Page No.# 1/16 vs Iman Ali And Ors
2025 Latest Caselaw 7077 Gua

Gauhati High Court

Page No.# 1/16 vs Iman Ali And Ors on 8 September, 2025

                                                              Page No.# 1/16

GAHC010159932025




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

                              Case No. : RSA/133/2025

         MD AHADULLAH AND ANR
         S/O LT. ROUF MIA,

         2: MST. JOLEKHA KHATUN

          W/O LT. MD. RAHIM
          BOTH ARE R/O VILL. KHOIRABARI
          MOUZA GOBARDHANA
          DIST. BARPETA
          ASSAM
          PIN 7813

         VERSUS

         IMAN ALI AND ORS
         S/O LT. ALI AKBAR,

         2:MAZIBAR RAHMAN

          S/O LT. RAHMUDDIN
          BOTH ARE R/O VILL. KHOIRABARI
          MOUZA GOBARDHANA
          DIST. BARPETA
          ASSAM
          PIN 781315

         3:1. LEGAL HEIRS OF LATE MD RAHIM

          DIST. BARPETA

         4:1.(A) SAYEDUL ISLAM (BROTHER)
          DIST. BARPETA.

         5:1.(B)MD. SHAHID ALI (BROTHER)
                                                             Page No.# 2/16

             DIST. BARPETA.

            6:1.(C) MD. ABDUL KARIM BROTHER)
             DIST. BARPETA.

            7:2.ABDUL JABBAR ALI

             S/O SAHED ALI


            8:3. SAIZUDDIN PARAMANIK

             S/O JASUMUDDIN

            9:4. NURUL ISLAM

             S/O ABDUS SAMAD


            10:5. AINAL HAQUE

             S/O -DO-

            11:6. KAMAL HUSSAIN

             S/O -DO-

            12:7. MST. KHAIRUN NESSA

             D/O LT. ABDUL KHALEQUE

            13:8. MST. KHABIRAN NESSA

             D/O -DO-

            14:9. RUPCHAND MIA

            S/O -DO-
            ALL ARE R/O VILL. KHOIRABARI
            MOUZA GOBARDHANA
            DIST. BARPETA
            ASSAM
            PIN 78131

Advocate for the Petitioner   : MR. M A SHEIKH, K U AHMED

Advocate for the Respondent : ,
                                                                               Page No.# 3/16




                                 BEFORE
                    HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                        ORDER

Date : 08.09.2025

Heard Mr. M.A. Sheikh, learned counsel for the appellants.

2. This appeal, under Section 100 CPC, is directed against the judgment dated 23.05.2025 and decree dated 29.05.2025, passed by the learned Civil Judge (Senior Division), Barpeta, in Title Appeal No. 52/2022.

3. It is to be noted here that vide judgment dated 23.05.2025 and decree dated 29.05.2025, the learned Civil Judge (Senior Division), Barpeta ('first appellate Court', for short) had dismissed the appeal by upholding the judgment and decree dated 12.08.2022, passed by the learned Civil Judge (Junior Division) No. 2, Barpeta ('trial Court', for short), in Title Suit No. 191/2016.

4. It is also to be noted here that vide judgment and decree dated 12.08.2022, the learned trial Court had dismissed the title suit preferred by the appellants herein for specific performance of contract in respect of Schedule- AB(1) and also for delivering khas possession of the land by metes and bound in favour of the appellants.

5. For the sake of convenience and also to avoid confusion, the status of the parties as reflected in the original title suit, is adopted in this appeal.

6. The background facts, leading to filing of the present appeal, are briefly stated as under:

"The case of the plaintiffs was that Schedule-A land measuring 3

katha 16 lechas, covered by Dag No. 1163(new)/330 (old), under K.P. Page No.# 4/16

Patta No. 318, situated at village Khairabari was settled in the name of defendant No. 1, namely, Iman Ali and proforma defendant Nos. 2 to 11, and Schedule-B land measuring 1 katha 14 lechas, covered by Dag No. 1164(new)/332(old), under annual patta, situated at Khairabari was also settled in the name of defendant No. 1 and proforma defendant Nos. 2 to 11, and that all the pattadars were peacefully possessing the Schedule-A and B land by mutual settlement, without any formal partition in the revenue records. As per mutual settlement, a plot of land measuring 1 katha, forming part of Schedule-A and B land fell in the exclusive share of defendant No. 1.

Thereafter, on 23.12.2003, the defendant No. 1 had executed an agreement for sale of the suit land in favour of the plaintiffs, fixing the consideration at Rs. 1,20,000/- and handed over possession of the suit land to the plaintiffs on 23.12.2003, and assured to convert the suit land to a periodic patta land and thereafter, to execute the sale deed on receiving necessary sale permission from the concerned authority. After execution of the agreement for sale, the plaintiffs were always ready and willing to bear the cost for registration to get the registered sale deed executed. However, whenever the plaintiffs asked the defendant No. 1 to execute the sale deed, he avoided. Thereafter, on 10.01.2011, when the plaintiffs again requested the defendant No. 1 to execute the registered sale deed, he replied that he would take steps for partition of the Schedule-A and B land and thereafter, he would immediately execute the sale deed. Thereafter, on 15.09.2016, the defendants came to the suit land and started measurement for separating the southern part of the suit land for handing over the same to the defendant No. 2. When the Page No.# 5/16

plaintiffs enquired about the same, the defendant No. 1 replied that he had already sold a plot of land measuring 3 katha 4 lechas, under Dag No. 1162/330 to defendant No. 2 by executing registered sale deed No. 26/2011. Thereafter, the plaintiffs instituted the suit for the decree for specific performance of agreement for sale, along with cost of the suit and other relief.

The defendant No. 1 filed his written statement, wherein he stated that the land measuring 1 bigha 2 katha 4 lechas, covered by Dag No. 312; 3 kathas of land covered by Dag No. 313; 2 bighas 1 katha of land, covered by Dag No. 330 and; 1 bigha 19 lechas of land, covered by Dag No. 332, in total 5 bighas 2 kathas 3 lechas of land, situated at village Khairabari, under Gobardhana Mouza, and he was in peacefully possession of the 1 bigha 3 kathas 10 lechas of land out of the total land, covered by Dag Nos. 312, 313, 330 and 332, bounded by North- legal heirs of Rabia Khatoon, South-Dukhuni Bidhaba, East- PWD Road, West-Mora Beki and Fayez Munsi. Thereafter, Iman Ali sold 1 bigha 1 katha 2 lechas of land to defendant No. 2, by executing an unregistered sale deed on 07.12.2005 and delivered the possession. As per prayer of both the defendants, the Revenue authority converted the land measuring 3 kathas 6 lechas, within 2 bighas 1 katha of land, covered by Dag No. 330, into a periodic patta land, by creating Dag No. 1163, under Periodic Patta No. 318, in the name of Iman Ali. Thereafter, defendant No. 1 executed registered sale deed, bearing No. 25/11 dated 20.01.2021, in favour of the defendant No. 2 in respect of land measuring 16 lechas, covered by Dag No. 1162 of Periodic Patta No. 317, bounded by North- Ahadullah, South- Iman Ali, East- Mazibar Rahman, West- road. The defendant No. 1 had also executed Page No.# 6/16

another sale deed, bearing No. 26/2011, dated 20.01.2011, in favour of defendant No. 2 for land measuring 3 kathas 4 lechas out of the total land measuring 3 katha 6 lechas, covered by Dag No. 1163, of Periodic Patta No. 318, bounded by North- Ahadullah, South- Iman Ali, East- road and West- Mazibar Rahman. The plaintiffs purchased the land measuring 1 katha 4 lechas from defendant Iman Ali, by executing unregistered sale deed and the plaintiffs were peacefully possessing the said land, and as such, the plaintiffs did not have any right to file the suit, and therefore, it was contended to dismiss the suit.

The defendant No. 2 also filed his written statement denying the statements and averments made in the plaint and stated that there was an area of land measuring 1 bigha 2 katha 4 lechas, covered by Dag No. 312; 3 kathas covered by Dag No. 313; 2 bighas 1 katha, covered by Dag No. 330 and; 1 bigha 19 lechas, covered by Dag No. 332, in total 5 bighas 2 kathas 3 lechas, at village Khairabari, under Gobardhana Mouza, and that the defendant No. 1, Iman Ali filed a suit in the Court of learned Civil Judge (Junior Division), Barpeta against the legal heirs of Rabia Khatun, namely, Nur Islam, Nurul Haque, Aynal Haque and others for declaration of their right, title, interest, delivery of possession of land measuring 2 bighas 1 katha within the said 5 bighas 2 kathas 3 lechas of land. Thereafter, the learned Civil Judge (Junior Division), Barpeta decreed the suit in favour of defendant No. 1 and accordingly, the defendant No. 1 filed an execution case. During the execution proceeding, both the parties arrived into a compromise and as per terms of the compromise petition, defendant No. 1 got 1 bigha 3 kathas 10 lechas of land within the said 5 bighas 2 kathas 3 lechas, covered by Dag Nos. 312, 313, 330 and 382, Page No.# 7/16

bounded by North- legal heirs of Rabia Khatun, South- Dukhuni Bidhaba, East- PWD road, West- Mora Beki and Fayez Munchi. Similarly, the legal heirs of Rabia Khatun and others got 3 bighas 3 kathas 13 lechas of land within the said 5 bighas 2 kathas 3 lechas, bounded by North- Bhairab, South- Iman Ali, East- PWD road, West- Mora Beki and Fayez Munchi. Subsequently, Iman Ali sold 1 katha 3 lechas of land to Saidul Parmanik and Hanif Parmanik, by executing an unregistered sale deed and delivered possession of the said land to them. Iman Ali also sold 1 katha 4 lechas of land to plaintiff No. 1, by executing unregistered sale deed on 23.12.2023, and delivered possession of the land with specific boundary such as North- Saidul Parmanik and Hanif Parmanik, South- Iman Ali, East- PWD road, West- Iman Ali. Iman Ali sold 1 bigha 1 katha 2 lechas of land to defendant No. 2, by executing an unregistered sale deed on 07.12.2005, and delivered possession of the land bounded by North- plaintiff Ahadullah and legal heirs of Rabia Khatun, South- Dukhuni Bidhaba, East- PWD road and West- Fayez Munchi. Accordingly, the defendant No. 2 had been possessing his land and while executing all those unregistered deeds, defendant No. 1 assured to execute the registered sale deed after conversion of the lands into periodic patta. Thereafter, the Revenue authority converted the land measuring 3 kathas 6 lechas within 2 bighas 1 katha of land, covered by Dag No. 330, by creating a new dag, bearing No. 1163, and new Patta No. 318, in the name of defendant No. 1. The Revenue authority had also converted 18 Lechas of land within 1 bigha 19 lechas into a periodic patta land by creating new Dag No. 1162 and Patta No. 317. After conversion of the land into periodic patta, defendant No. 1 executed the registered sale deed, bearing No. 25/11, dated 20.01.2011, Page No.# 8/16

in favour of defendant No. 2 Mazibar Rahman, for land measuring 16 lechas, covered by Dag No. 1162, Periodic Pata No. 317. Similarly, Iman Ali executed another registered sale deed, bearing No. 26/11, dated 20.01.2011, in favour of defendant No. 2, for land measuring 3 kathas 4 lechas within 3 kathas 6 lechas of land, covered by Dag No. 1163 and Periodic Patta No. 318, and the plaintiffs had been possessing their land measuring 1 katha 4 lechas purchased from defendant No. 1. Therefore, it was contended to dismiss the suit.

Upon pleadings of the parties, the learned trial Court had framed the following issues:

1. Whether the suit is maintainable in its form?

2. Whether the defendant No. 1 executed a deed for agreement to sell the suit land in favour of the plaintiff no.1 and his deceased brother Md. Rahim on 23.12.2003?

3. Whether the plaintiffs are all along ready and willing to perform their part of the agreement?

4. Whether the defendant No. 2 is the subsequent purchaser of a part of the suit land with notice of agreement dated 23.12.2013?

5. Whether the plaintiffs are entitled to a decree as prayed for in the suit land of the plaint?

6. To what other relief(s) the plaintiffs entitled to?

Thereafter, the plaintiff No. 1, Ahadullah and his witnesses, namely, Abdul Hamid Gaonbura, Afsar Ali and Jafar Ali filed their evidence- on-affidavit and exhibited as many as four documents, and also examined the Lat Mandal of Barpeta Revenue Circle as official witness.

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The defendants, Mazibar Rahman and Iman Ali also submitted their evidence-on-affidavit as D.W.1 and D.W.2, respectively, and examined the Lat Mandal of Barnagar Revenue Circle and Junior Assistant of DC Office, Barpeta as official witness.

Thereafter, hearing both the parties, the learned trial Court had dismissed the suit, vide judgment and decree dated 12.08.2022.

Being aggrieved, the plaintiffs preferred an appeal before the learned first appellate Court and the learned first appellate Court had upheld the judgment and decree, so passed by the learned trial Court, vide judgment dated 23.05.2025 and decree dated 29.05.2025.

Further, while deciding the issue No. 1, the learned trial Court had held that the suit is maintainable in its present form and in respect of issue No. 2, the learned trial Court had held that the plaintiffs' side failed to prove the execution of Ext.4 and held that the defendant No. 1 did not execute the agreement for sale, dated 23.12.2003, in favour of the plaintiff No. 1 and his deceased brother. And, in respect of issue No. 3, the learned trial Court had held that the plaintiffs failed to prove their readiness and willingness to perform their part of the contract, and in respect of issue No. 4, the learned trial Court had held that the plaintiffs failed to prove the execution of agreement for sale, dated 23.12.2003, by the defendant No. 1, and as such, it could not be held that the defendant No. 2 was the subsequent purchaser of the suit land. And, in respect of issue Nos. 5 and 6, the learned trial Court had arrived at a finding that the plaintiffs failed to prove their readiness and willingness as required under Section 16 of the Specific Relief Act, and also failed to prove execution of the agreement, dated 23.12.2003, and thereafter, dismissed the suit.

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The learned first appellate Court had also upheld the finding so recorded by the learned trial Court in respect of the issues discussed herein above.

Being aggrieved, the plaintiffs have approached this Court by filing the present appeal."

7. Mr. Sheikh, learned counsel for the appellants submits that the findings, so recorded by the learned trial Court as well as the learned first appellate Court, suffer from perversity and that both the Courts below had failed to appreciate the fact that the agreements for sale of plots of land measuring 1 katha 4 lechas and 1 katha (suit land), were executed on the same date and same boundary was specified in both the agreements, and also failed to consider the evidence on record that the plaintiffs got decree in respect of the land measuring 1 katha 4 lechas in Title Suit No. 88/16, on the basis of sale agreement, dated 23.12.2003, and on the same date, another sale agreement for selling of a plot of land measuring 1 katha (suit land) was executed by the same defendant No.

1. Mr. Sheikh also submits that the finding of the learned first appellate Court that in Ext.4, suit land was not properly described is perverse, and the finding so recorded in respect of the readiness and willingness on the part of the plaintiffs to perform their part of agreement is also perverse, and that the finding of the learned first appellate Court in respect of the fact that the plaintiffs failed to examine any persons in whose presence the Ext.4 was executed is also perverse, and as such, the impugned judgment and decree, so passed by the learned first appellate Court, is illegal and unsustainable, and therefore, Mr. Sheikh has suggested following substantial question of law:-

I. Whether the learned Courts below had mis-appreciated the evidence of PW-1 regarding same boundary land Page No.# 11/16

measuring 1 Katha 4 Lessas and 1 Katha (Suit land) and the impugned judgment and decree is perverse on record on that count.

II. Whether the learned Courts below failed to appreciate the facts on record that the agreement for sale for 1 Katha 4 Lessas and 1 Katha (Suit land) were executed on same date and accordingly same boundary specified in both the agreements for sale.

III. Whether that learned first appellate Court committed illegality by not considering the facts on record that the plaintiff got decree in respect of land measuring 1 Katha 4 Lessas in Title Suit No. 88/16 on the basis of sale agreement dated 23/12/03 and on same date another sale agreement for selling of 1 Katha of land (Suit land) was executed by the same defendant No. 1.

IV. Whether the learned first appellate Court failed to consider the fact that in both of the agreement for sale, price of land per lessa is calculated at Rs.

6000/-which proves execution of two sale agreements by defendant No. 1 to the plaintiffs for land measuring 1 Katha 4 Lessas and land measuring 1 Katha respectively, on same date i.e. on 23/12/2003.

V. Whether that the finding of the learned first appellate Court that in Ext. 4, Suit land was not properly described is perverse on record.

VI. Whether the finding of the learned first appellate Court that there was lack of readiness and willingness on the part of the plaintiffs to perform their part of agreement is illegal and perverse on records.

VII. Whether the finding of the learned first appellate Court that plaintiff failed to examine any person in whose presence the Ext. 4 was executed is perverse on record.

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VIII. Whether the impugned judgment and decree of the learned first appellate Court is illegal because it failed to give finding on all issues framed in the Suit.

IX. Whether the impugned judgment and decree is illegal as because it is nonspeaking and dump. As first appellate Court is a Court of facts and law, the learned 1st appellate Court missed this point while passing the impugned judgment and decree.

Χ. Any other substantial question of law which may arise during the hearing of the case or which may be found by the Court suo moto in the interest of justice.

8. Having heard the submission of Mr. Sheikh, learned counsel for the appellants, I have carefully gone through the memo of appeal and the grounds mentioned therein, and also perused the judgment dated 23.05.2025, and decree dated 29.05.2025, passed by the learned first appellate Court, in Title Appeal No. 52/2022 and judgment and decree dated 12.08.2022, passed by the learned trial Court, in Title Suit No. 191/2016, and also perused the suggested substantial questions of law.

9. A careful perusal of the memo of appeal reveals that the appellants/plaintiffs had failed to mention even a single ground giving rise to the suggested substantial questions of law. Usually, framing of substantial question of law is considered only on the grounds mentioned in the memo of appeal, which is lacking in the present appeal.

10. Further, from a perusal of the impugned judgment and decree of the learned first appellate Court and also of the learned trial Court reveals that there is concurrent finding of facts by both the learned courts below. And sitting in second appeal, this Court is not entitled to re-appreciate the evidence. This Court has to see if any substantial question of law flows out of the impugned Page No.# 13/16

judgment and order of the learned Court below. Reference in this context can be made to the following decisions of Hon'ble Supreme Court :-

(i) Santosh Hazari vs. Purushottam Tiwari, reported in (2001) 3 SCC 179, wherein a three-Judge Bench of Hon'ble Supreme Court has delineated the scope of Section 100 CPC. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court the word substantial, as qualifying 'question of law', means--of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code and Article 133(1)(a) of the Constitution.

(ii) In Kamti Devi v. Poshi Ram, reported in (2001) 5 SCC 311, Hon'ble Supreme Court has came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding.

(iii)In Thiagarajan v. Venugopalaswamy B. Koil, reported in (2004) 5 SCC 762, Hon'ble Supreme Court has held that Page No.# 14/16

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 reappreciation of evidence merely on the ground that another view was possible.

(iv) Again, in the case of State of Kerala v. Mohd.

Kunhi, reported in (2005) 10 SCC 139, Hon'ble Supreme Court has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure.

(v) In Madhavan Nair v. Bhaskar Pillai, reported in (2005) 10 SCC 553, Hon'ble Supreme Court has observed 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.

(vi) In Chandrika Singh v. Sarjug Singh, reported in (2006) 12 SCC 49, Hon'ble Supreme Court has again reiterated the legal position that the High Court under Section 100 CPC has limited jurisdiction. To deal with cases having a substantial question of law, this Court Page No.# 15/16

observed as under:

"12. ... While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the High Court is required to formulate a substantial question of law in relation to a finding of fact.

The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the courts below are binding on the High Court."

11. Besides, it also appears that the suggested substantial questions of law, which Mr. Sheikh has suggested, relates to mis-appreciation of evidence relating to boundary of the land in question, and mis-appreciation of the factum of execution of agreements for sale of the land in question and improper description of land in Exhibit-4 and failing to consider lack of readiness and willingness on the part of the plaintiffs to perform their part of contract and non-examination of witness to Exhibit-4 and failing to record finding on all issues and the judgment is non-speaking one.

12. But, it appears that all these suggested questions relate to question of fact and not a question of law, not to speak of substantial question of law and to decide the same, this Court has to re-appreciate the evidence which is impermissible in second appeal unless perversity is demonstrated. And though a contention is being made that the finding of the learned courts are perverse, yet the same is not based upon any reason or logic.

13. And in view of the concurrent finding of facts by the learned trial Court as well as by the learned first appellate Court and also in absence of any ground giving raise to substantial question of law as suggested, and further considering the submissions of learned counsel for the appellants, this Court is of the view Page No.# 16/16

that no substantial questions of law as suggested by the learned counsel for the appellants, flow out from the impugned judgments and decrees, so passed by the learned courts below. It is well settled that concurrent finding of facts are binding upon this Court.

14. In the result, the memorandum of appeal is summarily rejected, leaving the party to bear its own cost.

JUDGE

Comparing Assistant