Gauhati High Court
Uttam Baruah @ Uttam Gogoi vs Shri Jatin Baruah on 22 October, 2025
GAHC010278582023
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RSA Nos. 17/2024 & 26/2024
I. RSA No.17/2024
1. Uttam Baruah @ Uttam Gogoi,
S/o Late Maheswar Baruah @ Gogoi.
2. Smt. Makani Gogoi,
D/o Late Maheswar Gogoi @ Baruah.
3. Smt. Jharna Gogoi,
W/o Late Tankeswar Gogoi.
4. Shri Suman Gogoi,
Minor son of Late Tankeswar Gogoi,
Represented by his mother Smt. Jharna Gogoi.
All are residents of Vill-Niz-Goroimari, Mouza-Goroimari,
PS-Tezpur, Dist.-Sonitpur, Assam.
5. Shri Biraj Gogoi @ Bul,
S/o Late Rupeswar Gogoi,
Resident of Haibargaon near Pani Tank,
PO-Haibargaon, Dist.-Nagaon, Assam, Pin-782002.
......Appellants/Defendants.
VERSUS
1. Shri Jatin Baruah,
S/o Late RamakantaBaruah.
Page 1 of 37
2. Shri Prabin Baruah,
S/o Late Ramakanta Baruah.
3. Shri Chandan Baruah,
S/o Late Ramakanta Baruah.
All are residents of Vill-Niz-Goroimari, Mouza-Goroimari,
PS-Tezpur, Dist.-Sonitpur, Assam.
......Respondents/Plaintiffs.
For the Appellants : Mr. S. Biswas. ......Advocate.
For the Respondents : Mr. P. Chowdhury.......Advocate.
II. RSA No.26/2024
1. Smt. Pinki Baruah,
W/o Late Deepjyoti Baruah.
2. Ms. JanukaBaruah,
D/o Late Deepjyoti Baruah.
3. Ms. Manu Baruah,
D/o Late Deepjyoti Baruah.
All are residents of Vill-Niz-Goroimari, Mouza-Goroimari,
PS-Tezpur, Dist.-Sonitpur, Assam.
[Sl. Nos.2 and 3 being minors are being represented by the Sl. No.1, who is
their mother and natural guardian.]
......Appellants/Defendants.
VERSUS
1. Shri Jatin Baruah,
S/o Late Ramakanta Baruah.
2. Shri Prabin Baruah,
S/o Late Ramakanta Baruah.
3. Shri Chandan Baruah,
S/o Late Ramakanta Baruah.
Page 2 of 37
All are residents of Vill-Niz-Goroimari, Mouza-Goroimari,
PS-Tezpur, Dist.-Sonitpur, Assam.
......Respondents/Plaintiffs.
For the Appellants : Mr. B.J. Mukherjee. ......Advocate.
For the Respondents : Mr. P. Chowdhury. ......Advocate.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Dates of Hearing : 19.06.2025, 05.08.2025,
07.08.2025 & 12.08.2025
Date of Judgment : 22.10.2025
JUDGMENT AND ORDER
Heard Mr. S. Biswas, learned counsel for the appellants in RSA
No.17/2024, Mr. B.J. Mukherjee, learned counsel for the appellants in
RSA No.26/2024 and also heard Mr. P. Chowdhury, learned counsel for
the respondents in both the appeals.
2. By this common judgment and order, it is proposed to dispose
of both the appeals, as the same have arisen out of the common
judgment dated 12.09.2023 and decree dated 16.09.2023, passed by
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the learned Civil Judge (Sr. Division), Sonitpur, Tezpur, (herein after
the first appellate Court) in Title Appeal No.4/2022, whereby the
learned first appellate Court) has reversed the judgment and decree
dated 28.10.2021, passed by the learned Munsiff No.2, Sonitpur,
Tezpur, (herein after trial Court) in Title Suit No.66/2012.
3. For the sake of convenience, the status of parties as indicated
in the Title Suit No.90/2020 is adopted in these appeals.
4. The background facts leading to filing of the present appeals
are briefly stated as under:-
"Late Dhaneshwar Baruah was the ancestor of the plaintiffs and
the defendants both, who owned and possessed considerable
landed property, and particularly, he had acquired 3 bigha of
land under Dag No.275 (new) covered by P.P. No.73, and also
acquired another 1 bigha 1 katha 1 lecha of land, under Dag
No.274 (new) of P.P. No.102, under Goramari Mouza, in
Sonitpur district. Both the plots of land are situated adjacent to
each other and formed part of Schedule-„A‟ land. On the death
of said Dhaneshwar Baruah, his three sons, namely, Late
Moheswar Gogoi, Late Ramakanta Baruah and Late Pyari
Mohan Baruah had inherited all the properties, including the
suit land, left behind by Dhaneshwar Baruah. During the
lifetime of Moheswar Gogoi, Ramakanta Baruah and Pyari
Mohan Baruah, they have agreed to divide 4 bigha 1 katha 1
lecha of land equally, having 1 bigha and 2 katha each of them
and accordingly, Late Moheswar Gogoi opted to take northern
part, Late Pyari Mohan Baruah opted to take the southern part
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leaving the middle portion for Late Ramakanta Baruah. The
names of Late Moheswar Gogoi, Late Ramakanta Baruah and
Late Pyari Mohan Baruah were mutated in the revenue record.
But, during their lifetime, they did not make partition of the
aforesaid land. However, after the death of Moheswar Gogoi
and Ramakanta Baruah, surviving brother, namely, Pyari Mohan
Baruah and surviving son of Late Moheswar Gogoi,
Tangkeshwar Gogoi and Prabin Baruah had demarcated their
share in the year 2004 and accordingly, Pramila Baruah, Jatin
Baruah, Prabin Baruah and Chandan Baruah were given 1 bigha
and 2 katha land from „A‟ schedule land i.e. 3 bigha and 1 bigha
1 katha 1 lecha land and the plaintiffs are in possession of the
said land and they alleged that the defendant No.1 Uttam
Baruah @ Uttam Gogoi, defendant No.6- Smt. Bakuli Baruah,
defendant No.7-Shri Balen Baruah and defendant No.8-Shri
Deepjyoti Baruah had made serious attempt to encroach into
the land, measuring 1 bigha 2 katha in Schedule „B‟ land of the
plaintiffs and removed several numbers of valuable trees. The
plaintiffs made objections against the illegal works of the
defendants, but they did not pay any heed and started
permanent construction over the Schedule „B‟ land, which the
plaintiffs had noticed on 20.05.2012. The defendant No.1 had
constructed structure on the northern side of the „B‟ schedule
land and encroaching 3 katha of land of the plaintiffs and the
defendant Nos.6, 7 and 8 undertook construction on the
southern boundary of the plaintiffs‟ land and being aggrieved,
the plaintiffs, namely, Smt. Pramila Baruah, Jatin Baruah,
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Prabin Baruah and Chandan Baruah, had instituted the Title
Suit No.66/2012, for a decree
(a) that Schedule „A‟ land is the ancestral property of the
plaintiffs and the defendants and that the plaintiffs are entitled
to 1/3rd share therein with consequential relief of separate
possession of 1/3rd share i.e. 1 bigha 2 kathas of Schedule „B‟
land by confirming plaintiffs‟ possession over more or less 4
kathas of Schedule „D‟ land and delivery of possession to the
plaintiffs the 3 kathas of land described in Schedule „C‟ now, in
illegal possession of the defendant No.1, by evicting the
defendant No.1 therefrom demolishing the houses and
structures erected by him by metes and bound, through the
Collector, Sonitpur by demarcating in favour of the plaintiffs as
per provision under Section 5 read with Order 20 Rule 18 of the
Civil Procedure Code and
(b) for granting permanent injunction restraining the
defendants and their men and agents from interfering and
obstructing with the plaintiffs‟ separate possession and
enjoyment in 1/3rd share in the Schedule „A‟ suit land and the
cost of the proceeding.
The defendants had entered appearance, after receiving
notice and filed their written statement and had also filed
counter claim. They denied the right; title and interest of the
plaintiffs over the Schedule „B‟ land and seek their right, title
and interest over the entire Schedule „A‟ land by filing counter
claim.
Page 6 of 37
The plaintiffs‟ side then filed written statement against
the counter claim, denying the statement and averment made
therein.
Upon the aforementioned pleadings of the parties, the
learned Trial Court had framed following issues:-
(i) Whether there is a cause of action for the suit and
whether there arose any cause of action in 2011, on
20.05.2012 and on 06.06.2012?
(ii) Whether there is a cause of action for the counter claim
and whether there arose any cause of action for the
counter claim from 1964, on 06.05.1995, 30.08.2012
and on every subsequent date?
(iii) Whether the suit property is properly valued and
whether proper court fee is paid?
(iv) Whether the counter claim is barred by limitation?
(v) Whether the suit is bad for non-joinder of necessary
parties and mis-joinder of unnecessary party?
(vi) Whether the plaintiff has right, title and interest in the
1/3rd share of the total „A‟ schedule land?
(vii) Whether the defendants have right, title in the entire „A‟
schedule land including „B‟ schedule land?
(viii) Whether the defendants have acquired right, title over
the entire „B‟ schedule land by right of adverse
possession?
(ix) Whether the plaintiffs are entitled to the decree as
prayed for?
Page 7 of 37
(x) Whether the defendants are entitled to the decree as
prayed for?
(xi) To what other relief/reliefs the plaintiffs are entitled?
Thelearned Trial Court hadalso framed following two
additional issues on 24.04.2015:-
(xii) Whether the suit land is ancestral property of the
plaintiffs and the defendants?
(xiii) Whether the plaintiffs are entitled to separate
possession to the extent of 1/3rd share of the total suit
land?
Thereafter, recording evidence and hearing of both the
parties, the learned Trial Court vide impugned judgment and
decree, dated 28.10.2021, had decided the Issue No.(i) in
affirmative in favour of the plaintiffs, Issue No.(ii) in affirmative
in favour of the defendants, Issue No.(iii) in favour of the
plaintiffs, Issue No.(iv) in affirmative, Issue No.(v) in negative,
against the defendants, Issue No.(vi) in negative against the
plaintiffs, Issue No.(vii) in affirmative to the defendants, Issue
No.(viii) in affirmative to the defendants, Issue No.(ix) and (x)
in negative against the plaintiffs, Issue No.(xi) in negative and
Issue No.(xii) in negative and Issue No.(xiii) in negative against
the plaintiffs and thereafter, the learned Trial Court dismissed
the suit of the plaintiffs on contest, without cost.
However, the learned trial Court had decreed the
counter claim of the defendants by declaring that the counter
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claimants have possessory right and acquired right, title over
the Schedule „A‟ land and also granted permanent prohibitory
injunction restraining the plaintiffs, their men and agents, in
interfering and obstructing the peaceful possession of the
counter claimants over the entire Schedule „A‟ land, which
includes „B‟, „C‟ and „D‟ schedule.
Being aggrieved, three plaintiffs, namely, Jatin Baruah,
Prabin Baruah and Chandan Baruah preferred an appeal, being
Title Appeal No.4/2022, before the learned Civil Judge (Sr.
Division), Sonitpur, Tezpur (First Appellate Court, in short).
Then hearing learned counsel for both the parties, the learned
First Appellate Court, has allowed the appeal on contest with
cost and set aside the judgment and decree dated 28.10.2021
passed by the learned Munsifff No.2, Sonitpur, Tezpur, in Title
Suit No.66/2012."
5. Being aggrieved, this RSA No.17/2024, is preferred by
Uttam Baruah @ Uttam Gogoi, Smt. Makani Gogoi, Smt. Jharna Gogoi,
Shri Suman Gogoi, Shri Biraj Gogoi @ Bul, on the following grounds:-
I. That, the learned First Appellate Court had committed grave error in
reversing the finding recorded by the learned Trial Court in
Issue Nos.(ii), (vi). (viii), (ix), (x), (xi), (xii) and (xiii).
II. That, the learned First Appellate Court had failed to appreciate the
evidence of PW-1 in as much as the present appellants were
in continuous peaceful possession of the suit land since the
year 1952.
Page 9 of 37
III. That, the learned First Appellate Court had failed to appreciate
the fact that the plaintiffs have failed to prove the right, title
and interest of their predecessor-in-interest over the suit land
by adducing any evidence.
IV. That, the learned First Appellate Court had failed to appreciate
the fact that the suit land was not an ancestral property of the
predecessors of the present appellants and respondents, in as
much as, the father of the defendant No.1- Late Moheshwar
Gogoi had purchased a plot of land measuring 3 kathas and 18
lechas under Dag No.275 and hence, the finding arrived in
respect of Issue No.(xii) by the learned First Appellate Court
that the entire suit schedule land is the ancestral property is
beyond any evidence.
V. That, the learned First Appellate Court had failed to take into
consideration the evidence adduced by PW-2 that the father of
the respondents, Late Ramakanta Baruah, had left the suit
land approximately 60 years ago and he further deposed that
Late Ramakanta Baruah gave up his share of purchased land
to his younger brother i.e. Pyari Mohan Baruah and since then
the appellants were in peaceful possession of the suit land and
therefore, it can be said that the respondents herein have no
right to claim for 1/3rd share in the suit schedule land.
VI. That, the learned First Appellant Court had committed grave
error in deciding the Issue No.(vii) against the appellants, in
as much as from the land revenue records, it is evident that
the father of the present appellants along with his brother
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Pyari Mohan Baruah, were in continuous and uninterrupted
possession of the suit land since the year 1952.
Thereafter, the appeal was admitted for hearing on the
following substantial questions of law:-
(i) Whether the findings of the First Appellate Court
is perverse for non-consideration of the Exhibit-
F(2) document, the Jamabandi copy of the patta
No.92, as per which a total land measuring 3
kathas 18 lechas of land was purchased by
Moheshwar Gogoi from Ghanashyam Baruah and
Narendra Baruah?
(ii) Whether the findings of the learned First
Appellate Court that the suit schedule land is a
joint family property is perverse for non-
consideration of the evidence on record?
(iii) Whether the learned First Appellate Court has
followed the provisions of Order XLI Rule 31 of
the Code of Civil Procedure?
6. It is also to be noted here that the RSA No.26/2024 is
preferred by Smt. Pinki Baruah, Ms. Januka Baruah and Ms. Manu
Baruah and the same was also admitted on the following substantial
questions of law:-
(i) Whether the judgment dated 12.09.2023 and decree
dated 16.09.2023, passed by the learned Civil
Judge (Sr. Division), Sonitpur, Tezpur is
justifiable in view of non-compliance of the
provisions of Order XLI Rule 31 of the Code of
Civil Procedure, 1908?
(ii) Whether in absence of any evidence to the effect
that the entire Schedule 'A' property was the
Page 11 of 37
ancestral property of all the plaintiffs and
defendants, the decree of partition could have
been passed, even when the entries in the
Jamabandi suggested that some parts of the said
land was self-acquired?
(iii) Whether the learned First Appellate Court was
justified in deciding the Issue No.(xiii) and
decreeing the suit by dismissing the counter claim
in contravention of Section 27 of the Limitation
Act, 1963, when the plaintiffs had admitted that
the defendants had possessed the suit land since
1952?
7. Mr. Biswas, learned counsel for the appellants in RSA
No.17/2024, submits that the learned First Appellate Court has not
recorded any finding in respect of Exhibit-F and Exhibit-6 and the
respondents herein had failed to establish that there was oral partition
of the suit property and that the observation made by the learned Trial
Court in paragraph No.53 has not been set aside by the learned First
Appellate Court. Mr. Biswas also submits that while deciding the
appeal, the learned First Appellate Court has failed to formulate any
point for determination, as required by Order XLI Rule 31 of the CPC.
Mr. Biswas, further pointed out that Exhibits-5 and 6 have not been
considered by the learned First Appellate Court and it had drawn
inference, which is unwarranted. Mr. Biswas, further submits that the
entire property is not the ancestral property, some are self-acquired
property i.e. 3 kathas and 18 lechas of land and that the learned First
Appellate Court has not considered Exhibit-F and F(1) in the impugned
judgment and decree.
Page 12 of 37
7.1 Mr. Biswas also submits that the Issue No.(vi) is decided
against the plaintiffs as entire suit land was not the ancestral property,
but self-acquired property of the predecessor-in-interest of the
defendant No.1 and the learned First Appellate Court has not
considered the document Exhibit-F(1) and also the admission made by
the witnesses and as such, the findings of the learned First Appellate
Court are incorrect and the substantial questions of law Nos.(i) and (ii)
are involved here in this appeal and under such circumstances, Mr.
Biswas has contended to allow the appeal. Mr. Biswas has also filed
written argument. In support of his submission, Mr. Biswas has
referred the following decisions:-
(i) Santosh Hazari v. Purushottam Tiwari (Deceased) By
Lrs., reported in (2001) 3 SCC 179;
(ii) Md. Moniur Ali & Ors. v. Mustt. Safina Khatoon,
reported in (2018) 0 Supreme(Gau) 716;
(iii) Abdul Rejak Laskar v. Mafizur Rahman & Ors.,
reported in 2024 SCC OnLine SC 3845;
(iv) Vidya Devi Alias Vidya Vati (Dead) By Lrs. v. Prem
Prakash & Ors., reported in (1995) 4 SCC 496;
(v) Cheni Ram Bora v. Arun Chandra Bora, reported in 2021
(1) GLT 496.
8. Mr. Mukherjee, learned counsel for the appellants, in RSA
No.26/2024, had subscribed the submission so advanced by Mr.
Biswas, learned counsel for the appellants in RSA No.17/2024.
However, he had supplemented the submission of Mr. Biswas by
stating that the respondent Nos.6--8 are in adverse possession of the
Page 13 of 37
suit property and that no written statement was submitted by the
plaintiffs in the counter claim and Exhibits-E(1) to E(27), the revenue
payment receipts are not taken into account by the learned First
Appellate Court and the possession of the suit land by the respondent
Nos.6--8 become hostile w.e.f. 06.05.1995, whereas the suit was filed
only in the year 2012 and that the defendants have been paying land
revenue and exhibited several documents and the substantial questions
of law Nos.(ii) and (iii) are involved in this appeal. He had also pointed
out that no court fee has been filed for filing the composite appeal
before the learned First Appellate Court and that the property is self-
acquired property of the father of the defendant No.1 and under such
circumstances, Mr. Mukherjee has contended to interfere with the
impugned judgment and decree, so passed by the learned First
Appellate Court.
9. Per contra, Mr. Chowdhury, learned counsel for the
respondents in both the appeals submits that the statements and
averment made by the plaintiffs in paragraph Nos.5 and 6 are admitted
by the defendants in their written statement in paragraph Nos.11 and
12 and that the defendant Nos.1--5 had filed their amended written
statement, wherein they have abandoned the plea of adverse
possession and the suit land is covering 4 bighas 1 katha 1 lecha of
land and that Ramakanta Baruah was not given up his share. Mr.
Chowdhury also submits that only oral statement regarding
relinquishment of the share by Ramakanta Baruah is made and that
the counter claim was abandoned by plaintiff Nos.1--5 and no issue
was framed on counter claim and that the schedule in the plaint and
Page 14 of 37
the counter claim are same and in respect of Schedule „A‟ land only
claim is being made.
9.1 Mr. Chowdhury submits that the property was not partitioned
and as such, the plea of adverse possession cannot be taken and that
the admission regarding the ownership must be there.Referring to the
evidence of PW-1, Mr. Chowdhury submits that he admitted in cross-
examination that there was no distribution/partition of the suit land.
Mr. Chowdhury has pointed out that there are many factual
contradictions and though it is stated that there was relinquishment,
but no such document has been shown and that the revenue payment
receipt does not confer any right, title and interest. Mr. Chowdhury
also pointed out that the counter claim was filed by defendant Nos.6--
8 and no issue was framed on the counter claim.
9.2 Mr. Chowdhury has also pointed out that written statement
was filed against the counter claim, which is apparent from the
paragraph Nos.24 and 25 of the learned Trial Court‟s judgment and
that no preliminary decree under Order 20 Rule 18 CPC, is required to
be passed. He also submits that no substantial question of law is
involved herein, whatever substantial question of law was formulated
at the time of admission the same are only question of law and there is
no perversity in the impugned judgment of the First Appellate Court
and no substantial question of law is involved and therefore, Mr.
Chowdhury has contended to dismiss these appeals. Mr. Chowdhury
also pointed out that no evidence was led in respect of the adverse
possession. Mr. Chowdhury has also filed written argument. In support
of his submission, Mr. Chowdhury has referred the following decisions:-
Page 15 of 37
(i) Narendra & Ors. v. Ajabrao (Dead) Through Lrs.,
reported in (2018) 11 SCC 564;
(ii) Dagadabai (Dead) By Lrs. v. Abbas Alias Gulab
Rustum Pinjari, reported in (2017) 13 SCC 705;
(iii) Hemavathi & Ors. v. V. Hombegowda & Anr. [Civil Appeal
Nos.5780-5781/2023, arising out of SLP(C) Nos.19975-
19976/2022];
(iv) P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in 1956
SCC OnLine SC 51; and
(v) Renu Devi v. Mahendra Singh &Ors., reported in (2003)
10 SCC 200.
10. In reply, Mr. Biswas, learned counsel for the appellants in RSA
No.17/2024, submits that a preliminary decree has to be drawn up and
that the decision of Renu Devi (supra), so referred by the
respondents is not applicable in the present appeal and similarly, the
case of Hemavathi (supra) is also not applicable. Mr. Biswas also
pointed out that except Annexure-A, there is no written statement and
the learned First Appellate Court has failed to consider the document of
the year 1941, and there was specific plea in respect of the adverse
possession, since 1985 and the same has been admitted and under
such circumstances, Mr. Biswas has contended to allow this appeal.
11. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the memo of appeals and the
grounds mentioned therein and also the impugned judgment dated
12.09.2023 and decree dated 16.09.2023, passed by the learned First
Appellate Court and also the judgment and decree dated 28.10.2021
Page 16 of 37
passed by the learned Trial Court, in Title Suit No.66/2012 and also
carefully gone through the decisions referred by the learned counsel
for both the parties, and the written argument submitted by Mr. Biswas
and Mr. Choudhury.
12. It appears that substantial question No. III, in RSA 17 of 2024
and substantial question No. I, in RSA No. 26/2024, are substantially
the same, which is whether the judgment dated 12.09.2023 and
decree dated 16.09.2023, passed by the learned Civil
Judge (Sr. Division), Sonitpur, Tezpur is justified in
view of non-compliance of the provisions of Order XLI
Rule 31 of the Code of Civil Procedure, 1908.And
accordingly, both are taken up together for discussion.This substantial
question of law concerned with formulation of point for determination
and recording of finding with reasons thereof.
12.1 It is to be noted here that Order XLI Rule 31 of the Code of
Civil Procedure provides that the judgment of the Appellate Court shall
be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the
relief to which the appellant is entitled, and shall at the time
that it is pronounced be signed and dated by the Judge or by
the Judges concurring therein.
Page 17 of 37
13. A careful perusal of the impugned judgment and decree, so
passed by the learned First Appellate Court indicates that the learned
First Appellate Court has not formulated any point for determination
while deciding the appeal, though Order XLI Rule 31 of the Code of
Civil Procedure has mandated the same. Now the question is, whether
non-formulation of point for determination and discussion of the
evidence to that effect, is fatal in the present appeals. This issue has
been dealt with by Hon‟ble Supreme Court in the case of Mrugendra
Indravadan Mehta and others v. Ahmedabad Municipal
Corporation [Civil Appeal Nos.16956-16957/2017], in
paragraph Nos.30 and 31 as follows:-
‚30. Thus, even if the first appellate Court does
not separately frame the points for determination
arising in the first appeal, it would not prove
fatal as long as that Court deals with all the
issues that actually arise for deliberation in
the said appeal. Substantial compliance with the
mandate of Order 41 Rule 31 CPC in that regard is
sufficient. In this regard, useful reference may
be made to G. Amalorpavam and others vs. R.C.
Diocese of Madurai and others [(2006) 3 SCC 224],
wherein this Court held as under: -
'9. The question whether in a particular case
there has been substantial compliance with the
provisions of Order 41 Rule 31 CPC hasto be
determined on the nature of the judgment
delivered in each case. Non-compliance with the
provisions may not vitiate the judgment and make
it wholly void, and may be ignored if there has
been substantial compliance with it and the
second appellate court is in a position to
ascertain the findings of the lower appellate
Page 18 of 37
court. It is no doubt desirable that the
appellate court should comply with all the
requirements of Order 41 Rule 31 CPC. But if it
is possible to make out from the judgment that
there is substantial compliance with the said
requirements and that justice has not thereby
suffered, that would be sufficient. Where the
appellate court has considered the entire
evidence on record and discussed the same in
detail, come to any conclusion and its findings
are supported by reasons even though the point
has not been framed by the appellate court there
is substantial compliance with the provisions of
Order 41 Rule 31 CPC and the judgment is not in
any manner vitiated by the absence of a point of
determination. Where there is an honest endeavour
on the part of the lower appellate court to
consider the controversy between the parties and
there is proper appraisement of the respective
cases and weighing and balancing of the evidence,
facts and the other considerations appearing on
both sides is clearly manifest by the perusal of
the judgment of the lower appellate court, it
would be a valid judgment even though it does not
contain the points for determination. The object
of the rule in making it incumbent upon the
appellate court to frame points for determination
and to cite reasons for the decision is to focus
attention of the court on the rival contentions
which arise for determination and also to provide
litigant parties opportunity in understanding the
ground upon which the decision is founded with a
view to enable them to know the basis of the
decision and if so considered appropriate and so
advised to avail the remedy of second appeal
conferred by Section 100 CPC.'
Page 19 of 37
31. As already noted hereinabove, the High Court
did set out all the issues framed by the Trial
Court in the body of the judgment and was,
therefore, fully conscious of all the points that
it had to consider in the appeal. Further, we do
not find that any particular issue that was
considered by the Trial Court was left out by the
High Court while adjudicating the appeal. In
effect, we do not find merit in the contention
that the impugned judgment is liable to be set
aside on this preliminary ground, warranting
reconsideration of the first appeal by the High
Court afresh.‛
13.1 In the instant appeals, though the learned First Appellate
Court has not formulated any point for determination, yet, it appears
that the learned Court had discussed all the issues, so framed by the
learned Trial Court and after discussion of the evidence, so brought on
record, arrived at an independent finding in respect of all the issues
with reasons and that being so, non-formulation of point for
determination by the learned First Appellate Court, to the considered
opinion would not violate the provision of Order XLI Rule 31 of the
Code of Civil Procedure and the same cannot be held against the
judgment and decree, so passed by the learned First Appellate Court,
in view of the decision of Hon‟ble Supreme Court in the case of
Mrugendra Indravadan Mehta (supra). And that being so, the
substantial question of law No.(iii) in RSA No.17/2024 and the
substantial question of law No.(i) in RSA No.26/2024 have to be
answered in negative and accordingly, the same stands answered.
14. It also appears that substantial question of law No.(ii) in RSA
No.17/2024 and the substantial question of law No.(ii) in RSA
Page 20 of 37
No.26/2024, are also substantially the same and the same pertains to
Issue Nos.(vi) and (vii), so framed by the learned Trial Court. While the
learned Trial Court in respect of Issue No.(vi) as to whether the
plaintiffs have right, title and interest over 1/3rd share over total „A‟
schedule land, decided the issue in negative and in respect of Issue
No.(vii), the learned Trial Court has decided the issue in affirmative to
the defendants.
14.1 The learned Trial Court had held that the plaintiffs‟ father
Ramakanta Baruah had purchased the suit land jointly, which is
admitted by the defendants and approximately 60 years ago,
Ramakanta Baruah had gave up his share to his younger brother- Late
Pyari Mohan Baruah and from the pleadings itself as well as the
evidence rendered, it is clear that the plaintiffs do not have possession
over the suit land. The plaintiffs have claimed share of land on the suit
land, but had failed to prove that the suit land was owned and
possessed by Late Dhaneswar Baruah and also failed to prove that
sons of Late Dhaneswar Baruah, namely, Moheswar Gogoi, Ramakanta
Baruah and Pyari Mohan Baruah had agreed equally to divide the suit
land as 1/3rd share of the total „A‟ schedule land, as PW-1 himself
admitted in his cross-examination that Late Moheswar Gogoi was the
son of Mehuka Gogoi.
14.2 The learned Trial Court had also held thatDW-5, in his
evidence stated that Exhibit- „F‟ is the Jamabandi book of 1930 of
Revenue Village & Mouza-Goroimari and Exhibit-„F(1)‟ is the Jamabandi
of Patta No.92 and there was only one Dag No.258 in the said Patta
and there were total 6 bighas 8 lechas of land and Moheswar Gogoi,
son of Mehuka was the original pattadar at Serial No.8, and as per note
Page 21 of 37
dated 20.08.1941, of the said Jamabandi, land measuring 3 kathas 18
lechas was mutated in the name of Moheswar Gogoi, by way of
purchase, from Ghana and Narendra and Exhibit-„6‟ is the chitha book
of Jamabandi Dag No.274 identified by PW-3 and Exhibit-G(1) is the
chitha of Dag No.258, of Revenue Village-Nij Goroimari and Dag
No.258 was converted to Dag No.275 and total land of the said Dag
was 6 bighas 1 lecha and Exhibit-H is the draft Jamabandi of village Nij
Goroimari and Exhibit-H(1) is the draft P.P. No.79.And as per said draft
jamabandi, the old Dag No.258, is converted into Dag No.275 and DW-
5 also stated in his evidence that another note dated 13.11.1946, in
the Jamabandi reflects that as per order dated 17.07.1946, of the said
Jamabandi, names of Moheswar, Dighala, Pyari and Sarulora have
been mutated by way of purchase and possession in place of Ghana
and Narendra. Therefore, the learned Trial Court held that it was
clearly established that the plaintiffs‟ late father had purchased the
land in the same Dag.
14.3 Thereafter, the learned Trial Court has arrived at the finding
that the evidence of the defendants is more probable and thereafter,
opined that the preponderance lies in favour of the defendants and
thereafter, decided the issue in negative against the plaintiffs.
14.4 And in respect of Issue No.(vi), the learned Trial Court,
considering the evidence adduced by the DW-1, DW-2, DW-3, DW-4
and DW-5, has held that the document as submitted by the plaintiffs
reveals that the names of defendants are duly mutated in the record of
right in respect of the suit property as the legal heirs of Late Moheswar
Gogoi and Late Pyari Mohan Baruah. The exhibits also reveal the same.
The evidence of PW-3 and DW-5 clarifies that the land record of P.P.
Page 22 of 37
No.73 and 102 of village Niz Goroimari, there is mention of the names
of defendants with the plaintiffs and thereafter, the learned Trial Court
has arrived at the finding that the defendants have their right, title and
interest in the suit land. Thereafter, it had decided the issue in favour
of the defendant.
15. However, while dealing with the aforementioned issues, the
learned First Appellate Court in the impugned judgment and decree
held that while the learned Trial Court itself affirmed the right of the
plaintiffs, on scrutiny of evidence on record, determining the issue
against plaintiffs is indeed wrong and needs to be interfered with. The
learned appellate Court further went on to observe that the learned
Trial Court had found that the predecessor of the plaintiffs had
relinquished his right over the suit land and he left the suit land and
shifted his residence to some other place and that the learned Trial
Court denied the right, title and interest over the suit land of the
plaintiffs on the principle of adverse possession.
15.1 Thereafter, the learned appellate Court proceeded to observe
that the learned counsel appearing for the plaintiffs/appellants
submitted that where the defendants/respondents claim their right
over the suit land on adverse possession, the right, title and interest of
the plaintiffs/appellants cannot be denied and it is admitted by the
defendants. In para no.52 of the impugned judgment, the learned Trial
Court admittedly found that the suit land was not owned and
possessed by the grandfather of the defendants/respondents
Dhaneswar Baruah, but, owned by Moheswar Gogoi, Ramakanta
Baruah and Pyari Mohan Baruah jointly. Where the learned Trial Court
from her own finding found that the predecessor of the
Page 23 of 37
plaintiffs/appellants were the joint owner of the suit land with the
defendants and the proforma defendants, in such circumstances, denial
of the right of the plaintiffs is absurd and need to be rectified.
15.2 The learned appellate Court also observed that the names of
the plaintiffs appeared in the Jamabandi with the names of the
defendants. Hence, relying the evidence of both the parties and the
documents submitted thereof, it is of the view that the plaintiffs have
the right, title and interest over the suit „B‟ schedule land or 1/3 rd share
of the „A‟ schedule land.
15.3 In respect of Issue No.(vii), the learned first appellate Court
has held that the learned Trial Court had found the names of the
defendants and the plaintiffs in the land record, but so far as their
share is concerned, after being calculated, it was found that the
predecessor of defendant Nos.1--5 Late Moheswar Gogoi was the
exclusive owner of land measuring 3 kathas 18 lechas, in both the Dag
Nos.275 and 274 and co-owner of the land measuring 3 bighas 2
kathas and 3 lechas in both the Dag numbers, with the predecessor of
the plaintiffs- Late Ramakanta Baruah, and predecessor of defendant
Nos.6--8, Late Pyari Mohan Baruah. The issue though rightly decided
in favour of the defendants that the defendants have the right, title
and interest over the Schedule „B‟ land, but the right, title of the
plaintiffs cannot be denied as per admission of the defendants and
materials on record.
15.4 The finding so recorded by the learned first appellate Court,
while considered in the light of the submission advanced by learned
counsel for both the parties and also in the light of the materials
Page 24 of 37
available on record, this Court is of the view that the learned First
Appellate Court has rightly interfered with the finding, so recorded by
the learned Trial Court. It appears from the paragraph 3 of the Counter
Claim, dated 16.11.2012, that the Schedule „A‟ land (suit land) was
distinct and separate piece of land from the alleged land purchased by
the predecessor of the defendant Nos. 1 to 5, wherein it is stated that
during the lifetime of Late Maheswar Gogoi (father of Defendant Nos 1
to 5), Late Ramakanta Baruah (father of Plaintiffs) and Late Piyari
Mohan Baruah (father of Defendant Nos 6 to 8) i.e. prior to 1964 the
entire land of 4 Bighas 1 Katha 1 Lessa comprised in Dag Nos. 274 and
275, PP No.102 (Schedule A land) situated at Village Niz Goroiman
under Mouza Goroimari, District Sonitpur, Assam were mutually agreed
to be divided amongst Maheswar and Piyarimohan only without leaving
any share for Ramakanta Baruah. And this was done in the year
1961/1962 and since then, they used to possess the entire suit land to
the exclusion of Ramakanta Baruah.
15.5 Thus, this averment in the counter claim clearly reflects that
the suit land being Schedule „A‟ land is an ancestral property of the
Plaintiffs /Respondents and the Defendant Nos. 1 to 8 and the same is
in no way connected to the alleged purchase of the land by the father
of Defendant Nos. 1 to 5. It also appears that no reason was assigned
as to why Late Ramakanta Baruah was deprived of any share in the
Schedule „A‟ land. No evidence was led to that effect. Further, the
Defendant Nos. 1 to 8 had claimed the entire Schedule „A‟ land to the
exclusion of the Plaintiffs/Respondents. Moreover, if some portion of
the alleged land was purchased by the father of the defendant Nos. 1
to 5, fell within the Schedule „A‟ land than in such a situation, the
Page 25 of 37
Defendant Nos. 1 to 5 would not give any share of the schedule „A‟
land to the Defendant Nos. 6 to 8 who are claiming the Schedule „A‟
land by way of adverse possession.
15.6 It also appears that the respondents/plaintiffs in paragraph 5
and 6 of the plaint had described in details the Schedule „A‟ land being
an ancestral property. And further it appears that the defendant Nos.
1 to 8 in their common Written Statement, dated 16th November, 2012
in paragraphs 11 and 12 and 13 (Page 27 of the RSA No. 17/2024) had
admitted the fact that the Schedule „A‟ land is an ancestral property.
Relevant portion of the said paragraph are reproduced below for ready
reference:-
‚11) That in respect of the averments of Para 5
of the plaint that the ancestors of the
plaintiffs and the defendants Late Dhaneshwar
Baruah owned and possessed considerable landed
property and particularly acquired 3 Bighas of
land under Dag No. 275 and P.P. No. 73 and 1
Katha | Lessa under Dag No. 274 under P.P. No.
102 at Niz-goroimari under Mouza Goroimari, Dist.
Sonitpur, Assam and that both the Dag Nos. 274
and 275 are adjacent to each other, thus
comprises 4 Bighas | Katha and 1 Lessas are not
denied.
12) That the averments of para 6 of the plaint
that, "on the death of Dhaneswar Baruah his
successors became entitled to--------------------
-------------------------------------------------
----------------------------------------- all
their movable and immovable properties." is true.
13) That the averments of Para 7 of the plaint
that "during the lifetime of Late Maheswar Gogoi,
Late Ramakanta Baruah and Late Piyari Mohan
Baruah-------------------------------------------
-------------------------------------------------
-------------------------------------------------
------------------------------- the husband and
father of the plaintiffs No. I to 4." are not
true and are denied by the defendants. It is
submitted herein that during the life time of
Late Maheshwar Gogoi, Late Ramakanta Baruah and
Late Piyari Mohan Baruah the entire land of 4
and 275 were mutually agreed to divide amongst
Maheshwar and Piyari Mohan only without leaving
any share for Ramakanta Baruah. -----------------
-----------.‛
15.7 But, defendant Nos. 1 to 5 have filed their amended Written
Statement, dated 5th February, 2015, wherein defendants Nos.1 to 5
had taken a diametrically opposite stand and completely denied the
statement and averment made in paragraph Nos. 11, 12 and 13 in the
plaint, and thereby they had denied the admission, which they had
made in the first written statement. Now it has to be seen the
consequence of such contradictory and inconsistent plea taken by the
defendants Nos. 1 to 5, herein in their amended Written Statement.
15.8. It is well settled that inconsistent and contradictory allegations
in negation to the admitted position of facts or mutually destructive
allegations of facts should not be allowed to be incorporated by means
of amendment to the pleadings. The proposed amendment should not
cause such prejudice to the other side which cannot be compensated
by costs. No amendment should be allowed which amounts to or
relates in defeating a legal right accruing to the opposite party on
account of lapse of time. Reference in this context can be made to
Life Insurance Corporation of India vs. Sanjeev Builders
Private Limited and Another, reported in 2022 Supreme(SC)
864. Then in the matter of Ram Niranjan Kajaria and others
vs. Jugal Kishore Kajaria; reported in (2015) 10 Supreme
Court Cases 203, Hon‟ble Supreme Court has held as under:-
"23. We agree with the position in Nagindas
Ramdas and as endorsed in Gautam Sarup that a
categorical admission made in the pleadings
cannot be permitted to be withdrawn by way of an
amendment. To that extent, the proposition of law
that even an admission can be withdrawn, as held
in Panchdeo Narain Srivastava, does not reflect
the correct legal position and it is overruled."
15.9. In the aforesaid case [(Ram Niranjan Kajaria(supra)]
Hon‟ble Supreme Court, besides expressing the view that categorical
expression made in pleading cannot be permitted to be withdrawn and
overruled its earlier decision in Panchdeo Narain Srivastava v.
Jyoti Sahay, reported in 1984 Supp SCC 594, in which a contrary
view is taken.
15.10. It worth mentioning in this context that though amended
Written Statement was filed defendant Nos. 1 to 5, yet defendant No.6
to 8 have not filed amended Written Statement and as such the stand
taken by them in the said Written Statement remains. And even if
defendant Nos. 1 to 5 have filed their amended Written Statement,
dated 5th February, 2015, wherein they had taken a diametrically
opposite stand and completely denied the statement and averment
made in paragraph Nos. 11, 12 and 13 in the plaint, and thereby they
had denied the admission, the same is impermissible in view of the
Sanjeev Builders Private Limited and Another, (supra) and
in the case of Ram Niranjan Kajaria (supra).
15.12. In view of aforesaid factual and legal matrix, the factum of
admission that the Schedule „A‟ land is an ancestral property, so made
by the defendants Nos.1 to 8 in the Written Statement, dated 16th
November, 2012 in paragraphs 11 and 12 and 13 (Page 27 of the RSA
No. 17/2024) cannot be ignored and its value and effect cannot be
obliterated, notwithstanding filing of amended Written Statement by
defendants Nos.1 to 5., while the defendant Nos. 6 to 8 did not file
amended Written Statement and restricted their stand to the Written
Statement dated 16th November, 2012.
15.13. Thus, it becomes apparent that the learned first appellate
Court has considered the evidence on the record and also the
documents so exhibited during trial and arrived at a reasoned finding
and to the considered opinion of this Court, the same warrant no
interference of this Court.And on such count, the substantial question
of law, so formulated by this Court in both the appeals, are found to be
not flows out of the impugned judgment and decree, so passed by the
learned first appellate Court and even if involved and flows out, in the
given factual and legal matrix, the same have to be answered in
negative and accordingly, the same stands answered.
16. Now, coming to the substantial question of law No.(i), in RSA
No.17/2024, this Court finds that the learned First Appellate Court had,
though not mentioned about the Exhibit-F(2), the Jamabandi of the
patta No.92, in the impugned judgment and decree, yet, it appears
that it had considered the Note dated 20.08.1941 and the finding
recorded by the learned trial Court in respect of same.
16.1 However, it appears that the learned Trial Court, in its
judgment at paragraph No.69 had observed that as per said
jamabandi, total area of the entire Dag No. 344 was 2 kathas 1 lecha
and the said Dag number was converted to Dag No.261. The learned
Trial Court had also observed that the said jamabandi reflects that
name of Maheswar Gogoi, son of Mehuka, was mutated as per order
dated 16.07.1941, by way of purchase in respect of the entire Dag.
16.2 But the learned Trial court had observed that Maheswar Gogoi
had purchased 3 kathas 18 lechas of land mutated in the name of
Moheswar Gogoiby way of purchase from Ghanashyam and Narendra
Baruah as per Note dated 20.08.1941 and thereafter, as per order
dated 17.07.46 of the said jamabandi, the name of Maheswar, Dighala,
Piari, and Sarulara had been muted in place of Ghana and Narendra.
16.3 While 3 kathas 18 lechas of land bearing Dag No. 275 and 274
was purchased by Maheswar Gogoi and Exhibit-F(2), the Jamabandi of
the patta No.92, and as held by the learned trial Court in its judgment
at para No.69 that total areas of the entire Dag No. 344 was 2 kathas 1
lecha and the said Dag number was converted to Dag No.261, then it
is difficult to reconcile the said finding of the learned trial Court with
that of the record. Moreover, the value of entry in revenue record is
well settled in catena of decisions of Hon‟ble Supreme Court. Reference
in this context can be made to a decision in Gurunath Manohar
Pavaskar vs. Nagesh Siddappa Navalgund, reported in
(2007) 13 SCC 565, where in Hon‟ble Supreme Court has been held
as under:-
‚12. A revenue record is not a document of title.
It merely raises a presumption in regard to
possession. Presumption of possession and/or
continuity thereof both forward and backward can
also be raised under Section 110 of the Evidence
Act. The courts below, were, therefore, required
to appreciate the evidence keeping in view the
correct legal principles in mind.‛
16.4 Over and above, except the copy of jamabandi i.e. Exhibit-
F(2), no sale deed was exhibited and proved to substantiate such claim
by the defendants in the learned trial Court. Mr. Choudhury, the
learned counsel for the respondents had rightly pointed this out during
hearing and this Court finds substance in the same.
16.5 Mr. Biswas, the learned counsel for the appellant in RSA No.
26/2024, however, submits that the learned appellate Court had not
considered the Exhibits-F and F1. But, the substantial question of law
relates to Exhibit-F2 only. There was no such contention of the
appellant to frame additional issue on that point. Mr. Biswas, the
learned counsel for the appellant in RSA No.17/2024 had made no
reference to the Exhibit-F-2 during hearing. His submissions confined
to Exhibit-F and F-1 only, which are totally unconnected to the
substantial question of law. It is to be noted here that sitting in second
appeal, this Court has to confine its discussion only tothe substantial
question of law, so framed. Reference in this context can be made to
decision in Chacko v. Mahadevan reported in [(2007) 7 SCC 363],
wherein, dealing with the jurisdiction of Sections 96 and 100 CPC,
Hon‟ble Supreme Court laid down as under :
‚6. It may be mentioned that in a first appeal
filed under Section 96 CPC, the appellate court
can go into questions of fact, whereas in a
second appeal filed under Section 100 CPC the
High Court cannot interfere with the findings of
fact of the first appellate court, and it is
confined only to questions of law.‛
16.6 Reference in this context can also be made to the decision of
Hon‟ble Supreme Court in the case of Santosh Hazari (supra). In
paragraph No.9 of the said decision, Hon‟ble Supreme Court has held
that the High Court cannot proceed to hear a second appeal without
formulating the substantial question of law involved in the appeal and
if it does so it acts illegally and in abnegation or abdication of the duty
cast on Court. The existence of substantial question of law is the sine
qua non for the exercise of the jurisdiction under the amended Section
100 of the Code.
16.7 In Thiagarajan v. Venugopalaswamy B. Koil, reported
in (2004) 5 SCC 762, Hon‟ble Supreme Court has held that the High
Court in its jurisdiction under Section 100 CPC was not justified in
interfering with the findings of fact. The Court observed that to say the
least the approach of the High Court was not proper. It is the
obligation of the courts of law to further the clear intendment of the
legislature and not frustrate it by excluding the same. This Court in a
catena of decisions held that where findings of fact by the lower
appellate court are based on evidence, the High Court in second appeal
cannot substitute its own findings on re-appreciation of evidence
merely on the ground that another view was possible.
16.8 Again, in Madhavan Nair v. Bhaskar Pillai reported in
(2005) 10 SCC 553, Hon‟ble Suprme Court has held that the High
Court was not justified in interfering with the concurrent findings of
fact. This Court observed that it is well settled 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.
16.9 Again, in Harjeet Singh v. Amrik Singh reported in
(2005) 12 SCC 270, Hon‟ble Supreme Court with anguish has
mentioned that the High Court has no jurisdiction to interfere with the
findings of fact arrived at by the first appellate court.
16.10 Under the given factual matrix, no substantial question of law,
No.(i) in RSA No.17/2024, as formulated above, is found to be flown
out from the impugned judgment and decree of the learned First
Appellate Court. And accordingly, the same stands answered.
17. Now, moving forward to the substantial question of law
No.(iii) in RSA No.26/2024, this Court finds that the same relates to
dismissing of the counter claim in contravention to Section 27 of the
Limitation Act. It is to be noted here that Section 27 of the Indian
Limitation Act, 1963 state that if a person fails to file a suit for
possession of property within the prescribed period of limitation, their
right to that property is extinguished. This provision, which re-enforced
a concept of adverse possession, ensures legal certainty and stability
by encouraging property owners to assert their right within given time
frame, thereby preventing prolong dispute and ensuring that property
claims are resolved efficiently.
17.1 In the cases in hand, though it appears that the defendants
had claimed possessing the suit land since 1952, hostile to the
plaintiffs, yet, the said plea has been abandoned by the defendants No.
1 to 5 in their amended written statement and the learned trial Court
had made categorical observation in that regard in paragraph No. 49 of
the judgment. It also appears that no evidence was also led by the
defendants.
17.2 Further, from a perusalof paragraph No.3 of the Counter
Claim, dated 19.11.2012, Annexure-3 of the Memorandum of Appeal of
RSA No. 26/2024, that Schedule „A‟ land comprising of 4 Bighas 1
Katha 1 lessa is admitted to be the ancestral property. And admittedly
also, the said land was not partitioned orally. And if there was no
partition of schedule „A‟ land, there cannot be adverse possession
against the co-owners of the ancestral property. The defendants had
not produced any material to suggest that the plaintiffs and defendants
were allotted their respective shares in the Schedule „A‟ land and even
if the defendants No.6 to 8 are in possession of the same, it cannot be
termed as hostile and at best they may be termed as permissive
occupier. That being so, Section 27 of the Limitation Act, 1963 cannot
be applied herein this case, since to the schedule - „A‟ land had not
been partitioned.
17.3 The learned first appellate Court in the impugned judgment
had discussed the issue of adverse possession in Issue No.(viii), and
had observed that -- if we carefully go through the principle as laid
down by Hon‟ble Supreme court in Dagadabi (dead) by legal
representative vs. Abbas Ali Gulab Rostom Pinjari reported in
(2017) 13 SCC 705, and in Ram Nagira Raivs Deo Kumar Rai
By Lrs. reported in 2018 (10) SCJ 533, and in Vidya Devi @
Vidya Voti (Dead) By Lrs. vs. Premprakash and others,
reported in (2020) 2 SCC 569, as discussed by the learned trial
Court and as submitted by the plaintiffs/appellants, we would find that
both the principles are not fulfilled in the case. First of all the
possession over the „B‟ scheduled land by the defendant Nos. 6 to 8
was a permissive possession by the deceased father of the plaintiffs.
Secondly, there is evidence on record that the defendants were not in
continuous possession over the „B‟ scheduled land and their point and
time of possession has not clearly mentioned. It had also been held
that - from the material on the case record, it is found that the
defendant Nos. 1 to 5 and defendant Nos. 6 to 8 are in the initial
possession over the „B‟ scheduled land and it was only the plea of
defendant Nos. 6 to 8 of adverse possession over the suit land.
Thereafter, it went on to observe that the defendant Nos. 6 to 8 took
no steps to ousted the other co-owner from the „B‟ scheduled land and
the defendant no- 1 to 5 and defendant no 6 to 8 are claiming that
they were in the possession over the suit land. Moreover, the
defendants had failed to prove as to when and on what date they were
in the possession over the suit land and the nature of their possession
thereto, which are the essential ingredients to be proved by the
defendant side. Further, the defendant side could not prove whether
the plaintiffs had knowledge of their adverse possession and was
undisputed thereof. Thereafter, it had observed that - though the
learned Trial Court found that the defendant side were in the
possession over the suit „B‟ scheduled land since 60 years, but no
specific date was found from when the defendants were in the
possession over that land. Hence, it is of the view that the
determination of the learned Trial Court is wrong. The defendants
cannot acquire any right, title in the „B‟ scheduled land by right of
adverse possession.
17.4 Thus, it appears that while arriving at the aforesaid finding,
the learned first appellate Court had discussed the relevant case laws,
besides, considering the evidence on record and the finding of the
learned trial Court and arrived at a finding supported by reasons. The
appellants herein, had failed to demonstrate from the record and to
convince this Court such finding and reasoning to be perverse.
18. Under the givenfactual scenario, this substantial questions of
law has to be answered in negative and accordingly, the same stands
answered.
19. This Court has also gone through the other decisions referred
by learned counsel for both the parties. There is no quarrel at the bar
about the proposition of law laid down in the said cases. But, to decide
the substantial questions of law, so formulated herein this two appeals,
reference to all those decision are found to be not necessary, except
what has been discussed herein above.
20. In the result, this Court finds no merit in these appeals and
accordingly, the same stands dismissed, leaving the parties to bear
their own costs.
21. The registry shall send down the record of the learned courts
below with a copy of this judgment and order.
JUDGE
Comparing Assistant
