Page No.# 1/9 vs Page No.# 2/9
2025 Latest Caselaw 5474 Gua

Gauhati High Court

Page No.# 1/9 vs Page No.# 2/9 on 18 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                 Page No.# 1/9

GAHC010039682023




                                                           2025:GAU-AS:8190

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

                           Case No. : RSA/37/2023

         PRASENJIT MANDAL AND 3 ORS.
         S/O LATE MADHUSUDHAN MANDAL @ BHANU
         RESIDENT OF VILLAGE TIHU TOWN, WARD NO. 4, MOUZA TIHU, PS TIHU,
         DIST. NALBARI, ASSAM

         2: KANKAN MANDAL
          S/O LATE MADHUSUDHAN MANDAL @ BHANU
         RESIDENT OF VILLAGE TIHU TOWN
         WARD NO. 4
          MOUZA TIHU
          PS TIHU
          DIST. NALBARI
         ASSAM

         3: RIMA MANDAL
          D/O LATE MADHUSUDHAN MANDAL @ BHANU
         RESIDENT OF VILLAGE TIHU TOWN
         WARD NO. 4
          MOUZA TIHU
          PS TIHU
          DIST. NALBARI
         ASSAM

         4: PARBATI MANDAL
         W/O LATE MADHUSUDHAN MANDAL @ BHANU
         RESIDENT OF VILLAGE TIHU TOWN
         WARD NO. 4
          MOUZA TIHU
          PS TIHU
          DIST. NALBARI
         ASSA

         VERSUS
                                                     Page No.# 2/9

RANJU DEVI AND 9 ORS.
W/O LATE DHARMESWAR SARMA
RESIDENT OF HARIBHANGA, MOUZA NAMBARBHAG, PS TIHU, DIST
NALBARI, ASSAM

2:ALAKESH SARMA
 S/O LATE DHARMESWAR SARMA
RESIDENT OF HARIBHANGA
 MOUZA NAMBARBHAG
 PS TIHU
 DIST NALBARI
ASSAM

3:MANALISHA DEVI
 D/O LATE DHARMESWAR SARMA
RESIDENT OF HARIBHANGA
 MOUZA NAMBARBHAG
 PS TIHU
 DIST NALBARI
ASSAM

4:RAMEN SARMA
 S/O LATE KANTESWAR SARMA
RESIDENT OF HARIBHANGA
 MOUZA NAMBARBHAG
 PS TIHU
 DIST NALBARI
ASSAM

5:DHIRESWAR SARMA
 S/O LATE KANTESWAR SARMA
RESIDENT OF HARIBHANGA
 MOUZA NAMBARBHAG
 PS TIHU
 DIST NALBARI
ASSAM

6:UTPAL SARMA
 S/O LATE SUDHIR SARMA
RESIDENT OF HARIBHANGA
 MOUZA NAMBARBHAG
 PS TIHU
 DIST NALBARI
ASSAM

7:ARUP SARMA
 S/O LATE SUDHIR SARMA
RESIDENT OF HARIBHANGA
                                                              Page No.# 3/9

      MOUZA NAMBARBHAG
      PS TIHU
      DIST NALBARI
      ASSAM

     8:MADAN SARMA
      S/O LATE SABHARAM SARMA
     RESIDENT OF HARIBHANGA
      MOUZA NAMBARBHAG
      PS TIHU
      DIST NALBARI
     ASSAM

     9:BHARATI DEVI
     W/O LATE KANDARPA SARMA
     RESIDENT OF HARIBHANGA
      MOUZA NAMBARBHAG
      PS TIHU
      DIST NALBARI
     ASSAM

     10:DIBYAJYOTI SARMA
      S/O LATE KANDARPA SARMA
     RESIDENT OF HARIBHANGA
      MOUZA NAMBARBHAG
      PS TIHU
      DIST NALBARI
     ASSA



                                BEFORE
             HON'BLE MR. JUSTICE DEVASHIS BARUAH


Advocate for the appellant(s)    : Ms. S Roy


Advocate for the respondent(s) : Mr. AC Sarma, Senior Advocate
                                   Mr. G Bharadwaj


Date of hearing                   : 18.06.2025
& Judgment
                                                                         Page No.# 4/9



                         JUDGMENT & ORDER (ORAL)

Heard Ms. S Roy, the learned counsel appearing on behalf of the appellants and Mr. AC Sarma, the learned senior counsel assisted by Mr. G Bharadwaj, the learned counsel appearing on behalf of all the respondents.

2. The present appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the judgment and decree dated 14.12.2022 passed in Title Appeal No.1/2018 by the learned District Judge, Nalbari whereby the judgment and decree dated 31.03.2018 passed in Title Suit No.13/2014 was affirmed.

3. The learned counsel appearing on behalf of the appellants has proposed before this Court two questions of law which as per her can be framed as the substantial questions of law involved in the instant appeal.

4. The two questions of law so proposed reads as under:

1. Whether, in view of the findings of the learned courts below that the plaintiff is in possession in the Suit Land since 1972 under an Invalid agreement, the Predecessor in interest of the defendants being minor of that time, the learned Courts' below were justified in holding that the plaintiff is in Permissive Possession of the Suit Land, the permission having been granted by the predecessor in interest of the defendants, he being a minor at that time?

2. Whether, in view of the findings of the learned Courts' below that the plaintiff is in possession in the Suit Land under an invalid agreement and Page No.# 5/9

such possession having continued openly, peacefully and uninterruptedly since 1972 which is prima facie adverse to the true owner, the learned lower appellate court was justified in holding that as the Plaintiffs never claimed right by way of adverse possession, he cannot claim adverse possession over the Suit land at the appellate stage?

5. This appeal is being presently taken up at the stage of Order XLI Rule 11 to ascertain as to whether any substantial question of law can be formulated in terms with Section 100(4) of the Code. For the purpose of deciding the said aspect, this Court would like to take note of the brief facts which led to the filing of the instant appeal.

6. The materials on record show that the plaintiff, who is the predecessor-in- interest of the present appellants claimed to be the tenants in the house of one Rajen Pathak since 1972. It was averred that the plaintiff's father was asked to vacate the place and under such circumstances, the plaintiff's father approached the predecessor-in-interest of the principal defendant namely one Dharmeswar Sarma (since deceased) to give him shelter temporarily. Accordingly, the father of the plaintiff was allowed to stay in the suit land by constructing a house on the basis of an oral agreement by paying a nominal rent of Rs.120/- per year. The plaintiff's father thereupon started residing in the suit land with his family and a holding number was issued in respect to the property constructed by the plaintiff's father being No.357 by the Tihu Town Committee. After 3(three) years, Late Dharmeswar Sarma stopped taking rent from the plaintiff's father and allowed him to stay without paying the rent. In 1990, the father of the plaintiff expired and the plaintiff and his family continued to reside in the suit land. However, after the death of Late Dharmeswar Sarma, the defendants threatened the plaintiff and asked them to vacate. It is under such Page No.# 6/9

circumstances, the plaintiff instituted the suit seeking a decree for permanent possession as per the tenancy right in favour of the plaintiff in respect to the Schedule land as well as for permanent injunction.

7. The defendants filed their written statement-cum-counter claim, wherein various pleas were taken on the maintainability of the suit. The defendants denied the existence of tenancy agreement between the predecessor of the defendant Nos.1 to 4 and the father of the plaintiff. The defendants also stated that the predecessor of the defendant No.1 to 4 was not the sole owner and he was a minor in the year 1972. The defendants contented that the predecessor of the plaintiff was permitted to stay in the land temporarily and the defendants politely asked the plaintiff to vacate the suit land, but inspite of that the plaintiff was trying to construct a pucca latrine over the suit land so the defendants demanded the plaintiff to vacate the suit land, and, therefore, filed a counter claim seeking declaration of right, title and interest and for eviction of the plaintiff.

8. On the basis of the pleadings, as many as 9(nine) issues were framed, which are reproduced hereinunder:

"(i). Whether there is any cause of action for the suit?

(ii). Whether the suit is maintainable?

(iii).Whether there is any tenancy agreement between the plaintiff's predecessor Mohanbashi Mandol and predecessor of defendant Nos.1-4 Sri Dharmeswar Sarma in the year 1972?

iv).Whether the predecessor of defendant Nos.1-4 Sri Dharmeswar Page No.# 7/9

Sarma was the sole owner of the suit land so as to entitle him to enter into any tenancy agreement with the predecessor of plaintiff?

v). Whether there exists any tenancy right of the plaintiff over the suit land?

vi) Whether the plaintiff is entitled to relief as claimed for?

vii) Whether the plaintiff is legally occupying the suit land and is liable to be evicted therefrom as claimed by defendants in their counter claim?

viii) Whether the defendants are entitled to the reliefs as prayed for in the counter claim?

ix) What other relief/reliefs the parties are entitled?"

9. On behalf of the plaintiff four witnesses were examined and 12 documents were exhibited. On behalf of the defendants, four witnesses also were examined and 5 documents were exhibited.

10. The learned Trial Court after taking into account the evidence on record dismissed the suit and decreed the counter claim.

11. Being aggrieved, the appeal was preferred by the appellants herein which was registered and numbered as Title Appeal No.1/2018.

12. The learned First Appellate Court after taking into account the grounds of objection taken in the appeal; the pleadings before the learned Trial Court; the issues so framed; the submissions so made by the learned counsels appearing on behalf of the parties, decided the appeal issue-wise and dismissed the said Page No.# 8/9

appeal vide the judgment and decree dated 14.12.2022. It is under such circumstances, that the present appeal has been filed.

13. In the backdrop of the above, let this Court now take into account as to whether the questions of law proposed by the learned counsel appearing on behalf of the appellants can at all be formulated as substantial questions of law in terms with Section 100(4) of the Code.

14. A perusal of the proposed questions of law indicate that what plea the appellants now chooses to take is a plea of adverse possession. In the opinion of this Court, the question of taking a plea for adverse possession, more particularly, at the stage of second appeal cannot be permitted. Further to that, the pleadings on record categorically show that the plaintiff did not at any stage alleged that the plaintiff's possession was adverse to the defendants.

15. Considering the above, it appears that the questions of law so proposed cannot be formulated as substantial question of law in the instant appeal. This Court has further perused the judgment passed by the learned First Appellate Court and therefrom it does not appear that there is any other substantial question of law which can be formulated. As in the instant appeal, no substantial question of law that can be formulated, the instant appeal cannot be proceeded with, for which, the appeal stands dismissed.

16. Taking into account that the appeal is being dismissed at the stage of Order XLI Rule 11, this Court is not inclined to impose any costs.

Page No.# 9/9

17. It is further seen that the LCR was called for by the learned Coordinate Bench of this Court earlier. The said LCR be returned back forthwith by the Registry.

18. With the above, the appeal stands disposed of.

JUDGE

Comparing Assistant