Gauhati High Court
RSA/68/2017 on 13 May, 2025
GAHC010123462017
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
RSA/68/2017
1. Smti Santi Devi
2. Mahesh Sharma
3. Gautam Sharma
4. Uttam Sharma
Petitioner Nos. 2, 3, 4 and 5 are legal
heirs of Sri Mahendra Prasad Sharma
All are R/O Mankachar P.S. Mankachar
District Dhubri Assam
.....Appellants
-Versus-
On the death of Wallus Sahid his legal heirs
1. Mahmuda Shahed (wife)
W/O Walius Sahid
2. Golamoush Sahid
3. Ataush Sahid
All are sons of Late Mina Md. Elioush
R/O Mankachar Minapora
Under Mankachar Police Station
District Dhubri Assam.
RSA/68/2017 Page 1
Legal heirs of late Enamush Sahid
4. Monowara Begum
5. Eftikar Sahid
6. Irshad Sahid
7. Jahida Sultana
8. Samin Sultana
All Are R/O Mankachar P.S. Mankachar
Dist. Dhubri Assam.
Legal heirs of late Montu Saha
9. Gita rani Saha
10. Sanjay saha
11. Premananda Saha
12. Ananda Saha
13. Debendra Saha
14. Sipra Saha
All are R/O Mankachar Minapara
Under Mankachar P.S. District Dhubri Assam
......Respondents
For Petitioners : Mr. S. K. Goswami, Advocate
For Respondents : Ms. R. Choudhury, Advocate (R.1, 2, 4 and 6)
Date of Judgment : 13.05.2025
RSA/68/2017 Page 2
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. S. K. Goswami, the learned counsel for the appellants.
Also heard Ms. R. Choudhury, the learned counsel for respondent
Nos. 1, 2, 4 and 6.
2. This Regular Second Appeal under Order 42 read with Section 100
of the Code of Civil Procedure, 1908, has been filed by the
appellants impugning the judgment and decree dated 17.09.2016,
passed by the Court of learned Civil Judge, Dhubri, in Title Appeal
No. 30/2014, whereby it upheld the Judgment and Decree passed
in Title Suit No.402/2005 and dismissed the said appeal.
3. The predecessor-in-interest of the present appellants had instituted
a Title Suit No. 402/2005 against the present respondents (wherein
the defendants Nos. 1 to 4 are designated as defendants of Group-
1, and the heirs of the Defendant No. 5 are designated as
defendants of Group-2).
4. The plaintiffs/ appellants had pleaded that their father, Late Sardar
Lohar was the tenant in respect of a plot of land measuring about
15 Kathas of land in Koraibari measurement under the Landlords
namely, Smt. Nur Nehar Khatun and Smt. Hamida Khatun. It was
also pleaded that later on, after abolition of zamindary, the
aforesaid land was erroneously recorded as government khas land,
RSA/68/2017 Page 3
even though the plaintiffs' predecessor, Sardar Lohar was
possessing the same as tenant and thus the aforesaid land got
recorded as government khas land under Dag no. 924 for an area
of land measuring 1 Bigha 1 Katha 6 Lechas in present day system
of measurement.
5. Thereafter on the death of Sardar Lohar, his wife Ramrati Devi and
His two sons namely, Mahendra Sharma and Raghunath Prasad
Sarma instituted Title Suit no. 618/1967 against the State of Assam
in respect of the above land and obtained a decree on 23/11/1967
whereby the right, title and interest of the plaintiffs over the above
land was declared. The legal heirs of Sardar Lohar used to reside
over this land by constructing their houses.
6. The plaintiffs further pleaded that one Mantu Saha, the
predecessors of the defendants of Group II, who was also one of
the tenants of Nur Nehar Khatun and Hamida Khatun, became
shelter less after he was evicted by his above-named landlords; as
such he requested Mahendra Sharma (predecessor of plaintiff
no:2(i) to 2(v)) to allow him to stay over the land belonging to the
plaintiffs and accordingly he was allowed to stay. Thereafter Mantu
Saha constructed a two-roof tin shed house over the South
Western portion of the homestead land of the plaintiffs in Dag no.
924. After his death, the defendants of Group II, i.e., his legal
heirs, started to reside thereon. The plaintiffs have pleaded that
lately the Group II defendants have constructed their residential
RSA/68/2017 Page 4
houses over some other land, but still they refused to vacate the
suit land.
7. The plaintiffs have also alleged that the Group I defendants, i.e.,
the legal heirs of Mina Md. Elius had in collusion with the Group II
defendants instituted Title Suit no. 266/1996 claiming the suit land,
but the plaintiffs came to know about it and as such they prayed
for their Impleadment, but their prayer was rejected; hence they
had instituted the Title Suit No. 402/2005 for the declaration of
their right, title and interest over the suit land and for eviction of
the defendants.
8. The plaintiffs have further pleaded that the revenue officials had
erroneously issued Khatian No. 5 in respect of the suit land in
favour of Mina Md. Elius, i.e, the predecessor of the Group-I
defendants. However, the Deputy Commissioner, Dhubri had
suspended the same and as such Mina Md Elius instituted case no.
MNK/6 u/s 103, 61-62 for correction of records in his name before
the revenue authorities, but the same was rejected. The plaintiffs,
have thus, instituted the Title Suit No. 402/2005 praying for the
declaration of their right, title and interest over the schedule „A‟
land and for eviction of the Group II defendants therefrom.
9. The Group-I defendants filed their joint written statement stating
therein that the suit is not maintainable. The above-named
defendants pleaded that the plaintiffs' predecessor, Sardar Lohar
was never a tenant under Nur Nehar Khatun and Hamida Khatun;
as such the plaintiffs or their predecessors are not entitled to the
RSA/68/2017 Page 5
declaration of their right, title or interest over the suit land. The
above-named defendants further denied that Mantu Saha, the
predecessor of the Group II defendants was the tenant under Nur
Nehar Khatun and Hamida Khatun. According to the Group I
defendants, the suit land is their land and that the name of Nur
Nehar Khatun and Hamida Khatun was rightly recorded in the
Khatian no. 5 and thereafter the Group I defendants and Mina Md
Elius became the owners by way of gift of the aforesaid land. The
above-named defendants further contended that Mantu Saha was
the tenant under the defendants in respect of the house over the
suit land for a payment of rent of Rs.100/-and as such for their
eviction the Group I defendants instituted Title Suit no. 266/1996.
The defendants further pleaded that the suit land belongs to the
Group I defendants and that the name of the plaintiffs are
recorded over land measuring 9 Lechas which is a separate plot of
land covered by the Dag no. 946 and not in respect of the suit
land, as such they prayed for dismissal of the suit.
10. The Group II defendant nos. 5(a) to 5(e) filed their joint written
statement stating therein that the suit is not maintainable. The
above-named defendants pleaded that the suit land originally
belonged to Mantu Saha, their predecessor and that Mantu Saha
owned and possessed the same in his own right and even after the
suit land was recorded as khas land, Mantu Saha occupied the
same and constructed his residential house some 60 years ago and
since then he and thereafter his legal heirs are in possession of the
RSA/68/2017 Page 6
suit land; as such prayed for dismissal of the suit. The abovenamed
defendants contended that they are neither the tenants under the
Group I defendants nor they are the permissive occupiers under
the plaintiffs in respect of the suit land.
11. The remaining defendants did not file their written statement.
12. Upon pleadings of the parties, the learned trial Court framed the
following issues in the suit:
1) Whether the suit is maintainable in its present form?
2) Whether the suit is barred by limitation?
3) Whether the plaintiff has valued the suit properly?
4) Whether there is cause of action for this suit?
5) Whether the plaintiff has right and title over the suit house
described in the schedule A?
6) Whether the defendant acquired title by adverse possession?
7) Whether the plaintiff is entitled to perpetual injunction?
8) To what other relief/ reliefs the plaintiff is entitled to?
13. Both the parties adduced evidence in support of their respective
cases. After hearing both sides, the learned Trial Court by the
impugned judgment dated 4/3/2014 dismissed the Title Suit No.
402/2005.
14. Being aggrieved and dissatisfied by the judgment of the Trial Court
the plaintiffs/the present appellants preferred a first appeal before
RSA/68/2017 Page 7
the Court of learned Civil Judge, Dhubri, which was registered as
Title Appeal No. 30/2014.
15. The said appeal was preferred amongst other on following ground:
i. That the learned Trial Court has erred in law and facts in
deciding the suit;
ii. That the Trial Court failed to appreciate the evidence on
record in its proper perspective;
iii. That the learned Trial Court had wrongly held that the Title
Suit no:618/1967 was for land measuring only 9 Lechas,
because in fact the said suit was for land measuring 1
Bigha 1 Katha 6 Lechas, i.e., the entire disputed land in
this case;
iv. That the learned Trial Court had held that the suit land was
gifted by Nur Nehar Khatun and Hamida Khatun but the
Group I defendants did not produce any such gift deed;
and as such the Khatian no. 5 is erroneously issued in the
name of the Group I defendants;
v. That the learned Trial Court ought to have held that the
Group II defendants are the permissive occupiers in
respect of the schedule A land under the plaintiffs;
vi. That the learned Trial Court ought to have dismissed the
suit.
16. The First Appellate Court formulated the following points for
determination in the said appeal: -
i. Whether the learned Trial Court had rightly decided the issue
No. 5 wherein it held that plaintiffs have failed to prove their
right, title or interest over to schedule "A" land and premises?
RSA/68/2017 Page 8
ii. Whether the Learned Trial court had rightly decided the issue
No. 2 wherein it held that the suit is barred by limitation?
17. After considering the submissions of the learned counsel for both
the sides and after perusing the materials on record, the First
Appellate Court had decided both the points for determination
formulated by it against the appellate in favour of the respondents
and dismissed the appeal by the judgment dated 17.09.2016,
which has been impugned in the instant Regular Second Appeal.
18. At the time of admission of the instant Regular Second Appeal,
after considering the materials on record and after hearing the
learned counsel for the appellant, following substantial questions of
law were formulated by this Court:
i. Whether the finding of the Appellate Court so far issue No. 5
is concerned is perverse regarding the title of the plaintiff on
the face of the judgment and decree passed in Title Suit No.
618/1967 i.e., the Exhibit Nos. 4 and 5.
ii. Whether the finding of the learned Court below with respect
to the issue of limitation are perverse as same were decided
without taking into consideration the materials available on
record.
19. Mr. S. K. Goswami, the learned counsel for the appellants has
submitted that the First Appellate Court and Trial Court have erred
in holding that the suit land in Title Suit No. 618/1967 was in
respect of 9 Lechas of land only, in as much as it was specifically
RSA/68/2017 Page 9
averred therein that the land belongs to Khatian No. 1 of Dag No.
924 and the record correction slip, which was marked as Exhibit
No.7 clearly described that the land to be 1 Bigha 1 Katta 6 Lechas
under Dag No. 924 of new Khatian No. 593. The learned counsel
for the appellants has submitted that the Khatian No. 593 has
been exhibited as Exhibit No. 5, which is a deed of Title under
Goalpara Tenancy Act, 1929.
20. The learned counsel for the appellants has also submitted that the
area of 1 Bigha 1 Katta 6 Lechas of land under Dag No. 924 has
been specifically mentioned in paragraph no. 1 of the plaint. The
learned counsel for the appellants has submitted that the Khatian
No. 593 was not put under challenge by any of the defendants.
21. The learned counsel for the appellants has also submitted that the
respondents have claimed the tenancy on the basis of Khatian No.
5, the basis of which is the Gift Deed executed on 08.11.1968 by
Nur Nehar Khatun and Hamida Khatun. However, the same was
executed after the acquisition of land by the State of Assam under
Assam State Acquisition of Zamindari's Act 1951. It is further
submitted by the learned counsel for the appellants that the Gift
Deed was never proved by the respondents.
22. The learned counsel for the appellants has also submitted that in
RSA No. 18/2004, the said Gift Deed was held to be invalid in as
much as it was in respect of the land, which was acquired by the
Government under Assam State Acquisition of Zamindari‟s Act
1951.
RSA/68/2017 Page 10
23. The learned counsel for the appellants has also submitted that the
judgment of the First Appellate Court as well as Trial Court are
perverse in as much as it did not discuss anything regarding
Khatian No. 593, which was exhibited as Exhibit No. 5, wherein
land measuring 1 Bigha 1 Katha 6 Lechas has been described.
24. The learned counsel for the appellants has also submitted that the
Khatian No. 5 was fraudulently obtained by the respondents as the
materials on record shows that the objection in that regard has
been filed and same was under scrutiny at the relevant time as per
the order of the Secretary, Revenue Department (Exhibit No. 14,
which is a copy of letter of Revenue Secretary with a direction to
the Deputy Commissioner, Dhubri to cancel the said Khatian).
25. The learned counsel for the appellants has also submitted that the
defendant has claimed the rights over the suit land on the basis of
Khatian No. 5, which according to them was created on the basis
of the Gift Deed. However, he submits that a Khatian is a
document of tenancy and the same cannot be created on the basis
of Gift Deed.
26. The learned counsel for the appellants has submitted that the
schedule of the land in the plaint filed by the plaintiffs have been
specifically described as containing 1 Bigha 1 Katha 6 Lechas of the
land covered by Dag No. 924, whereas, Exhibit No. 8 (revenue
receipt) in respect of Khatian No. 593 also discloses 1 Bigha 1
Katta 6 Lechas of land. He submits that the Exhibit No. 5 was
never under challenged in the Court. It is submitted by the learned
RSA/68/2017 Page 11
counsel for the appellants that as per the decree in Title Suit No.
618/1967, the separate Khatian No. 593 was in respect of land
measuring 1 Bigha 1 Katha.
27. The learned counsel for the appellants has also submitted that the
Trial Court as well as First Appellate Court have erred in dismissing
the suit of the plaintiff on the ground of limitation, as the cause of
action arose only after rejection of the prayer for impleadment by
the appellants in Title Suit No. 286/1996, on 06.12.2024, and not
from the date, on which the Khatian No. 5 was created i.e., in the
year 1968.
28. In support of his submissions, the learned counsel for the
appellants has cited following rulings: -
a) On the death of Batai Rabidas, his legal heirs Samar Rabidas
and others Vs. Jagadev Goala and others reported in 1990 (2)
GLR 340;
b) Prabhagiya Van Adhikari, Avadh Van Prabhag vs. Arun Kumar
Bhardwaj (dead through LR) & other reported in AIR 2021 SC
4739;
c) Hero Vinoth (Minor) vs. Seshammal reported in (2006) 5 SCC
545;
d) Sankalchan Jaychandbhai Patel & other vs. Vithalbhai
Jaychandbhai Patel & other reported in (1996) 6 SCC 433;
e) Promod Kumar anf another vs. Zalak Singh & another reported
in (2019) 6 SCC 621.
RSA/68/2017 Page 12
29. On the other hand, Ms. R. Choudhury, the learned counsel for
respondent Nos. 1 to 4 and 6 has submitted that the First Appellate
Court as well as the Trial Court have committed no perversity and
have correctly dismissed the Title Suit as well as first appeal filed
by the present appellants.
30. She submits that as it is apparent that the present appellant have
challenged the validity of Khatian No. 5, which was issued in the
year 1968, therefore, the period of limitation shall have to be
computed from the date of issuance of the said Khatian and not
from the date when the prayer for impleadment of the present
appellants was rejected in Title Suit No.286/1996.
31. She submits that as per Rule 82F of the Assam Land and Revenue
Regulation, 1886, which prescribes the procedure for cancellation
of Khatian i.e., records of rights, provides that a prayer for such
cancellation has to be made within two years from the date of its
publication, therefore, any prayer beyond such date would be
barred by limitation. She submits that in the instant case, the
Khatian was created in the year 1968, whereas the prayer for
cancellation was made in the year 2005 without there being any
justification, therefore, the same is barred by limitation.
32. She also submits that both the Trial Court as well as Appellate
Court has correctly held that the right of the appellant in pursuant
to the judgment Title Suit No. 618/1967 was in respect of nine
Lechas land only, which was incorporated under Khatian No. 593 in
respect of the Dag No. 946, which is a separate plot of land from
RSA/68/2017 Page 13
that of the suit land involved in the present suit (Title Suit No.
402/2005).
33. The learned counsel for the respondents has also submitted that as
regards to the judgment in RSA No.18/2004 is concerned, the
same was never brought on records in the present proceedings
either at the trial stage or the first appellate stage. Even in the
second appellate stage, same was not done by adducing additional
evidence under Order 41 Rule 27 of the Code of Civil Procedure,
1908, hence same can not be taken into consideration in this
appeal.
34. She also submits that the appellants have pressed hard in showing
the lacunae in the case of the respondents, whereas, they have
failed to prove their own case. She submits that it is a settled
principle of law that the plaintiffs shall have to prove their own
case by adducing reliable evidence and the burden would shift to
the respondents only after the plaintiffs are able to prove the case
pleaded by them, which they have miserably failed and their claim
is barred by limitation.
35. She has also submitted that the First Appellate Court has correctly
made an observation on the basis of Exhibit No. A and Exhibit No.
B that the respondents in a Group-I have the right, title and
interest over suit land.
36. The learned counsel for the respondents has also submitted that
the appellant have failed to plead specifically the allegations
regarding forgery and prove the same by adducing cogent
RSA/68/2017 Page 14
evidence. She submits that mere pleading that the Khatian No. 5 is
a fraudulent Khatian would not make it so in absence of any
cogent evidence proving such allegations.
37. Finally, the learned counsel for the respondents has submitted that
this Court of third instance exercising its jurisdiction under Section
100 of the Code of Civil Procedure, 1908 should not disturb the
concurrent finding of two Courts i.e., Trial Courts and the First
Appellate Court without there being any substantial question of law
involved in this case. She submits that the Appellate Court, while
exercising powers under Section 100 of the Code of Civil
Procedure, 1908 in a regular second appeal should be more
cautious while dealing with the concurrent findings of facts. She,
therefore, prays for dismissing the instant Regular Second Appeal.
38. In support of her submissions, the learned counsel for the
respondents has cited following rulings: -
a) Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar"
reported in (1999) 3 SCC 722;
b) Corporation of Madras & another vs. M. Parthasarthy &
others reported in (2018)9 SCC 445;
c) Union of India vs. Ibrahim Uddin & another reported in
(2012) 8 SCC 148;
d) Varanaseya Sanskrit Vishwavidyalaya & another vs. Dr.
Rajkishore Tripathi & another.
39. I have considered the submissions made by the learned counsel for
both the sides and have gone through the impugned judgment, the
RSA/68/2017 Page 15
records of the First Appellate Court as well as the Trial Court. I
have also gone through the judgments cited by both the sides in
support of their submissions.
40. While considering the instant Regular Second Appeal, this court is
conscious about the fact that it is dealing with concurrent finding of
facts of the Trial Court as well as the First Appellate Court, hence,
unless such findings of fact are found to be perverse, it may not be
appropriate to interfere with the same. It is also to be taken note
of the fact that though, during the course of argument, the learned
counsel for both the sides have made submissions on various
aspects of the case, however, while exercising its jurisdiction under
section 100 of the Code of Civil Procedure, 1908, this court shall
have to confine itself only to the substantial questions of law
formulated by it at the time of admission of this appeal.
41. The first substantial question of law, which has been formulated in
this second appeal is as to whether the finding of the first appellate
court is perverse in so far as issue No. 5 is concerned.
42. The issue No. 5 framed by the Trial Court was as to whether the
plaintiff has the right, title and interest over the suit house
described in schedule „A‟? The Trial Court held that the plaintiffs
have failed to prove their right, title and interest over the suit land.
It also held that in pursuant to the judgment and decree passed in
Title Suit No. 618/1967, a separate Dag bearing No. 946 was
created with 9 Lechas of land in favour of the predecessor of the
plaintiffs as apparent from Exhibit No. 10. It also observed that the
RSA/68/2017 Page 16
land claimed by the defendants by virtue of Khatian no. 5 pertains
to a different land bearing Dag No. 924, whereas, the land in
respect of which the right, title and interest of the plaintiff was
declared in Title Suit No. 618/1967, is a different plot of land i.e.,
Dag No. 946 which was created in pursuant to the judgment and
decree passed in Title Suit No. 618/1967.
43. On careful perusal of the impugned judgment, it appears that the
First Appellate Court, while considering as to whether the Trial
Court has correctly decided the issue no. 5 has considered the fact
that the plaintiffs had claimed their right, title and interest over
schedule „A‟ land, which is covered by Dag No. 924, on the basis of
declaratory decree obtained by them in the Title Suit No.
618/1967. The First Appellate Court also considered the fact that in
pursuant to the decree obtained in Title Suit No 618/1967, land
records were corrected and separate Dag No. 946 in respect of 9
(nine) lechas of land was created out of Dag No. 924.
44. The First Appellate Court, after considering the judgment and
decree passed in the Title Suit No 618/1967, i.e., the Exhibit-4, has
also observed that since the defendants or their predecessor in
interest were not made parties in the Title Suit No. 618/1967, the
degree obtained in the said suit would not be binding on the
defendants and the plaintiffs have the burden of proving their title
independently of the decree passed in the said suit. However, the
First Appellate Court, after considering the materials available on
record, came to the finding that the plaintiffs have failed to
RSA/68/2017 Page 17
produce any document of title in their favour or in favour of their
predecessors in respect of the suit land.
45. The First Appellate Court, for arriving at the aforementioned
finding, has considered the Exhibits Nos. 1,2,3 & 4 (which are the
plaint in the Title Suit No. 266/96, impleadment application and the
order passed in the Title Suit No. 266/96, and the decree in the
Title Suit No. 618/1967).
46. The First Appellate Court has also observed that the documents
exhibited as Exhibit No. 6(sketch map.), 7 (orders passed by ADC,
Dhubri), 8 (revenue receipt), 9(orders passed by revenue Authority
in case no. MNK/6) are not the documents of title, therefore, they
do not confer any right, title or interest upon the plaintiffs.
47. The First Appellate Court has also considered the Exhibit No. 5
(which is the Khatian No. 593 as well as the Exhibit No. 10 [which
is the „Khasara‟ (draft)] in the paragraph no. 19 of the impugned
judgment. After considering the said exhibits, it has come to the
finding that the said exhibits shows that the name of the plaintiffs
were recorded in respect of land covered by newly created Dag No.
946 only in respect of 9 lechas of land.
48. The First Appellate Court also took into consideration the fact that
though, the plaintiffs have claimed that their predecessor in
interest was the permanent tenant under Noor Nehar Khatun and
Hamida Khatun much prior to the settlement operations in the year
1960-61, however, they failed to bring on record any document
prior to the settlement period of 1960-61 to show that their
RSA/68/2017 Page 18
predecessor had occupied the suit land as tenant or otherwise. The
PW-1, during his cross-examination, has admitted about his failure
to produce any document to show that his father Sardar Lohar was
a tenant under Noor Nehar Khatun and Hamida Khatun.
49. The First Appellate Court also discarded the evidence of PW-2 and
PW-3 as unreliable on the ground that they never saw any
document of title in respect of the suit land and were not aware as
to how the Suit land came to be possessed by Sardar Lohar.
50. The First Appellate Court also took into consideration the fact that
a separate Khatian No. 5 was issued in the name of the
predecessor in interest of group-I defendants. However, apart from
alleging that the said Khatian is a fraudulent Khatian, the plaintiffs
failed to bring on record any material to show that the mutation of
the names of group-I defendants is erroneous.
51. It is pertinent to note that both the substantial questions of law
formulated in this Regular Second Appeal revolves around the
question of perversity. Hence, unless this court finds that the
findings of the First Appellate Court, in respect of the issue no. 5 &
2, is perverse, no interference can be made with the impugned
judgment and decree.
52. A decision may be regarded as perverse if no reasonable person
would have arrived at the same on the basis of evidence which is
available on record. A decision would necessarily be perverse if it is
based on no evidence at all. It is also perverse when it is based on
RSA/68/2017 Page 19
some irrelevant materials. It is also perverse when while arriving at
the decision, vital evidence has been ignored.
53. The Apex Court, has observed in the case of "Associate Builders
-vs-DDA" reported in (2015) 3 SCC 49 as follows: -
32. A good working test of perversity is contained in
two judgments. In Excise and Taxation Officer-
cum-Assessing Authority v. Gopi Nath &
Sons [1992 Supp (2) SCC 312] , it was held : (SCC
p. 317, para 7)
"7. ... It is, no doubt, true that if a finding of fact is
arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or
if the finding so outrageously defies logic as to
suffer from the vice of irrationality incurring the
blame of being perverse, then, the finding is
rendered infirm in law."
In Kuldeep Singh v. Commr. of Police [(1999) 2
SCC 10 : 1999 SCC (L&S) 429] , it was held : (SCC
p. 14, para 10)
"10. A broad distinction has, therefore, to be
maintained between the decisions which are
perverse and those which are not. If a decision is
arrived at on no evidence or evidence which is
thoroughly unreliable and no reasonable person
would act upon it, the order would be perverse. But
if there is some evidence on record which is
acceptable and which could be relied upon,
howsoever compendious it may be, the conclusions
would not be treated as perverse and the findings
would not be interfered with."
54. It is a settled proposition of law that revenue record is not a
document of title [Prabhagiya Van Adhikari, Awadh Van
RSA/68/2017 Page 20
Prabhag Vs- Arun Kumar Bhardwaj (supra)]. However, it is
also a settled proposition of law that a Khatian prima facie
establishes tenancy rights, over the land, of the person in whose
favour Khatian has been issued [on the death of Batai Rabi
Das, his legal heirs Samar Rabi Das and others. -Vs- Shri
Jagdev Goala and others (supra)].
55. In the instant case, both the courts, namely the Trial Court as well
as the First Appellate Court, after considering the evidence
available on record have come to the concurrent finding that the
plaintiffs have failed to produce any document of title in respect of
the suit premises. Further, though, the Exhibit-5 is a Khatian which
is issued in favour of the predecessor of the plaintiffs, however, if
the same is considered in light of Exhibit-10, which shows that a
separate Dag no. 946 has been created in favour of the plaintiffs in
respect of 9 lechas of land only pursuant to the decree passed in
Title Suit No. 618/1967, it appears that the Exhibit -5 has been
rightly discarded.
56. Moreover, the Title Suit No. 402/2005 has been filed by the
plaintiffs, therefore, it is for them to prove their case by adducing
reliable evidence. In the instant case, though the plaintiffs have
averred in their plaint that the Title Suit No. 266/1996 filed by the
group-I defendants is a collusive suit, however, no reliable
evidence could be adduced by them to substantiate said
allegations.
RSA/68/2017 Page 21
57. Similarly, though the plaintiffs had averred in their plaint that the
Khatian no. 5 is a fictitious Khatian and prayed for such a
declaration, however, no reliable evidence has been produced by
the plaintive to substantiate such allegations. Though, the learned
counsel for the applicant has submitted that the Trial Court as well
as the First Appellate Court did not take into consideration the
Exhibit-14, which shows that the Khatian No. 5 was under scrutiny
and a direction was issued for cancellation of the said Khatian,
however, it appears that said Exhibit No.- 14 has not been properly
exhibited as it is not signed by the presiding officer of the Trial
Court. Moreover, on perusal of the said exhibit, it appears that it is
a communication from the Officer on Special Duty, Revenue
Department, dated 5 October 1989, directing the Deputy
Commissioner, Dhubri to investigate the matter regarding a prayer
made by one Akharul Islam, Member, Central Committee, AGP for
cancellation of the Khatian No. 5 and for putting on hold the survey
settlement. There is no indication in the said exhibit as to what
happened thereafter in pursuant to the said communication. Thus,
the evidence adduced by the plaintiffs falls short of proving the
allegation that the Khatian No. 5 is a fake or forged.
58. The Apex Court has observed in the case of Varanaseya Sanskrit
Vishwavidyalaya -vs- Raj Kishore Tripathi (Dr) (Supra) as
follows:-
"9. We do not think it is enough to state in
general terms that there was "collusion" without
more particulars. This Court said in Bishundeo
RSA/68/2017 Page 22
Narain v. Seogeni Rai [1951 SCC 447 : AIR
1951 SC 280 : 1951 SCR 548] (at p. 556) as
under:
"General allegations are insufficient even to
amount to an averment of fraud of which any
court ought to take notice, however strong the
language in which they are couched may be, and
the same applies to undue influence and
coercion."
We have already set out the general allegations
of alleged collusion by which the plaintiff-
respondent seemed to imply some kind of fraud.
He indicated no reason for this and made no
specific allegation against any particular person."
59. In the instant case also, apart from stating that there was collusion
in obtaining decree in the Title Suit No. 286/1996, no credible
evidence has been adduced by the plaintiffs‟ side to substantiate
this allegation of collusion.
60. Moreover, though learned counsel for the appellants has referred
to the judgment passed in RSA No. 18/2004, by which the gift
deed on the basis of which the defendants have claimed their right,
title and interest over the suit property was held to be invalid,
however, said judgment in RSA No. 18/2004 was never brought on
record in this case, even by way of adducing additional evidence
under Order 41 Rule 27 of the Code of Civil Procedure, 1908.
61. The general principle that the appellate court should not travel
outside the records of the Trial Court/ First Appellate Court is
applicable in the instant case also and there was no attempt on the
RSA/68/2017 Page 23
part of the appellants to invoke the provision of the Order 41 Rule
27 of the Code of Civil Procedure, 1908.
62. Otherwise also, the Title Suit No. 402/2005 was instituted by the
appellants, hence, though an observation has been made by the
First Appellate Court that the defendants have right, title and
interest over the suit premises, however, this cannot be treated as
decreeing the suit in the favour of the defendants as no counter
claim was filed by them. The Trial Court has only dismissed the suit
of the plaintiffs, which is affirmed by the First Appellate Court as
the plaintiffs have failed to adduce reliable evidence in support of
their case.
63. In view of the above discussion, this court is of considered opinion
that this is not a case where the Trial Court and the First Appellate
Court, while deciding issue No. 5, have failed to consider the
relevant evidence on record. The conclusions arrived at by the First
Appellate Court are well reasoned and on the basis of evidence
available on record. Hence, such conclusions may not be treated
as perverse and same warrants no interference by this court in
exercise of its jurisdiction under section 100 of the Code of Civil
Procedure, 1908.
64. The second substantial question of law formulated in this appeal is
whether the finding of the Trial Court and the First Appellate Court
with respect to the issue of limitation is perverse as same was
decided without taking into consideration the material available on
record.
RSA/68/2017 Page 24
65. As regards the test of perversity is concerned, we have already
discussed the basic principles in paragraph nos. 52 and 53 of this
judgment herein before. Let us examine, as to whether the finding
of the Trial Court and the First Appellate Court with respect to the
issue of limitation passes the test of perversity or not.
66. Rule 82 F of the rules framed under the Assam Land and Revenue
Regulations 1886 prescribes a period of two years from the date of
the determination of settlement operation for correction of any
entry made in record of rights. On the other hand, Article 58 of the
part -III of the schedule-I the Limitation Act, 1963, prescribes
three years‟ time to obtain any other declaration from the date
when the right to sue first accrues.
67. In the instant case, the Title Suit No. 402/2005 has been filed by
the appellants seeking various declarations. Main amongst such
declarations is a declaration to the effect that the Khatian No. 5 of
the group 1 defendants has been issued by manipulation of records
and that same cannot confirm any title or legal rights to the
defendants.
68. Though, in paragraph no. 12 of the plaint, the plaintiffs have
pleaded that the cause of action for the suit arose on date of the
filing of Title Suit No. 266/96 and on 6 December 2004, when the
prayer for impleadment by the appellants in the above-mentioned
Title Suit was rejected, the First Appellate Court, while upholding
the conclusion arrived at by the trial court in respect of issue no. 2
regarding limitation, has considered the fact that the Khatian No. 5
RSA/68/2017 Page 25
was issued in the year 1968, in favour of the defendants, whereas
the title suit no. 402/2005 was filed in the year 2005, therefore, it
is apparently barred by limitation.
69. Considering the nature of relief which has been sought for in the
Title Suit No. 402/2005, it is apparent that the right to sue first
accrued in the year 1968 itself, therefore, within three years from
such date, the suit for declaration ought to have been filed. Any
delay beyond the said period is hit by Section 3 of the Limitation
Act, 1963.
70. A bare perusal of the impugned judgment would show that both
the courts have taken into consideration all the relevant materials
available on record before arriving at the conclusion that the suit is
barred by limitation. Hence, as while deciding the issue of
limitation, both the courts below have taken into consideration all
the relevant materials available on record, therefore, the said
decision is not hit by the vice of perversity.
71. In the light of the discussion made in foregoing paragraphs, it can
be safely held that while deciding the issue no. 5 as well as the
issue no. 2, all the relevant materials on record were duly
considered and therefore, the impugned judgment is not hit by vice
of irrationality or perversity justifying any interference by this
court.
72. Both the substantial questions of law formulated in this Regular
Second Appeal are, therefore, decided against the appellants.
73. Accordingly, this Regular Second Appeal is dismissed with cost.
RSA/68/2017 Page 26
74. Registry to prepare the decree and send back the records of the
Trial Court as well as the First Appellate Court with a copy of this
judgment to the concerned Courts.
JUDGE
Comparing Assistant
RSA/68/2017 Page 27
