe that if the challenge to the Sale Deed is barred by Limitation, all other reliefs were also barred by Limitation. In that regard, reference may be made to the judgment of the Supreme Court in the case of Mallavva and Another vs. Kalsammanavara Kalamma (Since Dead), reported in

2024 SCC OnLine SC 3846. Paragraph No.38 of the said judgment is reproduced herein below:-

"38. The dictum as laid in Rajpal Singh (supra) cannot be made

applicable to the facts and circumstances of the case on hand. The reason is simple. Ordinarily when, a suit is filed for cancellation of Sale Deed and recovery of possession, the same would suggest that the title of the plaintiff has already been lost. By seeking to get the Sale Deed set aside on the grounds as may have been urged in the plaint, the plaintiff could be said to be trying to regain his title over the suit property and recover the possession. In such circumstances, the period of limitation would be three years and not twelve years."

18. This Court also finds it relevant to observe that in the Page No.# 11/12

present proceedings, the appellant has not challenge the decision in respect to Issue No.7, but has only challenged on the ground that no opportunity was provided after framing the additional Issue No.7.

19. The second additional issue which was framed, i.e. Issue No.8 was whether the decree of Title Suit No.10/1984 is fraudulent and collusive. It is seen from a perusal of the plaint that there is an averment being made that the decree so passed in Title Suit No.10/1984 is fraudulent and collusive. It is well settled and also provided in the provision of Order VI Rule 4 of the Code that when a fraud is being alleged, then specific material particulars are required to be given. However, there was nothing mentioned except making a bald allegation that the decree passed in Title Suit No.10/1984 is a fraudulent and collusive. This Court further finds it relevant to take note of the settled principles of law that without pleadings no evidence could have been led by the parties. Under such circumstances, the question of any prejudice being caused to the plaintiffs by formulating that issue is misconceived. Further to that, it is relevant to note that admittedly the judgment and decree passed in Title Suit No.10/1984 was affirmed by this Court. Under such circumstances, it is the opinion of this court that the first substantial question of law which was formulated is not involved Page No.# 12/12

in the instant Appeal.

20. Now let this Court take note of the second substantial question of law so formulated by this Court. The second substantial question of law relates to as to whether non- consideration of the provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 has vitiated the judgment. To be a substantial question of law involved in the Appeal, there has to be a foundation laid in the pleadings in respect to the relevant provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 on the basis of which the plaintiff claims any rights and evidence in support thereof is required to be led so that it becomes an issue involved in the suit. The plaintiff is absolutely silent in that regard. Under such circumstances, the second substance substantial question of law so formulated is not involved in the instant Appeal.

21. Consequently, the instant Appeal stands dismissed with costs quantified at Rs.11,000/-.

JUDGE

Comparing Assistant