Page No.# 1/19 vs Sanjib Borthakur
2026 Latest Caselaw 2981 Gua

Gauhati High Court

Page No.# 1/19 vs Sanjib Borthakur on 31 March, 2026

                                                                       Page No.# 1/19

GAHC010191552025




                                                                2026:GAU-AS:4594

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

                                  Case No. : RSA/152/2025

            RAJIB BORTHAKUR AND ANR
            S/O LATE RAJINI BORTHAKUR,

            2: SMTI RULI BORTHAKUR

             W/O RAJIB BORTHAKUR
             BOTH 1 AND 2 ARE R/O MAIBELA 101 NO GRANT
             P.O. MAIBELA
             P.S. MATHURAPUR
             PIN 785689
             DIST. CHARAIDEO
             ASSAM

            VERSUS

            SANJIB BORTHAKUR
            S/O LATE RAJINI BORTHAKUR, ARE R/O MAIBELA 101 NO. GRANT, P.O.
            MAIBELA, P.S. MATHURAPUR, PIN 785689, DIST. CHARAIDEO, ASSAM.



Advocate for the Petitioner   : MR. S DASGUPTA, MR. S NATH

Advocate for the Respondent : ,




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         ORDER

31.03.2026 Heard Mr. S. Dasgupta, learned counsel for the appellant.

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2. This second appeal, under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 26.05.2025, passed by the learned Civil Judge (Senior Division), Charaideo, Sonari (First Appellate Court, for short), in Title Appeal No.04/2024. It is to be noted here that vide impugned judgment and decree order dated 26.05.2025, the learned first appellate court has dismissed the Title Appeal No. 04/2024 and thereby upheld the judgment and decree dated 26.04.2024 and 02.05.2024 so passed by the Civil Judge (Jr. Division) Chariedeo (herein after trial court), in Title Suit No. 14/2019.

3. Mr. Dasgupta, learned counsel for the appellant submits that the learned Courts below had committed an error by not appreciating the law of inheritance while deciding the right, title and interest of the suit premises and land, in respect of a joint undivided property originally belonging to the deceased father of the parties. He also submits that the learned courts below had disregarded mandatory legal provisions, in respect of allotment of land in question in favour of the respondent which was granted without following due process of law and that no notices was issued to the appellants and other members, who were in actual physical possession of the land in question at the relevant point of time of allotment of the land, which is a gross violation of the principle of natural justice. He also submits that the learned courts below had failed to consider that the appellant has been in long possession of the joint property originally owned and possessed by their father. Further submission of Mr. Dasgupta is that the learned courts below had failed to consider and appreciate the evidence, both documentary and oral so adduced by the appellant herein who had deposed that the present appellant No.1 has been residing in the Page No.# 3/19

suit premises since the life time of his deceased father, which was originally constructed by their father. He also submits that the impugned judgments and decrees are bad for perversity.

3.1. Mr. Dasgupta also submits that in the case in hand substantial questions of law are involved and the same are being suggested in the memo of appeal, and therefore, he has contended to admit this appeal and to issue notice to the respondent and to call for the record and thereafter, to hear and answer the substantial questions of law.

4. Having heard the submission of Mr. Dasgupta, this court has carefully gone through the memo of appeal and the suggested substantial questions of law and also gone through the impugned judgment and decree dated 26.05.2025, passed by the learned first appellate court, in Title Appeal No.04/2024, and also gone through the judgment and decree dated 26.04.2024 and 02.05.2024, so passed by the Civil Judge (Jr. Division) Chariedeo.

5. It is to be noted here that to avoid confusion and also for the sake of convenience, the status of the parties, as appeared in the Title Suit, before the learned trial court, is adopted herein.

6. Before a discussion is directed to the submissions advanced by Mr. Dasgupta, a brief reference to the background facts leading to the filing of the present appeal is found to be necessary and the same are adumbrated herein below:-

"The plaintiff is a recorded pattadar, having right, title and interest

over the land measuring 1B-2K-10L, covered by Dag No. 132 of periodic patta No. 76, situated at 101 No. Grant, Maibella, Mouza-

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Silakuti, District- Charaideo. His father, namely, Sri Rajani Borthakur was an employee of Mathurapur T.E., where he was allotted a company's quarter. The entire family of Sri Rajani Borthakur, comprising of his four sons, resided in the quarter. The plaintiff is the eldest son of Rajani Borthakur and he started doing contractual work in ASEB, Maibella since 1980. At that time he had occupied more or less one and half bigha land of Dag No. 46 (part) at 101 No. Grant, by cleaning jungles and he had built one L-pattern Assam type house thereon in the year 1981-82. In the year 1984, the father of the plaintiff retired from his service and after his retirement all his family members started to reside in the house, which was built by the plaintiff as the company's quarter had to be vacated on retirement. The L-pattern Assam type house is standing upon an area of OB-1K-10L out of 1B-2K-10L bearing P.P No. 76 and Dag No. 132(New) (old Dag No. 46). The father of the plaintiff suffered demise in the year 1995. In the year 2002 the defendant No.1 left the plaintiff's house along with his newly married wife and started living in a rented house. Thereafter, the revenue department of Govt. of Assam started to collect land revenue (Touzi Khajana) from the plaintiff for the land he occupied since 1985, and later on, the Govt. of Assam allotted the land to the plaintiff in the year 2008, measuring 1 Bigha bearing dag No. 46(part) of 101 No. Grant under Silakuti mouza. Thereafter, in the year 2012 the competent authority of Govt. of Assam issued annual Khiraj patta No. 58, in the name of plaintiff for 1B-2K-10L land bearing Dag No. 132(new) (old Dag No. 46) which includes Page No.# 5/19

the suit land and one another plot of land, measuring 1 bigha bearing Dag No. 122 (new) (old Dag No. 46) of 101 No. Grant, under Silakuti mouza. The land of annual Khiraj Patta, bearing Dag No. 122 and 132 have been converted to myadi patta land on payment of premium by the plaintiff and a new Myadi Patta No. 76 was allotted to him vide order dated 19/06/2013, of Revenue Circle Officer, Sonari.

The defendants in the year 2019-10, had approached the plaintiff and requested him to allow them to reside in a room of suit premises as they were in search of a plot of land to purchase in and around Mathurapur, to build a house of their own. The defendants assured the plaintiff that they would vacate the room on getting a suitable plot of land or on getting a suitable rented house at Mathurapur. Then considering the fact that the defendant No. 1 is his younger brother, the plaintiff allowed the defendants to reside in a room of his house, as permissive occupier, on the condition that he must vacate the room as and when the plaintiff so required, to which the defendants agreed.

Thereafter, the plaintiff had built another katcha house having C.I sheet roof upon Dag No. 122 of P.P. No. 76 of 101 No. Grant, situated at a distance of about 1 km from the suit premises in the year 2008 and shifted to the newly built house in the year 2010, to facilitate his children a peaceful environment for studies. Thereafter, the younger brother of the plaintiff, namely, Pradip and his mother expired in the year 2012 and 2013, respectively. Then, the plaintiff asked the defendant to vacate the room, as he along Page No.# 6/19

with his family desired to come back to the suit premises. The defendants then requested the plaintiff to allow him some more time as he had not found any suitable land to purchase or suitable rented house. In the last part of the year 2017, the plaintiff again asked the defendant to vacate the room/suit premises. The defendant again requested the plaintiff to allow him some more time. But, the plaintiff denied giving any further time as he had allowed more than sufficient time to search an alternative arrangement. The defendant, however, did not vacate the room even after repeated demand by the plaintiff and illegally occupied all the rooms of the house of the plaintiff. Thereafter, in the month of May, 2019, the defendants started to renovate two rooms of the suit premises by dismantling the old structure of the rooms, over which he has no right, title and interest and his motive is to grab the suit premises, and that they are permissive occupier in respect of one room within the suit premises, but they have illegally occupied the entire suit premises in the month of April, 2019.

Then the plaintiff had instituted the title suit praying for a decree for declaration that the plaintiffs have the right, title and interest over the suit premises, decree of khas possession of suit premises by evicting the defendants there-from, along with other reliefs.

The defendant No.1 had contested the suit by filing written statement. His stand is that the suit land was originally under possession of their father, Late Rajani Borthakur, since 1970 and he had paid Tauji Revenue till his death in the year 1995. And Late Page No.# 7/19

Rajani Borthakur was the father of 5 children, which includes the present plaintiff and the defendant and their mother was Bimoli Borthakur and their father was an employee of Mathurapur T.E.

Then in the year 1980, Late Rajani Borthakur began to construct a 'L' pattern pucca house and after completion, he shifted to the house standing on the suit land in the year 1982, along with his family including the plaintiff and the defendant. In the year 1983 the marriage of his daughter Smt. Mina Borthakur was solemnised in the house of the suit land and in the year 1994 one of his son Pranab Borthakur left the residence situated at the suit land and started to live in Sivasagar town. The plaintiff left the father's residence in the year 2008 and continues to live in another place at Maibela, out of the suit land. Thereafter, Prodip Borthakur, one of the sons of Late Rajani Borthakur, expired in the year 2012 and their mother Bimoli Borthakur expired in the year 2013.

After the death of Rajani Borthakur, Bimoli Borthakur continued to pay Tauji revenue for the suit land till her death. After the death of Bimoli Borthakur, the defendant continues to pay Tauji revenue for the suit land and continues the possession of the suit land along with his family. Then he had received a notice from the plaintiff on 13.03.2019, for vacating from the suit land. In his reply to the said notice he denied his title over the suit land.

Then on receipt of the summons for the present suit, the defendant inquired into the matter regarding title of the suit land Page No.# 8/19

and came to know that the suit land was converted to periodic patta No. 76 from annual patta No. 58 in the name of the plaintiff. Then the defendant had filed a petition No. 1204, on 12/02/2020, before the Deputy Commissioner, Charaideo for cancellation of annual patta No. 58 and periodic patta No. 76 which is pending for hearing. He had denied the title over the suit land as because the annual patta No. 58 and periodic patta No. 76 were issued in the name of the plaintiff illegally. He therefore, prayed to dismiss the suit with costs.

The suit proceeded ex-parte against the defendant No. 2 vide order dated 13.02.2020.

Thereafter, considering the pleadings of the parties, the learned trial court had framed following issues:-

(i) Whether there is cause of action for the suit?

(ii) Whether the suit is maintainable in the present form?

(iii) Whether the plaintiff has right, title, interest over the suit premises mentioned in the schedule?

iv) Whether the defendants are illegally occupying the suit premises?

(v) Whether the plaintiff is entitled to the relief or reliefs as claimed?

(vi) To what other relief/reliefs the parties are entitled to?

Thereafter, the learned trial court had examined one witness of the plaintiff and two witnesses of the defendant and thereafter, Page No.# 9/19

hearing arguments of both sides and considering the evidence, both oral and documentary, vide judgment and decree dated 26.04.2024 and 02.05.2024, respectively, had decided all the issued in affirmative in favor of plaintiff and decreed the suit of the plaintiff.

Then being aggrieved, the defendant had preferred Title Appeal No. 04/2024, before the learned first appellate court. Then hearing both the parties, the learned first appellate court had dismissed the appeal vide impugned judgment and decree dated 26.05.2025, and thereby affirmed the judgment and decree dated 26.04.2024 and 02.05.2024, so passed in Title Suit No. 14/2019, by the learned trial court.

And being aggrieved, by the impugned judgment and decree dated 26.05.2025, so passed by learned first appellate court in Title Appeal No. 04/2024, the defendant has approached this court by filing the present appeal.

7. Having heard the submission of learned counsel for the appellant, this Court has carefully gone through the memo of appeal and the documents placed on record and also perused the impugned judgment and decree dated 26.05.2025, so passed by the learned first appellate court in Title Appeal No. 04/2024, and also gone through the judgment and decree, dated 26.04.2024 and 02.05.2024, so passed in Title Suit No. 14/2019, by the learned trial court and also gone through the relevant provisions of law and also the suggested substantial question of law.

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8. It appears from the record that the core issues in the suit are the issues No. III and IV i.e. whether the plaintiff has right, title, interest over the suit premises mentioned in the schedule and whether the defendants are illegally occupying the suit premises. It also appears that both the learned courts below had recorded a concurrent finding of fact on both the issues, while deciding the same in favour of the plaintiff.

9. It appears that both the learned courts below, after discussing the oral and documentary evidence of both the parties, arrived at the aforesaid finding. Notably, the plaintiff had exhibited the following documents in support of his pleaded case:-

       (i)          Exhibit 1: Abonton Certificate.

       (ii)         Exhibit 2: Annual Khiraj Patta

       (iii)       Exhibit 3: Certified copy of Jamabandi.

       (iv)        Exhibit 4: Trace map.

       (v)         Exhibit 5(i) to 5(x): Land revenue paying receipts.

       (vi)        Exhibit 6: Approval letter of LAC meeting.

       (vii)      Exhibit 7: Approval letter of LAC meeting.

       (viii)     Exhibit 8: Reply of the defendants.

10. It is also to be noted here that the defendant had exhibited following documents in support of his pleaded case:-

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(i) Exhibit A- Affidavit.

       (ii)       Exhibit B- Newspaper.

       (iii)     Exhibit C- A Willnama.

       (iv)      Exhibit D- Land Revenue receipts.

       (v)       Exhibit E- Electricity bills.

       (vi)      Exhibit F- Copy of agreement for sale dated 10.06.2016.

11. It also appears that the learned courts below had found from the evidence and also from the exhibits that the plaintiff pleaded that he is the recorded pattadar of the suit land. He had occupied approximately one and a half bighas of land at Dag No. 46 at 101 Grant, by cleaning jungles in the year 1980 and thereafter, he built an Assam Type L pattern house in the year 1981-1982, wherein his father along with other family members started to reside after retirement of his father in the year 1984. He paid Touji Khajana to the revenue department and thereafter, the Govt. of Assam allotted 1 bigha land bearing Dag No.46 to the plaintiff in the year 2008 and in the year 2012 Annual Patta No. 58 was issued in the name of plaintiff for 1B-2K-10L land bearing Dag No. 132(new) (old Dag No. 46) which includes the suit land and another plot of land measuring 1 bigha bearing Dag No. 122 (new) (old Dag No. 46) of 101 No. Grant, under Silakuti mouza. The land of annual Khiraj Patta bearing Dag No. 122 and 132 have been converted to myadi patta land on payment of premium by the plaintiff and a new Myadi Patta No. 76 was allotted vide order dated 19/06/2013, of Revenue Circle Officer, Sonari. The plaintiff had exhibited Page No.# 12/19

the allotment order as Ex-1, Annual Khiraj patta as Ex-2 and the Jamabandi of the suit land as Ex-3 in support of his contention.

12. The first appellate court also found that the defendant had denied that the suit land belonged to the plaintiff and stated that their father was the owner of the suit land and the suit house was constructed by the father of the plaintiff and the defendant, Late Rajani Barthakur. However, the defendant has not denied that a myadi patta was issued to the plaintiff, but stated that the said patta was illegally issued and they have already filed an application before the competent authority to cancel the same. However, the learned court below had found that since it is admitted that the patta has been issued in the name of the plaintiff and the patta being a document of title, it had found that the plaintiff is a recorded pattadar of the suit land.

13. The learned courts below also found that the main plea of the defendant in the appeal was that the house, over the same, was constructed by Late Rajani Barthakur, who is the father of the plaintiff and defendant and not by the plaintiff and as such even if the plaintiff is the owner of the suit land he is not the owner of the suit house. However, the learned courts below had found that the plaintiff had testified that he has constructed the house in 1981-82 and though the defendant had claimed that the plaintiff had admitted in his cross examination that he was busy in studies till 1984 and as such it is very unlikely that the plaintiff had constructed the L pattern house, yet from a perusal of the cross-

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examination of the plaintiff, it had found that the plaintiff stated that in 1976 he appeared in the Matric examination and that he has been paying Touji revenue since 1980-81 and from the testimony of plaintiff, it had found that the plaintiff was more than 18 years of age in the year 1980-81 and was capable of holding property. So, the mere statement of the plaintiff that he was busy in studies till 1984, was found to be insignificant and the same doesn't prima facie establish that he had not constructed the house in the year 1981-82, if the same is otherwise proved.

14. The learned first appellate court had also found that the evidence on record reveals that the plaintiff testified that he built the suit house over the suit land and such testimony could not be impeached during cross- examination. On the other hand, the defendant, though pleaded that the suit land belonged to Late Rajani Barthakur, he could not adduce any evidence to that effect. Rather, from the testimony of the plaintiff and from the documents exhibited by him, established that the suit land was allotted to the plaintiff and thereafter annual patta and subsequently a periodic patta was issued in his name and the suit patta is still stands in the name of the plaintiff and as such from the testimony of the plaintiff and the documents it is established that the plaintiff has right title interest over the suit premises including the suit land.

15. The learned first appellate court had also found that though a contention was being made by the defendant that though the suit land may belong to the plaintiff, however, the suit house was constructed by the father of the plaintiff and defendant, yet no evidence could be lead to demonstrate that the suit house was constructed by the father of the plaintiff and defendant, and on the other hand, the plaintiff had proved that Page No.# 14/19

he occupied the suit land and constructed the house and thereafter the land was allotted in his name. The learned first appellate court also found that the defendant had exhibited some documents which were beyond the pleadings and as such, the same cannot be considered in absence of pleadings. Thereafter the learned first appellate court had recorded that the plaintiff has right, title and interest over the suit premises.

16. The learned first appellate court had also found that since plaintiff has right, title and interest over the suit premises and defendant is possessing the suit land even after receiving the notice of eviction from the plaintiff, who has the right, title and interest it had recorded a finding that the defendants have been illegally occupying the suit premises. Thus, it had decided the core issues in affirmative in favour of the plaintiff.

17. It is also to be noted here that in the memorandum of appeal the appellant has suggested following substantial questions of law:-

(i) Whether the Ld. Courts below have committed error by not appreciating the Law of inheritance while deciding the right, title and interest of the suit premises and land in respect of a joint undivided property originally belongs to deceased father?

(ii) Whether Court's below disregarded mandatory legal provisions in respect of allotment of land in question in favour of the respondent which was granted without following due process of law.

(iii) Whether without serving proper notices upon the appellants and other members who were in actual physical possession of the land in question at the relevant point of time of allotment of the Page No.# 15/19

land which is gross violation of natural justice.

(iv) Whether the Ld. Courts below have committed wrong by not appreciating the question of long possession of joint property originally owned and possessed by the father of the plaintiff and defendant No.1?

(v) Whether the Ld 1st Appellate Court and Trial Court were erred in Law by not considering and appreciating the evidence of D.W.S, wherein it was deposed that the defendant No.1 i.e., the present appellant No.1 has been residing in the suit premises since the life time of his deceased father, which was originally constructed by their father?

(vi) Whether the Ld. Trial Court as well as 1"

appellate Court have committed wrong by not considering and appreciating the documentary evidence exhibited by the defendant No.1 i.e., the present appellant and failed to interprete the exhibited documents in respect of the suit premises and thereby arrived at an erroneous decision?

(vii) Whether the said Impugned Judgements and Decree are bad for perversity?

(viii) Whether findings of the Court's below are based on no evidence or is perverse?

18. However, while the aforesaid suggested substantial questions of law and also the submission of Mr. Dasgupta, the learned counsel for the appellant and also the finding so recorded by the learned first appellate court, as discussed herein above, are examined in the light of given facts Page No.# 16/19

and circumstances on the record, this court is of the opinion that none of the suggested substantials question of law appears to be involved in this appeal. Nothing could be demonstrated that the findings so recorded by the learned appellate court and also by the learned trial court are perverse. The findings so recorded by both the learned court below are based on the evidence on record and proper appreciation of the facts and legal propositions. While the plaintiff had successfully demonstrated the right, title and interest with his exhibits more specially the Exhibit-1, which shows that the suit land was allotted to him and thereafter annual patta, Exhibit-2 was issued to him and the copy of jamabandi, Exhibit-3 with a note that Annual Kheraj Patta No. 58 has been converted to periodic patta No. 76, and approval letter of LAC meeting, being Exhibit-6 and 7 and the revenue payment receipt being Exhibit 5(i) to 5(x) had supported the claim of the plaintiff. On the other hand the defendant could not establish his case by his evidence and documents exhibited by him. nothing is also placed on record either to suggest that the suit property was acquired by the father of the plaintiff and defendant to apply the law of inheritance also.

19. Further, there is a concurrent finding of facts by both the learned courts below and the same is binding upon this Court unless a perversity in the finding is demonstrated. Sitting in second appeal, this Court is not entitled to re-appreciate the evidence. Reference in this context can be made to the following decisions of Hon'ble Supreme Court :-

(i)Santosh Hazari v. 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 Page No.# 17/19

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 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 Page No.# 18/19

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 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 Page No.# 19/19

arrived at by the courts below are binding on the High Court."

20. 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 appellant, this Court is of the view that no substantial question of law, as suggested by the learned counsel for the appellants, flows out from the impugned judgments and decrees, so passed by the learned courts below. The concurrent finding of facts, so recorded by both the learned courts below, are binding upon this Court, while no perversity could be demonstrated.

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

JUDGE

Comparing Assistant