Page No.# 1/ vs Bhesh Bahadur Puri
2025 Latest Caselaw 987 Gua

Gauhati High Court

Page No.# 1/ vs Bhesh Bahadur Puri on 14 July, 2025

                                                                        Page No.# 1/11

GAHC010048582023




                                                                  2025:GAU-AS:8957

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

                                 Case No. : RSA/32/2023

            KAMINI DEVI
            W/O PUNIT SINGH, RESIDENT OF LAHORIJAN NEAR IB BUNGLOW, PO
            AND PS KHATKHATI, DIST KARBI ANGLONG, ASSAM 782480



            VERSUS

            BHESH BAHADUR PURI
            W/O LATE CHABI LAL PURI, RESIDENT OF LAHORIJAN NEAR IB
            BUNGLOW, PO AND PS KHATKHATI, DIST KARBI ANGLONG, ASSAM
            782480



Advocate for the Petitioner   : R A RONGMEI, MR D KAMEI

Advocate for the Respondent : MR. M P SARMA, MR. N PATHAK,MS R A MOSTAFI,MS. B M

CHHETRI,FOR CAVEATOR

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

JUDGMENT & ORDER (CAV) Date : 14-07-2025

Heard Mr. P.A. Rongmei, learned counsel for the appellant. Also heard Ms. B.M. Chhetri, learned counsel for the respondent.

2. This second appeal, under Section 100 CPC, is directed against the judgment Page No.# 2/11

dated 18.01.2023 and decree dated 30.01.2023, passed by the learned Civil Judge, Karbi Anglong, Diphu, passed in Title Appeal No. 7/2022.

3. It is to be noted that vide impugned judgment dated 18.01.2023 and decree dated 30.01.2023, the learned Civil Judge, Karbi Anglong, Diphu ('first appellate Court', for short) had allowed the appeal and reversed the judgment dated 23.12.2021 and decree dated 04.01.2022, passed by the learned Munsiff No. 1, Karbi Anglong, Diphu ('trial Court', for short), in Title Suit No. 6/2004 (old) and Title Suit No. 52/2017 (new).

4. For the sake of convenience and also for avoiding any confusion, the designation of the parties before the learned trial Court is adopted in this appeal.

5. The background facts, leading to filing of the present appeal, are briefly stated as under:

"The plaintiff, in the year 1993, purchased a portion of land from the defendant measuring 2 kathas out of 1 bigha 3 kathas, bearing Dag No. 454 and 54, Survey P.P. No. 6, Mouza Borjan. The defendant herein had given boundary in the year 1993 and the plaintiff had not constructed any kaccha/pucca boundary structure of the said portion of the land. Thereafter, sometime in month of November 2003, the plaintiff, along with her husband went to Kiphire, Nagaland, where her husband was serving in police department, and after returning from Kiphire, she found illegal activities and development work undertaken by the defendant. The plaintiff then approached and requested the defendant to remove the new kaccha structure from the land of the plaintiff, but the defendant had paid no heed to the said request. Thereafter, on 27.02.2004, the plaintiff had submitted an application before the Settlement Officer, Karbi Anglong, Diphu for demarcation of her land and in that regard, the plaintiff had received a copy of jamabandi and sketch map dated 25.06.2004 pertaining to her land, wherein the copy of jamabandi bears the note checked and Page No.# 3/11

measurement as 2 kathas, covered by Periodic Patta No. 9, Dag No. 99 of village Nirmal Tea Estate, Mouza Borjan, Diphu Circle.

Thereafter, the plaintiff had filed a suit, being Title Suit No. 6/2004 (old) and Title Suit No. 52/2017 (new) before the learned trial Court for right and part possession of the land measuring an area of 1252 sq. ft. (13.6 ft. width to East and West and 92 ft. in North and South) against the defendant who had illegally encroached southern portion of the plaintiff's land.

The defendant had entered appearance and contested the suit by filing written statement, wherein he had denied the allegation of encroachment of any plot of land of the plaintiff. The defendant had admitted that the plaintiff had purchased 2 kathas of land, and it is also stated that the defendant has no objection if a decree is passed by the Court in respect of 2 kathas of land.

Upon the pleadings of the parties the learned trial Court had framed following issues :-

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

2. Whether the suit is maintainable in its present form and manner?

3. Whether the transfer of the land by defendant to the plaintiff is valid as per provisions of law?

4. Whether the plaintiff has right, title and interest over the suit land mentioned in the schedule of the plaint?

5. Whether the defendant is liable to be evicted from the suit land?

6. Whether the plaintiff is entitled to any other reliefs?

Thereafter, hearing both the parties and considering the evidence so tendered during trial, the learned trial Court, vide judgment dated 23.12.2021 and decree dated 04.01.2022, had decreed the suit in favour of the plaintiff.

Page No.# 4/11

Thereafter, the defendant then being aggrieved, had filed an appeal before the learned first appellate Court, being Title Appeal No. 7/2022, and vide impugned judgment dated 18.01.2023 and decree dated 30.01.2023, allowed the appeal by setting aside the impugned judgment and decree of the learned trial Court, with cost.

Being aggrieved, the plaintiff has preferred the present appeal, which was admitted by this Court on the following substantial questions of law:

i. Whether the First Appellate Court (hereinafter referred to as the Civil Judge, Senior Division, Diphu, Karbi Anglong, Assam) was right in reversing the issue No. 5 when the finding of the Ld. Munsiff Civil Judge, Junior Division Diphu, Karbi Anglong of the issue Nos. 1 to 4 have been confirmed as issue No. 5 is subject to the findings of issue Nos. 1 to 4?

ii. Whether the purchaser of an immoveable property is entitled to a decree for possession when sale has been confirmed and also admitted by the vendor, but the vendor having found to be possession?

iii. Whether the First Appellate Court was right in holding that there is no prayer for recovery of possession when there is prayer for Decree for possession of the suit land in the plaint?"

6. Mr. Rongmei, learned counsel for the appellant/plaintiff, submits that the learned trial Court had decided all the issues in favour of the appellant/plaintiff and thereafter, decreed the suit, and that the learned first appellate Court also decided issue Nos. 1 to 4 in favour of the appellant/plaintiff, but reversed the finding on Issue No. 5, and that the finding, so recorded by the learned first appellate Court in respect of Issue No.5 is contrary to its own finding that the plaintiff has right, title and interest over the 1252 square feet of land, which is part and parcel of the 2 kathas of land purchased by her, and as such the first substantial question of law flows out of the impugned judgment and order of the learned first appellate Court and the finding of Page No.# 5/11

the learned first appellate Court suffers from perversity and the same is illegal, arbitrary and unsustainable.

6.1. Mr. Rongmei also submits that the appellant/plaintiff had purchased 2 kathas of land and the same came to her possession, but the respondent/defendant is still occupying a plot of land out of the 2 kathas of land purchased by her. Mr. Rongmei also submits that in the plaint, the appellant/plaintiff had clearly mentioned that the prayer is for a decree of possession of the suit land apart from declaration of right, title and interest and permanent injunction. But the learned first appellate Court had held that there is no prayer for recovery of possession and as such, the impugned judgment dated 18.01.2023 and decree dated 30.01.2023, passed by the learned first appellate Court are unsustainable, and that there is substantial question of law involved in this appeal, and therefore, it is contended to allow the same.

7. Per contra, Ms. Chhetri, learned counsel for the respondent/defendant submits that there is no infirmity or illegality in the impugned judgment dated 18.01.2023 and decree dated 30.01.2023, passed by the learned first appellate Court. Ms. Chhetri also submits that there was no prayer for recovery of possession of the suit land and as such, the appellant/plaintiff is not entitled to recover possession, and it is an admitted fact that the appellant/plaintiff had purchased 2 kathas of land from the respondent and the respondent/defendant had handed over the aforesaid plot of land to the appellant, but the appellant/plaintiff is trying to encroach more land than the 2 kathas of land purchased by her, and that the substantial questions of law, so framed by this Court, are not involved in this appeal, and therefore, it is contended to dismiss the same.

8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein, and perused the judgment dated 23.12.2021 and decree dated 04.01.2022, passed by the learned trial Court, in Title Suit No. 6/2004 (old) and Title Suit No. 52/2017 (new), and Page No.# 6/11

the judgment dated 18.01.2023 and decree dated 30.01.2023, passed by the learned first appellate Court, passed in Title Appeal No. 7/2022.

9. It appears that upon pleadings of the parties, the learned trial Court had framed as many as six issues, as discussed herein above and after recording evidence and hearing arguments of both the parties, the learned trial Court had decided all the issues in favour of the appellant/plaintiff, and also held that the respondent/defendant is liable to be evicted from the suit land and he had been in illegal possession and had no right, title and interest over the suit land and thereafter, decreed the suit.

10. It is also to be mentioned here that the learned first appellate Court, during the course of hearing, has formulated only one point for determination i.e. "Whether the decisions arrived at by the trial Court with regard to the issues framed in the Title Suit is sustainable in the eye of law?"

10.1. Thereafter, the learned first appellate Court discussed the issues and decided the issue Nos. 1 to 4 in favour of the appellant, but while discussing the issue No. 5, the learned first appellate Court had held that:

"A perusal of the judgement passed by the learned Munsiff shows that the trial Court has not decided any such issue as to whether the defendant dispossessed the plaintiff from the suit land in the Month of November, 2003 by building kutcha structures therein. In fact, the appellant-defendant in his appeal memo categorically contended that the trial Court failed to frame a vital issue i.e. whether the plaintiff was dispossessed by the defendant from the schedule land in the month of November, 2003. In fact, the main contention of the plaintiff-respondent is that in the month of November, 2003 the defendant encroached upon the suit land measuring about 1252 square feet and constructed kutcha structures over the same. The plaintiff in his plaint as well as in her examination-in-chief reiterated the fact that in the month of November, 2003 when she had gone to Kiphire in Nagaland with her husband, who was a Page No.# 7/11

SI of Nagaland Police, the defendant taking advantage of their absence illegally occupied the land measuring 1252 Sq. feet of Patta No.9 covered by Dag No.99 by constructing Kutcha structures. The PW.2 and PW.3 (husband of the plaintiff) also stated that the in the month of November, 2003 the defendant taking advantage of the absence of plaintiff illegally occupied the land measuring 1252 Sq. feet of by constructing Kutcha structures. However, I am of the considered opinion that the evidence of the plaintiff and her witnesses (PW.2 and PW.3) appears vague as it is not specifically stated by them as to what kutcha structures had been constructed by the defendant over the suit land. It is also not stated by the plaintiff and her witnesses if the defendant encroached upon the suit land by removing any boundary wall or pillar or fence. In fact, plaintiff in her cross examination stated that though she had mentioned the boundary of her land but there is no boundary. Therefore, it can be deduced that the plaintiff is not sure if the defendant encroached upon her land."

10.2. Further, the learned first appellate Court went on to observe that:

"The PW.4 (Lat Mandal) in his examination-in-chief categorically stated that in the year 2012 he went to the spot i.e. to the 2 kathas of land for demarcation, but he did not make any whisper that he found 1252 square feet of land belonging to the plaintiff encroached upon by the defendant by raising kutcha structures. In fact, in his cross examination the PW.4 categorically stated that he does not know of any report regarding 10 lessas of land less out of the said 2 kathas of land. The PW.4 being a Lat Mandal would have definitely come to know about the alleged encroachment of 1252 square feet of land when he had gone for spot verification of the land measuring 2 kathas. The PW.4 is a witness examined by the plaintiff and not defendant and therefore, there is no reason to disbelieve the PW,4. Hence, considering the evidence in its entirety, I am of the considered view that the plaintiff has failed to show that the defendant had dispossessed the plaintiff from the suit land by constructing any Page No.# 8/11

kutcha structures. Thus situated, I am of the considered view that the learned trial Court has erred in concluding that the defendant is liable to be evicted from the suit land as the plaintiff-respondent has failed to prove the fact that the defendant dispossessed her from the suit land."

10.3. Thereafter, the learned first appellate Court had decided the issue in negative against the appellant/plaintiff.

11. Further, in respect of issue No. 6, the learned first appellate Court had held that in view of the decision in respect of issue No. 5, there is no question of directing the respondent herein/defendant to hand over possession of the suit land to the appellant herein/plaintiff, and accordingly, decreed the suit.

12. That, a careful perusal of the plaint reveals that the plaintiff/appellant herein, had prayed for a decree of declaration of right and decree for possession on the suit land comprising of 1252 sq. ft. (13.6 ft. in width to East and West and 92 ft. in North and South) of Patta No. 9, Dag No. 99, and also for injunction and cost of the suit.

12.1. It is an admitted fact that the plaintiff had purchased 2 kathas of land from the defendant. In her plaint and in her evidence she had categorically stated in the month of November, 2003, while she was at Kiphire of Nagaland, where her husband was working as a Police Sub-Inspector, the defendant had encroached the suit land measuring 1252 square feet of the land out of 2 kathas of land purchased by her and raised kutcha structure thereon. Her two witnesses, P.W.2 and P.W.3 also supported her case. Even P.W.4, the Lat Mondal also testified that the plaintiff had purchased 2 kathas of land from the defendant and her name is also recorded in the revenue record against the said two kathas of land and as per record she is in possession of said two kathas of land.

12.2. Even in the written statement also the defendant had clearly stated that he had sold two kathas of land to the plaintiff and that he has no objection in the event of a decree being passed by the Court in respect of the said two kathas of land.

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12.3. There is also concurrent finding of fact by both the learned courts below that the 1252 square feet of land, which is the suit land, is the part and parcel of 2 kathas of land purchased by the plaintiff from the defendant.

12.4. It is also evident from the evidence of the plaintiff and her witnesses that while the plaintiff was absent from her house, on account her visit to her husband's place at Kiphire, Nagaland, the defendants had encroached the suit land comprising of 1252 square feet of land and constructed kutcha structure there. The learned first appellate Court, however, disbelieve the P.W.1, 2 and 3 on the ground that :-

(i) they could not state about the kutcha structure that was constructed over the suit land;

(ii) that the learned trial court had not discussed and decided any such issue as to whether the defendant dispossessed the plaintiff or not over the suit land in the month of November, 2003, by raising kutcha structure;

(iii) that P.W.4, the Lat Mondal is silent about the alleged encroachment of 1252 square feet of land by the defendant;

12.5. But, in view of the concurrent finding of fact by both the learned courts below that the suit land, comprising of 1252 square feet of land, is the part and parcel of the 2 kathas of land, so purchased by the plaintiff from the defendant, to the considered opinion of this Court, the plaintiff is entitled to decree of declaration and possession of the same and the learned trial Court had rightly granted the same, irrespective of presence or absence of any kutcha structure over there. It is however a fact that the learned trial Court had not directed any discussions in respect of dispossession of the plaintiff by the defendant or not over the suit land in the month of November, 2003, by raising kutcha structure. But, the ground for which the learned first appellate Court has disbelieved the evidence of P.W.1, 2 and 3 appears to be not sound convincing. Being the first appellate Court, it is the solemn duty to discuss the evidence and Page No.# 10/11

thereafter to arrive at a reasoned finding. It is also a fact that no question was put to the P.W.4, at the time of his examination, as to whether there was any encroachment or not, and therefore, he had not deposed anything about the encroachment of 1252 square feet of land. However, P.W.4 had clarified that as per record, the plaintiff had purchased 2 kathas of land and she is in possession of 2 kathas of land. But, the evidence of P.W.1, 2, and 3 is clear and cogent to show encroachment of land of the plaintiff by the defendant in the month of November 2003, while the plaintiff was at Kiphire of Nagaland. The learned first appellate Court had misread their evidence and on such count, the finding so recorded by it suffers from perversity. Needless to mention here that the learned trial Court had granted the decree in respect of the suit land, i.e. 1252 square feet of land which is part and parcel of the 2 kathas of land purchased by the plaintiff from the defendant and the defendant had clearly mentioned in his written statement that he has no objection in the event of a decree being passed in respect of the 2 kathas of land. Therefore, the finding so recorded by the learned first appellate Court is perverse. Thus, the second substantial question of law flows out of the impugned judgment and decree of the first appellate Court.

12.6. And in view of above discussion and finding, reversal the judgment and decree of the learned trial Court, by the learned first appellate Court, in spite of deciding issue No.1, 2, 3 and 4 in favour of the plaintiff, while the issue No. 5 is subject to the finding of issue Nos. 1 to 4, on the ground so discussed herein above, appears to be erroneous appreciation of law and facts both and here the first substantial question of law flows out of the impugned judgment and decree of the first appellate Court.

12.7. And in the given facts and circumstances on the record, the said two substantial questions of laws has to be answered in affirmative, and accordingly, both substantial questions of law stand answered.

13. As already discussed in para No.11, the plaintiff had prayed for a decree of declaration of right and decree for possession on the suit land comprising of 1252 sq. Page No.# 11/11

ft. (13.6 ft. in width to East and West and 92 ft. in North and South) of Patta No. 9, Dag No. 99, and also for injunction and cost of the suit. And in view of aforesaid categorical statement, the finding so recorded by the learned first appellate Court that there is no prayer for recovery of possession is the outcome of misreading of the pleading of the plaintiff. However, this question appears to be not a substantial question law, yet there is perversity in the said finding and it has to be answered in affirmative and accordingly, the same stands answered.

14. In view of the findings recorded herein above, the impugned judgment dated 18.01.2023 and decree dated 30.01.2023, so passed by the learned first appellate Court, in setting aside the judgment and decree dated 23.12.2021 and decree dated 04.01.2022 passed by the learned trial Court, in Title Suit No. 6/2004 (old) and 52/2017 (new) is interfered with being perverse. Accordingly, the impugned judgment dated 18.01.2023 and decree dated 30.01.2023, so passed by the learned first appellate Court stands set aside and quashed. Consequently, the judgment dated 23.12.2021 and decree dated 04.01.2022, so passed by the learned trial Court, in Title Suit No. 6/2004 (old) and 52/2017 (new), stands restored and affirmed.

15. In terms of above, this second appeal stands disposed of. Send down the records of learned Courts below along with a copy of this judgment and order. The parties have to bear their own costs.

JUDGE

Comparing Assistant