Gauhati High Court

Page No.# 1/17 vs On The Death Of Md Kamal Uddin on 17 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

Page No.# 1/17
2024:GAU-AS:5845
GAHC010117312016

2025:GAU-AS:8141

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

Case No. : RSA/201/2016

MAKADDAS ALI
S/O LT. NIMAR ALI, VILL. NETAINAGAR PART-1, PARGANA , P.S. and DIST.
HAILAKANDI, PIN 788155

VERSUS

ON THE DEATH OF MD KAMAL UDDIN, HIS LEGAL HEIRS
NAMELY-

1.2:ALTAF HUSSAIN
S/O LT. KAMAL UDDIN
VILL. NETAINAGAR PART-1 PARGANA
P.S. and DIST. HAILAKANDI

1.3:JAKIR HUSSAIN
S/O LT. KAMAL UDDIN
VILL. NETAINAGAR PART-1 PARGANA
P.S. and DIST. HAILAKANDI

1.4:BEDANA BEGUM
D/O LT. KAMAL UDDIN
VILL. NETAINAGAR PART-1 PARGANA
P.S. and DIST. HAILAKAND

Linked Case : RSA/198/2016

MD MAKADDAS ALI
S/O LATE NIMAR ALI
R/O NITAINAGAR PART-1
P.O.NITAINAGAR
Page No.# 2/17
2024:GAU-AS:5845
P.S. and DIST. HAILAKANDI

VERSUS

MD LECHAN UDDIN and 29 ORS

2:MD. FAIZUL HOQUE

S/O LATE ISHAK ALI
NITAINAGAR PART 1
PO NITAINAGAR
PS DIST HAILAKANDI
PIN 788155

3:ON THE DEATH OF KAMAL UDDIN HIS LEGAL HEIRS
S/O LATE SHOIB ALI
R/O NITAINAGAR PART-1
P.O. NITAINAGAR
P.S. and DIST. HAILAKANDI
PIN 788155

3.1:TERAFUL BIBI(WIFE)
R/O NITANAGAR PART 1
PO NITAINAGAR
PS AND DIST. HAILAKANDI
PIN-788155

3.2:ALTAF HUSSAIN(SON)
R/O NITANAGAR PART 1
PO NITAINAGAR
PS AND DIST. HAILAKANDI
PIN-788155

3.3:JAKIR HUSSAIN (SON)
R/O NITANAGAR PART 1
PO NITAINAGAR
PS AND DIST. HAILAKANDI
PIN-788155

3.4:BEDANA BEGUM (DAUGHTER)
R/O NITANAGAR PART 1
PO NITAINAGAR
PS AND DIST. HAILAKANDI
PIN-788155

4:MD. RAJA MIAH
Page No.# 3/17
2024:GAU-AS:5845
NITAINAGAR PART 1
PO NITAINAGAR
PS AND DIST HAILAKANDI
PIN 788155

5:WAB ALI
S/O LATE MOSUR ALI

6:AZIR UDDIN

S/O LATE MOSUR ALI

7:ABDUL JALIL
S/O LATE MOSUR ALI

8:SOFATUN NESSA

D/O LATE MOSUR ALI

9:EMAM UDDIN

S/O LATE WAJID ALI

10:BASIR UDDIN

S/O LATE WASID ALI
LEGAL HEIRS OF LATE TAIYAB ALI INCLUDING 19-21

11:JAMAL UDDIN

S/O LATE CHAYAR ALI

12:KOKILA BIBI

D/O LATE CHAYAR ALI

Advocate for the Appellant : Mr. M. J. Quadir, Advocate

Advocate for the Respondents : Mr. A. H. M. R. Choudhury,
Advocate
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2024:GAU-AS:5845

BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH

Date of Hearing : 17.06.2025

Date of Judgment : 17.06.2025
JUDGMENT AND ORDER (ORAL)

Heard Mr. M. J. Quadir, the learned counsel appearing on behalf of the appellant in both the Appeals and Mr. A. H. M. R. Choudhury, the learned counsel who appears on behalf of the respondents in both the Appeals.

2. Taking into account that the subject matter in both the Appeals are interconnected, this Court, by this common judgment and order, takes up the both the Appeals for disposal together.

3. RSA No.198/2016 challenges the judgment and decree dated 19.04.2016 passed by the Court of the learned Civil Judge, Hailakandi (hereinafter referred to as 'the learned First Appellate Court') in Title Appeal No.14/2012 whereby the Appeal was dismissed and the judgment and decree dated 21.04.2012 passed by the Court of the learned Munsiff No.1, Hailakandi in Title Suit No.52/2005 was upheld.

4. RSA No.201/2016 challenges the judgment and decree Page No.# 5/17 2024:GAU-AS:5845

dated 20.04.2016 passed in Title Appeal No.31/2013 by the Court of the learned Civil Judge, Hailakandi whereby the judgment and decree dated 20.07.2013 passed by the Court of the learned Munsiff No.1, Hailakandi in Title Suit No.72/2010 was interfered with and thereby the suit was decreed in favour of the plaintiff therein who is the defendant No.3 in Title Suit No.52/2005.

5. It is relevant to take note of that in both the Appeals, the learned Coordinate Bench of this Court had formulated a substantial question of law.

6. In RSA No.198/2016, the substantial question of law so formulated vide the order dated 31.08.2016 reads as under:-

1. Whether the findings and conclusions recorded by the court below as regards Issue No.2 and 3 are perverse to the evidence available on record?

7. In RSA No.201/2016 vide the order dated 31.08.2016, the following substantial question of law was formulated:-

1. Whether the findings and conclusions recorded by the court below as regards Issue Nos.4 and 5 are perverse to the evidence available on record?

8. The question arises as to whether the substantial questions of law which have been formulated by the learned Coordinate Page No.# 6/17 2024:GAU-AS:5845

Bench of this Court as above noted are involved in both the instant Appeals. For ascertaining the same, this Court finds it relevant to take note of the brief facts which led to the filing of the two Appeals before this Court.

9. The appellant herein had filed a suit being Title Suit No.52/2005 before the Court of the learned Civil Judge (Junior Division) No.1, Hailakandi seeking declaration of his right, title and interest over the land described in the Schedule to the plaint on the basis of the registered Deed of Sale No.2754 dated 24.08.2008; a permanent injunction at a time of disposal of the suit restraining the defendants therein from interfering with the possession of the plaintiff and also from dispossessing the plaintiff from the land; a decree for cost, etc.

10. The case of the plaintiff in the said suit is that Kutiram Das, Surendra Chandra Das, Sumanta Kumar Das, Sushanta Chandra Das, Hirendra Chandra Das and Haji Abdul Latif were the owners of various lands covered by Patta No.81. The said lands subsequently were both within Patta Nos.74 and 121 in the resettlement period. On 19.03.1976 by the registered Sale Deed No.2142, one Siddique Ali purchased 3 bighas 10 kathas 5

chattaks under 2nd R.S. Patta Nos.121 and 74 from Kutiram Das, Surendra Chandra Das, Sumanta Kumar Das and Sushanta Page No.# 7/17 2024:GAU-AS:5845

Chandra Das, and thus, he became the owner and possessor of the said land. Subsequent thereto, vide another registered Sale Deed No.7228 dated 12.11.1976, the said Siddique Ali purchased

another plot of land admeasuring 18 kathas 3 chattaks under 2 nd R.S. Patta Nos.74 and 121 from Haji Abdul Latif and the legal heirs of Haji Sanaur Ali. The said Siddique Ali further vide another Sale Deed bearing Deed No.4751 dated 11.05.1981 purchased a plot of land admeasuring 15 kathas 17 ½ chattaks. Accordingly, Siddique Ali became the owner of 5 bighas 7 kathas 7 ½ chattaks in both the Pattas, i.e. Patta Nos.74 and 121. Subsequent to that, the said Siddique Ali vide registered Sale Deed Nos.354, 355, 356 dated 20.02.1990 sold 4 bighas 11 kathas 1 chattak to the plaintiff, the proforma defendant Nos.4 to 10 and their mother and transferred his right, title and interest over the said land in favour of them. After the death of Siddique

Ali, his legal heirs sold 18 kathas 3 chattaks from 2 nd R.S. Patta No.121 to the plaintiff vide the registered Sale Deed No.2754 dated 24.08.2004 and delivered possession to the plaintiff.

11. It is the further case of the plaintiff that the defendant Nos.1, 2 & 3 had harvested paddy over the land measuring about 16/17 jasti and had taken away the crops by application of force. It is under such circumstances, the suit was filed claiming Page No.# 8/17 2024:GAU-AS:5845

right, title and interest in respect to the land measuring 16/17 jasti covered by Dag Nos.418/567 under R.S. Patta No.121 with specific boundaries.

12. The defendants filed their written statement wherein various preliminary objections were taken as regards the maintainability of the suit. It was contended that the predecessor of the proforma defendant Nos.27 to 30, namely, Ishak Ali, Jamal Uddin and Kamal Uddin vide registered Deed No.6578/1451 dated 21.09.1983; Sayar Ali, the predecessor of the defendant No.3, proforma defendant Nos.27 to 30 vide Deed No.8077/1449 dated 14.10.1953 purchased the suit land and other lands respectively from Hirokmoni Das, Parbotibala Das, Samanta Kumar Das and Suresh Chandra Das and after the death of their predecessors, the defendants have been in possession of their aforesaid land. It was categorically stated that the land purchased by Sayar Ali vide Deed No.8077/1449 measuring 6 kattas 1 chattak was related to Patta No.81 and Dag Nos.436/437/438 and 435 (part) of Mouza Nitainagar Part-I. The

Patta No.81 became 2nd RS Patta No.121. It was also mentioned that the plaintiff with others on 20.09.1990 prepared Deed Nos.355/360/8354/359/356/361 for the land of Patta Nos.74 and 121 showing 1 bigha 10 Kathas 5 chattaks 14 gondas of land, 1 bigha 10 Kathas 5 chattaks 13 gondas of land and 1 bigha 10 Page No.# 9/17 2024:GAU-AS:5845

Kahas 5 chattaks 13 gondas of land respectively in the said Deeds by giving the same boundary. The said Deeds mentioned names of other eight vendors but they have not been made parties in the suit.

13. On the basis of the pleadings, the learned Trial Court framed four issues which being relevant are reproduced herein under:

1. Is there any cause of action for the suit?

2. Whether the plaintiff acquired title over the suit land vide Deed No.2754 dated 24.08.2004?

3. Whether the plaintiff is entitled to injunction as prayed for?

4. To what relief, the plaintiff is entitled?

14. At this stage, before further proceeding with the Title Suit No.52/2005, it is relevant to take note of that the defendant No.3 of Title Suit No.52/2005 filed another suit being Title Suit No.72/2010 against the plaintiff of Title Suit No.52/2005 wherein declaration was sought for that the registered Sale Deed dated 11.05.1981 which is described in Schedule-1 of the plaint did not pass any title of suit land comprising of 15 kathas 14 chattaks

under Dag Nos.415/416/426 of 2nd RS Patta No.78 to the defendant Siddique Ali and that the Sale Deed is illegal and liable to be cancelled and for sending the order of cancellation of the Page No.# 10/17 2024:GAU-AS:5845

Deed to the Sub-Registrar; for a declaration that the legal heirs of Siddique Ali, proforma defendant Nos.9 to 13 had no right over the suit patta for which the Sale Deed No.2754 dated 24.08.2004 executed in favour of the principal defendant (the plaintiff in Title Suit No.52/2005) as described in the first Schedule could not pass any right to the defendant over the land of 18 kathas 3 chattaks and the Sale Deed is illegal and liable to be cancelled.

15. Now coming back to the Title Suit No.52/2005, it would be seen that after the framing of the issues, on behalf of the plaintiff, seven witnesses had adduced evidence and various documents were exhibited. On behalf of the defendants, five witnesses were examined and various documents were exhibited.

16. At this stage, it is very pertinent to take note of that Exhibit 3 is the Deed of Sale bearing Deed No.2142 by which Siddique Ali purchased land admeasuring 3 bighas 10 kathas 5 chattaks. Exhibit 4 is the registered Deed No.7228 dated 12.11.1976 whereby Siddique Ali purchased 18 kathas 3 chattaks of land. Exhibit 5 was the Deed of Sale bearing Deed No.4751 dated 11.05.1981 whereby Siddique Ali purchased 15 kathas 17 ½ chattaks of land. Exhibit 6, 7 & 8 are the Deed Nos.354/355 and 356 all dated 20.02.1990 whereby the Siddhique Ali sold 4 bighas 11 kathas 1 chattak of land to the plaintiff and the proforma Page No.# 11/17 2024:GAU-AS:5845

defendant Nos.4 to 10 and their mother. Exhibit 9 is the registered Deed of Sale bearing Deed No.2754 dated 24.08.2004 whereby the legal heirs of Siddique Ali transferred land admeasuring 18 kathas 3 chattaks to the plaintiff.

17. In the backdrop of the above, let this Court now take into consideration how the learned Trial Court decided the Issue No.2. The learned Trial Court while deciding the Issue No.2 had taken into account the various Exhibits and on the basis of the oral evidence adduced by the plaintiff, wherein the plaintiff stated that land in Exhibit 5 was a part of land in Exhibit 3 held that no right, title and interest stood conferred upon the plaintiff on the basis of the Deed of Sale No.2754 dated 24.08.2004, and accordingly, dismissed the suit.

18. Taking into account the judgment and decree passed on 21.04.2012 in Title Suit No.52/2005, the suit being Title Suit No.72/2010 was dismissed on the point of res judicata. The appellant herein had preferred an Appeal being Title Appeal No.14/2012 against the judgment and decree dated 21.04.2012 passed in Title Suit No.52/2005. The defendant No.3 who was the plaintiff in Title Suit No.72/2010 being aggrieved vide the judgment and decree dated 20.07.2013 preferred an Appeal being Title Appeal No.31/2013. The Title Appeal No.14/2012 was dismissed vide the judgment and decree dated 19.04.2016 by Page No.# 12/17 2024:GAU-AS:5845

the learned Appellate Court whereas, Title Appeal No.31/2015 was allowed thereby decreeing Title Suit No.72/2010 vide the judgment and decree dated 20.04.2016. It is under such circumstances, both the Appeals are preferred before this Court.

19. Mr. M. J. Quadir, the learned counsel appearing on behalf of the appellant in both the Appeals submitted that the learned Court below while deciding both the Appeals committed perversity in as much as merely on the basis of certain suggestions, it was held that land in Exhibit 5 of Title Suit No.52/2005 was included in land of Exhibit 3 of Title Suit No.52/2005 and on that basis, arrived at the conclusion that Siddique Ali or his legal heirs did not have title beyond 4 bighas 11 kathas 8 chattaks of land as the same were already transferred vide Exhibit 6, 7 & 8. The learned counsel for the appellant submitted that in terms with Section 91 of the Indian Evidence Act, 1872, the learned Trial Court ought to have decided the suit on the basis of the documents and not on oral evidence and this aspect had led to the perversity in the findings of facts arrived at by the learned First Appellate Court in both the Appeals for which the substantial questions of law so formulated by the learned Coordinate Bench of the Court are involved in the instant Appeals.

20. Mr. A. H. M. R. Choudhury, the learned counsel appearing Page No.# 13/17 2024:GAU-AS:5845

on behalf of the respondents submitted that the concurrent findings of fact arrived at by both the Courts below cannot be disturbed in exercise of the powers under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'). He submitted that both the Courts below in Title Suit No.52/2005 leading to Title Appeal No.14/2012 have concurrently arrived at the finding that land in Exhibit 5 came within the purview of land of Exhibit 3. He therefore submitted that this aspect having attained finally on the question of adjudication of facts, the substantial questions of law which have been formulated by this Court does not arise. He makes similar submissions in so far as RSA No.201/2016 and submitted that the substantial questions of law so formulated are not involved in the instant Appeals.

21. This Court has duly given an anxious consideration to the materials on record as well as the respective submissions so made by the learned counsels appearing on behalf of the parties.

22. From the above discussions made by both the Courts leading to the present Appeals, it would be seen that Siddique Ali purchased land vide three Deeds of Sale, i.e. Exhibit 3, Exhibit 4 and Exhibit 5. The total land in terms with the three Exhibits admeasures 5 bighas 7 kathas 6 chattas. Vide Exhibit 6, 7 & 8, Siddique Ali admittedly transferred 4 bighas 11 kathas 1 chattak of land. Therefore, on a perusal of the exhibited documents, Page No.# 14/17 2024:GAU-AS:5845

more particularly Exhibit 3, 4 and 5, it appears that there was further land of 18 kathas 13 chattaks available to Siddique Ali or his legal heirs to transfer. The natural corollary of the above discussion would show that upon the execution of the registered Sale Deed No.2754 dated 24.08.2004, the plaintiff was transferred another plot of land admeasuring 18 kathas 3 chattaks of the land of R.S. Patta No. 121. Accordingly, the Issue No.2 in Title Suit No.52/2005 ought to have been decided in favour of the plaintiff/appellant herein. It is further taken note of that the learned Trial Court as well as the learned Appellate Court had come to a categorical finding that the land in Exhibit 5 was a part of the land in Exhibit 3. However, the said finding was arrived at without framing any issue as to whether the land in Exhibit 5 was included in Exhibit 3. This aspect apparently had prejudiced the plaintiff in Title Suit No.52/2005 and the appellant in both the Appeals before this Court.

23. This Court further finds it pertinent to take note of that in terms with Section 91 of the Indian Evidence Act, 1872 when disposition of property has been reduced to the form of a writing, no evidence shall be given on the proof of the terms of the said disposition except the document itself or secondary evidence of its contents in which secondary evidence is admissible under the provisions. The learned First Appellate Page No.# 15/17 2024:GAU-AS:5845

Court in both the Appeals against which the present Appeals have been filed, did not take into consideration the contents of the exhibited documents which contained the terms as well as what disposition was made vide the said Deeds rather on a purportive assumption that the plaintiff had admitted that the land in Exhibit 5 is included in the land of Exhibit 3 had arrived at the conclusion.

24. Under such circumstances, it is the opinion of this Court that in both the Appeals before this Court, the substantial questions law so formulated are duly involved as there is an apparent perversity in the appreciation of evidence by the learned First Appellate Court which have resulted in the impugned judgment and decree in both the Appeals.

25. This Court further finds it relevant to take note of that for the purpose of proper adjudication of the dispute involved, there is a requirement that an additional issue is framed in both the suits, i.e. Title Suit No.52/2005 as well as Title Suit No.72/2010. The issue so framed reads as under:

Whether the land purchased by Late Siddique Ali vide the Deed No.4751 dated 11.05.1981 was a part of land purchased by Late Soddique Ali vide Deed No.2142 dated 19.03.1976 and Deed No.7228 dated 12.11.1976?

26. The additional issue so formulated herein above in both the Page No.# 16/17 2024:GAU-AS:5845

suits would require tendering of further evidence, if so felt necessary by both the parties. Considering the said, it is therefore the opinion of this Court that on the basis of Order XLI Rule 24 of the Code, this Court would not be in a position to adjudicate this issue on the basis of the evidence already on record.

27. Accordingly, this Court therefore remands both the Appeals being Title Appeal No.14/2012 and Title Appeal No.31/2013 to the learned First Appellate Court in terms with Order XLI Rule 23A of the Code for adjudication of the Appeals afresh including the issue so formulated herein above.

28. This Court further permits both the parties to adduce evidence before the learned First Appellate Court on the additional so formulated herein above.

29. This Court taking into account the provisions of Order XLI Rule 26A of the Code, fixes both the Appeals being Title Appeal No.14/2012 and Title Appeal No.31/2013 before the Court of the learned Civil Judge (Senior Division), Hailakandi on 13.08.2025. On the said date, both the parties who are duly represented before this Court shall appear before the said learned First Appellate Court for further proceedings of the Appeals.

30. The judgment and decree passed in Title Appeal Page No.# 17/17 2024:GAU-AS:5845

No.14/2012 dated 19.04.2016 and the judgment and decree dated 20.04.2016 Title Appeal No.31/2013 are set aside and quashed.

31. The LCRs of both the Appeals be returned back to the learned First Appellate Court by the Registry ensuring that prior to the date so fixed herein above, the records are available before the learned First Appellate Court and in that regard, if necessary, resort to Special Messenger may be taken.

32. With the above observations and directions, both the Appeals stands disposed of.

JUDGE

Comparing Assistant