Page No.# 1/ vs Sri Dilip Chetry And 2 Ors
2025 Latest Caselaw 5055 Gua

Gauhati High Court

Page No.# 1/ vs Sri Dilip Chetry And 2 Ors on 28 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                             Page No.# 1/11

GAHC010231522024




                                                                        2025:GAU-AS:6890

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

                               Case No. : RSA/212/2024

         SRI PRADIP RAJBONGSHI
         S/O LATE PANCHA RAM RAJBONGSHI, RESIDENT OF PUB BORAGAON, PO
         AND PS GARCHUK GUWAHATI, KAMRUP M ASSAM



         VERSUS

         SRI DILIP CHETRY AND 2 ORS
         S/O LATE DHAN BAHADUR CHETRY,
         RESIDNET OF VILLAGE KATABARI, PO AND PS GARCHUK, DIST KAMRUP
         M ASSAM

         2:SRI MANOJ KALITA
          S/O SRI UTTAM KALITA
         RESIDNET OF VILLAGE SAUKUCHI
          DIST KAMRUP M ASSAM

         3:SRI DHIRAJ KUMAR SARMA
          C/O LAWYERS ASSOCIATION GUWAHATI
          PO PANBAZAR
          GUWAHATI KAMRUP M ASSA

                   For the Appellant(s)       : Mr. A. C. Sharma, Sr. Advocate
                                              : Mr. G. Bharadwaj, Advocate
                   For the Respondent(s)      : Mr. N. Alam, Advocate


                          Date of Hearing       :        28.05.2025
                         Date of Judgment       :        28.05.2025
                                                                         Page No.# 2/11


                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Mr. A. C. Sharma, the learned Senior counsel assisted by Mr. G. Bharadwaj, the learned counsel appearing on behalf of the appellant and Mr. N. Alam, the learned counsel appearing on behalf of the respondents.

2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 14.08.2024 passed in Title Appeal No.18/2022 by the Court of the learned Additional District Judge No.2, Kamrup (M) at Guwahati whereby the judgment and decree passed by the learned Civil Judge (Senior Division), Kamrup (M) at Guwahati in Title Suit No.54/2014 dated 29.08.2018 was set aside.

3. This Court has taken up the instant appeal at the stage of Order XLI Rule 11 of the Code to ascertain the questions of law so proposed are substantial question of law which can be formulated in the instant appeal.

4. Mr. A. C. Sharma, the learned Senior counsel has drawn the attention of this Court to the memo of appeal wherein the questions of law so proposed to be the substantial questions of law have been incorporated. Taking into account that the appellant has proposed the following questions of law as substantial questions of law, the same are reproduced herein under:

"1. Whether the learned lower appellate Court erred in law in relying the statements made in paragraph Nos. 19, 20 and 21 of the written statement of Page No.# 3/11

defendant No.2/Respondent No.1 as defendant No.2/Respondent No.1 did not adduce evidence in the suit as such learned lower appellate Court should take a presumption that the case set up by defendant No.2/Respondent No.1 is not correct?

2. Whether the learned lower appellate Court erred in law in misinterpreting Order VI Rule 4 of the Code of Civil Procedure, 1908 relating to fraud committed by defendant No.1 and 2/Respondent No.1 and 2?

3. Whether the learned lower appellate Court erred in law in not declaring the Power of Attorney and Sale Deed as fraudulent and are liable to be cancelled?

4. Whether the learned lower appellate Court ought not to pass judgment mainly on the cross-examination of the plaintiff without going through the documents which were exhibited without objection?"

5. For the purpose of deciding as to whether any substantial question of law can be formulated to proceed with the appeal, this Court finds it pertinent to take note of the brief facts which led to the filing of the instant appeal.

6. For the sake of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

7. A plot of land admeasuring 4 Katha 5 Lechas covered by Old Dag No.783 and Old Patta No.43 of Village Fatasil under Mouza Beltola was purchased by the father of the plaintiff vide a registered Sale Deed bearing Deed No.688 dated 04.02.1982 and obtained mutation of the said land vide an order dated 01.11.1987 in Misc. Case No.16/1986. It is the case of the plaintiff that the plaintiff's father during his lifetime sold the said property to some vendor which the plaintiff had no knowledge. Subsequently, upon a Page No.# 4/11

writ petition i.e. WP(C) No.4774/2013 being filed by one Smti Madhu Surana and another, the plaintiff came to learn that on the basis of a registered Power of Attorney dated 08.06.2006 executed by the plaintiff in favour of the defendant No.1, the said plot of land which the father of the plaintiff had sold it during his lifetime was sold by the defendant No.1 in favour of the defendant No.2. It is the specific case of the plaintiff that the plaintiff never executed the said registered Power of Attorney dated 08.06.2006 and as such, the subsequent Deed of Sale so executed by the defendant No.1 in favour of the defendant No.2 being Deeds of Sale bearing Deed Nos.14876/06 and 14875/06 both dated 28.12.2006 were executed by the defendant No.1 fraudulently in favour of the defendant No.2.

8. On the basis of those facts, the plaintiff had filed a suit seeking declaration that the registered Power of Attorney bearing Deed No. No.3189/06 dated 08.06.2006 as well as the sale deeds bearing Deed Nos.14875/06 and Sale Deed No.14876/06 both executed on 28.12.2006 are liable to be cancelled and the defendant No.2 would not have any right over the land on the basis of the said deeds of sale.

9. Pursuant thereto, the defendant No.1 did not appear for which the suit proceeded ex-parte. However, the defendant No.2 appeared and filed a detailed written statement. It is relevant to take note of that the learned Trial Court on the basis of the pleadings, framed 7 (seven) issues and two additional issues. The said issues being relevant are reproduced herein under:

"1. Whether there is any cause of action for the suit?

2. Whether the deed of PoA No.3189/06 dated 08.06.2006 was fraudulent, invalid and inoperative in the eye of law?

Page No.# 5/11

3. Whether the suit of the plaintiff is false, frivolous, vexatious and malafide and as such liable to be dismissed with compensatory cost u/s 35(a) of the CPC?

4. Whether the suit is hit by the principles of waiver, estoppels and acquiescence?

5. Whether the suit is bad for non-joinder of necessary parties?

6. Whether the sale deed No.14875/07 allegedly executed by the plaintiff in favour of the defendant No.2 is fraudulent, invalid and inoperative in law and defendant No.2 does not acquire any right, title and interest over the property as alleged?

7. To what relief(s) the plaintiff is entitled to?

ADDITIONAL ISSUE:

1. Whether the suit is barred u/s 34 of the Specific Relief Act?

2. Whether the plaintiff had lawfully executed the PoA vide deed No.3189/06, dated 08.06.2006 in favour of the defendant No.1 or not?"

10. On behalf of the plaintiff, he adduced himself as the witness and also exhibited certain documents. No evidence was adduced on behalf of the defendants. The learned Trial Court decreed the suit in favour of the plaintiff and thereby the Power of Attorney bearing No. 3189/06 dated 08.06.2006 was declared to be void and invalid and liable to be cancelled and consequently the sale deeds Nos.14875/06 and 14876/06 were also declared to be void and inoperative and the same was liable to be cancelled.

11. Being aggrieved, an appeal was preferred by the defendant Nos. 1 and 2 before the Court of the learned District Judge, Kamrup (M) at Guwahati which was registered and numbered as Title Appeal No.18/2022. The appeal Page No.# 6/11

was endorsed to the file of the Additional District Judge No.2, Kamrup (M) at Guwahati for disposal. The learned First Appellate Court dismissed the suit vide the impugned judgment and decree dated 14.08.2024 and it is under such circumstances the present proceedings have been initiated.

12. This Court has duly heard the learned counsels appearing on behalf of the appellant as well as the learned counsel appearing on behalf of the respondent Nos. 1 and 2.

13. At the outset, it is very pertinent to take note of that though the plaintiff had submitted an examination-in-chief by way of an affidavit, but at the time of cross-examination, the plaintiff denied what have been stated in the plaint as well as also in his examination-in-chief. This aspect of the matter was duly taken note of by the learned First Appellate Court as would be seen from the judgment passed by the learned First Appellate Court at paragraph Nos. 14 and 15. Taking into account the relevance, paragraph Nos.14 and 15 of the judgment dated 14.08.2024 passed by the learned First Appellate Court are reproduced herein under:

"14. In his cross examination, PW1 has stated inter-alia that this case has been filed by Dilip Chetry (Defendant No.1) against him. It is stated further that this case has been filed due to execution of false attorney. He has stated that he does not know how to read and write. He also does not know about the plaint of this case. He does not know what is there in his evidence in chief. He does not know since when he know Dilip Chetry. He does not know Manoj Kalita and Dilip Chetry and he does not know what happened on 08.06.2006 and 28.12.2006. Later on, he says that he came to know that this case relates to property/land. He also cannot say if this case relates to purchasing and selling land. He has not seen chitha and jamabandi of land under Patta No. 43, Dag No. 783 of Fatasilgaon, Page No.# 7/11

Mouza Beltola. He has not seen the Sale Deed No. 688/82. He does not know, under which Dag No. and Patta No., Dilip Chetry resided. He has not seen the Power of Attorney dated 08.06.2006. He has not seen the Sale Deed dated 28.12.2006. He does not know who and where W.P.(C) No. 4774/13 was filed and by whom it was filed. He has not seen the copy of the writ petition. He does not know who and against whom W.P.(C) No. 582/12 was filed. He has not seen the copy of the W.P.(C) No. 585/12. He does not know what are the exhibited document and its contents. He does not have knowledge about the facts of this case. He has stated further in his cross examination that as Madhu Surana told him, he filed this case.

15. If the cross examination of the PW1 is perused, as has been produced hereinbefore, it would appear that he has clearly stated that he does not know about the plaint of the case. He has also clearly stated that he also does not know what is there in his evidence in chief. He does not know about the exhibited documents in this case. Again he has stated that Dilip Chetri has filed this case against him, whereas he is the plaintiff of this case and he has filed this case against Dilip Chetri and two others. He is the plaintiff of this instant suit but he does not know the defendants Manoj Kalita and Dhiraj Sharma. The reason for not knowing anything about the suit has been given by the plaintiff in his cross examination itself. He has stated in his cross examination that as Madhu Surana told him, he filed the case."

14. This Court has also perused the cross-examination of the plaintiff and the observation so made by the learned First Appellate Court at paragraph Nos.14 and 15 in respect to the cross-examination of the plaintiff are in consonance with the cross-examination on record of the plaintiff. It would therefore be seen that the plaintiff had denied everything which has been stated in the plaint as well as in the examination-in-chief. The plaintiff further had stated during his cross-examination that he had filed a suit at Page No.# 8/11

the instigation of one Madhu Surana.

15. In the backdrop of the above, let this Court now take into account as to whether the questions of law so proposed can at all be formulated as substantial questions of law involved in the instant appeal.

16. The first question of law so proposed is as to whether the learned First Appellate Court erred in law in relying upon the statements made in paragraph Nos. 19, 20 and 21 of the written statement more so when the defendant No.2 did not adduce any evidence. It is relevant to take note of that the plaintiff had alleged fraud. Under such circumstances, the allegation of fraud had to be proved by way of evidence. The evidence which have been adduced categorically negates any plea of fraud taking into account that the plaintiff stated that he does not know anything about the suit at the time of cross-examination. Under such circumstances, as the learned First Appellate Court had not only relied upon paragraph Nos. 19, 20 and 21 of the written statement but also on the very evidence of the plaintiff, the question of law so proposed cannot be said to be a substantial question of law that arises in the instant appeal.

17. The second question of law so proposed is as to whether the learned First Appellate Court erred in law in misinterpreting the Order VI Rule 4 of the Code relating to fraud committed by the defendant No.1 and defendant No.2. The said in the opinion of this Court cannot be a substantial question of law that can be formulated in the instant appeal sans any facts or findings stated therein and more particularly taking into account the cross- examination of the plaintiff which have been duly taken into consideration by the learned First Appellate Court in its judgment and order as would be Page No.# 9/11

evident from paragraph Nos. 14 and 15 quoted herein above.

18. The third substantial question of law so proposed is as to whether the learned First Appellate Court erred in law in not declaring the Power of Attorney and Sale Deed as fraudulent and are liable to be cancelled. In the opinion of this Court, the said question of law cannot be formulated as a substantial question of law which arises in the present appeal without having reference to the findings of the learned Courts below. It reminds this Court of the observation of the Supreme Court made in paragraph No.15 in the case of State Bank of India and Others Vs. S. N. Goyal reported in (2008) 8 SCC 92 wherein the Supreme Court observed about the oft-repeated errors in

formulating substantial questions of law. The said paragraph No.15 being relevant is reproduced herein below:

"15. It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are:

(a) Admitting a second appeal when it does not give rise to a substantial question of law.

(b) Admitting second appeals without formulating substantial question of law.

(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.

(d) Failing to consider and formulate relevant and appropriate substantial question(s) of law involved in the second appeal.

(e) Rejecting second appeals on the ground that the case does not involve any Page No.# 10/11

substantial question of law, when the case in fact involves substantial questions of law.

(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.

(g) Deciding second appeals by reappreciating evidence and interfering with findings of fact, ignoring the questions of law.

These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this Court and remands by this Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected as not involving substantial questions of law."

19. Third question of law so proposed therefore in the opinion of this Court cannot be formulated as a substantial question of law in terms with Section 100(4) of the Code.

20. The fourth question of law so proposed is as to whether the learned First Appellate Court ought to have passed the judgment mainly on the cross-examination of the plaintiff without going through the documents which were exhibited without objection. This Court has duly taken note of the documents which were exhibited. None of these documents show that there was any sale made by the plaintiff's father to any other person. Further to that, the documents which have been exhibited were only copies of the Jamabandi, the Deed of Sale dated 04.02.1982, the Misc. Case No. Page No.# 11/11

16/1986, copy of the notice in WP(C) No.4774/2013, copy of the General Power of Attorney dated 08.06.2006, copy of the Sale Deed No. 14875/06, copy of the Sale Deed No. 14876/06. Nothing has been brought on record or any evidence have been adduced to that effect that the signatures which are appearing in this Power of Attorney dated 08.06.2006 is not the signature of the plaintiff. Considering the above, the said question of law so proposed cannot be also formulated as a substantial question of law involved in the instant appeal.

21. Taking into account the above, as in the instant appeal, no substantial question of law that can be formulated, the appeal cannot be proceeded with for which the appeal stands dismissed. However, in the facts of the instant case, this Court is not inclined to impose any costs.

22. The Registry is directed to forthwith return the LCR to the learned Court below.

JUDGE

Comparing Assistant