Page No.# 1/14 vs Sri Jayraj Das And 5 Ors
2025 Latest Caselaw 8980 Gua

Gauhati High Court

Page No.# 1/14 vs Sri Jayraj Das And 5 Ors on 28 November, 2025

                                                                  Page No.# 1/14

GAHC010106172019




                                                             2025:GAU-AS:16237

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

                          Case No. : RSA/155/2019

         SRI JIBAN CHANDRA MODAK
         S/O- LATE SURESH CHANDRA MODAK, R/O- BILPAR, SILCHAR TOWN,
         BARAKPAR, P.O. AND P.S. SILCHAR- 788001, DIST.- CACHAR, ASSAM.



         VERSUS

         SRI JAYRAJ DAS AND 5 ORS.
         S/O- LATE JOYGOBINDA DAS, R/O- UTTAR KRISHNAPUR (MEHERPUR),
         PARGANA- BARAKPAR, P.S. SILCHAR- 788001, DIST.- CACHAR, ASSAM.

         2:SHRI AJIMUDDIN
          S/O- LATE ABDUL RASHID.

         3:SHRI FAKARUDDIN @ KUTI MIA
          S/O- LATE ABDUL RASHID.

         4:STRUCK OFF
         VIDE HONBLE COURTS ORDER DATED 23/01/2023 PASSED IN I.A.(C) NO.
         447/2021

         5:SHRI HASMAT ALI
          S/O- LATE ABDUL RASHID.

         6:SHRI IDOL MIA
          S/O- HARUN RASHID
         ALL ARE RESIDENTS OF VILL.- UTTAR KRISHNANAGAR PART-III
          P.S. SILCHAR
          P.O. MEDICAL COLLEGE
          GHUNGOOR
          SILCHAR- 788014
          DIST.- CACHAR
         ASSAM
                                                                           Page No.# 2/14


Advocate for the Petitioner   : MR D C CHAKRAVARTY, MS D.CHAKRABARTY,MR. D
CHAKRABARTY

Advocate for the Respondent : MR. S P CHOUDHURY (R1), MR DIFENSO M (R1)

BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocates for the Appellant : Mr. D.C.Chakravary, Advocate Advocate for the Respondent : Mr. S.P.Choudhury, Advocate

Date on which judgment is reserved : 28.08.2025

Date of pronouncement of Judgment : 28.11.2025 Whether the pronouncement is of the Operative part of the judgment ? :

Whether the full judgment has been Pronounced ? :Pronouncement of full judgment.

Page No.# 3/14

JUDGEMENT AND ORDER (CAV)

Heard learned counsel Mr. D.C. Chakravary for the appellant and learned counsel Mr. S.P. Choudhury for the respondent.

Factual Matrix

2. This appeal is preferred under Section 100 read with Order XLII of the Code of Civil Procedure, 1908 (in short 'CPC') challenging the judgment and decree dated 11.01.2019 passed by the learned Civil Judge No.2, Cachar, Silchar in Title Appeal No.4/2013. This appeal was admitted on the following substantial question of law;

"Whether the learned courts below had misread and misconstrued

note No. 3 of exhibit-3 i.e. Jamabandi leading to incorrect finding of fact on issue No.5, which has vitiated the judgment and decree impugned herein on ground of perversity?"

3. The learned Appellate Court has upheld the judgment and order dated 19.10.2012 passed by the learned Munsiff No.1, Cachar, in Title Suit No. 50/2003 which was renumbered as Title Suit No.45/ 2006.

4. The genesis of the case was that Jayraj Das as plaintiff has brought up a title suit being Title Suit 50/2003 which was re-numbered as Title Suit No.45/2006 seeking declaration of right, title and recovery of khas possession and for confirmation of possession over the land mentioned in the schedule of Page No.# 4/14

the plaint. Jayraj Das is arrayed as respondent No.1 in the present appeal. The original title suit was brought up by Jayraj Das against the following persons named herein below:

1. Ajim Uddin,

2. Fakaruddin @ Kuti Mia

3. Sunaban Bibi

4. Hasmat Ali,

5. Idoi Mia

6. Jiban Chandra Modak

5. The respondent No.6 of the original title suit is the present appellant of this case and the other respondents are arrayed as respondent Nos.2, 3, 4, 5 and 6. During the pendency of this appeal, the name of respondent No.4 Sunaban Bibi was deleted from the array of parties.

6. The genesis of the case was that Ishad Ali and Arfan Ali were Pattadars of the suit patta no. 8 and on death of Ishad Ali his son Watir Ali inherited his father Ishad Ali's share and also purchased the entire share of Arfan Ali and he later sold 8 kathas of land out of his aforesaid land to one Nirendra Kumar Roy who in turn sold the said land to one Abdul Khaleque. Jayraj Das (hereinafter referred to as 'plaintiff') purchased the said land of 8 Kathas from Abdul Khaleque, which is the suit land vide registered sale deed, but the Defendants most illegally encroached into the land of the Plaintiff by constructing walls over the eastern and southern side of the suit land and thereby dispossessed the plaintiff from the suit land and later the plaintiff learnt that the defendant No.6 had purchased land admeasuring 4 kathas appertaining Dag No.39 and 12 of Page No.# 5/14

2nd R.S. Patta No.8 of Mouza Uttar Kishnapur, Part-III, Borakpar, Silchar from Arfan Ali. It is contended that the defendant No.6, Jiban Chandra Modak cannot acquire any title by said purchase from Arfan Ali as he has no saleable interest left as Watir Ali purchased the entire interest of Arfan Ali and by said purchase the defendants cannot claim rights over the land of plaintiff and such dispossession of the plaintiff from the suit land impelled him to file this suit.

7. The defendant Nos. 1 to 5 failed to contest the suit and so the suit proceeded ex-parte against the defendant Nos. 1 to 5. The defendant No.6 contested the suit and filed written statement wherein he stated the suit has no cause of action, is bad for non- joinder of necessary parties, not maintainable and so on and so forth. Defendant No. 6 denied the contents of the Plaint and stated that the land described in the Schedule of the Written statement which includes the suit land was originally under the ownership and possession of Arfan Ali and he purchased the said scheduled land from Arfan Ali and in the mid part of the year 2003, for his security and peaceful enjoyment, started construction of boundary wall over the Scheduled land and the Plaintiff has no right to preclude him from enjoying the scheduled land and prayed for dismissal of the suit.

Decision of the trial court.

8. Issues were framed and the learned Trial Court held that plaintiff has alleged that the defendants illegally encroached into the plaintiff's land by constructing walls over the eastern and southern part of the suit land. There was indeed a cause of action. It was contended by the plaintiff that the defendants attempted to dispossess him on 12.08.2003 and started construction over the suit land in the last week of October 2003, which impelled him to file the title suit on 11.12.2003. The plaintiff stressed that the suit land was Page No.# 6/14

purchased by him and has been illegally encroached by the defendants. The trial court scrutinized the evidence and held that the plaintiff as PW-1 asserted in his pleadings and evidence-in-chief that he had purchased the suit land from Abdul Khalique. The evidence and pleadings clearly reflects that Ishad Ali and Arfan Ali were Pattadars of the Suit Patta No.8 and on the death of Ishad Ali, his son Watir Ali inherited his father's share. It was held that the jamabandi of the Suit Patta marked as Exhibit -3 clarifies that Watir Ali had inherited Ishad Ali's share of land. Later on, Watir Ali sold the suit land measuring 8 kathas out of his entire land to Nirendra Kumara Roy in the year 1981, vide registered sale deed No. 5209, which is marked as Exhibit-4. The original volume of the certified copy of the sale deed was produced from the Sub-Registrar's office and the Assistant Sub-Registrar Sri Uttam Kumar Das deposed as PW-6, and with the help of the volume book No.33, he proved the entry of the registered sale deed No.5209 (Exhibit-4) . The plaintiff as PW-1 further deposed that Nirendra Kumar Roy sold the suit land to Abdul Khaleque vide registered Sale deed No. 1230, dated 09.09.1987. The certified copy of this sale deed is marked as Exhibit- 2 and this execution of deed was proved by examining Satyabharata Choudhury, Assistant Deputy Registrar, as PW-5, who deposed that with the help of book No.1 Vol. No. 37 of the entry in the year 1987, execution of the registered deed was entered at page No.30-33 and this proved the execution of the sale deed by Nirendra Kumar Roy in favour of Abdul Khaleque.

8.1. It was further held by the learned trial court that the plaintiff proved Exhibit- 2 which established that the suit land was sold by Nirendra Kumar Roy to Abdul Khalique. It was also held by the learned trial court that the plaintiff could prove that he purchased the suit land from Abdul Khalique on 25.01.1991 vide registered sale deed after paying a consideration of Rs 20,000/-. The deed Page No.# 7/14

was marked as Exhibit -1 and the signature of the vendor, Abdul Khaleque, was exhibited as Exhibit-1(1) to Exhibit-1 (5). It was held by the learned trial court that the evidence of PW-1 was substantiated by the evidence of PW-5, PW-6 and PW-7 whilst the defendants, could not rebut the evidence of the witnesses through their cross-examination. It was held by the learned trial court that the defendants failed to establish the averments that as the predecessor- in-interest of Watir Ali sold his entire interest over land under his ownership to various individuals, Watir Ali had no saleable rights and the plaintiff could not have acquired any lawful right, title and interest or possession over the suit land or over any land under the suit patta. The defendants have also failed to prove the Exhibit - L as Watir Ali 's name appears at Sl No. 25 of Exhibit- L, jamabandi, which, on the contrary, establishes Watir Ali's saleable interest. 8.2. It was further held by the learned Trial Court that the defendant No.6 /appellant through his written statement stated that he had purchased the land described in the schedule of the written statement which also includes the suit land which forms a part of Arfan Ali's share of land. However, through his pleadings and evidence, P.W-1 has stated that Watir Ali purchased the entire land from from Arfan Ali and thus Arfan Ali had no land left appertaining to the suit Patta and Dag and there is indeed no note regarding the same in note No.3 of Exhibit-3 as Watir Ali's name is mutated in place of Arfan Ali in the jamabandi i.e. Exhibit-3. Watir Ali's name also figures at Sl. No.25 of Exhibit -3 whereas the name of Arfan Ali is at Sl No. 17 and no note was recorded indicating that Watir Ali's name is mutated in place of Arfan Ali as the entire land of Arfan Ali was purchased by Watir Ali. It was held that the plaintiff's assertion that Arfan Ali had no land left in the suit dag and Patta and he could not have sold land to defendant No.6 could not be held to be true. The learned trial court compared Page No.# 8/14

the boundary of the suit land and the land described by defendant No.6 while deciding issue No. 5.

Boundary described by defendant No. 6, DW-1 in his written statement is as follows:-

(Vide Registered sale deed No. 740 dated 25.04.1997), East:-Rest of the land dag No.39, West:- Land of Chanu Mia, North:- Land of Massadar Ali, South: Path Now the boundary of the suit land described in the schedule of plaint :-

East:- Land of Sayed Ali and others now in possession of Babul Chanda, West:- Land of Sanuhar Ali, North:- Land of Watir Ali, South:- Durgapolli Road Issue No.5 was :- Whether the Defendant No.6 and his vendors had right, title and interest over the suit land?

8.3. After comparing the boundary of land described by DW-1 and the plaintiff, it was held that, it could not be ascertained that the suit land is within the aforesaid land purchased by defendant No.6 who led no evidence to prove that the suit land lies within the purchased land.

8.4. The trial court thereby held that the plaintiff could prove his right, title and interest over the suit land and that he had been dispossessed from the suit land by the defendants and an order was passed by the trial court that the plaintiff is entitled to a decree as prayed for.

Page No.# 9/14

Decision of the Appellate Court

9. Aggrieved by the decision of the Trial Court, the defendant No. 6/appellant preferred the Title Appeal No. 04/2013, which was again decided in favour of the plaintiff/respondent No. 1 of this case.

10. It was held by the learned Appellate Court that the defendant/appellant made a fleeting averment that the suit property was not properly described, but has not led any evidence in this aspect. It was cast upon the defendant to describe the suit property sufficiently as per Order 7 Rule 3, for proper identification instead of refuting in a vague manner and without properly describing the suit land.

11. After scrutinizing the evidence, the learned Appellate Court of first instance has also highlighted the exhibited jamabandi of the suit patta, Exhibit- 3, which reflects that Watir Ali@Kala Mia inherited the land of Ishad Ali. The Court held that Watir Ali sold the suit land admeasuring 8 kathas out of the land to Narendra Kumar Roy in the year 1981, vide registered sale deed No. 5209 and he exhibited the certified copy of the sale deed as Exhibit-4. The plaintiff as PW-1 has also proved the occupancy certificate issued by the Settlement Officer as Exhibit-5.

12. The learned Appellate Court also relied on the evidence of the brother of the vendor who sold the suit land to the plaintiff as the brother of the vendor Abdul Latif Laskar was present at the time of registration of the sale deed. He, as PW-3 has identified his signature as Exhibit-1(8) on the sale deed. It was also held by the Appellate Court of first Instance that Exhibit-2 and Exhibit-4 have been proved by the officials of the Assistant Deputy Registrar and Assistant Sub-registrar, PW-5 and PW-6.

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13. It was therefore held by the learned Appellate Court that the plaintiff was able to prove his case by producing witnesses to prove not only the sale deeds but a witness was also examined to substantiate the genuineness of the sale deeds and the chain of evidence leading to the sale of the land which came under the ownership and possession of the plaintiff.

14. It was held that the vendor and a witness who were present during the execution of the sale deed were also examined as witnesses. The learned Appellate Court meticulously described the evidence and in a seriatim, the documentary evidences were also taken up and discussed elaborately. Sound reasons were recorded by the learned Appellate Court as well as by the learned Trial Court. After careful scrutiny of both documentary as well as oral evidence, it was held that the plaintiff could duly prove that he had purchased the suit land.

Decision:-

15. No infirmity is evident in the decision of the learned Trial Court as well as the decision of the Appellate Court of the first Instance. It was incorrectly held in both the concurrent decisions that the plaintiff could produce the evidence which could trail back to the execution of several deeds and finally the execution of the sale deed in favour of the plaintiff by the vendor who indeed had saleable rights. The documents were meticulously scrutinized by both the Courts.

16. The appellant's plea is that Watir Ali, without saleable interest, sold his entire interest over the lands under his possession to various individuals and the plaintiff/respondent could not have acquired any lawful right, title and interest of possession over any land as described in the plaint.

17. I concur with the findings of the Appellate Court that the Page No.# 11/14

defendant/appellant has not denied that Watir Ali had sold 8 kathas of his land to Narendra Kumar Roy and in fact he has admitted to the sale of the aforementioned parcel of land. It has been correctly held that the defendant failed to refute through his Jamabandi marked as Exhibit-L that Watir Ali had no saleable rights. This has been simultaneously observed by the learned Appellate Court as well as by the learned Trial Court. Both the Appellate Court and the Trial Court have simultaneously held that Exhibit-L, the Jamabandi of the suit patta reflects that at serial No. 25, no remark is recorded against the name of Watir Ali that he sold the land under his possession.

18. It was held by both the Trial Court and the Appellate Court that the defendant failed to refute that Watir Ali had saleable interest over the suit land. It was also held simultaneously that the Exhibit-2 and Exhibit-4 which have been proved by the plaintiff could not be refuted. The Appellate Court went ahead and observed that the evidence of DW-1 as stated in Para-8 reveals that he admitted to the fact that Haji Watir Ali had sold 8 kathas of land to Narendra Kumar Roy vide registered sale deed No. 5209 dated 03.07.1981 and further the evidence of PW-4 Harun Mia, son of late Watir Ali also substantiated the evidence of execution of Exhibit-4 sale deed, bolstering the fact that Watir Ali had title and possession over the suit patta.

19. The learned Trial Court has compared the boundaries of the land described by the plaintiff vis-à-vis the land described by the defendant and has held that the boundaries described by the suit land do not match and it is unpresumable that the suit land is within the aforesaid purchased land of the defendant No.6. This has been upheld by the learned Appellate Court after careful scrutiny of the evidence, both documentary as well as oral evidence, and after comparison of the boundaries of the land claimed to be under possession Page No.# 12/14

and ownership of the plaintiff vis-à-vis the land claimed to be under the possession and ownership of the defendants. Further, the existence of the land of the plaintiff i.e. the suit land is also brought out in Exhibit-8 deed of one Babul Chanda being deed No. 3793 dated 27.02.2002 and this deed has been proved by PW-6. This land of Babul Chanda is located towards the east of the defendant's land, whereas towards the east of the plaintiff's land lies the remaining land under dag No.39 Patta No.8.

20. It has thus been correctly held that although the Trial Court has pointed out that Exhibit-L shows that Arfan Ali had saleable interest left in the suit patta, the same has not been proved to be the land claimed to be the suit land by the defendant's side.

21. I also record my concurrence to the decision of the learned Appellate Court of first Instance that no counter-claim was filed by the defendant to substantiate his claim over the suit land. It is held that the appellant/defendant failed to shift the onus on the plaintiff. It has been correctly held by both the Trial as well as the Appellate Court that the plaintiff could prove his title over the suit land by rightful purchase. As the appellant has raised the validity of the Exhibit No. 3, the other documents exhibited by the appellant as well as by the respondents are not required to be dealt with.

22. I record my concurrence to the decision of the learned Trial Court as well as the learned Appellate Court that the plaintiff through his evidence, both documentary as well as oral evidence could establish that he had purchased the suit land and is the rightful owner of the suit land described in the schedule of the plaint. The defendant failed to refute the plaintiff's rightful ownership and possession over the suit land despite the fact that the defendants are also owners and pattadars of land, but the land claimed to be under the possession Page No.# 13/14

and ownership of the defendant No. 6/appellant is not similar to the land described as suit land in the schedule of the plaint. When the plaintiff could prove through documents and ownership that Watir Ali had saleable rights, the substantial question of law can be decided that there was no perversity on the decision of the Trial Court as well as the Appellate Court.

23. In view of my foregoing discussions, it is thereby held that no perversity or incorrect finding of fact on Issue No. 5 is discernible. The Courts below have not misread and misconstrued Note No.3 of Exhibit- 3, i.e. Jammabandi, leading to incorrect finding of fact. The discussions of the Trial Court as well as the Appellate Court of first instance clearly trails back to the instance of initial sale of suit land.

The Suit Land, which is a part of Suit Patta No.8, originally was under the ownership and possession of Ishad Ali and Arfan Ali.

Watir Ali, as legal heir of Ishad Ali, inherited his right over Ishad Ali's share of land and thereafter he purchased the land from Arfan Ali.

It has been vehemently denied that Watir Ali had purchased a part of the Suit Land from Arfan Ali.

At Serial No. 17, Arfan Ali's name is reflected on Exhibit -3 and Watir Ali's name also figures at Serial No. 25 on the same Exhibit -3.

It has thus been correctly held by the learned Trial Court that Arfan Ali also had land to his share in the Suit Patta, but the Defendant No.6 failed to prove that Arfan Ali's share is the same land which he had sold to Defendant No. 6, as the Defendant No. 6 could not prove that he purchased a part of the Suit Land.

Exhibit- 4 is the Sale Deed No. 5209 and vide Exhibit-4, Watir Ali sold 8 Kathas of land to Narendra Kumar Roy, and this Exhibit- 4 has been proved.

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Narendra Kumar Roy sold this land to Abdul Khalique vide Registered Deed No.1230 which is marked as Exhibit-2 and this Exhibit- 2 has also been proved as per provision of law. Abdul Khalique sold these 8 Kathas of land to the Plaintiff vide the Sale Deed marked as Exhibit -1 which also has been proved as per law.

24. Through documents, the ownership of the land could be traced back to the ownership of Watir Ali, who initially sold the suit land to Narendra Kumar Roy. Although the evidence and the documents are not required to be dealt with at this stage of appeal, this court has also scrutinized the sale deeds and the Jamabandi, more specifically Exhibit-3 and it is hereby held that the learned Trial Court as well as the learned Appellate Court has correctly held while deciding issue No. 5 that the defendant No. 6 had no right title over the land so far as the suit land described in the schedule of the plaint is concerned. This decides that the substantial question of law as formulated.

25. This appeal is hereby dismissed as the appeal is bereft of merits.

26. Trial Court Records to be returned along with the Appellate Court Records to the respective Courts.

27. No order as to costs.

JUDGE

Comparing Assistant