Md. Faizuddin Ahmed vs On The Death Of Md. Lutfur Rahman
2025 Latest Caselaw 2123 Gua

Gauhati High Court

Md. Faizuddin Ahmed vs On The Death Of Md. Lutfur Rahman on 21 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010092112009




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

                             Case No. : RSA/130/2009

         MD. FAIZUDDIN AHMED,
         S/O LATE MANIK ALI, R/O CHARAIBAHI MUSLIM GAON, OPP. TO
         CHARAIBAHI H.S. SCHOOL, P.O. CHARAIBAHI-785616, DIST. JORHAT,
         ASSAM.



         VERSUS

         ON THE DEATH OF MD. LUTFUR RAHMAN, HIS LEGAL HEIRS MD.
         MUZIBUR RAHMAN(SON) AND ORS.
         S/O LATE LUTFUR RAHMAN R/O CHARAIBAHI MUSLIM GAON, DIST.
         JORHAT, ASSAM-785616

         2:MD. ARIFUR ROHMAN
          S/O- LATE LUTFUR RAHMAN R/O- CHARAIBAHI MUSLIM GAON
          P.O.- CHARAIBAHI
          DIST.- JORHAT
         ASSAM-785616

         3:MSTT. SELIMA ROHMAN
          D/O- LATE LUTFUR RAHMAN
         W/O- MD. MAHMUD HUSSAIN R/O- NO.2 GOLAI
          P.O. AND P.S.- DIGBOI
          DIST.- TINSUKIA
         ASSAM- 78617




     Advocates for the appellant(s):    Mr. K Agarwal, Senior Advocate
                                         Ms. P Neog
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      Advocates for the respondents : Mr. MK Sarma

      Date of hearing & judgment       :   21.01.2025


                                     BEFORE
                 HON'BLE MR. JUSTICE DEVASHIS BARUAH


                             JUDGMENT & ORDER(ORAL)

Heard Mr. K Agarwal, the learned senior counsel, assisted by Ms. P Neog, the learned counsel appearing on behalf of the appellant. Mr. MK Sarma, the learned counsel appears on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the judgment and decree dated 04.06.2009 passed by the Court of the learned Civil Judge, Jorhat in Title Appeal No.22/2008 whereby the appeal was dismissed and the judgment and decree dated 30.06.2008 and 27.04.2009 in Title Suit No.112/2006 passed by the learned Munsiff No.1, Jorhat was affirmed.

3. This Court vide an order dated 28.08.2009 admitted the instant appeal by formulating three substantial questions of law which are reproduced hereinunder:

1. Whether the learned Courts below erred in law in decreeing the suit of the plaintiff/respondent on the basis of Exhibit-1 Sale Deed when the execution of the same was not proved duly, which has not conferred any right, title and interest on him?

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2. Whether the executants of the Exhibit-1 Kafaiuddin had any right to alienate the suit land?

3. Whether that the findings of impugned judgments and decrees are perverse and vitiated for non reading or non-consideration of the evidence of DWs?

4. To ascertain as to whether the said substantial questions of law so formulated are involved in the instant appeal, this Court finds it relevant to refer to the facts which led to the filing of the instant appeal. One Muhammad Luftur Rahman had instituted a suit before the Court of the learned Munsiff at Jorhat seeking declaration of his right, title and interest over the suit land as mentioned in Schedule A to the plaint; for recovery of khas possession of the suit land as described in Schedule A to the plaint by evicting the defendants, their agents, servants, assigns, workmen etc therefrom; for an order for demolition and removal of the structures standing over the suit land by granting of mandatory injunction as mentioned in Schedule B to the plaint; for permanent injunction against the defendants restraining and prohibiting the defendants, their agents, servants, assigns etc., from entering into the suit land in future, etc.

5. The case of the plaintiff in the said suit is that he had purchased the suit land which has been specifically described in Schedule A to the plaint from one Kafaitullah @ Kaifuddin vide registered deed of sale bearing deed No. 117 dated 29.01.1990. Upon purchase of the said land, the said land was also mutated in favor of the plaintiff on the basis of an order dated 02.03.1991 of the Circle Officer Jorhat (West). It is the case of the plaintiff that as the plaintiff used to reside at a distance of 1KM away from the suit land and on account of Page No.# 4/10

friendship, permitted one Manik Ali, who is the father of the defendants to use the suit land and also to raise certain katcha sheds over the said suit land. The said arrangement continued during the lifetime of Late Manik Ali. However, upon the death of Late Manik Ali, the defendants started raising certain pucca construction as well as denied the right, title and interest of the plaintiff over the suit land. It is under such circumstances, a pleader's notice was issued on 13.04.2006 asking the defendants to vacate the suit land by removing all structures standing thereon within 15 days from the receipt of the said notice, failing which, it was stated that legal action would be taken. The said pleaders' notice though were received by the defendants, but they did not vacate the suit land and it is under such circumstances, the suit was filed which was registered and numbered as Title Suit No.112/2006 seeking the reliefs as stated supra.

6. The defendants, thereupon, appeared and filed their written statement. Various pleas were taken as regards the maintainability of the suit. However, on merits, the defendants denied that the plaintiff had right, title and interest over the suit land. Additionally, the defendants had also denied that Kafaitullah i.e., the vendor of the plaintiff had absolute and exclusive right to alienate the suit land by way of sale, mortgage, etc., for consideration. It was also mentioned in the written statement that the entry of the name of the plaintiff in the Jamabandi of patta No. 118 of Gohain Gaon, Charaibahi Mouza, Jorhat was made surreptitiously as Kaifuddin had no authority to sell the suit land. In the said written statement, the defendant further narrated their case. It was mentioned in the written statement that the suit land along with other lands covered by the patta originally belonged to one Late Noor Mohammad, who was the grandfather of the defendants. Upon the death of Late Noor Mohammad, his Page No.# 5/10

five sons which included the father of the defendants, got the entire land by way of gift and the suit land fell into the share of the father of the defendants. It was also mentioned that the father of the defendants on the basis of this gift continued to enjoy the suit land as his own and the defendants after the death of their father have been also enjoying and possessing the suit land.

7. It is further seen from the materials on record that the learned Trial Court framed six issues which are reproduced hereinunder:

1. Whether there is any cause of action for the suit?

2. Whether the suit is based by limitation?

3. Whether the suit is bad for non-joinder of necessary parties/

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the plaintiff is entitled to a decree for khas possession of suit land in schedule A by eviction the defendants their agents, etc. therefrom by demolishing and for a decree of permanent injunction against the defendants thereby restricting the defendants from entering the sit land?

6. To what relief/reliefs the parties are entitled to under law and equity?

8. On behalf of the plaintiff, three witnesses were examined and two documents were exhibited and on behalf of the defendants, three witnesses were examined and one document was exhibited. The learned Trial Court vide a judgment and decree dated 30.06.2008, decreed the suit in favour of the plaintiff, thereby declaring that the plaintiff's right, title and interest over the suit land, as mentioned in Schedule A to the plaint; the khas possession of the Page No.# 6/10

Scheduled A land, as mentioned in Schedule A of the plaint be delivered to the plaintiff, upon eviction of the defendants, their servants, workmen, etc., therefrom by demolishing and removing the structure(s) standing over the suit land. Additionally, the defendants and their agents were permanently restrained/prohibited from entering into the suit land in future.

9. Being aggrieved, the appellants herein preferred an appeal before the First Appellate Court i.e. the Court of the learned Civil Judge at Jorhat. The appeal was registered and numbered as Title Appeal No.22/2008.

10. The learned First Appellate Court, after taking into account the arguments so submitted by both the parties, arrived at an opinion that the entire suit of the plaintiff revolved around the question as to whether the appellants, who were the defendants in the suit, were permissive occupiers of the suit land. It was further observed that the learned Trial Court failed to frame such a vital issue, and, as such, the impugned judgment was required to be interfered with.

11. It is, however, very relevant to take note of that the learned First Appellate Court by the order dated 10.02.2009, observed that the judgment and decree passed by the learned Trial Court was set aside and the learned Trial Court was directed to frame an additional issue to the effect as to whether the defendants were permissive occupiers of the suit land. It was further observed that the learned Trial Court shall answer the aforesaid issue, by affording an opportunity to the parties to adduce evidence and thereupon forward the case to the Court.

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12. This Court at this stage finds it relevant to observe that a perusal of the order dated 10.02.2009 reveals that the exercise so made by the learned First Appellate Court was an exercise in terms with Order XLI, Rule 25 of the Code, inasmuch as, the learned Trial Court was asked to frame an additional issue and to forward the case record to the Court. There was no challenge to the said order dated 10.02.2009 passed by the learned First Appellate Court.

13. The parties to the suit, thereupon, again appeared before the learned Trial Court. The learned Trial Court framed an additional issue as to whether the defendants were permissive occupiers of the suit land and thereupon by the judgment dated 27.04.2009 decided the additional issue in favour of the plaintiff, thereby holding that the possession of the defendants were permissive in nature. On the basis of the said judgment dated 27.04 2009, the matter was again taken up by the learned First Appellate Court.

14. The learned First Appellate Court thereupon passed the impugned judgment and decree whereby decided the appeal on merits issue-wise and dismissed the appeal. It is under such circumstances, the present appeal is before this Court.

15. This Court had duly heard Mr. K. Agarwal, the learned senior counsel appearing on behalf of the appellant and Mr. MK Sarma, the learned counsel appearing on behalf of the respondents and had also perused the records of the case.

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16. On the basis of the arguments advanced and the materials on record being perused, this Court now would analyze as to whether the substantial questions of law which was formulated as noted-above are involved in the instant appeal. The first substantial question of law which was formulated was whether the learned Courts below erred in law in decreeing the suit of the plaintiff/respondent on the basis of Exhibit-1 Sale Deed when the execution of the same was not proved duly which has not conferred any right, title and interest on him?

17. This Court had duly taken note of the evidence on record. From the evidence on record, more particularly, the evidence of the PW-1, it is seen that the registered deed of sale bearing deed No.117 dated 29.01.1990 was duly exhibited. This Court had also perused the evidence of PW-4, who was the identifier as well as the witness to the Deed of Sale. In the opinion of this Court, the said Deed of Sale had been duly exhibited and proved. In that view of the matter, this Court is of the opinion that the first substantial question of law which was formulated in the opinion of this Court is not involved in the instant appeal.

18. The second substantial question of law is as to whether the executant of the Exhibit-1, Kafaiuddin had any right to alienate the suit land?

19. This Court at this stage, finds it relevant to take note of that it is a settled principle of law that to be a substantial question of law involved in a second appeal, the question of law so formulated, if involved would materially change Page No.# 9/10

the outcome of the suit. In that perspective, if this Court duly takes note of the decision of the learned First Appellate Court, in so far as issue No.4 is concerned, it appears that the Exhibit-1, which is a registered Deed of Sale had conferred a right, title and interest over the land described in the said Sale Deed by virtue of Section 54 of the Transfer of Property Act 1882, read with the Registration Act, 1908. It is also noticed that the said Deed of Sale, which had duly affected the interest of the defendants was never challenged by the defendants at any point of time. Under such circumstances, by virtue of the said Deed of Sale, the title of the suit land had legally got transferred to the plaintiff. In that view of the matter, it is the opinion of this Court that without there being a challenge to the Sale Deed, the collateral challenge to the title of the vendor the plaintiff, by way of raising an averment made in the written statement would not suffice. In that view of the matter, the second substantial question of law so formulated cannot be a substantial question of law involved in the instant appeal.

20. The third substantial question of law so formulated is as to whether the findings in the impugned judgment and decree are perverse and vitiated for non reading or non consideration of the evidence of DWs? In the opinion of this Court and with due respect, question of law so formulated as a substantial question of law cannot be a substantial question of law, inasmuch as the said substantial question of law is completely vague and indefinite without having any relation to what non reading or non consideration of the evidence of the DWs have been mentioned. Under such circumstances, the third substantial question of law, so formulated, cannot be said to be involved in the instant appeal.

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21. Accordingly, as this Court does not find any substantial question of law so formulated vide order dated 28.08.2009 to be involved in the appeal. The instant appeal stands dismissed with cost quantified at Rs.11,000/- (Rupees Eleven Thousand) only.

22. The Registry is directed to forthwith transmit the records to the learned Courts below.

JUDGE

Comparing Assistant