Page No.# 1/13 vs The State Of Assam And 9 Ors
2025 Latest Caselaw 3128 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam And 9 Ors on 13 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/13

GAHC010243982018




                                                         2025:GAU-AS:1520

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

                         Case No. : RSA/24/2019

         SRI DEBA KANTA SARMA
         S/O LATE GIRIDHAR SARMA,
         R/O VILLAGE GHAROA.SONAPUR,
         MOUZA LOKRAI, PS SIPAJHAR, DARRANG, MANGALDAI, ASSAM , 784145



         VERSUS

         THE STATE OF ASSAM AND 9 ORS
         REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
         ASSAM, DISPUR. GUWAHATI 781006

         2:THE COMMISSIONER AND SECRETARY
          PWD DEPARTMENT
         GOVERNMENT OF ASSAM
          DISPUR
          GUWAHATI-781006

         3:THE EXECUTIVE ENGINEER
          PWD
          RURAL ROAD
          DIVISION
          MANGALDAI
          DARRANG
         ASSAM. 784145

         4:THE ASSISTANT EXECUTIVE ENGINEER

          RURAL SUB DIVISION
          PS SIPAJHAR
          DARRANG
          ASSAM 784145
                                         Page No.# 2/13

5:THE DEPUTY COMMISSIONER

DARRANG MANGALDAI
ASSAM

6:THE CIRCLE OFFICER

SIPAJHAR CIRCLE DARRANG
MANGALDAI
ASSAM 784145

7:SRI MEGHORAM BORA

S/O JONARAM BORA

R.O VILLAGE GHARUA
SONAPUR
PS SIPAJHAR
DIST DARRANG
MANGALDAI
ASSAM 784145

8:SRI AKSHAY NATH.
 S/O LATE NILARAM NATH

R.O VILLAGE PUNIA MOUZA LOKRAI

PS SIPAJHAR
DIST DARRANG
ASSAM 784145

9:SRI PRABITA KUMAR NATH
 S/O LATE MADHAB CH. NATH
R/O VILLAGE GHAROA. SONAPUR.
MOUZA LOKRAI
 DIST DARRANG
ASSAM
 784145

10:MD. SELIM AHMED @ SELIMUDDIN AHMED

S/O DR. MAZID ALI

R.O WARD NO. 2
MANGALDAI TOWN
MOUZA CHAPAI PS MANGALDAI
DIST DARRANG
ASSAM 78412
                                                                      Page No.# 3/13



For the Appellant(s)       : Mr. P. Upadhyay, Advocate


For the Respondent(s)      : Mr. D. Nath, Sr. Govt. Advocate
                            Mr. T.R. Gogoi, Govt. Advocate

Date of Hearing                          : 13.02.2025

Date of Judgment                        : 13.02.2025

                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                             JUDGMENT AND ORDER (ORAL)

Heard Mr. P. Upadhyay, the learned counsel appearing on behalf of the appellant. Mr. D. Nath, the learned Senior Government Advocate appears on behalf of the Respondent State and Mr. T.R. Gogoi, the learned Government Advocate appears on behalf of the respondent Nos. 5 and 6.

2. The instant appeal is filed against the judgment and decree dated 02.08.2018 passed by the learned Civil Judge, Darrang, Mangaldoi (hereinafter referred to as, "the learned First Appellate Court") in Title Appeal No. 03/2017 whereby the appeal filed by the appellant herein was dismissed, thereby confirming the judgment and decree dated 03.01.2017 passed by the learned Munsiff No. 1, Darrang, Mangaldoi (hereinafter referred to as, "the learned Trial Court") in Title Suit No. 63/2011.

3. The materials on record show that the learned Coordinate Bench of this Court vide an order dated 25.01.2019, admitted the instant appeal by formulating the following substantial question of law:-

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1. Whether the judgment and decree passed by the learned First Appellate Court conforms to the provision under Order XLI Rule 31 of the Code of Civil Procedure, 1908 (for short, "the Code").

4. The question arises in the instant appeal, as to whether, the said substantial question of law is involved in the instant appeal. For ascertaining the same, this Court briefly would like to take note of the facts which led to the filing of the instant appeal. The appellant herein, as plaintiff had instituted a suit being Title Suit No. 63/2011 seeking declaration of his right, title and interest over the Schedule A land; for ejectment of the defendants from the Schedule B land by demolishing structure constructed in the Schedule B land and recovery of khas possession in favour of the plaintiff and for perpetual injunction restraining all the main defendants, their servants, workmen and agents from constructing the road in the Schedule B land and interfering into the peaceful possession of the schedule land.

5. The plaintiff's case in brief is that he is the owner and possessor of the land described in Schedule A to the plaint admeasuring 4 Bighas 2 Kathas 11 Lechas covered by Dag No. 330 of Periodic Patta No. 42 (New) situated at Village Gharoa Sonapur under Mouza- Lokrai, P.S. Sipajhar in the district of Darrang. It was mentioned that originally the Narikali Patharighat road was situated on the western side of the Schedule A land and it was the principal means of communication of the villagers. But during the month of October, 2010, the defendants collusively and fraudulently trespassed into the western side of the Schedule A land had started to construct the Patharighat Narikali road under Pradhan Mantri Gram Sadak Yojana, thereby causing severe damage to the paddy crops cultivated in the Schedule A land of the plaint. In that Page No.# 5/13

process, the plaintiff was dispossessed from a portion of the Schedule A land which has been more specifically described in Schedule B, that is a plot of land admeasuring 3 Kathas 12 Lechas. It is however very interesting to take note of that from a conjoint reading of the schedule of the boundaries mentioned in Schedule A and Schedule B both appears to be the same. The plaintiff being aggrieved by the actions on the part of the defendants in encroaching the Schedule B land had approached the Court by filing the suit seeking the reliefs as aforementioned.

6. The record reveals that the defendants filed separate written statements wherein the allegations made by the plaintiff were denied. In paragraph No. 11 of the written statement filed by the official respondents, it was mentioned that the existing road runs in the western side of the land covered from Dag No. 322 to 341 touching the land of the plaintiff as shown in the schedule covering Dag No. 330 and as such, the question of dispossession of the plaintiff did not arise. In the same suit, the defendant Nos. 7 to 10 not only filed a written statement but also filed a counterclaim wherein the statements and allegations made by the plaintiff were denied. It was further mentioned that the Narikali Patharighat road is being used by the people of West Sipajhar especially of the villagers Gharua-Sonapur, Goaljhar, Punia Metapara openly, peacefully without any interruption since time immemorial, i.e. 100 years till today as their road and already acquired the right of easement to way over such road. It was mentioned that a part of the Narikali Patharighat road falls in Dag No. 330 of P.P. No. 42 of Gharua Sonapur which is the part of the suit land. The land measuring 1 Katha 19 Lechas 24 sq. ft. (282 ft. length north to south, 20 ft. breadth from west to east in the extreme western side of Dag No. 330) out of 4 Bighas 1 Katha 11 Lechas covered by Dag No. 330 of P.P. No. 42(New) of Village Gharua Sonapur Page No.# 6/13

under the Lokrai Mouza which is a land of the counter claimant and is more particularly, described in Schedule I to the counter-claim. It was mentioned that the Government of Assam under various schemes from time to time improved the Narikali Pathorighat road. In the year 2011, the Government of Assam under the "Pradhan Mantri Sadak Yojna" scheme had reconstructed the Narikali Pathorighat road, but on 19.10.2010, the plaintiff had obstructed the construction work of the road over the Schedule I Land of the counter claimant and also obstructed to the public not to use the Schedule I land as part of the Narikali Pathorighat Road. It is interesting to take note of that Schedule I of the counter claim is a plot of land which is covered by Dag No. 330 of Periodic Patta No. 42, as would appear from the counterclaim. On the basis of the pleadings, the learned Trial Court framed as many as 9 (nine) issues which for the sake of convenience are reproduced herein under:

(i) Whether the suit is maintainable in its present form?

     (ii)     Whether there is cause of action in the suit?


    (iii)    Whether the suit is barred by the law of limitation?


     (iv)     Whether the plaintiff has right, title, interest, possession over the suit land
     including the schedule I land of the counter-claim?

    (v)      Whether there is any cause of action in the counter-claim?

     (vi)    Whether the schedule I land of the counter-claim is a part of the suit land on

which the defendants No. 7 to 10 as well as the public of the locality have acquired easementary right to way using it as a way for more than 20 years?

(vii) Whether the defendants have tried to trespass into the suit land to construct Page No.# 7/13

road in the suit land?

(viii) Whether the defendants have an;y right to construct Narikali Pathorighat (Punia Narikali) road forcefully in the suit land?

(ix) To what relief(s) the parties are entitled to?

7. On behalf of the plaintiff, 6 (six) witnesses were examined and the defendants had adduced the evidence of 4 (four) witnesses. All these witnesses were duly cross-examined and discharged, except PW3 who was not produced for cross-examination by the other side. The plaintiff had exhibited 11 (eleven) documents in his support with Exhibit 1 being the Jamabandi of the suit land; Exhibit 2 being the land revenue payment receipts; Exhibit 3 being the trace map; Exhibits 4 and 5 being statutory notice under Section 80; Exhibits 6 to 10, which were the signatures and seals of the plaintiff's counsel and Exhibit 11 was the letter issued dated 07.07.2011 by the Assistant Executive Engineer, PWD, Rural Road Subdivision, Sipajhar. The defendant side did not exhibit any document in their support.

8. The learned Trial Court vide the judgment and decree dated 03.01.2017 dismissed the suit. It is interesting to take note of that the learned Trial Court, while deciding the issue No. (iv), came to an opinion that the Exhibit No. 1 document cannot be considered as a substantive document to properly assess the claim of the person's right, title, interest and possession over the suit land in view of the settled position of law that mutation entries does not create or extinguish any title. The learned Trial Court further held that the plaintiff had got no right, title, interest and possession over the suit land including the Schedule I land of the counter claim. In respect to the issue No. (vi) which pertain to, as to whether, the defendant Nos. 7 to 10 as well as the public of the Page No.# 8/13

locality had acquired easementary right to way using it as a way for more than 20 (twenty) years, the learned Trial Court came to a finding on the basis of the evidence that the existence of such easementary right in favour of the defendant Nos. 7 to 10 and the local public therein on the basis of Section 15 of the Easement Act of 1882 and in doing so, decided the said issue in favor of the defendants. In respect to the issue number (vii) and (viii), which were the vital issues, as to whether, the defendants had tried to trespass into the suit land to construct the road in the suit land and further, as to whether, the defendants have any right to construct the Punia Narikali road road forcefully in the suit land, the learned Trial Court on the basis of the evidence came to a finding that the defendants had not trespassed into the suit land to construct such road, nor such act was done by the defendants in a forceful manner to construct the Punia Narikali road and all such acts were done in accordance with the established public policy and interest.

9. Be that as it may, the learned Trial Court not only dismissed the suit but also the counter claim vide the impugned judgment and decree dated 03.01.2017.

10. Being aggrieved, the plaintiff preferred an appeal which was registered and numbered as Title Appeal No. 03/2017. The learned First Appellate Court dismissed the appeal vide the judgment and decree dated 02.08.2018, and it is under such circumstances, the present appeal has been preferred.

11. In the backdrop of the above, the question therefore arises, as to whether, the substantial question of law so formulated is involved in the instant appeal.

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12. Mr. P. Upadhyay, the learned counsel appearing on behalf of the appellant submitted that from a perusal of the judgment and decree dated 02.08.2018 passed by the learned First Appellate Court, it would be seen that the learned First Appellate Court neither framed the points for determination nor made any discussion issue wise. The learned counsel further submitted that in view of non framing of the points for determination or not deciding issue wise, the decision as well as the reasons for the decision is not apparent from the judgment passed by the learned First Appellate Court. The learned counsel further submitted that the reference made in the paragraph No. 8 to a document, on the other hand supports the case of the appellant but there is nothing mentioned as to why the said document was not taken into consideration properly.

13. Mr. D. Nath, the learned Senior Government Advocate appearing on behalf of the Respondent State submitted that the plaintiff had failed to prove that he has any right, title and interest over the Schedule A land. Mutation entries under no circumstances, can be said to confer any title which both the learned Trial Court as well as the learned First Appellate Court have concurrently held. Be that as it may, the learned first Appellate Court further provided reasons to the judgment passed by the learned Trial Court to the effect that the plaintiff failed to prove that any portion of his land was encroached. He therefore submitted that what is required in terms with Order XLI Rule 31 of the Code is a substantial compliance for the Second Appellate Court to discern, as to whether, the learned First Appellate Court had applied its mind to the appeal before it and in that regard referred to a recent judgment of the Supreme Court in the case of Mrugendra Indravadan Mehta and Ors. Vs. Ahmedabad Municipal Corporation reported in (2024) SCC OnLine SC 849.

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14. I have heard the learned counsels appearing on behalf of the parties and I have also perused the materials on record including the records of the learned Courts below.

15. A first appeal is a valuable right and unless restricted by law, the whole case would be open for re-hearing, both on questions of fact and law and therefore the judgment of the learned First Appellate Court must reflect conscious application of mind and it must record findings supported by reasons on all issues arising along with the contentions put forth and pressed by the parties for decision of the said Court. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs. reported in (2001) 3 SCC 179, the Supreme

Court observed that while reversing a finding of fact, the learned First Appellate Court must come into close quarters with the reasoning of the learned Trial Court and then assign its own reasons by arriving at a different finding. It was further observed that the task of a learned First Appellate Court affirming the finding of the learned Trial Court is an easier one. The learned First Appellate Court agreeing with the view of the learned Trial Court need not restate the effect of the evidence or reiterate the reasons given by the learned Trial Court. Expression of general agreement with the reasons given by the learned Trial Court, decision which is under appeal would ordinarily suffice. However, it was also observed that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or a camouflage adopted by the learned Appellate Court for shirking the duty cast on it. In the case of Laliteshwar Prasad Singh & Ors. Vs. S.P. Srivastava (D) through Lrs. reported in

(2017) 2 SCC 415, the Supreme Court, while affirming the aforestated principles,

in the case of Santosh Hazari (supra) observed that it is well settled that mere omission to frame the points for determination could not vitiate the judgment of Page No.# 11/13

the learned Appellate Court provided that the learned Appellate Court recorded its reasons based on evidence adduced by both the parties. In the case of Mrugendra Indravadan Mehta (supra), the Supreme Court observed that even if

the learned Appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order XLI Rule 31 of the Code in that regard is sufficient. Paragraph Nos. 30 and 31 of the said judgment being relevant are reproduced herein under:

"30. Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam v. R.C. Diocese of Madurai, wherein this Court held as under:--

'9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and Page No.# 12/13

the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.'

31. As already noted hereinabove, the High Court did set out all the issues framed by t he Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh."

16. This Court has duly perused the impugned judgment and decree passed by the learned First Appellate Court. The learned First Appellate Court in its judgment and decree had noted the various grounds on which the appeal was preferred. The learned First Appellate Court however did not frame any points for determination nor specifically dealt with the grounds of objection so raised in the memo of appeal. Be that as it may, a perusal of the judgment of the learned First Appellate Court more particularly at paragraph No. 5, one can discern that the learned First Appellate Court had observed that the issue involved in the suit Page No.# 13/13

was not, as to whether, the plaintiff was the owner of the Schedule A land, but the issue involved was, as to whether, there was encroachment by the defendants by constructing the road over the plaintiff's land. The learned First Appellate Court further on the basis of the evidence came to an opinion that the plaintiff failed to prove that there was encroachment over the land belonging to the plaintiff, which will be apparent from a perusal of paragraph Nos. 5, 6, and 7, and on the basis thereof, had dismissed the appeal. Consequently, it is the opinion of this Court that a reading of the judgment as a whole of the learned First Appellate Court can be said that there was substantial compliance to the provisions of Order XLI Rule 31 of the Code, for which the substantial question of law involved is not involved in the instant appeal.

17. Accordingly, the instant appeal stands dismissed. However, in the facts of the instant case, there shall be no order as to costs.

18. The Registry shall sent back the LCR to the learned Courts below.

JUDGE

Comparing Assistant