Gauhati High Court
RSA/90/2025 on 27 June, 2025
GAHC010113082025
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RSA No. 90/2025
1. Shri Gajen Das,
S/o Debendra Nath Das.
2. Shri Himangshu Kr. Das @ Himangshu Das,
S/o Late Satis Chandra Das.
3. On the death of Himangshu Patgiri-
3.1 Nilanjan Patgiri, Son.
3.2 Bitopan Patgiri, Son.
3.3 Girija Patgiri, Wife.
All are residents of Vill-Deohati,
PO & PS-Abhayapuri, Dist.-Bongaigaon, Assam.
......Appellants/Defendants.
-Versus-
On the death of Ramani Mohan Kalita, his legal heirs-
1. Smt. Giribala Kalita,
W/o Late Ramani Mohan Kalita,
Resident of Vill-Barbang, PO-Pathsala,
Pin-781325, Dist.-Barpeta, Assam.
2. Smt. Reena Talukdar,
D/o Late Ramani Mohan Kalita,
W/o Shri Tilak Chandra Talukdar,
Resident of Pathsala Town, PO-Pathsala,
Pin-781325, Dist.-Barpeta, Assam.
3. Smt. Jutika Kakati,
D/o Late Ramani Mohan Kalita,
W/o Late Gagan Kakati,
Resident of Pathsala Town, PO-Pathsala,
Pin-781325, Dist.-Barpeta, Assam.
RSA 90/2025 Page 1 of 12
4. Smt. Meera Deka,
D/o Late Ramani Mohan Kalita,
W/o Shri Dipak Chandra Deka,
Resident of Pathsala Town, PO-Pathsala,
Pin-781325, Dist.-Barpeta, Assam.
5. Shri Biren Kalita,
S/o Late Ramani Mohan Kalita,
Resident of Vill-Barbhang, PO-Pathsala,
Pin-781325, Dist.-Barpeta, Assam.
6. Smt. Popi Deka,
D/o Late Ramani Mohan Kalita,
W/o Shri Sailen Deka,
Resident of Beltola, Guwahati,
PO-Beltola, Pin-781028, Dist.-Kamrup(M), Assam.
7. Shri Anup Kalita,
S/o Late Ramani Mohan Kalita,
Resident of Vill-Barbhang, PO-Pathsala,
Pin-781325, Dist.-Barpeta, Assam.
......Respondents/Plaintiffs.
8. Smt. Kalpana Das,
W/o Late Kamal Das,
Resident of Vill-Deohati, PO & PS-Abhayapuri,
Dist.-Bongaigaon, Pin-783384, Assam.
......Proforma Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Ms. R. Choudhury,
Ms. B. Hazarika,
Ms. Memon Ahmed. ......Advocates.
For the Respondents :
Date of Hearing : 13.06.2025
RSA 90/2025 Page 2 of 12
Date of Order : 27th June, 2025
ORDER
Heard Ms. R. Choudhury, learned counsel for the appellants.
2. This appeal under Section 100 read with Order XLII Rule 1 of the
Code of Civil Procedure, 1908 is directed against the judgment and
decree dated 24.02.2025 passed by the learned Civil Judge (Sr. Division),
Bongaigaon („First Appellate Court‟ for short), in Title Appeal No.09/2018,
whereby the learned First Appellate Court has reversed the judgment and
decree dated 10.07.2018 passed by the learned Munsiff [Now Civil Judge
(Jr. Division)], North Salmara, Abhayapuri („Trial Court‟ for short), in Title
Suit No.72/2006, by which the suit of the respondents/plaintiffs was
dismissed.
3. The background facts leading to filing of the present second appeal
is briefly stated as under:-
"The respondent herein as plaintiff instituted a title suit, being Title
Suit No.72/2006 for declaration of his right, title and interest and
for confirmation of possession and for permanent injunction over a
plot of land measuring 1 bigha 2 katha 10 lecha under Dag No.48.
His case is that from proforma defendant No.1, namely, Amalendu
Baruah, who was the owner of a plot of land measuring 31 bigha 1
katha 6 lecha covered by Dag No.48 and 17 bigha 4 katha 8 lecha
covered by Dag No.47 and the plaintiff has purchased a plot of
land measuring 1 bigha 2 katha 10 lecha from the proforma
defendant No.1 vide registered Sale Deed No.1696/1964, dated
19.08.1964 and got khas possession over the said land mentioned
in Schedule-B of the plaint and got joint patta and mutated his
name over the same. The plaintiff then sold 2 katha 10 lecha land
from the Schedule-B land to the proforma defendant No.23,
namely, Dipak Narayan Dev and handed over possession to him
and thereafter, land measuring 1 bigha of the Schedule-C
(Schedule-C1) was in his possession. On 12.01.1994, when he
visited the suit land, he found the defendants to have trespassed
into the suit land and constructing some houses thereon. When the
plaintiff raised objection, the defendants stated that they have
better title over the suit land. Thereafter, the plaintiff had gone
through the revenue records and had come to know that the
defendants had purchased the plot of land from proforma
defendant Gajendra Kr. Das, who had in fact purchased 1 bigha of
land from original pattadar i.e. the proforma defendant No.1 from
Dag No.47 and he had nothing to do with Dag No.48 covering the
suit land and the proforma defendant Gajendra Kr. Das had
purchased the said land much later than the plaintiff.
The defendants contested the said suit by filing written
statement. In their written statement, the defendant Nos.1, 2 and
3 stated that they are not possessing any land of the plaintiff and
they have their own land within the big plot of Schedule-A land and
that the proforma defendant No.1 Amalendu Baruah is the original
owner of the Schedule-A land and they have purchased their land
out of the Schedule-A land from Gajendra Kr. Das i.e. the proforma
defendant No.5. They have also got mutation over their possessed
land. However, they admit that the Schedule-C land is the suit land
and they denied the possession of the plaintiff‟s land in the area of
the Schedule-A land and also in Schedule-C land and they have
been possessing their own land since the time of purchase and
they got the registration of sale, wherein inadvertently the dag
number is mentioned and subsequently, the same was corrected as
Dag No.48 and the name of the plaintiff has been entered in the
patta, however, the mutation of the land in his name has been
done through collusive means as the plaintiff had never possessed
any land within the Schedule-A land and with collusion his name
has been entered in the record of rights and the same is illegal.
Upon the above mentioned pleadings, the learned Trial Court has
framed following issues:-
(i) Whether there is any cause of action for this suit?
(ii) Whether the suit is barred by law of limitation?
(iii) Whether the suit is bad for non-joinder and mis-joinder of
necessary parties?
(iv) Whether the plaintiff has right, title and interest over the suit
land?
(v) Whether the defendants have dispossessed the plaintiff from
the suit land?
(vi) Whether the defendants have trespassed into the suit land
and liable to be evicted from the same?
(vii) Whether the plaintiff is entitled to get a decree as prayed
for?
(viii) To any other relief(s) the plaintiffs are entitled?
And also framed additional issue.
1) Whether the suit is maintainable in law and facts?
Thereafter, taking evidence of both the parties and also
hearing argument of both sides, the learned Trial Court was
pleased to dismiss the suit vide impugned judgment and decree
dated 10.07.2018.
Being aggrieved, the respondent herein preferred an appeal,
being Title Appeal No.09/2018 challenging the judgment and
decree so passed by the learned Trial Court and the learned Trial
Court had formulated one point for determination.
Whether the judgment and decree dated 10.07.2018 passed
by the learned Munsiff, North Salmara, Abhayapuri, in Title
Suit No.72/2006 is sound in law and facts or whether it lacks
propriety warranting interference?
And thereafter, the learned First Appellate Court after
hearing both the parties decided the point for determination in
affirmative and thereafter, having found the plaintiff establish the
case, decreed the same vide impugned judgment and decree dated
24.02.2025."
4. Being aggrieved, the defendants/appellants herein approached this
Court by filing the present appeal suggesting following substantial
questions of law:-
(i) Whether the findings so arrived at by the learned First Appellate
Court in Issue No.4 that the Exhibit-3 i.e. the original registered
sale deed being more than 30 years old document and as the same
was from proper custody of plaintiff, there is a presumption of
authenticity, is at all correct or as per law?
(ii) Whether the learned Civil Judge (Sr. Division), Bongaigaon, is
correct in decreeing the suit of the plaintiff for recovery of
possession merely on the ground that the defendant had not
exhibited their original registered sale deeds by which they are
owner of the suit land?
(iii) Whether the judgment and decree passed by the learned Civil
Judge (Sr. Division), Bongaigaon is correct merely on the ground of
presumption whereas it is settled principle of law that the plaintiffs
has to prove his own case?
(iv) Whether the findings of the learned First Appellate Court in para 17
of the judgment that defendants had not denied the purchase of
plaintiff is perverse appreciation of pleadings and this gives rise to
a substantial question of law?
(v) Whether the learned First Appellate Court has committed wrong in
reversing the judgment and decree of the Trial Court, thereby
decreeing the suit of the plaintiff who is unable to identify his own
suit land, as he admitted in his evidence that he was not sure
whether Kalpana Das or Himangshu Das is occupying his land?
5. Ms. Choudhury, learned counsel for the appellants submits that the
learned Trial Court has rightly dismissed the suit of the plaintiff and the
learned First Appellate Court on erroneous interpretation of the facts and
the pleadings, arrived at a perverse finding and the same are required to
be interfered in this second appeal. Ms. Choudhury further submits that
the learned First Appellate Court arrived at a perverse finding while
deciding the Issue No.4 and relied upon Exhibit-3, one registered sale
deed of more than 30 years old and drawn presumption in its favour and
it has disbelieved the version of the appellants on the ground of non-
execution of the original registered sale deed, by which they became
owner of the suit land and that it is well settled that the plaintiff has to
prove its own case and on mere presumption the learned First Appellate
Court has decreed the suit and further, Ms. Choudhury submits that the
suit land is not identifiable and under such circumstances, she contended
to admit the appeal by framing the substantial questions of law and to
hear the same.
6. Having heard the submission of learned counsel for the appellants,
I have carefully gone through the memo of appeal and the grounds
mentioned therein and the suggested substantial questions of law and
also perused the impugned judgment and decree dated 24.02.2025
passed by the learned First Appellate Court in Title Appeal No.09/2018
and also the judgment and decree dated 10.07.2018 passed in T.S.
No.72/2006.
7. Indisputably, the learned Trial Court had dismissed the suit of the
plaintiff on contest. However, the learned First Appellate Court reversed
the finding of the learned Trial Court. It also appears that the Issue No.4
so framed by the learned Trial Court is the vital issue which relates to
whether the plaintiff has right, title and interest over the suit land and
while discussing the same, the learned First Appellate Court has found
that the plaintiff Ramani Mohan Kalita as PW-1 testified that he
purchased 1 bigha 2 katha 10 lecha of land in Schedule-B (Schedule-B1)
of the plaint from the proforma defendant No.1, namely, Amalendu
Baruah on 19.08.1964 at a consideration of Rs.1,500/- vide registered
Sale Deed No.1696/1964, dated 19.08.1964 (Exhibit-3) and the said fact
has not been denied by the defendants and Exhibit-3 is an old document
and partially illegible, for which the plaintiff has exhibited the certified
copy of the registered sale deed as Exhibit-4 and the same goes to show
that the plaintiff has purchased Schedule-B (B1) land from the proforma
defendant Amalendu Baruah.
8. The learned First Appellate Court also found that the defendants
had not challenged the said registered sale deed and he had also not filed
any counter claim to cancel the registered sale deed and further found
that Exhibit-3 is more than 30 years old and as per Section 90 of the
Indian Evidence Act, there is a presumption of its authenticity and the
said document was produced from the proper custody and as such, the
same has to be assumed to be genuine and none of the Exhibits-3 and 4
were challenged by the defendants‟ side. The learned First Appellate
Court also found that PW-1 has testified that in the last settlement
operation of 1958-65, the Government has issued joint patta in his favour
and he has exhibited the jamabandi as Exhibit-1 and the revenue receipt
as Exhibit-5 and out of the Schedule-B (B1) land, he sold a portion of
land measuring 2 katha 10 lecha in favour of proforma defendant No.23
Shri Dipak Narayan Deb and handed over the possession to him in the
year 1993 and after the aforementioned sale a plot of land measuring 1
bigha under his title and possession and the same has been mentioned in
Schedule-C of the plaint and that PW-2 Jaymati Roy, wife of the plaintiff
also supported the evidence of the PW-1. Thereafter, the learned First
Appellate Court found that the defendant Nos.1, 2 and 3 claimed to have
purchased the suit land i.e. the Schedule-C (C1) land from proforma
defendant No.5 Gajendra Kr. Baruah vide registered Sale Deed
No.1358/1992 (Exhibit-1) and he has also exhibited the certified copy of
rectification deed No.1374/1992 in his name as Exhibit-B and exhibited
the certified copy of registered sale deed No.949/1991, which he
purchased the land as Exhibit-C and also he exhibited the certified copy
of registered sale deed No.2338, dated 13.12.1993 by which Kalpana Das
purchased land from Gajendra Das as Exhibit-B and also he exhibited the
certified copy of rectification deed dated 02.07.2009 of Kalpana Das as
Exhibit-Q and the defendant Nos.1, 2 and 3 claimed to have purchased
the land through the Exhibits-A, B, C, P and Q, but the defendants have
failed to produce the original deed of Exhibits-A, B, C, P and Q and also
failed to prove execution of the sale deed.
9. Thereafter, discussing a decision of this Court in case of P.G.
Dombrain v. Collector of Kamrup, Gauhati, reported in AIR 1980
Gau 55 and also relying upon another decision of this Court in Subudini
Kar & Anr. v. Sabitri Rani Debi, reported in STPL 4667 Gauhati
and also discussing Section 48 of the Transfer of Property Act arrived at a
finding that the plaintiff has right, title and ownership of the suit land as
the plaintiff has managed to prove his right, title and interest over the
suit land through Exhibits-3 and 4, which are unchallenged documents
and the defendants had never filed any counter claim to cancel the deed.
Moreover, Exhibit-3 is an old document more than 30 years old and so
need not be proved by witnesses of the deed as it has been proved by its
natural custodian and on the other hand, the defendants have failed to
prove their ownership over the Schedule-C land.
10. It is to be mentioned here that in the case of P.G. Dombrain
(supra), a Coordinate Bench of this Court held that "it is a settled law
that mere marking of an exhibit does not dispense with the proof of
document (See Sait Tarajee Khimkchand v. Collector of
Kamrup, Gauhati, reported in AIR 1971 SC 1865). Admittedly, in the
instant case no witness was examined to prove the document relied on
by the claimant. The certified copies of the sale deed were simply
produced and exhibited without proof. These documents are not
admissible in evidence. It is also to be noted here that Section 48 of the
Transfer of Property Act read as under:-
48. Priority of rights created by transfer.-- Where a person purports
to create by transfer at different times rights in or over the same immoveable
property, and such rights cannot all exist or be exercised to their full extent
together, each later created right shall, in the absence of a special contract or
reservation binding the earlier transferees, be subject to the rights previously
created.
11. A Coordinate Bench of this Court in the case of Subudini Kar
(supra) held that apparently, on perusal of the materials on record, it
does not transpire that the sale deed in question i.e. Exhibit-2 was a
collusive one and it cannot be said that the transaction is illegal and hit
by Section 53 of the Transfer of Property Act, 1882. The fact remains that
since Exhibit-2 Sale Deed No.3398 was valid sale deed executed by
Makhanlal Dey in the year 1974, the subsequent sale deed executed by
Makhanlal cannot transfer any right, title and interest over a suit land to
the predecessor of the defendant No.2 (Ka) to 2(Cha). Therefore, the
predecessor of defendant No.2 (Ka) to 2(Cha) would not acquire any
right, title and interest of the suit land by virtue of purchase from
Makhanlal vide Exhibit-B, which was executed subsequently.
12. In the instant case, it appears that Gajendra Kr. Das, the vendor of
the defendant Nos.1, 2 and 3 appears to have purchased 1 bigha of land
claimed to be the Schedule-C land on 19.06.1967 vide registered sale
deed No.2488/1967 and subsequently, the defendant Nos.1, 2 and 3 had
purchased the said land from Gajendra Kr. Das. But, it appears that the
plaintiff is the first purchaser, who purchased the Schedule-C land vide
registered sale deed No.1696/1964, dated 19.08.1964 (Exhibit-3) and
Exhibit-4 is the certified copy of the same. Moreover, Exhibit-3 is more
than 30 years old document and in view of Section 90 of the Indian
Evidence Act, a presumption is available about the authenticity of Exhibit-
3 and it was in the custody of the plaintiff and he produced the same
before the Court and as such, presumption about its genuineness is
available and in view of Section 48 of the Transfer of Property Act and in
view of the decision of this Court in Subudini Kar (supra), the plaintiff
appears to have better right, title and interest over the suit land than that
of the defendants. The defendants have relied upon Exhibit-A, B, C, P
and Q, all of which are certified copies and they have failed to exhibit the
original of the same.
13. It is to be noted here that where finding of fact by the lower
appellate Court are based on evidence, the High Court in second appeal
cannot substitute its own finding on re-appreciation of evidence merely
on the ground that another view was possible. [See-Thiagarajan &
Ors. v. Sri Venugopalaswamy B. Koil & Ors., reported in (2004)
5 SCC 762] In the case of Madhavan Nair v. Bhaskar Pillai
(Dead) By LRs., reported in (2005) 10 SCC 553, it has been held that
even if the first appellate Court commits an error in recording a finding of
fact, that itself will not be a ground for the High Court to upset the same.
14. In view of aforementioned discussion and finding, this Court is of
the view that the substantial questions of law as suggested herein,
appears to be flowed out of finding recorded by the first appellate Court
and accordingly, this appeal stands summarily rejected.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
