Gauhati High Court
RSA/172/2022 on 24 June, 2025
GAHC010193272022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Principal Seat at Guwahati
RSA/172/2022
Smti. Moutushi Dutta,
Wife of Sri Surajit Dutta,
Resident of Colony Bazar, Kahilipara,
Gaon No. 1, Guwahati-781018, Kamrup(M),
Assam.
........Appellant
-Versus-
1. Sri Radhya Shyam Sarkar,
S/o Late Chinta Haran Sarkar,
Resident of Satabdi Path, Bye Lane No. 2,
Sankar Hotel, Jyotikuchi, Ward No. 16,
P.O. Birovanagar, P.S. Fatasil Ambari,
Guwahati-781034, Kamrup(M), Assam.
.......Respondent
2. Sri Ajit Chandra Das,
S/o Arun Chandra Das,
Resident of Udalbakra, Adagudam,
Guwahati-781034, Kamrup(M), Assam.
3. Sri Suman Das Gupta,
S/o Sunil Das Gupta,
Resident of Kalapahar, Near Sani Mandir,
Guwahati-781018. Kamrup(M), Assam.
.......Proforma respondents
- B E F O R E-
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellant : Mr. B.D. Deka.
Advocate for the respondent : Mr. S. Chauhan, for respondent No. 1.
Date of hearing : 06.05.2025
Date of judgment : 24.06.2025
JUDGMENT & ORDER (CAV)
Heard Mr. B.D. Deka, learned counsel for the appellant.
Also heard Mr. S. Chauhan, learned counsel for the respondent
No.1.
2. This second appeal, under Section 100 of the CPC, is directed
against the judgment and decree dated 01.06.2022, passed by the
learned Civil Judge No. 2, Kamrup(M) at Guwahati, in Title Appeal
No. 52/2016.
3. It is to be noted here that vide impugned judgment and
decree, dated 01.06.2022, the learned Civil Judge No. 2, Kamrup(M)
at Guwahati („first appellate Court‟, for short) had allowed the
appeal by reversing the judgment and decree dated 04.06.2016,
passed by the learned Munsiff No. 1, Kamrup(M) at Guwahati („trial
Court‟, for short), in Title Suit No. 134/2009.
4. For the sake of convenience and to avoid confusion, the
parties herein are referred to in the same status, as they appeared
in the suit.
5. The background facts, leading to filing of the present appeal,
are briefly stated as under:-
"The appellant herein, namely, Smti. Moutushi Dutta as
plaintiff, had instituted a suit against the
defendant/respondent No. 1 herein, namely, Sri Radhya
Shyam Sarkar, for declaration of her right, title and interest
over the suit land and also for recovery of possession and
permanent injunction.
The case of the plaintiff is that Late Dandiram Kumar
and Raheswar Kumar were the exclusive owner and possessor
of a plot of land covered by Patta No. 25. After disposal of
land by various manner, a plot of land measuring 3 bighas 4
kathas 7½ lechas remained in the hands of Sri Ananta Kumar,
son of Late Dandi Ram Kumar; Sri Arun Kumar and Sri
Jagadish Kumar, both sons of Raheswar Kumar and these
three persons jointly executed a power of attorney, appointing
and empowering Sri Ranjit Kumar Dey, son of Late Dasarath
Kumar Dey, vide registered deed No. 5299, dated 16.10.1996,
to sell the above mentioned 3 bighas 4 kathas 7½ lechas of
land. Thereafter, Sri Ranjit Kumar Dey, on the strength of the
aforesaid power of attorney, being deed No. 5299, dated
16.10.1996, sold 1 katha 5 lechas of land out of the aforesaid
total land of 3 bighas 4 kathas 7½ lechas to Sri Ajit Chandra
Das, by executing a registered deed of sale, bearing deed No.
3422/98, dated 23.06.1998. Thereafter, Sri Ajit Chandra Das,
after eight years, sold the aforesaid land to Smti. Moutushi
Dutta/plaintiff, vide registered deed of sale, bearing No.
10870/2007, dated 31.08.2007, through his power of attorney
holder Sri Suman Das Gupta. The power of attorney being
deed No.3151, dated 07.06.2006 was executed by Ajit
Chandra Das, in favour of Suman Das Gupta, authorising him
to sale his land. At the time of execution of the sale deed by
Sri Ranjit Kumar Dey, in favour of Sri Ajit Chandra Das, the
boundary of the land was shown wrongly, and as such
subsequently, vide a deed of rectification, being deed No.
10194/08, dated 18.07.2008, the boundary was rectified, and
similarly, the boundary in respect of the land sold to the
plaintiff was also rectified, vide rectification deed No. 11049,
dated 18.08.2008. In the month of March, 2008, when the
plaintiff started construction of boundary wall and was about
to affix a gate on the southern side of the land, the defendant
appeared and started claiming the suit land to be his own and
forcibly tried to enter upon there, but could not succeed.
However, finally the defendant in a most illegal and arbitrary
manner, forcibly entered upon the suit land, with the help of
some hired women and took possession of the same.
The defendant had contested the suit by filing written
statement, wherein he denied all the claims of the plaintiff. He
stated that predecessors-in-interest of the defendant, Sunil
Kar and Baloram Kar had purchased a plot of land measuring
2 kathas 10 lechas from Sri Dandi Ram Das, son of Harendra
Nath Das and Md. Anowar Hussain Dewan, son of Sonaullah
Dewan, both residents of Guwahati, vide registered sale deed
No. 5373/1984, dated 04.05.1984. Said Sri Dandi Ram Das
and Md. Anowar Hussain purchased the land from Sri Satya
Ram Kumar and Sri Narayan Chandra Kumar, both sons of
Late Dhani Ram Kumar of Maligaon, Guwahati and Sri Satya
Ram Kumar and Sri Narayan Chandra Kumar had purchased
the land from one Sri Nandi Ram Kumar, son of Late Ganga
Ram Kumar of Maligaon, Guwahati, vide deed No. 22/51,
dated 04.01.1951. The defendant had purchased 2 kathas 10
lechas of land which includes the suit land, from Sunil Kar and
Baloram Kar, vide deed No. 298, dated 28.03.2005, after
disposal of the proceeding under Sections 145/146 of Cr.P.C.,
vide order dated 29.11.2004 and took possession of the land
and became the absolute owner, and since then, he has been
possessing the same by constructing rooms thereon and
started living there.
On the other hand, the proforma defendant Nos. 2 and
3 had admitted the claims being made in the pleadings of the
plaintiff in their written statement.
Upon the aforesaid pleadings, the learned trial Court had
framed the following issues:
(1) Whether the plaintiff's vendor had acquired
title to the suit property?
(2) Whether the plaintiff's vendor had delivered
possession of the suit land to the
plaintiff?
(3) Whether the plaintiff has been dispossessed
by the defendant?
(4) Whether the plaintiff is entitled to the
relief as prayed for?
Thereafter, hearing learned counsel of both sides, the
learned trial Court had decreed the suit in favour of the
plaintiff by granting the following reliefs:
(a) A decree declaring plaintiff's right, title
and interest and possession over the suit
land more fully described in the schedule of
the plaint.
(b) A decree for recovery of khas and vacant
possession of the suit land more fully
described in the schedule of the plaint.
(c) A decree for permanent injunction
restraining the main defendants, his agents,
servants and employees from disturbing the
peaceful possession of the plaintiff upon
the suit land also restraining them from
entering upon the suit land more fully
described in the schedule of the plaint.
(d) Cost of the suit.
Being aggrieved, the defendant/respondent No. 1
herein, namely, Sri Radhya Shyam Sarkar had filed an appeal,
being Title Appeal No. 52/2016, before the learned first
appellate Court. In the said appeal, the learned first appellate
Court had formulated the following points for determination:
1) Whether the discussion made in issue Nos. 1,
2, 3 & 4 are bad in law and therefore the
interference of this court is required?
2) Whether there is any perversity in the
judgment dtd. 04.06.2016 passed by learned
Munsiff No. 1 Kamrup(M) Guwahati in T.S
134/2009?
3) Whether the interference of this court is
necessary against the judgment and decree
passed in T.S. No. 134/2009?
Thereafter, hearing learned counsel of both sides, the
learned first appellate Court, vide impugned judgment and
decree dated 01.06.2022, allowed the appeal on contest and
set aside the judgment and decree dated 04.06.2016, passed
by the learned trial Court, in Title Suit No. 134/2009, and
consequently, dismissed the suit of the plaintiff."
Being aggrieved, the plaintiff (appellant herein) has
preferred the present appeal under Section 100 of the CPC,
which was admitted by this Court, vide order dated
23.11.2022, on the following substantial questions of law:
1. Whether the learned First Appellate Court
committed illegality by ignoring the Exhibit
2 viz. the General Power of Attorney bearing
Deed No.5299/1996 dated 16/10/1996 in
deciding the authority of Sri Ranjit Kumar
Dey to execute the Deed of Rectification
bearing Deed No. 10194/2008 dated 18/07/2008
(viz. Exhibit 4) and thereby arrived at a
perverse finding?
2. Whether delayed execution of a rectification
deed correcting the boundaries contained in
a sale deed would by itself raise a
presumption against validity of title vested
by the instrument?
3. Whether the finding recorded by the learned
First Appellate Court holding that there was
omission to mention the date of
dispossession is contrary to the pleadings
on record, more particularly, the amended
plaint?
4. Whether the plaintiff could have been non-
suited merely upon his alleged failure to
prove the factum of previous possession and
dispossession in a suit based on title?
5. Whether the learned Court below was correct
in discarding the description of the suit
land merely on the ground of alleged
discrepancies in the sale deeds prior to
rectification although the defendant had
never disputed the same?
6. Mr. Deka, learned counsel for the appellant submits that the
learned first appellate Court, while deciding the issue No. 1, came to
an erroneous finding to the effect that Sri Ranjit Kumar Dey had no
authority to execute the deed of rectification (Ext.4) since he was
empowered by Sri Ananta Kumar, Sri Arun Kumar and Sri Jagadish
Kumar to execute any deed to facilitate disposal of the land by the
general power of attorney (Ext.2), dated 16.10.1996, and the
learned first appellate Court had committed illegality by ignoring
Ext.2 (general power of attorney), in deciding the authority of Sri
Ranjit Kumar Dey to execute the deed of rectification.
6.1. Mr. Deka also submits that the learned first appellate Court
had given undue importance to the fact of delay of execution of
Ext.4 and Ext.9 i.e. the rectification deeds from the date of
execution of the sale deeds (Ext.3 and Ext.8), but the execution of
the said deeds were duly proved by the plaintiff. Mr. Deka also
submits that the learned first appellate Court had ignored the
amended plaint, wherein it was specifically mentioned the date of
dispossession on 04.04.2009, and despite such pleading, the
learned first appellate Court had arrived at an erroneous finding that
there is omission to mention the date of dispossession.
6.2. Mr. Deka, further submits that the plaintiff has claimed for
recovery of possession based on her periodic patta (Ext.12)
comprising only of the suit land and as such, the factum of
possession or dispossession was not material to adjudicate the
claim. Mr. Deka also submits that the learned first appellate Court
had unnecessarily ventured to examine the boundary of the suit
land depicted in the sale deed and the rectification deed, in as much
as the defendant never disputed the boundary of the suit land, and
that the entire patta land is identifiable as per Order 7 Rule 3 of the
CPC, and there is unbroken chain of title, and as such, the finding,
so far arrived at by the learned first appellate Court, is erroneous
and is liable to be interfered with by this Court.
7. Per contra, Mr. Chauhan, learned counsel for the respondent
No. 1, submits that it is a well-settled principle that the plaintiff has
to prove her own case; she cannot depend upon the weakness of
the case of the defendant. He also submits that the claim of title,
based on jamabandi and chitha, record of rights has no evidentiary
value, are not proof of title.
7.1. Mr. Chauhan has pointed out that Ext.1 is the chitha, which
is not a document of title, and based on Ext.1, the plaintiff cannot
claim title, and secondly, Mr. Chauhan submits that in Ext.2, no
boundary is mentioned. Mr. Chauhan also submits that the learned
first appellate Court had rightly held that the land is not identifiable.
7.2. Mr. Chauhan has also pointed out that the boundary was
rectified after ten years and rectification by Sri Ranjit Kumar Dey
has no value and in the amended plaint, it has not been mentioned
when and at what time dispossession was done.
7.3. Further, Mr. Chauhan has pointed out that as many as eight
tenants were there in Ext.1 and as per Section 6 of the Assam
Tenancy Act, 2021, tenants have their right, title and interest and
they are residing over the suit land for more than thirty years.
7.4. Mr. Chauhan has pointed out that if Ext.2 is not believable,
then all the documents will go and that the issue No. 1 so
formulated by the learned first appellate Court, had rightly been
decided and no interference is warranted, and being the second
appellate Court, this Court cannot go into the facts of the case, but
only on the points of law.
7.5. In support of his submission, Mr. Chauhan has referred to
the following decisions:
(i) Gokul Ch. Das and Ors. vs. Satish Ch. Das and
Ors., reported in 1995 (2) GLJ 440.
(ii) Brahma Nand Puri vs. Nelei Puri, reported in AIR
1965 SC 1506.
(iii) Guru Amarjit Singh vs. Rattan Chand, reported in
(1993) 4 SCC 349.
(iv) State of H.P. vs. Keshav Ram and Ors.,
reported in AIR 1997 SC 2181.
(v) Balwant Singh and Anr. vs. Daulat Singh,
reported in AIR 1997 SC 2719.
(vi) Gurunath Manohar Pavaskar and Ors. vs. Nagesh
Siddappa Navalgund and Ors., reported in (2007)
13 SCC 565.
(vii) Sheodhyan Singh and Ors. vs. Mst. Sanichara
Kuer and Ors., reported in AIR 1963 SC 1879.
(viii) Subhaga and Ors. vs. Shobha and Ors., reported
in (2006) 5 SCC 466.
(ix) M/s Roy and Co. and Anr. vs. Sm. Nani Bala
Dey and Ors., reported in AIR 1979 Cal 50.
(x) Saljing A. Sangma and Anr. vs. Bilmoni A.
Sangma, reported in 2013 (4) GLT 954.
(xi) Anu Das vs. Padumi Das, reported in 2007 (1) GLR
8. In reply to the submission of Mr. Chauhan, learned counsel
for the respondent No. 1, Mr. Deka, learned counsel for the
appellant submits that the question is whether or not the riots were
in possession or the defendants were in possession of the suit land,
but the question is as to whether Nandi Ram Kumar had title to
alienate the property or not, and under such circumstances, Mr.
Deka has contended to allow this appeal.
9. 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 also perused the impugned
judgment and decree dated 01.06.2022, passed by the learned first
appellate Court, in Title Appeal No. 52/2016, and the judgment and
decree dated 04.06.2016, passed by the learned trial Court, in Title
Suit No. 134/2009.
10. It appears that while deciding the issue No. 1, the learned
trial Court held that the plaintiff had pleaded that she bought the
suit land from Sri Ajit Chandra Das, who executed a power of
attorney, being deed No. 3151, dated 07.06.2006, in favour of one
Sri Suman Das Gupta to sell his land measuring 1 katha 5 lechas,
and the boundary given in the said power of attorney was also
wrongly shown earlier and therefore, a deed of rectification, being
deed No. 10192, dated 18.07.2008, was executed. Thereafter, the
said Sri Suman Das Gupta, being the attorney of Sri Ajit Chandra
Das, ultimately sold the aforesaid 1 katha 5 lechas of land to the
plaintiff Moutushi Dutta by executing a registered deed of sale,
bearing No. 10870/2007, dated 31.08.2007, and in view of the
rectification deed, the boundary in the sale deed was corrected and
the dag number of the land purchased by her is 67 (old)/1988
(new) of K.P. Patta No. 25/139 (old)/831(new) of village Jyotikuchi,
under Mouza Beltola, in the district of Kamrup.
10.1. The name of the earlier vendor Sri Ajit Chandra Das and in
respect of the suit land was duly mutated confirming his possession
and he had been paying the land revenue in respect of the suit
land, and during the settlement operation, a certificate has been
issued by the settlement office confirming mutation in the name of
Smti. Moutushi Dutta, and the plaintiff has been possessing the suit
land continuously by paying the land revenue. The learned trial
Court further held that Late Dandi Ram Kumar and Raheswar Kumar
were the exclusive owner and possessor of the total land covered by
Patta No. 25 and after disposal of land by various manner, a portion
of land measuring 3 bighas 4 kathas 7½ lechas remained in the
hands of Sri Ananta Kumar, son of Dandi Ram Kumar and Sri Arun
Kumar and Jagadish Kumar, both sons of Late Raheswar Kumar,
and with a view to dispose of the aforesaid 3 bighas 4 kathas 7½
lechas of land, said Sri Ananta Kumar, Sri Arun Kumar and Sri
Jagadish Kumar jointly executed a power of attorney appointing and
empowering Sri Ranjit Kumar Dey, son of Late Dasarath Kumar Dey,
being deed No. 5299, dated 16.10.1996, and being the power of
attorney holder, Sri Ranjit Kumar Dey sold 1 katha 5 Lechas of
land out of the aforesaid total land to Sri Ajit Chandra Das by
executing a registered deed of sale, bearing No. 3422/1998, dated
23.06.1998. Said Ranjit Kumar Dey also delivered possession to Sri
Ajit Chandra Das at the time of sale upon the land covered by the
present boundary, though it was wrongly shown in the aforesaid
registered deed of sale, and Sri Ajit Chandra Das continued his
possession upon the land he purchased within the present
boundary.
10.2. The witnesses of the plaintiff have reiterated the same facts
in their examination-in-chief that Sri Ajit Chandra Das continued his
possession upon the land he purchased within the present
boundary. The plaintiff vide, Ext.1 i.e. draft chitha; Ext.2 i.e. power
of attorney and Ext.3 i.e. the certified copy of the sale deed No.
3422/1998, dated 23.06.1998, established that the power of
attorney holder Shri Ranjit Kumar Dey has sold 1 Katha 5 Lechas
land to Ajit Chandra Das who is the vendor of the plaintiff. The
official witnesses of the plaintiff also proved Exhibit-2, the certified
copy of the power of attorney being deed No. 5299 dated
16.10.1996. The relevant volume book has been exhibited as
Exhibit-14 by the official witnesses and said witness also proved the
original sale deed No. 3422/98 (Exhibit-3 of the PWs) as Exhibit-15
whereby Ranjit Kumar Dey sold 1 Katha 5 Lechas of land to Shri Ajit
Chandra Das on the strength of attorney. Said witness also proved
the original deed of rectification of sale deed No. 3422/1998 as
Exhibit-16. The learned trial Court also held that the evidence of
PWs and official witnesses remains uncontroverted and nothing
could be elicited in cross-examination.
10.3. The learned trial Court also held that the vendor of the
plaintiff acquired ownership of the suit land has been proved by
Exhibit-1, Exhibit-2, Exhibit-3 and Exhibit-4. The vendors of Sri Ajit
Chandra Das were also the owners of the suit land which has been
proved by Exhibit-1, as being the legal heirs and successors of
Dandi Ram Kumar and Raheswar Kumar. The ancestors of the
vendors of Sri Ajit Chandra Das find place in the Draft Chitha.
10.4. The learned trial Court further held that though the
defendant denied the ownership right of Sri Ajit Chandra Das, yet,
the defendant had failed to adduce any cogent evidence to prove
this fact, and D.W.1 in his examination-in-chief, had deposed that
the suit land belongs to him and the plaintiff had no right, title and
possession over the same as claimed by him, and that Sunil Kar (his
predecessor-in-interest) and others, who along with Baloram Kar
had purchased a plot of land measuring 2 kathas 10 lechas covered
under K.P. Patta No. 25, Dag No.67 with the specific boundaries,
and he purchased the land from the predecessors-in-interest, Sunil
Kar and Boloram Kar after final determination of the proceeding
under Section 145/146 Cr.P.C., and the sale deed was executed in
his favour on 28.03.2005 and registered on the same day in the
Office of Sub-Registrar, Panikhaiti, Kamrup, Guwahati, vide deed
No. 298/2005 and delivered possession of the land to him. And
since then, he has been possessing the same without disturbance.
10.5. The learned trial Court also held that D.W.1 had admitted
that he could not say on going through the Ext.A, Ext.B and Ext.C
as to who bought whose land, and he had not produced the sale
deed by which Dandi Ram Das and Anowar Hussain bought the suit
land, and they had failed to prove that at the time of selling of the
suit land, the vendors of Sunil Kar and Boloram Kar had ownership
right over the suit land.
10.6. The learned trial Court further held that in the plaintiff's
evidence, there was chronological description as to how the
plaintiff's vendor became the owner of the suit land; but in the
evidence of the defendant, there is no chronological description as
to how the defendant's vendor came into possession of the suit land
and owned the suit land. The defendant had failed to prove as to
how the seller in the sale deeds i.e. Ext.-A, Ext.-B and Ext.-C
became the owners of the suit land.
10.7. The learned trial Court thereafter held that the plaintiff has
discharged his evidence by exhibiting Exhibit-1, Exhibit-2, Exhibit-3,
Exhibit-4, Exhibit-5, Exhibit-6, Exhibit-7, Exhibit-8, Exhibit-9, Exhibit-
10 & 11, Exhibit-12 and Exhibit-13, which are in chronological order
pointing towards the ownership right of the plaintiff. On the other
hand, the defendant's exhibits i.e. Exhibit-A, Exhibit-B and Exhibit-C
are not in sequence and as such, it is not clear as to the ownership
right of the seller from these exhibits. The defendant has failed to
prove as to how the seller in the sale deeds i.e. Exhibit-A, Exhibit-B
and Exhibit-C became the owners of the suit land. The vendor of
the plaintiff, namely, Sri Ajit Chandra Das became the owner of the
suit land vide Exhibit-3 i.e. sale deed No. 3422/1998, dated
23/06/1998. The plea of the defendant is that the Exhibit-3 is a
fraudulent document; but the defendant has failed to prove this
plea by adducing cogent evidence. The plaintiff has also exhibited
the mutation certificate in the name of Sri Ajit Chandra Das as
Exhibit-7. The mutation of a person in the record of rights raises a
presumption that he is the owner of the land unless otherwise
contrary is proved. The defendant has every right to rebut the said
presumption by adducing cogent evidence. Hence, Sri Ajit Chandra
Das, the vendor of the plaintiff was the owner of the suit land. Sri
Ajit Chandra Das sold the suit land to the plaintiff through his power
of attorney holder, namely, Sri Suman Das Gupta. The defendant
has failed to prove that he and his predecessors in interest was the
recorded pattadar of the suit land. Thereafter, it has decided the
issue in favour of the plaintiff.
11. Thereafter, in respect of issue No. 2, the learned trial Court
has held that plaintiff's plea is that Sri Ajit Chandra Das through his
power of attorney holder, Sri Suman Das Gupta vide registered sale
deed no.10870/2007 dated 31/08/2007, i.e. Exhibit-8 sold the suit
land to her. The defect of the boundary in the aforesaid sale-deed
was rectified later on vide deed of rectification vide no.-11049 dated
18/08/2008 by inserting the present boundary. Before purchasing
the suit land, she verified the land-records of the suit land and after
satisfying herself that Sri Ajit Chandra Das was in possession of the
suit land, she decided to purchase the suit land. After purchasing
the suit land, the seller had handed over the possession of the suit
land to her and she has been possessing the same till the date of
dispossession. The plaintiff is able to prove that her name has been
mutated over the sold land. After completion of the settlement
operation, final patta was issued in her name which is evident from
the Exhibit Nos. 10, 11, 12 and 13.
11.1. The learned trial Court also found that all the sale deeds
submitted by the defendant do not disclose any boundary and as
such it is not ascertained as to whether the suit land is as same as
claimed by the defendant. The defendant has failed to show that his
name has been mutated over the suit land. The mutation of a
person in the record of rights raises presumption that he is the
owner of the suit land unless otherwise contrary is proved. The
defendant has every right to rebut the said presumption; but the
defendants has failed to rebut the said presumption by adducing
cogent evidence. The defendant's plea is that only mutation does
not confer ownership right over the suit property. But, the
defendant has failed to prove that the plaintiff is not the owner of
the suit land.
11.2. It is also observed that the plaintiff has discharged her
burden by adducing Exhibit-10, 11, 12 and 13. The defendants
themselves have failed to prove that they are the owner of the suit
land. The plaintiff has exhibited the mutation certificate, periodic
patta, the katcha patta and sale deed before the Court to prove her
ownership and possessory right over the suit land. The other PWs
have also corroborated the facts that the plaintiff was in possession
of the suit land. The defendant has failed to exhibit any document
of record of rights to prove that he is the recorded pattadar of the
suit land. During his cross-examination, DW-1 has deposed that the
boundary of the land mentioned in the Exhibit-D and the boundary
of suit land is completely different from each other. During his
cross-examination, DW-1 has admitted that till date he has not got
the patta of the suit land. In his cross-examination, DW-1 has
deposed that the suit land was sold in the year 1998 by Ananta
Kumar, Arun Kumar and Jagadish Kumar through their power of
attoney holder Sri Ranjit Kumar Dey. On the other hand, the
defendant purchased the suit land in the year 2005. Therefore, the
suit land was purchased by Sri Ajit Chandra Das prior to the
purchasing of the suit land by the defendant. Exhibit-7 is the
mutation certificate in the name of Sri Ajit Chandra Das and as
such, he is the recorded pattadar during the period i.e. from the
year 1998 to the year 2007. Hence, during this period, none other
than Sri Ajit Chandra Das had the saleable right over the suit plot of
land. In his cross-examination, DW-1 has admitted that the
boundary of the land purchased by the plaintiff and the boundary of
the land purchased by him is completely different from each other.
12. In respect of issue No. 3, the learned trial Court had arrived
at the finding that the plaintiff was in peaceful physical possession
of the suit land until the date of her dispossession. The learned trial
Court also held that the defendant in his written statement had
pleaded that he had constructed rooms on the suit land and started
living thereon with his family members, including his sister, brother-
in-law, nephew and also given on rent to tenants, which proved that
the plaintiff had been dispossessed by the defendant.
13. In respect of issue No. 4, the learned trial Court had held
that the plaintiff's vendor had the title when the suit property was
sold to the plaintiff, and that the plaintiff's vendor had delivered
possession of the suit land to the plaintiff. The learned trial Court
further held that the plaintiff had been dispossessed by the
defendant, and on the other hand, the defendant had failed to
prove that the plaintiff was not the owner of the suit land as well as
the plaintiff was not in possession of the suit land, and that all the
documents exhibited by the plaintiff were in chronological order and
in a sequence which led to the presumption that the plaintiff was
the owner of the suit land. The learned trial Court also held that the
defendant had failed to rebut the said presumption, and though the
defendant exhibited some documents to prove his ownership right
over the suit plot of land, but those documents were not sufficient
to hold that the defendant was the owner of the suit land, and it
was not proved as to how the vendors of the defendant acquired
ownership as well as saleable right over the suit plot of land, and
further in the sale deeds exhibited by the defendant, there wasn‟t
any specific description of the boundary of the land, and therefore,
it could not be held that the land mentioned in the sale deeds
exhibited by the defendant is as same as the suit land. Thereafter,
the learned trial Court decided the issue No. 4 in affirmative and in
favour of the plaintiff.
14. Thereafter, in view of the affirmative finding in respect of
issue Nos. 1, 2, 3 and 4, the learned trial Court held that the
plaintiff is entitled to relief(s) as prayed for and thereby, granted
the relief(s).
15. On the other hand, learned first appellate Court in respect
of issue No. 1, had held that the plaintiff had claimed to have
purchased the suit land from Ajit Ch. Das through POA holder Shri
Suman Das Gupta viz Ext.-8. According to her, Ajit Chandra Das,
her vendor had purchased the land vide Ext-3 from Ananta Kumar,
Arun Kumar and Jagadish Kumar, the successors of the original
owners, through their POA holder Ranjit Kumar Dey. Thus, from the
evidence of the plaintiff, it reveals that the titles over the suit land
has come to the subsequent purchasers, including her from Ananta
Kumar, Arun Kumar and Jagadish Kumar, through their power of
attorney holder -Ranjit Kumar Dey. Perusal of Exhibit-1 reveals that
originally the suit land was a part of total land measuring 16 Bigha 3
Katha 5 lechas covered by Dag No. 67 and Patta No. 25, standing in
the name of Dandi Ram Kumar, Raheswar Kumar, the predecessor
in interest of Ananta Kumar, Arun Kumar and Jagadish Kumar and
Dandi Ram Kumar and Raheswar Kumar were the sole pattadar of
the land.
15.1. The learned first appellate Court also observed that Ext.-2
reveals that Ananta Kumar, Arun Kumar and Jagadish Kumar are
the successor of the original pattadar and they had executed POA in
½
respect of part of a plot of land measuring 3 B 4K 7 L land, out of
total land covered by the patta, without mentioning the four
boundary of the land under authorisation. That being the position it
is highly improbable/impossible to identify land measuring 3B 4K
½
7 L vis-a-vis land measuring 1 K 5 L which is part of said plot of
land.
15.2. It is also held that under such circumstances the POA
holder had sold a plot of land measuring 1 Katha 5 Lecha out of 3 B
½
4K 7 L on 23.06.1998 to Ajit Ch. Das vide Exhibit 3 by specific
boundary in following way -South:- 16 ft. road, North:-
Anil Paul, East :- other's land, West :-Lalmohan Sarkar
and subsequently, Ajit Ch. Das sold the said land on 31.08.2007 to
the present plaintiff, vide Ext.-8 with the following boundary- -
North:- 16 ft. road, South:- Ajit Ch. Das, East:-
other's land, West :-Mr. Purkayastha. The learned first
appellate Court held that although the plaintiff has claimed to have
purchased the land that has been sold by the original owner in
favour of her vendor Ajit Chandra Das, but the boundary does not
speak so and from the four boundary it cannot be said that the land
purchased by the plaintiff from her vendor, is the one and the same
land that has been purchased by her from the original owner.
Further, it reveals that subsequently vide rectification deed Exhibit-4
dated 18.07.2008, the four boundary of the sale deed standing in
the name of the Ajit Ch Das was rectified as under - North:- Land
of landlord; South 16 ft. wide road, East -Land of
Robi Paul, West :- land of Mr. Purkayastha and Lalmohan
Sarkar. It has also been held that it reveals that the rectification
deed -Ext.4 was executed by Ranjit Kumar Dey, the POA holder of
the original owners, without being authorised by Ananta Kumar,
Arun Kumar and Jagadish Kumar to execute such rectification deed
and hence Ext.4 was executed by Ranjit Kumar Dey without lawful
authority and since the rectification deed in respect of first sale
deed was not lawful, the subsequent rectification deed will not bear
any value in the eye of law. Thereafter, it has held that the four
boundaries of land sold through Ext. 3 and 8 were different and
from the rectification deed Ext.-4 and 9 reveals that after 10 years
of execution of the first sale deed, the Ext.-3, the said two sale
deeds are given a common boundary to portray a picture that the
land under Ext.-3 and 8 is one and the same and is having an
altogether different location. Thereafter, discussing two decisions of
this Court in Saljing A Sangma(supra), where in it was held
that where the subject matter of the suit is of immoveable property,
such property can be identified by boundaries and numbers in
record of settlement of survey and the plaint shall specify the
boundary or number. It has discussed another decision in M/s Roy
and Co (supra), where in it was held that in case of conflict
between the area and the boundary, the boundary will prevail.
15.3. Thereafter, the learned first appellate Court has held that
even if there was transfer of land measuring 1 Katha 5 Lechas
pertaining to Dag No. 67 and Patta No. 25, but the said transfer
took place merely on pen and papers without the land being
specifically identified, and for the aforesaid reason, the boundary of
the sale deed standing in the name of first and second purchaser
were shown differently, and after elapse of ten years, the parties
had to execute rectification deed to establish their right over a plot
of land on the basis of Exts. 3 and 8, by citing a common boundary.
15.4. Thereafter, the learned first appellate Court had held that
even if there are sale deeds and patta issued in the name of the
plaintiff, but those deeds in absence of proper identification of the
land under sale, cannot confer right, title and interest to the plaintiff
and her vendors over the suit land, which is apparently not the land
shown in the sale deeds of the plaintiff as well as her vendor,
thereafter, decided the issue No. 1 against the plaintiff.
16. In respect of issue Nos. 2 and 3, the learned first appellate
Court had held that perusal of Ext.1, the chitha of the year 1974-
1986, revealed that there were eight tenants under the landlord,
Dandi Ram Kumar and Roheswar Kumar, and khatian No. 52 was
prepared under the Assam (Temporarily Settled Areas) Tenancy Act,
1972, and as per Section 6 of the said Act, an occupancy tenant has
permanent, heritable and transferable right of use and occupancy in
the land of his occupancy/holding. Further, as per Section 7 of the
said Act, on the death of tenant, right of the immovable property
descends in the same, manner as other immovable property, and a
tenant gets protection from ejectment except as provided under
Chapter IX of the said Act, and in the case in hand, from Ext.1, the
chitha, it was apparent that there were eight occupancy tenants
over the entire land, and hence unless, it has been shown that the
tenancy is forfeited in compliance with Section 50 of the said Act, it
is to be presumed that the land under the disputed dag and patta is
still in occupation of the tenants. Moreover, it is the duty of the
plaintiff, to prove that the suit land is presently not under khatian or
that the tenancy has been forfeited complying due procedure of law
but no any such steps has been taken by the plaintiff.
16.1. The learned first appellate Court further held that the
pleadings of the plaintiff was surreptitiously silent regarding the
status of the tenants, whose possession, revealed to be more than
36 years old from the year 1973 i.e. date of endorsement on the
chitha, till the date of filing of the suit in the year 2009, and that
being the position, it had been held that plaintiff had failed to prove
the possession of the original pattadars, not to speak of her own
possession over the land, covered under Patta No. 25, Dag No. 65
(SIC-67) and that the pleading is also silent about the date of
dispossession.
16.2. The learned first appellate Court further held that the
record reveals that the suit was filed on 21.03.2009 and
amendment application, to insert the fact of the alleged
dispossession, was filed immediately after one year from filing of
the suit, and even if it is presumed that during pendency of the suit,
the plaintiff was dispossessed, then it was a new event which could
had been narrated by the plaintiff precisely with date, in as much as
time of dispossession, relating to the subject matter of a suit which
is subjudice before a Court of law, and hence, omission to mention
the date of dispossession, gives rise to probability that the incident
of dispossession is not true. Therefore, the learned first appellate
Court held that the plaintiff had failed to prove her dispossession
from the suit land.
16.3. The learned first appellate Court further held under
Section 101 of Indian Evidence Act, it is the duty of the plaintiff to
prove her right, title and interest and the same has been discussed
by Hon'ble Supreme Court in the case of Gurunath Manohar
Pavaskar (supra). Thereafter, the learned first appellate Court
decided the issue Nos. 2 and 3 against the plaintiff.
17. In respect of issue No. 4, the learned first appellate Court
had held that the plaintiff is not entitled to any relief as granted by
the learned trial Court, and accordingly, set aside the judgment and
decree dated 04.06.2016, passed by the learned trial Court, in Title
Suit No. 134/2009.
18. From the above discussions, and also from the record of the
learned trial Court as well as from the record of learned first
appellate Court and from the submission of learned counsel for both
the parties, it appears that the learned first appellate Court, while
deciding the issue Nos. 1, 2, 3 and 4, had ignored the Ext.2 i.e. the
general power of attorney, being Deed No. 5299/1996, dated
16.10.1996, in deciding the authority of Sri Ranjit Kumar Dey to
execute the deed of rectification, bearing deed No. 10194/2008,
dated 18.07.2008 (Ext.-4). Though some mistakes had been
committed in describing the boundary in Ext.-2, but it was detected
later on and the same was rectified, vide deed of rectification,
bearing deed No. 10194/2008, dated 18.07.2008 (Ext-4), and had
the learned first appellate Court considered these two exhibits in its
proper perspective, then the learned first appellate Court would not
have arrived at the conclusion, so discussed herein above. The
finding so recorded by the learned first appellate Court, thus
appears to be perverse. And here involves the first substantial
question of law.
18.1. The learned first appellate Court however, had held that-
(i) Even though there was transfer of land measuring 1
katha 5 lechas, pertaining to Dag No. 67 and Patta No.
25, the said transfer took place merely on pen and
papers;
(ii) There is absence of proper identification of the suit land;
(iii) Even if there are sale deeds and patta issued in the
name of the plaintiff, the same, in absence of proper
identification of the land, cannot confer right, title and
interest to the plaintiff and his vendors over the suit
land;
18.2. But, in view of the evidence brought on record and also in
view of the documents, so exhibited and relied upon by the plaintiff,
the finding so arrived at by the learned first appellate Court appears
to be unwarranted and uncalled for. It appears from the evidence
on record of the learned trial Court that the plaintiff had bought the
suit land from Sri Ajit Chandra Das, who executed a power of
attorney, being deed No. 3151, dated 07.06.2006, in favour of one
Sri Suman Das Gupta to sell his land measuring 1 katha 5 lechas.
However, the boundary given in the said power of attorney was
incorrectly described for which rectification deed No. 10192 dated
18.07.2008, was executed. It also appears that Suman Das Gupta,
being the attorney of Sri Ajit Chandra Das, ultimately sold the
aforesaid 1 katha 5 lechas of land to the plaintiff by executing a
registered deed of sale, bearing No. 10870/2007, dated 31.08.2007.
The boundary of the land was corrected in view of the rectification
deed, No. 11049 dated 18.08.2008, and the dag number of the land
purchased by her is 67 (old)/1988 (new) of K.P. Patta No. 25/139
(old) and 831(new) of village Jyotikuchi, under Mouza Beltola, in the
district of Kamrup.
18.3. It also appears that the name of the earlier vendor Sri Ajit
Ch. Das of the suit land, was duly mutated which confirms their
possession and they have been paying the land revenue in respect
of the suit land. A certificate was also issued during settlement
operation, by the Settlement Office, confirming mutation in the
name of Moutoshi Dutta, and she has been possessing the suit land
continuously by paying the land revenue.
18.4. It is, however, a fact that claim of title on the basis of
Jamabandi and Chitha, records of right which has no evidentiary
value are not proof of title. Mr. Chauhan the learned counsel for the
respondent has rightly pointed this out during argument. And the
decisions referred by him also strengthened his submission. In the
case of Shri Keshav Ram And Ors.(supra) while answering a
question, as to whether the entry in the settlement papers recording
somebody's name could create or extinguish title in favour of the
person concerned? Hon‟ble Supreme Court has held that at any
rate such an entry in the Revenue papers by no stretch of
imagination can form the basis for declaration of title in favour the
plaintiffs. Again in the case of Balwant Singh & Anr.
Etc.(supra) taking note of its earlier decision in Smt. Sawarni
vs. Smt. Inder Kaur & Other (1996 (7) JT SC 580),
Hon‟ble Supreme Court has held that as noticed already, mutation
entries will not convey or extinguish title in the property. In the
case of Smt. Sawarni it was held as under:-
"Mutation of a property in the revenue record does
not create or extinguish title nor has it nay
presumptive value on title. It only enables the
person in whose favour mutation is ordered to pay
the land revenue in question. .........."
This Court also in the case of Gokul Ch. Das(supra) relying upon
two decisions of Hon‟ble Supreme Court in Guru Amarjit Singh
vs. Pattern Chand reported in (1994) Supp(1) SCC 7 and also
in the case of Nagarpalika Jind vs. Jagatsingh reported in
(1995) 3 SCC 426, has held that - in view of a series of decisions
the established position of law is that claim of title on the basis of
Jamabandi and Chitha, records of right which has no evidentiary
value are not proof of title.
18.5. However, as held by Hon‟ble Supreme Court in the case of
Guru Amarjit Singh (supra), if the entries are made in the
regular course of duty, the entries may furnish presumptive
rebuttable evidence of being correct. In the case in hand, this
presumption remains unrebutted. Besides, as pointed out by Mr.
Deka, the learned counsel for the appellant, apart from entries in
the revenue record, jamabandi and revenue payment receipt and
draft chitha, there are many other documents, to show that the
plaintiff had acquired ownership and possession of the suit land and
these are Exts. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 & 13 which are in
chronological order supporting and strengthening the case of the
plaintiff. In that view of the matter, I find substance in the
submission of Mr. Deka. And that being so, this Court afraid that the
decisions referred by Mr. Chauhan would not come into his
assistance. Though Mr. Chauhan submits that if Ext. 2 is not
believable then the entire case will go. But, in the given facts and
circumstances, this Court finds no ground to disbelieve the same.
18.6. It also appears that Late Dandi Ram Kumar and Raheswar
Kumar were the exclusive owner and possessor of the total land
covered by Patta No. 25, and after disposal of land by various
manner, a portion of land measuring 3 bighas 4 kathas 7½ lechas,
remained with Ananta Kumar, son of Dandi Ram Kumar and Sri
Arun Kumar and Jagadish Kumar, both sons of Late Raheswar
Kumar. And with a view to dispose of the aforesaid 3 bighas 4
kathas 7½ lechas of land, said Sri Ananta Kumar, Sri Arun Kumar
and Sri Jagadish Kumar had jointly executed a power of attorney,
appointing and empowering Sri Ranjit Kumar Dey, vide deed No.
5299, dated 16.10.1996. And Ranjit Kumar Dey, being attorney,
sold 1 katha 5 Lechas of land out of the aforesaid total land to Ajit
Chandra Das and also delivered possession to him. It is also evident
that Ajit Chandra Das had been peacefully possessing the land till
the plaintiff bought the same. Thus, from the evidence so brought
on record and the exhibits it is established that the vendor of the
plaintiff, Shri Ajit Chandra Das, had acquired the ownership of the
suit land. Further, it appears that the plaintiff had discharged her
burden on the strength of Exts. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 &
13, all of which are in chronological order.
18.7. On the other hand, the evidence adduced by the defendant
appears to be insufficient to establish as to how the seller in the
sale deeds i.e. Ext.-A, Ext.-B and Ext.-C became the owners of the
suit land. D.W.1 in his evidence had admitted that he could not say,
on going through the Ext.-A, Ext.-B and Ext.-C, as to who bought
whose land. He even could not produce the sale deed, by which
Dandi Ram Das and Anowar Hussain bought the suit land. It also
could not be proved how its vendors had acquired the ownership
right over the suit land.
18.8. Thus, in given facts and circumstances on the record the
first substantial question of law has to be answered in affirmative
and accordingly, the same stands answered.
19. Further, it appears that the deed of rectification was executed
on 18.07.2008, after detection of the mistake in the Ext.2.
Indisputably, there is some delay in execution of the same. And
here the second substantial question of law is involved.
19.1. However, this delay in execution of correcting boundaries
contained in the sale deeds (Exts. 3 and 8), to the considered
opinion of this Court, does not raise any presumption against the
validity of the title vested by the instrument. There appears to be
unbroken chain of title of the plaintiff‟s predecessor-in-interest.
Further, it appears that the entire plot of land in question is
identifiable and as such, the requirement of Order 7 Rule 3 CPC
stands satisfied with. Exhibit 12 is the periodic patta comprising of
only the suit land. Mr. Deka, the learned counsel for the appellant
has rightly pointed this out in his argument and there appears to be
substance in his submission.
19.2. Though the learned first appellate court had held that the
suit land is not identifiable and Mr. Chauhan, the learned counsel for
the respondent, had supported such finding by referring some
decisions, yet said submission left this Court unimpressed in view of
the discussion made in the foregoing para. I have gone through the
decision referred by him in Gurunath Manohar Pavaskar
(supra), wherein Hon‟ble Supreme Court has held that it is for the
plaintiffs to prove that there does not exist any ambiguity as
regards description of the suit land in the plaint with reference to
the boundaries as mentioned therein. Again in the case of Subhaga
(supra), Hon‟ble Supreme Court has held that - a property can be
identified either by boundary or by any other specific description is
well established and that even if there was any discrepancy,
normally, the boundaries should prevail.
19.3. Since in the case in hand, the boundary has been rectified
by a rectification deed (Ext.-9), the suit land is clearly identifiable
and as such the requirement of Order 7 Rule 3 CPC stands satisfied
with. Therefore, this Court is unable to record concurrence with the
finding so recorded by the learned first appellate Court in this
regard.
19.4. It is however true that as submitted by Mr. Chauhan, the
learned counsel for the respondent, the plaintiff has to establish his
case from his own evidence and documents and his case cannot
stand on the weakness of the defendant‟s case. Though the learned
trial Court had made some observation in respect of the weakness
of case of the defendant, yet the same appears to be contrary to
the established proposition of law. However, discarding the same
also the evidence and exhibits placed on record go a long way to
establish the case of the plaintiff by preponderance of probability.
Thus, this Court is of the view that the second and fifth substantial
questions of law are involved herein and the same have to be
answered in negative and accordingly, the same stands answered.
20. It also appears that the plaintiff had filed amended plaint. And
a bare perusal of the same indicates that the plaintiff had
specifically stated the date of dispossession as 04.04.2009.
However, the date so mentioned therein, eschewed consideration of
the learned first appellate Court. Therefore, the finding so recorded
by the learned first appellate Court that there was omission to
mention the date of dispossession, is contrary to the amended
pleading and consequently incorrect, though however, specific time
has not been mentioned therein. And here involves the third
substantial question of law and in the given facts and circumstances
on the record, the same has to be answered in affirmative and
stands answered accordingly.
21. Further, it appears that the plaintiff, through her exhibits and
also though the evidence adduced by her witnesses, clearly
established that the suit property was under her continuous
possession, after being purchased and she was paying land
revenue and exhibited land revenue receipts to support her
contention, and she also established her dispossession from the suit
land on 04.04.2009.
22. Also, the evidence of the defendant that he has been residing
in the suit land by constructing a house with his family members
and letting some of the land to tenants, established a factum of
dispossession, and even if the possession and dispossession could
not have been proved by the plaintiff, he could not have been non-
suited as the title over the land is clearly established by the Exts. 1,
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 & 13.
23. Though a contention is being made that as many as eight
tenants were there in Ext.1 and as per Section 6 of the Assam
Tenancy Act, 2021, tenants have their right, title and interest and
they are residing over the suit land for more than thirty years and
the learned first appellate Court also held that unless tenancy is
forfeited in compliance with Section 50 of the Assam (Temporarily
Settled Areas) Tenancy Act, it is to be presumed that the land under
the disputed dag and patta is still in occupation of the tenants and
that the pleadings of the plaintiff was silent regarding the status of
the tenants, whose possession, revealed to be more than 36 years
old from the year 1973, till the date of filing of the suit in the year
2009, and consequently held that plaintiff had failed to prove the
possession of the original pattadars, not to speak of her own
possession over the land, covered under Patta No. 25, Dag No. 67,
yet, it appears that it was not the case of any of the parties and no
issue was framed on this count by the learned trial Court. Moreover,
the finding, so arrived at on the basis of entries in the Chitha by the
learned first appellate Court, appears to be unacceptable in view of
the discussion and finding recorded in the foregoing para.
24. Under the aforementioned facts and circumstances, this Court
finds that the fourth substantial question of law is not involved
herein and even if it involves, in the given facts and circumstances,
the same has to be answered in negative. And accordingly, the
same stands answered.
25. I have carefully considered the submissions of Mr. Chauhan,
the learned counsel for the respondent and gone through the rest of
the decisions referred by him. There is no quarrel at the Bar about
the proposition of law laid down in the cases. But, in the given
factual matrix, the same are found to be not applicable in all force,
and therefore, detail discussion of the same are found to be not
necessary to decide the present appeal.
26. In view of the findings recorded herein above, the impugned
judgment and decree dated 01.06.2022, so passed by the learned
first appellate Court, in setting aside the judgment and decree dated
04.06.2016, passed by the learned trial Court, is interfered with
being erroneous, arbitrary and illegal. Accordingly, the impugned
judgment and decree of the learned first appellate Court, dated
01.06.2022, stands set aside and quashed. Consequently, the
judgment and decree dated 04.06.2016, passed by the learned trial
Court stands restored and affirmed.
27. 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
