Page No.# 1/15 vs Seikh Noor Islam And 8 Ors
2025 Latest Caselaw 3130 Gua

Gauhati High Court

Page No.# 1/15 vs Seikh Noor Islam And 8 Ors on 13 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/15

GAHC010129502013




                                                          2025:GAU-AS:1510

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

                           Case No. : RSA/65/2013

         SHEIKH NOOR ALAM
         S/O LATE SHEIKH NOOR MOHAMMAD, SOUTH SARANIA, ULUBARI,
         GUWAHATI 781007, DIST.KAMRUP, ASSAM.



         VERSUS

         SEIKH NOOR ISLAM and 8 ORS
         S/O LATE SHEIKH NOOR MOHAMMAD, JATIA, GUWAHATI 781019, DIST.
         KAMRUP, ASSAM.

         2:MAQBAL HAQUE MALLIK


         3:NASIRUDDIN MALLIK


         4:MUKUL DAS


         5:HIRANYA GOSWAMI


         6:SADIQUE AHMED


         7:GOLAM SORAH
          NO. 2 TO 7 ARE ALL RESIDENTS OF SOUTH SARANIA
          ULUBARI
          GUWAHATI 781007

         8:SHEIKH NOOR ZAMIN
                                                                    Page No.# 2/15


          9:SHEIKH NOOR IMAN

          BOTH ARE SONS OF LATE SHEIKH NOOR MAHAMMAD RESIDENTS OF
          SOUTH SARANIA
          ULUBARI
          GUWAHATI-


                                     BEFORE
                  HON'BLE MR. JUSTICE DEVASHIS BARUAH



     Advocate for the appellant(s)    : Mr. B D Deka
                                        Mr. A Bhatra


     Advocate for the respondent(s) :    Mr. D Mozumder
                                         Senior Advocate
                                         Ms. J Kakoti


     Date of hearing & Judgment       : 13.02.2025



                        JUDGMENT & ORDER (ORAL)

Heard Mr. BD Deka, the learned counsel appearing on behalf of the appellant. Mr. D Mozumder, the learned senior counsel assisted by Ms. J Kakoti, the learned counsel appears 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 Page No.# 3/15

20.10.2012, passed in Title Appeal No.77/2006 by the Court of the learned Additional District Judge, No.2 Kamrup at Guwahati, (hereinafter to be referred to as "the First Appellate Court") whereby the judgment and decree dated 09.05.2005 passed by the learned Civil Judge (Senior Division) No.2 Kamrup at Guwahati, (hereinafter referred to as "the learned Trial Court") in Title Suit No. 32/1995 was reversed. It is seen from the materials on record, that by an order dated 07.05.2013, the Coordinate Bench of this Court had formulated four substantial questions of law, in terms with Section 100 (4) of the Code. The said substantial questions of law are reproduced hereinunder:

i) Whether in absence of any corroborative evidence which is essential for determination of possession, the learned first appellate court could have reversed the Issue No.3 with regard to possession by the plaintiff over B schedule land?

ii) Whether the learned first appellate court in reversing the finding in issue No.4 regarding claim to partition committed serious error in law inasmuch as , the sale deed (Exhibit 1) reveals that the schedule A land was not a vacant la nd but there are several common houses and other properties standing thereon and the plaintiff had failed to include those houses and properties in the Schedule of the plaint?

iii) Whether in view of the fact that the plaint for partition having failed to mention all the immovable properties left by the father of the parties, the l earned first appellate court could have decreed the suit which was instituted for a specific plot of land without mention of the other immovable properties?

iv) Whether the finding of the learned first appellate court regarding Page No.# 4/15

maintainability of the appeal on the ground of limitation without any petition for condonation of delay is perverse and requires interference?

3. The question which arises for consideration before this Court is as to whether the four substantial questions of law so formulated by this Court by the order dated 07.05.2013 is/are involved in the present appeal. For ascertaining the same, this Court would like to briefly take note of the facts leading to the filing of the instant appeal.

4. From the materials on record, including the plaint, it transpires that the plaintiff and the defendant No.1 are both sons of one Late Sheikh Noor Mohammad, who during his lifetime had purchased a plot of land ad measuring 3 kathas 19 lechas, which was fully described in Schedule A to the plaint along with the Assam type houses with latrine and other structures thereon in the name of the plaintiff and the defendant No.1. On the basis of the said deed of purchase, both the plaintiff as well as the defendant No.1 were owners of the Schedule A land and their names were also mutated. It is the case of the plaintiff that after the plaintiff and the defendant No.1 attained majority and after the death of the father, both the plaintiff and defendant No.1 amicably were in exclusive possession of half portion of the Schedule A land. It was also mentioned that although the land purchased was 3 kathas and 19 lechas, but both the plaintiff and the defendant No.1 were in total joint possession of 4 kathas and each of the plaintiff and defendant No.1 were in possession of 2 kathas each respectively. The land under the possession of the plaintiff was described in Schedule B to the plaint. In the plaint, more particularly, at Page No.# 5/15

paragraph 4, the plaintiff stated that the defendant No.1's possession was towards the east of the plaintiff's possession. The further case of the plaintiff is that the proforma defendant Nos.2 to 7 were his tenants in respect to the premises standing on the land under the possession of the plaintiff which the plaintiff allowed his mother to receive the rent from the said tenants. However, on 12.02.1995, the defendant No.1 asked the proforma defendants to vacate the houses let out to them by the plaintiff and started collecting rent from them and also collected some building materials to raise construction over the land under the possession of the plaintiff. It is the further case of the plaintiff that when the plaintiff went to visit his land, the defendant No.1 in presence of other family members and the proforma defendants threatened him with dire consequences. It is under such circumstances that the suit was filed seeking declaration that the plaintiff is the full and absolute owner in respect to half of the share of the land, more specifically, described in Schedule A to the plaint; a decree for partition in respect to the land belonging to the plaintiff jointly purchased on 12.08.1968 by registered sale deed No. 6696 by metes and bounds; a permanent injunction thereby restraining the defendant, his servants, agents, workmen from making any construction over the land belonging to the plaintiff, more fully described in Schedule B of the plaint and other reliefs.

5. The defendant No.1 filed his written statement taking various preliminary objections as regards the maintainability of the suit. It was mentioned that the plaintiff is not a permanent resident of South Sarania Ulubari, but he is a permanent resident of Jatia Kahilipara Road and the plaintiff has been permanently residing at Jatia since the year 1981 on a plot of land whereupon the father of the plaintiff and the defendant No.1 constructed houses and Page No.# 6/15

structures thereon. It was mentioned that the land and the house under the occupation of the plaintiff at Jatia is a joint family property without any partition thereof. It was admitted that the land described in Schedule A to the plaint along with the houses and structures belonged to both the plaintiff and the defendant, but the same was under the occupation and possession of the defendant No.1 all along with other members of his family including other brothers, excluding the plaintiff. It was denied that the plaintiff is the full and absolute owner in respect of the 2 kathas of land as alleged, out of the land measuring 4 kathas being half share thereof. It was mentioned in the written statement that the defendant No.1 is the full and absolute owner in respect of 1 katha 19 lechas of land, out of 3 kathas 19 lechas land. It was further mentioned that the plot of land had not been partitioned, but the defendant No.1 is in occupation and possession of his share of 1 katha 19 lechas of land since many years continuously and uninterruptedly. It was further averred that the other portion of the land on the eastern side measuring 1 katha 19 lechas is in occupation of the answering defendant and other heirs of Late Noor Mohammad. Further it was the case of the defendant No.1 that on the southern side of the entire plot of land, there are six shops which have been let out to different tenants, except one room under the occupation of Sheikh Noor Iman. The remaining land on the backside is in the occupation of the defendant No.1 and other heirs of Late Noor Mohammad, except the plaintiff. Further to that, it was also mentioned that the share of the answering defendant falls on the western side of the plot of land. It was further denied that the plaintiff was in exclusive possession without any interference in respect to his plot of land till the second week of February 1995. It was also denied that the plaintiff visited on 13.02.1995 in his plot of land and in presence of the proforma defendants Page No.# 7/15

and other family members of the plaintiff, the defendant No.1 threatened the plaintiff with dire consequences.

6. On the basis of the pleadings, the learned Trial Court framed five issues, which being relevant are reproduced hereinunder:

(1). Whether the suit is barred by limitation?

(2). Whether the suit land was jointly purchased by the predecessor-in-

interest of plaintiff and the defendant?

(3). Whether the plaintiff is possessing the B schedule land as half share of A schedule land?

(4). Whether the plaintiff is entitled to partition of a Schedule land?

(5). To what other relief/reliefs the parties are entitled too?

7. It is further seen that the Issue No.2 was recasted by the learned Trial Court to read as under:

"Whether the suit land was purchased in the name of the plaintiff and the defendant jointly by their father Late Noor Mohammad?"

8. Additionally, after hearing the arguments, the learned Trial Court framed an additional Issue as to "Whether the suit was maintainable in its present form?"

9. The record reveals that on behalf of the plaintiff, he adduced himself as a witness and on behalf of the defendant No.1, he adduced himself as the defendant witness. The plaintiff exhibited seven documents, which included the Page No.# 8/15

Deed of Sale dated 12.08.1968 as Exhibit-1; Exhibit-2, the Record of Rights; Exhibit-3, the Record of Rights; Exhibit-4, the Record of Rights; Exhibit-5, the Record of Rights; Exhibit-6, Land Revenue Paying Receipts and Exhibit-7, Permission taken from the Commissioner Guwahati Municipal Corporation in the name of both the plaintiff and the defendant No.1 on 19.01.1991. On behalf of the defendant, he exhibited some documents, which were Exhibit-A Land Revenue Paying Receipt; Exhibit-B Receipt pertaining to payment of GMC taxes; Exhibit- B1, B2 receipts pertaining to payment of GMC taxes; Exhibits-C1, C2, C3, C4 tenancy agreements.

10. The learned Trial Court vide the judgment and decree dated 09.05.2005 dismissed the suit of the plaintiff. In doing so, the learned Trial Court came to a categorical finding while deciding the Issue No.2 that there was no dispute that the father of the plaintiff and defendant No.1 had purchased the land described in Schedule A jointly. The learned Trial Court categorically came to a finding that both the parties have claimed their respective exclusive possession over the same plot of land, but however, both the parties have failed to examine any witness in support of their claim and accordingly held that the possession of the land of Schedule A was still joint and accordingly decided the Issue No.3 in the negative. The additional issue which pertains to as to whether the suit was maintainable, the learned Trial Court held that as the plaintiff failed to include all the houses, pictures, structures over the suit land having common interest of the parties, the suit was not maintainable in the present form. Accordingly, the Issue Nos.4 and 5 were decided holding that the suit was not maintainable for which the suit was dismissed.

Page No.# 9/15

11. Being aggrieved, an appeal was preferred which was registered and numbered as Title Appeal No. 77/2006. The Appellate Court by the impugned judgment and decree dated 20.10.2012 reversed the judgment of the learned Trial Court and passed a decree which was partly final and partly preliminary. The final decree so passed pertained to that the plaintiff had right, title and interest over half share of the purchased land of 3 kathas 19 lechas, out of the Schedule A land. A preliminary decree was passed for partition by metes and bounds in respect of half portion of the purchased land of 3 kathas 19 lechas, out of the Schedule A land, which was under the possession of the plaintiff. The learned First Appellate Court further directed the learned Trial Court to issue necessary precepts for partition of the suit property by metes and bounds and to prepare the final decree after receiving and upon due consideration of the report of the Collector regarding partition of the suit property.

12. Being aggrieved, the present appeal has been filed. In the backdrop of the above, the question, therefore, arises as to whether the substantial questions of law which were formulated the Coordinate Bench of this Court by the order dated 07.05.2013 are at all involved in the present appeal.

13. The first substantial question of law pertains to as to whether in absence of any corroborative evidence which is essential for determination of possession, the learned First Appellate Court could have reversed the Issue No.3 with regard to possession by the plaintiff over B schedule land?

14. This Court has duly perused the judgment of the learned Trial Court Page No.# 10/15

insofar as, the Issue No.3 as well as paragraph 10 of the judgment of the learned First Appellate Court. The learned Trial Court held that the possession of both the plaintiff and the defendant No.1 over the schedule A land was joint. The learned First Appellate Court took into account that the defendant No.1 claimed that he along with the other sons of Late Noor Mohammad were possessing half portion of the suit land on the eastern side and they have got their houses and other structures thereon. However, none of the other sons of Late Noor Mohammad were examined to support the plea of the defendant No.1. The learned First Appellate Court held that in absence of any corroborative evidence, the preponderance of evidence reveals that the plaintiff is on a better footing than the answering defendant to claim that he is possessing the eastern half of the suit land to the exclusion of other sons of Late Noor Mohammad. Be that as it may, this Court further finds it very relevant to take note of that the learned First Appellate Court while passing a decree for partition by metes and bounds in respect of half portion of the purchased land of 3 kathas 19 lechas of land out of the Schedule A land, which is under the possession of the plaintiff did not specify as regards which portion is under the possession of the plaintiff. The same, therefore, has to be taken on the basis of the adjudication being carried out under Section 54 of the Code read with the Assam Land and Revenue Regulations, 1886 by the Collector on the basis of possession. Under such circumstances, the first substantial question of law so formulated cannot be said to be a substantial question of law involved in the instant appeal.

15. The second substantial question of law pertains to whether the learned First Appellate Court in reversing the finding in issue No.4 regarding claim to Page No.# 11/15

partition committed serious error in law inasmuch as, the sale deed (Exhibit 1) reveals that the schedule A land was not a vacant land but there are several common houses and other properties standing thereon and the plaintiff had failed to include those houses and properties in the Schedule of the plaint? It is a well settled principle of law that a plaint has to be read as a whole. A perusal of paragraphs 2, 4 and 10 categorically mentions that there are structures standing over the Schedule A land. Merely because of the fact that the same had not been mentioned in the Schedule, in the opinion of this Court would not disentitle the plaintiff to the fruits of the decree which the plaintiff is entitled to as per law.

16. This Court had duly taken note of the decision in respect to the additional issue of the learned Trial Court as well as the observations so made by the learned First Appellate Court and this Court finds no infirmity in the findings arrived at by the learned Appellate Court. Moreover, the second substantial question of law so formulated in the opinion of this Court can under no stretch of imagination be said to be a substantial question of law involved in the instant appeal.

17. The third substantial question of law is as to whether the suit for partition having not included all the immovable properties left by the father of the parties, the learned First Appellate Court could have decreed the suit which was instituted for a specific plot of land without mention of the other immovable properties? It is relevant to take note of that though the defendant in his written statement had categorically stated that there were other immovable properties, Page No.# 12/15

but there is nothing brought on record by way of evidence to show that there were other immovable properties. Under such circumstances, as there was no proof in support of the pleadings of the defendant No.1, the question, therefore, does not arise about any other immovable properties left behind by the father of the plaintiff and the defendant No.1.

18. This Court further finds it relevant to take note of that in the instant suit, the plaintiff had sought for a decree in respect to a property which was jointly purchased in the name of the plaintiff and the defendant No.1 by the father of the plaintiff and accordingly sought for partition of the said property in metes and bounds through a Revenue Partition. In that view of the matter, the third substantial question of law which has been formulated is not at all involved in the instant appeal.

19. The fourth substantial question of law is as to whether the finding of the learned First Appellate Court regarding maintainability of the appeal on the ground of limitation without any petition for condonation of delay is perverse and requires interference? For understanding and appreciating the said substantial question of law so formulated by this Court, this Court enquired with Mr. BD Deka, the learned counsel appearing on behalf of the appellant as to why this substantial question of law was formulated. The learned counsel for the appellant submitted that initially the appeal was filed before this Court where the period of limitation was 90 days as per the Limitation Act 1963. Subsequently, when on account of change in the pecuniary jurisdiction of the Courts, the appeal was sent to the Court of the learned District Judge Kamrup, a Page No.# 13/15

question of limitation arose inasmuch as the period prescribed for filing an appeal to any other Court other than the High Court is 30 days of the judgment and decree appealed against.

20. This Court finds it relevant to take note of the judgment of the Supreme Court in the case of Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Co-Operative Bank Ltd And Anr. reported in (2021) 7 SCC 313, wherein the Supreme Court observed that Section 5 of the Limitation Act 1963 does not speak of any application. It was observed that Section 5 of the Limitation Act 1963 enables the Court to admit an application or an appeal if the applicant or the appellant as the case may be, satisfies the Court that he has sufficient cause for not making the application and or preferring the appeal within the time prescribed. It was further observed that although it is a genuine practice to make a formal application under Section 5 of the Limitation Act 1963, in order to enable the Court or the Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court or the Tribunal within the time prescribed by limitation, there is no bar to be exercised by the Court/Tribunal of its discretion to condone the delay in absence of a formal application. Paragraphs 61 and 62 of the said judgment being relevant is reproduced hereinunder:

"61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to Page No.# 14/15

make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application.

62. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the court is satisfied that the appellant applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application."

21. In the instant case, it would be seen that on account of the then prevailing pecuniary jurisdiction, the appeal was filed before this Court and subsequently on account of the enhancement in the pecuniary jurisdiction, the Page No.# 15/15

appeal was sent back to the Court of the learned District Judge, Kamrup. The learned First Appellate Court thereupon proceeded, being duly satisfied with the delay, if any. Accordingly, the fourth substantial question of law so formulated does not arise.

22. In view of the above analysis, this Court is of the opinion that the four substantial questions of law which were formulated are not involved in the instant appeal.

23. Consequently, the appeal stands dismissed with cost quantified @Rs.11,000/-. Additionally, the plaintiff shall be entitled to costs throughout.

24. Registry to return back the records to the learned Court below.

JUDGE

Comparing Assistant