Page No.# 1/7 vs Rangabala Roy And 8 Ors
2025 Latest Caselaw 2255 Gua

Gauhati High Court

Page No.# 1/7 vs Rangabala Roy And 8 Ors on 23 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/7

GAHC010163932010




                                                           2025:GAU-AS:889

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

                          Case No. : RSA/10/2010

         ANANTA MALAKAR and 2 ORS,
         S/O LATE ATUL MALAKAR.

         2: KAMAL MALAKAR

          S/O LATE ATUL MALAKAR

         3: PARIMAL MALAKAR

          S/O LATE ATUL MALAKAR
          ALL ARE R/O VILL. UCHITA
          P.S. GOLOKGANJ
          DIST. DHUBRI
          ASSAM

         VERSUS

         RANGABALA ROY and 8 ORS,
         ON THE DEATH OF PABITRA KUMAR ROY HIS LEGAL HEIRS.

         2:EKADASHI ROY
          BOTH ARE HEIRS OF LATE PABITRA KUMAR ROY
         VILL.UCHITA
          P.S. GOLOKGANJ
          DIST. DHUBRI
         ASSAM.

         3:BIMAL CH. MALAKAR

          S/O LT. BALAI MALAKAR.

         4:STRUCK OUT.
         VIDE HON'BLE COURT'S ORDER DTD. 20/09/2023 PASSED IN RSA
         NO.10/2010
                                                                        Page No.# 2/7


            5:STRUCK OUT.
            VIDE HON'BLE COURT'S ORDER DTD. 01/11/2019 PASSED IN RSA
            NO.10/2010.

            6:DINESH MALAKAR ROY

            S/O LATE HAGARU ROY.

            7:PROBHAT CH. ROY

            S/O LATE HAGARU ROY


            8:BIJOY CH. ROY

            S/O LATE HAGARU ROY.

            9:SONTOSH MALAKAR

            S/O HARENDRA MALAKAR
            NO.5 IS RESIDENT OF VILL. DHUMURGHAT AND NO. 7 IS RESIDENT OF
            VILL. MURAKOBA P.S. GOLOKGANJ
            DIST. DHUBRI
            ASSAM AND NO. 4
            6
            8 AND 9 ARE RESIDENT OF VILL. UCHITA
            P.S. GOLOKGANJ
            DIST. DHUBRI
            ASSAM

For the Appellant(s)       : Mr. R.P. Sarmah, Senior Advocate
                            Mr. S.K. Ghosh, Advocate
For the Respondent(s)      : None appears


Date of Hearing                          : 23.01.2025
Date of Judgment                         : 23.01.2025


                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                             JUDGMENT AND ORDER (ORAL)

Heard Mr. R.P. Sarmah, the learned Senior Counsel assisted by Mr. S.K. Page No.# 3/7

Ghosh, the learned counsel appearing on behalf of the appellants.

2. The instant appeal is an Appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 27.04.2009 passed by the Court of the learned Civil Judge, Dhubri (hereinafter referred to as 'the learned Appellate Court') thereby affirming the judgment and decree dated 10.03.2000 passed by the learned Civil Judge (Junior Division) No. 1, Dhubri (hereinafter referred to as 'the learned Trial Court') in Title Suit No. 212/93 wherein the suit instituted by the plaintiff was decreed.

3. It is seen from an order dated 17.12.2019 that the instant appeal was admitted by formulating a substantial question of law i.e.:

(1) Whether the learned Courts below had erred in law in declaring the title of the plaintiffs over the suit land on the basis of Exhibit 1 and Exhibit Ka?

To appreciate as to whether the said substantial question of law is involved in the instant appeal, this Court finds it relevant to take note of the facts leading to the instant proceedings.

4. It is seen from the materials on record that the original respondent herein as plaintiff had instituted a suit seeking declaration of his right, title, interest and possession over the Schedule A land; for a decree for perpetual injunction restraining the defendants from entering into the land of the Schedule A or doing anything disturbing in the use and possession of the plaintiff etc.

5. The case of the plaintiff in brief is that by a registered deed of sale bearing Page No.# 4/7

Deed No. 4255 dated 28.07.1982, the plaintiff had purchased a plot of land as described in Schedule A to the plaint from the proforma defendant Nos. 1 and 2. It has been specifically pleaded that the defendants who are the step brothers of the proforma defendant Nos. 1, 2 and 3 had no share in the land of the Schedule A. However, out of sheer greed, in the last Aswin 1399, the defendants suddenly removed and stole away the paddy from a part of the land of Schedule A for which the plaintiff initiated a theft case against them. It was also pleaded in the plaint that the plaintiff apprehends that the defendants would again conspire to enter into the Schedule A land and as such, the suit was filed seeking the reliefs as aforementioned.

6. The defendant No. 1 had filed a written statement denying the case of the plaintiff. It is the claim of the defendant No. 1 in the written statement that the said defendant possessed the suit land covered by Dag Nos. 34 and 55 by right of inheritance and also by right of purchase. It was further stated in the written statement that the proforma defendants never had possession over the said land. It was further denied that the defendants had sold any part of the suit land to the plaintiff or delivered possession to the plaintiff. It was further stated that the plaintiff should have filed a suit for partitions if he has got any share in the suit land, however, not a suit in the present form.

7. On the basis of the averments made in the pleadings, as many as 8(eight) issues were framed by the learned Trial Court. The said issues are as herein under:

" 1. Whether the suit is maintainable?

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

Page No.# 5/7

3. Whether the suit is barred by limitation?

4. Whether the suit is barred by Section 34 of the SR Act?

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

6. Whether plaintiff has right, title and possession over the suit land?

7. Whether the plaintiff is entitled to get the decree as prayed for?

8. To what relief/reliefs, if any, the parties are entitled to?"

8. On behalf of the plaintiff, 4 (four) witnesses were examined and 4 (four) documents were exhibited. On behalf of the defendants, the defendant No. 1 adduced evidence as DW1 and exhibited a document which has been exhibited at Exhibit Ka.

9. The learned Trial Court, while deciding the issue No. 7 came to a categorical finding, that the plaintiff had been able to prove Exhibit 1, which is the Deed of Sale being Deed No. 4255 dated 28.07.1982. In respect to the deed of sale of the defendant which was exhibited as Exhibit Ka, it was observed by the learned Trial Court that it was not clear whether the suit land and the schedule land of Exhibit Ka was identical or not. It was further observed that the defendant failed to prove the said aspect of the matter and as such came to a categorical opinion that the plaintiff had right, title and interest over the suit land by way of purchase. Under such circumstances, the learned Trial Court by the judgment and decree dated 10.03.2000, had decreed the suit on contest by declaring that the plaintiff had right, title and possession over the suit land and the defendants were permanently restrained from entering into the suit land by issuance of perpetual injunction.

Page No.# 6/7

10. Being aggrieved, the defendant preferred an appeal before the Court of the learned Civil Judge, Dhubri i.e. the learned First Appellate Court which was registered and numbered as Title Appeal No. 25/2000.

11. The learned First Appellate Court vide the judgment and decree dated 27.04.2009 had dismissed the appeal by affirming the findings of facts arrived at by the learned Trial Court. It is relevant to take note of that the learned First Appellate Court in its judgment dated 27.04.2009 had categorically come to an opinion that the plaintiff had been able to prove the sale deed i.e. Exhibit 1, as well as also his possession. As regards the defendant, the learned First Appellate Court came to a finding that the boundary of the land purchased by the appellant, who was the defendant in the suit vide Sale Deed being Exhibit Ka was different from the boundary of the suit land. It was further observed that during the evidence, the defendant had given the boundary of the land under Dag No. 34, which was quite separate from the suit land. On the basis of the said finding of fact, the learned First Appellate Court had dismissed the appeal and thereby affirmed the judgment and decree passed by the learned Trial Court.

12. In the above backdrop, the instant appeal was preferred by the defendant No. 1 and this Court vide an order dated 17.12.2009 had admitted the instant appeal by formulating the substantial question of law as already stated supra.

13. This Court had duly heard the learned counsel appearing on behalf of the appellants and has perused the materials on record.

14. The substantial question of law formulated is in respect to whether the Page No.# 7/7

learned Courts below had erred in law in decreeing the title of the plaintiff over the suit land on the basis of Exhibit 1. It is seen that both the Courts below have categorically come to a finding that Exhibit 1 was duly proved. It was further the finding of both the Courts below that the suit land as well as the land described in Exhibit 1 is one and the same. As regards the Exhibit Ka, the learned Courts below have categorically come to a finding that the land in Exhibit Ka is quite different from the suit land. Under such circumstances, the finding of facts has been arrived at by the learned Court below on the basis of the evidence on record. No perversity could be shown by the learned counsels for the appellants in respect to the said findings of fact. It is well settled that finding of facts arrived at by the learned Courts below cannot be interfered with sans and perversity apparent on the records.

15. This Court finds no infirmity in the judgment and decree passed by both the learned Courts below for which the substantial question of law which was formulated is not involved in the present Appeal.

16. Accordingly, the instant appeal stands dismissed. However, taking into account that the respondents have not put in their appearance, this Court is not inclined to impose any costs.

17. The Registry is directed to forthwith return the LCR to the learned Courts below.

JUDGE

Comparing Assistant