[Cites 12, Cited by 0]
Gauhati High Court
Page No.# 1/16 vs Md Manik Sheikh And 4 Ors on 16 March, 2026
Page No.# 1/16
GAHC010256122025
2026:GAU-AS:3967
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/217/2025
ASMA KHATUN
WIFE OF MAHAMUD ALI, RESIDENT OF VILLAGE NO. 2 BALLIMARI, P.O.
AND P.S. PANBARI, IN THE DISTRICT OF CHIRANG, ASSAM.
VERSUS
MD MANIK SHEIKH AND 4 ORS.
SON OF OMEL SHEIKH, RESIDENT OF VILLAGE NO. 2 BALLIMARI, P.O.
AND P.S. PANBARI, IN THE DISTRICT OF CHIRANG, ASSAM.
2:TARABHAN BIBI
WIFE OF MANIK SHEIKH
RESIDENT OF VILLAGE NO. 2 BALLIMARI
P.O. AND P.S. PANBARI
IN THE DISTRICT OF CHIRANG
ASSAM.
3:MOJOR ALI
SON OF MANIK SHEIKH
RESIDENT OF VILLAGE NO. 2 BALLIMARI
P.O. AND P.S. PANBARI
IN THE DISTRICT OF CHIRANG
ASSAM.
4:MOIJAL HOQUE
SON OF MANIK SHEIKH
RESIDENT OF VILLAGE NO. 2 BALLIMARI
P.O. AND P.S. PANBARI
IN THE DISTRICT OF CHIRANG
ASSAM.
5:AHERET ALI
Page No.# 2/16
SON OF MANIK SHEIKH
RESIDENT OF VILLAGE NO. 2 BALLIMARI
P.O. AND P.S. PANBARI
IN THE DISTRICT OF CHIRANG
ASSAM
Advocate for the Petitioner : MR. S K ROY, MR. N. ISLAM,K RAHMAN
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 16.03.2026
Heard Mr. K. Rahman, learnedcounsel for the appellant.
2. This appeal, under Section 100 CPC, read with 151 CPC, is directed
against the Judgment and Decree, dated 28.08.2025, passed in the Title
Appeal No. 1 of 2025, by the learned Civil Judge, Sr. Division, Chirang,
Kajalgaon (herein after first appellate court).
3. It is to be noted here that vide impugned Judgment and Decree,
dated 28.08.2025, the learned Judgment and Decree, dated 28.08.2025,
the learned first appellate court had reversed the Judgment and Decree
dated 09.12.2024, so passed by the learned Civil Judge, Jr. Division,
Bijni(herein after trial court) in Title Suit No. 04/2023. It is also to be
noted here that vide Judgment and Decree dated 09.12.2024, the
learned trial court had decreed the suit of the appellant herein.
4. To avoid confusion and for the sake of convenience, the status of
the parties, as appeared in the Title Suit No. 04/2023, is adopted herein
this appeal.
Page No.# 3/16
5. The background facts leading to filing of the present appeal, is
briefly stated as under: -
"The appellant herein, as plaintiff, had instituted a title suit,
being Title Suit No. 04/2023, before the court of learned Civil
Judge, Jr. Division, Bijni for declaration of right, title and interest
upon the suit land, eviction of the defendants from the suit land
by demolishing structure and for permanent injunction against the
defendants.
The case of the plaintiff is that she is the lawful owner having
right, title and interest over a plot of land measuring 2 Bigha 1
katha 9 lechas situated at village No. 2 Bagidwara, covered by P.P.
No.6, Dag No. 44 under Bijni Revenue Circle, District - Chirang,
Assam. Said plot of land was separated from the old patta No.3
and new periodic patta No.6, vide order dated 29.07.2008. The
plaintiff is the absolute owner since then, without any
interference.
While the plaintiff was in peaceful possession, the
defendants, on 22.05.2020 forcefully entered into a small plot of 4
kathas, out of the said plot of land measuring 2 Bighas 1 katha 19
lechas. By encroaching into 4 kathas land, the defendants started
to cut down plantation on the said plot and also attempted to
construct a hut thereon. The plaintiff, on receipt of information,
came there and requested them not to do so and then the
defendants stopped construction. Thereafter, the defendants again
entered into the said plot of land on 31.12.2022 and cut down
trees and constructed a hut.
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Then being aggrieved the plaintiff had instituted the Title Suit
No. 04/2023, before the learned trial court. The defendants had
contested the suit by filing written statement. Amongst others, the
defendants had taken several stands, such as the suit is not
maintainable, and barred by limitation and bad for non-joinder of
parties, the suit is undervalued and proper court fees has not been
paid. The defendants also denied the statement and averment
made by the plaintiff in the plaint. It is also stated that the plaintiff
has not clarified the mode of acquiring her ownership upon the
land in question. It is also stated that the land measuring 4 kothas
out of land measuring 2 B-2K-7 Ls, has been possessing by the
defendant No.1 for more than 40 years from the period of his
father Omel Sheikh and the remaining plot of land was under the
possession Mahamud Ali, husband of the plaintiff.
Upon the pleadings of the parties the learned trial court had
framed following issues:-
(i) Whether there is cause of action of the suit?
(ii) Whether the suit is maintainable in its
present form?
(iii) Whether the suit is barred by limitation?
(iv) Whether the defendants have been in possession
of the suit land for more than 40 years?
(v) Whether the plaintiff has the right, title and
ownership upon the suit land?
Thereafter, examining 4 witnesses of the plaintiff and
considering 9 documents exhibited by her and also examining two
witnesses of the defendants and hearing both the parties, the
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learned trial court had decreed the suit of the plaintiff, declaring
her right, title and interest over the suit land, eviction of the
defendants from the suit land by demolishing structure and for
permanent injunction against the defendants.
Then being aggrieved, the defendants preferred an appeal
before the court of learned Civil Judge, Sr. Division, Chirang,
Kajalgaon, being Title Appeal No. 1 of 2025, on several grounds.
Then hearing both the parties and considering the materials
placed on record, the learned first appellate court had allowed the
appeal and reversed the finding so recorded by the learned trial
court and set aside the judgment and decree."
6. Being aggrieved,the plaintiff has preferred the present appeal on the
following grounds:-
(i) The certified copy of jamabandi and other documents, pertaining to
the whole plot, out of which, the suit land consists of only 4
kathas, there was no challenge to either at the stage of
conversion of Annual Patta No.6 and thereafter no claim,
counterclaim or challenge having been made, the appellate court
ought not to have reversed the findings and decision of the
learned trial court and that the plaintiff had discharged the initial
onus and the defendants have failed to discharge the burden so
shifted to them.
(ii) The learned appellate court was not justified in holding that the
certified copy of the jamabandi together with other relevant
revenue payment receipt are not evidence of ownership of the
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whole plot including the suit land by virtue of provisions of section
77 and 79 of the Indian Evidence Act.
(iii) The defendant having not been able to produced one such
documents in support of their claim of possession of the suit land,
which they claimed of having residential structure, the learned trial
courts finding ought not to have been reversed by the learned
appellate court.
(iv) The plaintiff's case, as made out in the plaint that on the suit land
there was plantation, the claim of the defendant of possession
was held to be not tenable by the learned trial court and the same
ought not to have been rejected by the learned appellate court.
(v) The learned appellate court ought not to have come to a
conclusion first as to that fact of failure of the defendant to rebut
the presumption of ownership of plaintiff on the basis of
jamabandi by the revenue authority in proceeding under the land
and Revenue Regulation and the defendants' claim was a
trespasser only.
7. Upon the aforesaid grounds, the appellant has suggested following
substantial question of law for admitting the appeal:-
"1. Whether the impugned judgment of the learned First
Appellate Court reversing the judgment and decree
of the learned Trial Court, without complying the
mandatory provisions of Order 41 Rule 31 of the
Code of Civil Procedure is correct or not?
2. Whether the Learned First Appellate Court committed
a substantial error of law by holding that the
certified copy of Jamabandi (Ext-1 & 2) has no
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evidentiary value for proving title, thereby
ignoring the presumption of genuineness attached
to it under Section 78 and its relevance as an
entry in a public record under Section 29 of the
Bharatiya Sakshya Adhiniyam, 2023 especially when
the Respondents-Defendants failed to rebut this
presumption or challenge the said Jamabandi before
any competent revenue authority?
3. Whether in absence of any challenge to the mutation
order, made before the any competent revenue
authority, Exhibit 1 & 2, the Jamabandi of the
Appellant/Plaintiff, attached under Section 40 &
41 of the Assam Land and Revenue Regulation, 1886
was carried the presumption to be correct and it
was carried the title and possession over the suit
land?
4. Whether the Learned First Appellate Court erred in
law by misinterpreting and misapplying the
principles of burden and onus of proof as
enunciated by the Hon'ble Supreme Court in Anil
Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, by
holding that the Appellant-Plaintiff failed to
discharge her initial onus, despite producing
unimpeached documentary evidence, in the form of
Jamabandi and land revenue receipts (Ext-1 to 9)?
5. Whether the findings of the Learned First Appellate
Court are perverse and legally unsustainable,
having been arrived at by reversing the findings
of fact of the Trial Court without demonstrating
that the Trial Court's conclusions were contrary
to the evidence on record or were based on no
evidence at all?
6. Whether the Learned First Appellate Court committed
a substantial error of law by non-suiting the
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Appellant-Plaintiff for not producing a registered
sale deed, while completely overlooking the
settled legal principle that in a suit for
eviction, a plaintiff with a better title, even if
possessory, is entitled to a decree against a
trespasser, who has no title whatsoever?
7. Whether the judgment of the Learned First Appellate
Court is vitiated by the non-consideration of
material documentary evidence, namely the land
revenue receipts (Ext-3 to 9), which corroborated
the Appellant's title and established her
continuous possession over the suit land?
8. Whether the Judgment and decree of the learned
First Appellate Court is vitiated because of
perverse appreciation of the materials on record?
9. Any other substantial questions of law that may be
formulated by the Hon'ble Court?"
8. Mr.Rahman, the learned counsel for the appellants submits that the
plaintiff, by exhibiting the certified copy of Jamabandi asExt.-1 & 2 and
the revenue payment receipts Ext.-3 to 9 has discharged her initial
burden in proving her case. But, the learned first appellate court relying
upon a decision of Hon'ble Supreme Court in Anil Rishi v. Gurbaksh
Singh, reported in (2006) 5 SCC 558, has erroneously reversed the
finding of the learned trial court by holding that the plaintiff failed to
discharge her initial onus, despite production of unimpeached
documentary evidence in the form of Jamabandi and land revenue
receipts. Mr. Rahman further submits that the learned first appellate
court had passed the impugned judgment in contravention of the
provision of Order 41 Rule 31 CPC and that the impugned judgment of
Page No.# 9/16
the first appellate court is perverse, legally unsustainable, for reversing
the findings of fact of the Trial Court without demonstrating that the Trial
Court's conclusions were contrary to the evidence on record or were
based on no evidence at all. Mr. Rahman also submits that presumption
of genuineness attached to Ext-1 & 2 and the revenue payment receipts
Ext. 3 to 9, under Section 78 and its relevance as an entry in a public
record under Section 29 of the Bharatiya Sakshya Adhiniyam, 2023
especially when the respondents-defendants failed to rebut this
presumption or challenge the said Jamabandi before any competent
revenue authority. Lastly, Mr. Rahman submits that the impugned
judgment and order of the learned first appellate court is vitiated by the
non-consideration of material documentary evidence, namely the land
revenue receipts from Ext-3 to 9, which supports the claim of the plaintiff
and under such circumstances Mr. Rahman has contended to admit this
appeal by framing the substantial question of law as suggested herein
above and to issue notice to the respondent and thereafter, to call for
record and thereafter, to decide the substantial question of law after
hearing both the parties.
9. Having heard the submission of Mr. Rahman, this court has carefully
gone through the memorandum of appeal, the suggested substantial
question of law and the impugned judgment and decree of the learned
first appellate court as well the judgment and decree so passed by the
learned trial court.
10. It is to be noted here that the mandatory requirement of Order 41
Rule 31 CPC, is that an appellate judgment, is to be in writing and state:
(a) points for determination,
Page No.# 10/16
(b) decision,
(c) reasons, and
(d) relief.
It is an obligation to ensure a detailed judgment that enables a self-
contained decree, particularly when reversing a trial court decision. It is,
however, well settled in catena of decision of Hon'ble Supreme Court
that failure to formally list points of determination does not automatically
invalidate a judgment if the court has adequately considered all crucial
aspects of the appeal. Reference in this context can be made to decision
of Hon'ble Supreme Court in Mrugendra Indravadan Mehta and
others vs. Ahmedabad Municipal Corporation, CIVIL APPEAL
NOs. 16956-16957 OF 2017.
11. In the instant case, a careful perusal of the impugned judgment of
the learned first appellate court, specially from para No.34, it appears
that the learned first appellate court had formulated as many as three
points for determination and thereafter, discussing the evidence and
considering the materials placed on record has recorded its findings in
para No. 45 to 47, with reasons. In that view of the matter, it cannot be
said that the mandatory requirement of Order 41 Rule 31 CPC has not
been complied with by the learned first appellate court in the impugned
judgment.
12. It also appears that the plaintiff had instituted the suit for
declaration of her right, title, interest and khas possession over 4 kathas
of land covered by P.P. No. 6, Dag No. 44 under Bijni Revenue Circle and
for eviction of the defendants therefrom and also for permanent
injunction. The learned trial court had decreed the suit of the plaintiff,
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granting the said relief(s), on the basis of the evidence adduced and
documents exhibited during trial by the plaintiff. It also appears that
while deciding the issues the learned trail court had relied upon the
certified copy of Jamabandi, being Ext.-1 & 2 and the revenue payment
receipts Ext.-3 to 9.
13. But, the learned appellate court has reversed the finding. It has
recorded that the law relating to the admissibility of jamabandi which is a
public document and the admissibility of the certified copy thereof and
the standard of proof required for conferring title. It has also recorded
that a certified copy of jamabandi is admissible under section 35 of the
Indian Evidence Act,1872 as an entry in a public record. It shows
presumptive ownership (notconclusive). The Courts recognize it as a
relevant document in determining possession or ownership, but it must
be corroborated by other evidence (like sale deed, inheritance etc.). The
contents need to be proved if the document is contested.The person
relying on the jamabandi must prove the basis of the entry. And that
revenue officials or original records may be summoned to verify the basis
of mutation and how and why the entry was made. The learned appellate
court had also relied upon some decisions of Hon'ble Supreme Court
inNarain Prasad Aggarwal -Vs- State ofM.Preported in AIR 2007
SC 3182, wherein it was held that revenue records are not a document
of title. Thereafter it had discussed the decision in Ravi Koraga -Vs-
Philip Fernandes, reported in 2023 SCC online KAR 4441, wherein
it was held that certified revenue records must be proved properly if
challenged. Thereafter, it has discussed the decision in Thakur Kishan
Singh -Vs- Arvind Kumar reported in AIR 1995 SC 73 (74),
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wherein Hon'ble Supreme Court held that entries in revenue record are
not proof of title. Without corroboration or original evidence (like a
registered sale deed), certified copy of jamabandi cannot independently
prove title.
13.1. Thereafter, the learned first appellate court has held that on
perusal of the case records, the documents placed for evidence and on
hearing the engaged counsels for both parties, it appears that in the
instant suit the plaintiff depends upon a piece of certified copy of
Jamabandi to proof her right, title and interest upon the suit land,
however, the plaintiff had failed to examine the concerned officials to
prove the aforesaid documents viz. Certified copy of jamabandi to prove
her ownership upon the suit land. The plaintiff also failed to show as to in
what manner she derived the suit land as there is no mention in the
jamabandi about the mode of acquiring title. Thereafter, it has held that
the learned trial court has erred in deciding the issues 4 and 5 and failed
to appreciate that the plaintiff had failed to establish her title and the
mode in which she had acquired the title.
13.2. The learned appellate court had also held that on one hand, the
plaintiff has claimed ownership upon the suit land measuring 2B-1K-19L,
situated at village No. 2 Bagidwara, covered by P.P. No. 6 Dag No 44,
under Bijni Revenue Circle and that as per order of the Circle Officer,
Bijni, the said plot of land was separated from old patta No 3 to New P.P.
No 6 vide order dated 29/07/2008, on the other hand the plaintiff as
PW1 during her cross-examination in para (6) stated that she
hadpurchased the land from four brothers including Abdul Goni and
Abdul Hanif but without any registered sale deed, for an amount of Rs
Page No.# 13/16
50,000/- and the plaintiff failed to produce and prove the unregistered
sale deed and solely based her claim on the basis of the certified copy of
jamabandi.
13.3. The learned first appellate court had also held that on perusal of
Ext 1, also it is seen that the suit land has been separated into Patta No.6
from Patta No.3, but it is not mentioned as to in what manner the land
was mutated in her name. P.W.2, has also stated that the suit land is his
own land and he purchased the land from one Goni of village, Howly, by
dint of an unregistered sale deed, in exchange of Rs.25,000/, but the
same has not been produced before the court.
13.4. Thereafter, the learned first appellate court went on to observe
that from the above discussion that it is seen that there is contradiction
in the statement of the plaintiff in her pleadings as well as in her cross-
examination, regarding her claim of the title upon the suit land. The
plaintiff had failed to establish her title and also failed to show as to how
she had derived the ownership upon the suit land.
13.5. The learned first appellate court, thereafter, held that though the
learned trial court had relied upon the judgment pronounced by the
Hon'ble Supreme Court of India regarding burden of proof in Anil
Rishi (supra), wherein in para 19 of the judgment it was held that:-
In terms of Section 102 the initial onus is always
on the plaintiff and if he discharges that onus and
makes out a case Which entitles him to a relief. the
onus shifts to the defendant to Prove those
circumstances, if any, which would disentitle the
Plaintiff to the same."
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Thereafter, the learned appellate court went on to observe that in the
instant case, the plaintiff had failed to discharge her burden of proving
her title upon the suit land. The plaintiff also failed to prove that the
defendants are trespassers to the suit land. Thereafter, it had observed
that the learned trial court, failed to appreciate the fact that the plaintiff
had taken contradictory pleas and had failed to establish her title, by
showing as to in what mode she had derived the title and the learned
trial court had decreed the suit of the plaintiffs/respondents, without
appreciating the pleadings of the parties by providing sufficient reasons
and the findings of the learned trial court are not based upon lawful
consideration and settled provisions of law and needs interference.
14. The finding, so recorded by the learnedfirst appellate court, while
examined in the light of the facts and circumstances on the record and
also in view of the settled position of law, this court is unable to record
concurrence with the submission of Mr. Rahman, the learned counsel for
the appellant.
15. It is well settled that the burden to prove a case, is always upon the
plaintiff. Section 102 of Evidence Act provides that the initial onus is
always on the plaintiff. And if she discharges that onus and makes out a
case which entitles her to a relief, the onus shifts to the defendant to
prove those circumstances, if any, which would disentitle the plaintiff to
the same. [See Anil Rishi (supra)]
15.1. In the instant case the plaintiff relied upon a piece of certified copy
of Jamabandi, i.e. Exhibit 1 & 2 and Exhibit 3 - 9, to prove her right, title
and interest upon the suit land. However, as observed by the learned first
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appellate court, she had failed to examine the concerned revenue
officials to prove the aforesaid documents viz. certified copy of jamabandi
to prove her ownership upon the suit land. She had also failed to show as
to how and in what manner she derived the title over the suit land. There
is no mention in the jamabandi also about the mode of acquiring title.
15.2. It is well settled that revenue records are not document of title, in
the case of Corporation of the City of Bangalore vs. M.
Papaiah and another, reported in (1983) 3 SCC 612, Hon'ble
Supreme Court has held as under:-
"It is firmly established that revenue records are not
document of title and the question of interpretation
of document not being a document of title is not a
question of law."
15.3. Again, in the case of the Guru Amrit Singh vs. Ratal Chand
and Others, reported in (1993) 4 SCC 349, Hon'ble Supreme Court
has held that the entries in jamabandi are not proof of title.
15.4. Further, in the cases, so discussed by the learned first appellate
court also, i.e. in Narain Prasad Agarwal (supra), Ravi Koraga
(supra) and Thakur Kishan Singh (supra), it is well settled that the
entries in revenue records are not proof of title and without corroboration
of original evidence, such as registered sale deed, certified jamabandi
cannot independently prove title.
15.5. Notably, in the instant case no such document is produced or
exhibited, by the plaintiff despite existence of the same. The material
piece of evidence is withdrawn for the reason best known to it. In that
view of the matter, by no stretch of imagination it can be said that the
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plaintiff had succeeded in discharging her initial burden so as to shift the
same to the defendants, as held in the case of Anil Rishi (supra).
16. Thus, in view of the given aforesaid facts and circumstances, this court is
unable to agree with the submission of Mr. Rahman, learned counsel for the
appellant. None of the suggested substantial question of law is found to be
involved in this appeal and accordingly, the same stands dismissed leaving the
party to bear their own cost.
JUDGE
Comparing Assistant
