Gauhati High Court
RSA/50/2025 on 4 August, 2025
GAHC010010632025
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
RSA No. 50/2025.
1. Matiar Rahman,
S/o Late Abdul Hoque Sarkar,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
2. Saukat Ali @ Showkat Ali,
S/o Matiar Rahman,
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
3. Farhad Ali,
S/o Matiar Rahman,
Vill. - Sariyatpur, P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
4. Ibrahim Khan,
S/o Nayan Khan,
Vill. - Sariyatpur, P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
5. Fakar Uddin,
S/o Late Sabed Ali,
Vill. - Digjani,
Presently residing at Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
Page 1 of 24
...... Appellants/Defendants.
-Versus-
1. Golam Mustafa,
S/o Abdul Rezzaque,
Vill. - Sariyatpur, P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
2. Safiqul Islam,
S/o Abdul Rezzaque,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
3. Rousanara Khatun,
D/o Shah Alom,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
...... Respondents/Plaintiffs.
4. Ikbal Farid,
S/o Abdul Kader,
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
5. Jaherul Islam,
S/o Abdul Kader,
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
6. Mujahidul Islam,
S/o Abdul Kader,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
Page 2 of 24
Pro-forma Respondents/Pro-forma Defendants.
7. Lal Khan,
S/o Nayan Khan,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
8. Nasir Uddin Ahmed,
S/o Late Afaz Uddin,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
9. Abdul Basit,
S/o Late Ajgar Ali,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
10. Jalal Khan,
S/o Abdul Khan,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
11. Taij Uddin,
S/o Sabed Ali,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
12. Saidur Rahman,
S/o Abdus Salam,
Vill. - Sariyatpur,
P.O. - Showpur, P.S. - Kalgachia,
Dist. - Barpeta, PIN - 781301.
13. Sanowar Hussain,
S/o Abdus Salam,
Page 3 of 24
Vill. - Sariyatpur, P.O. - Showpur,
P.S. - Kalgachia, Dist. - Barpeta,
PIN - 781301.
...... Pro-forma Respondents/ Defendants.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellants :- Mr. M.K. Sarma.
Date of Hearing :- 04.08.2025.
Date of Order :- 04.08.2025.
ORDER
Heard Mr. M.K. Sarma, learned counsel for the appellants.
2. In this appeal, under Section 100 of the CPC, the appellants have put to challenge the correctness or otherwise of the judgment dated 24.10.2024 and decree dated 05.11.2024, passed by the learned Additional District Judge, Barpeta (first appellate court hereinafter), in Title Appeal No. 07/2020.
3. It is to be noted here that vide impugned judgment, dated 24.10.2024, and decree, dated 05.11.2024, the learned first appellate Court had dismissed the Title Appeal No. 07/2020 and thereby affirmed the judgment and decree, dated 26.02.2020, passed by the learned Civil Judge, Barpeta (trial court hereinafter), in Title Suit No. 51/2014, whereby the learned trial Court had decreed the suit in favour of the plaintiffs.
Page 4 of 244. Herein, the status of the parties, as indicated in the Title Suit No. 51/2014, is adopted for the purpose of convenience and to avoid confusion.
Background Facts:-
5. The background facts, leading to filing of the present appeal, are adumbrated herein below:-
"The respondents herein, as plaintiffs, had instituted one title suit, being Title Suit No. 51/2014, praying for amongst other:-
(a) Decree for declaration that the 'A-1' schedule land is a part of 'A' schedule land; the 'B-1' schedule land is a part of 'B' schedule land;
the 'C-1' schedule land is a part of 'C' schedule land; the 'D-1' schedule land is a part of 'D' schedule land; and the 'E-1' schedule land is a part of 'E' schedule land, which the plaintiff No. 3, namely Roushanara Khatun purchased the 'A-1' schedule land within the 'A' schedule land; the plaintiff Nos. 1 & 2, namely Golam Mustafa and Safiqul Islam purchased the 'B-1' schedule land within the 'B' schedule land; plaintiff Nos. 1 & 2, namely Golam Mustafa and Safiqul Islam purchased the 'C-1' schedule land within the 'C' schedule land; the plaintiff No. 1, namely Golam Mustafa purchased the 'D-1 schedule land within the 'D' schedule land; the plaintiff No. 1, namely Golam Mustafa purchased the 'E-1' schedule land within the 'E' schedule land.
(b) Decree for declaration of right, title and interest of the plaintiff No. 3, namely Roushanara Khatun over the 'A-1' schedule land Page 5 of 24 within the 'A' schedule land; the plaintiff Nos. 1 & 2, namely Golam Mustafa and Safiqul Islam over the 'B-1' schedule land within the 'B' schedule land; the plaintiff Nos. 1 & 2, namely Golam Mustafa and Safiqul Islam over the 'C-1' schedule land within the 'C' schedule land; the plaintiff No. 1, namely Golam Mustafa over the 'D-1' schedule land within the 'D' schedule land; the plaintiff No. 1, namely Golam Mustafa over the 'E-1' schedule land within the 'E' schedule land.
(c) Decree for declaration that the main defendants have no any manner of right, title and interest over the 'A-1' schedule land within the 'A' schedule land, over the 'B-1' schedule land within the 'B' schedule land; over the 'C-1' schedule land within the 'C' schedule land; over the 'D-1' schedule land within the 'D' schedule land; and over the 'E-1' schedule land within the 'E' schedule land.
(d) Decree for declaration that on 25.04.2014, the main defendant Nos. 1 - 6 illegally and forcefully dispossessed the 'A-1' schedule land; the main defendant Nos. 6 & 7 illegally and forcefully dispossessed the 'B-1' schedule land; the main defendant Nos. 9 & 10 illegally and forcefully dispossessed the 'C-1' schedule land; the main defendant Nos. 11 & 12 illegally and forcefully dispossessed the 'D-1' schedule land; and the main defendant No. 7 illegally and forcefully dispossessed the 'E-1' schedule land. Therefore, the main defendants can be treated as the mere trespassers of the 'A-1', 'B-1', 'C-1', 'D-1' and 'E-1' schedule land within the 'A', 'B' 'C', 'D' and 'E' schedules land respectively Page 6 of 24 and accordingly, the main defendants are liable to be evicted from the 'A-1', 'B-1', 'C-1', 'D- 1' and 'E-1' schedules land within the 'A', 'B', 'C', 'D' and 'E' schedules land respectively, removing any structure and structures there from and to deliver the khas possession in favour of the plaintiffs respectively.
(e) Decree for permanent injunction restraining the main defendants to re-enter into the 'A-1', 'B- 1', 'C-1', 'D-1' and 'E-1' schedule land within the 'A', 'B', 'C', 'D' and 'E' schedules land respectively, creating any obstruction and disturbance of peaceful enjoyment of the plaintiffs after so eviction.
(f) Decree for any other relief or reliefs in favour of the plaintiffs and cost against the defendants.
The case of the plaintiffs is that one Nripendra Nath Ray was the original pattadar of a plot of land measuring 1 Bigha 0 Katha 0 Lecha, covered by Dag No. 127 (old) 616 (New); 1 Bigha 0 Katha 0 Lecha, covered by Dag No. 124; 3 Bighas 1 Katha 15 Lechas, covered by Dag No. 170 (old) 640 (new); 1 Bigha 2 Kathas 10 Lechas, covered by Dag No. 127 (old) 605 (new); and 0 Bigha 4 Kathas 0 Lecha, covered by Dag No. 127 (old) 615 (new) of periodic patta No. 79, at village Saryiatpur, under Titapani Mouza, P.S. - Kalgachia, within the district of Barpeta.
The aforesaid plot of land is described as schedule -„A‟ - „E‟ respectively in the plaint. Said Nripendra Nath Ray died leaving behind his legal heirs, namely, Samarendra Kr. Ray, Page 7 of 24 Ramendra Kr. Ray, Bhupendra Kr. Ray, Amarendra Kr. Ray, Atindra Kr. Ray and Somendra Kr. Ray. After the death of Nripendra Nath Ray, the names of his legal heirs were mutated vide order dated 24.06.2013.
Thereafter, the legal heirs of Nripendra Kr. Ray sold 1 Bigha 0 Katha 0 Lecha of land, out of schedule 'A' in favour of plaintiff No. 3, vide registered Sale Deed No. 989, dated 29.11.2013, which is described as schedule 'A-1' land. Another plot measuring 1 Bigha 0 Katha 0 Lecha of land, out of schedule 'B' has been sold in favour of plaintiff Nos. 1 & 2, vide registered Sale Deed No. 992, dated 29.11.2013, which is described as schedule „B-1' land. Those legal heirs of Nripendra Kr. Ray also sold 1 Bigha 2 Kathas 5 Lechas of land, out of schedule 'C' land in favour of plaintiff Nos. 1 & 2, vide registered Sale Deed No. 992, dated 29.11.2013, which is described as schedule 'C-1' land. Similarly, 1 Bigha 2 Kathas 10 Lechas of land, out of schedule 'D' land has been sold in favour of plaintiff No. 1, vide Sale Deed No. 993, dated 29.11.2013, which is described as schedule 'D-1' and another plot of land measuring 0 Bigha 4 Kathas 0 Lecha of land out of schedule 'E' land has been sold in favour of plaintiff No. 1, vide Sale Deed No. 993, dated 29.11.2013, which is described in schedule 'E- 1'.
After purchase, all the three plaintiffs, being the brothers and sisters, through their common parents have been enjoying their purchased land being a common property. As such, the Page 8 of 24 main defendants have no right, title and interest over the schedule A-1, B-1, C-1, D-1 and E-1 land. But, suddenly on 25.04.2014, main defendant Nos. 1 - 6 along with their fellow men entered into the schedule „A-1‟ land and illegally and forcefully dispossessed the plaintiff No. 3 from the said land and started to cultivate over it; the main defendant Nos. 6 & 7 along with their fellow men entered into „B-1‟ schedule land and illegally and forcefully dispossessed plaintiff Nos. 1 & 2 and occupied it as well as started to cultivate over the same; the main defendant Nos. 9 & 10 along with their fellowmen entered into „C-1‟ schedule land and illegally and forcefully disposed plaintiff Nos. 1 & 2 and occupied the same and also started cultivation over it; the main defendant Nos. 11 & 12 along with their some fellowmen entered into „D-1‟ schedule land, whereas the main defendant No. 7 along with some fellowmen entered into „E-1‟ schedule land and illegally and forcefully dispossessed plaintiff No. 1 and occupied it and started to cultivate over the same.
The plaintiffs had made several requests to vacate the said land, but, the defendants denied to vacate the same and therefore, the plaintiffs had approached the learned trial Court, by filing Title Suit No. 51/2014, for declaration of right, title and interest of the plaintiffs along with consequential reliefs.
The defendant Nos. 1 - 10 had filed their written statements and challenged the maintainability of the suit on various counts. They had also denied the statements made in Page 9 of 24 the plaint and their stand is that the sellers of the plaintiffs being landlords of the suit land, who do not possess and cultivate the suit land and that they had been possessing the same through their tenants who have been paying share of crops of the land regularly. Accordingly, the suit land was settled by the Government with the occupancy tenants in the year 1971 by granting 'Rayati Khatian' and their names are recorded in the revenue records and they are recorded tenants as well as legal heirs and relatives of the recorded tenants.
Another stand taken by the defendants is that they had inquired and came to know that without issuing any notice to the recorded occupancy tenants and without following the procedure laid down by law, the Additional Deputy Commissioner, Barpeta passed several orders on 04.05.2013, arbitrarily.
Further stand of the defendants is that the said order does not extinguish the right of the defendants and that the plaintiffs had purchased the suit land from their land lords on papers and they have no right, title and interest to recover Khas possession of the suit land by evicting the occupancy tenants including the defendants.
The defendants had also stated that out of the suit land, covered by Dag No. 127, the Government had issued 'Rayati Khatian' in favour of Alfaz Mia for 1 Bigha 2 Kathas 5 Lechas; in favour of Kazimudin for 2 Bighas 0 Kahta 10 Lechas in one plot and 1 Bigha 2 Kathas 10 Lechas in another plot; in favour of Page 10 of 24 Intaz Ali for 15 Lessas; in favour of Zafar Ali for 3 Kathas 8 Lechas; in favour of Abdul Karim for 1 Katha 18 Lechas; in favour of Polu Mia for 2 Bighas 1 Katha 5 Lechas; and in favour of Hari Mia for 1 Bigha. Again out of the suit land covered by Dag No. 124, the Government issued Rayati Khatian in favour of Salim Mia for 1 Katha 2 Lechas and in favour of Hari Mia for 1 Bigha.
Another stand of the defendants is that they are tenants as well as legal heirs and near relatives of the recorded tenants and are possessing the suit land by cultivating and residing in the suit land by constructing their residential houses therein and that neither the sellers of the plaintiffs were in possession of the suit land nor the plaintiffs obtained possession of the suit land at any point of time. As such, according to them, the suit is devoid of merit and is liable to be dismissed.
Upon the aforesaid pleadings of the parties, the learned trial Court had framed following issues for determination:-
(i) Whether there is any cause of action for the plaintiff's suit?
(ii) Whether the 'A-1' schedule land is a part of the 'A' schedule land and the 'B-1' schedule land is a part of the 'B' schedule land and the 'C-1' schedule land is a part of the 'C' schedule land 'D-1' schedule land is a part of the 'D' schedule land and 'E-1' schedule land is a part of the 'E' schedule land?
(iii) Whether the plaintiff No. 3, namely Roushanara Khatun purchased the 'A'-1' schedule land and Page 11 of 24 the plaintiff Nos. 1 & 2, title and interest upon the 'C-1' schedule land and the plaintiff No. 1 namely Golam Mustafa has right, title and interest upon the 'D-1' schedule land and plaintiff No. 1, namely Golam Mustafa has right, title and interest over the 'E-1' schedule land?
(iv) Whether the plaintiff No. 3, namely Roushanara Khatun has right, title and interest upon the 'A-1' schedule land and the plaintiff Nos. 1 & 2, namely Golam Mustafa and Safiqul Islam have right, title and interest upon the 'B-1' schedule land and the plaintiff Nos. 1 & 2, namely Golam Mustafa and Safiqul Islam have right, title and interest over the 'C-1' schedule land and the plaintiff No. 1, namely Golam Mustafa has right, title and interest over the 'D-1' schedule land and plaintiff No. 1, namely Golam Mustafa has right, title and interest over the 'E-1' schedule land?(v) Whether the main defendant Nos. 1 - 6
illegally and forcefully dispossessed the 'A-
1' schedule land the main defendant Nos. 6 & 7illegally and forcefully dispossessed the 'B- 1' schedule land the main defendant Nos. 9 & 10 illegally and forcefully dispossessed the 'C-1' schedule land, the main defendant Nos. 11 & 12 illegally and forcefully dispossessed the 'D-1' schedule land and the main defendant No. 7 illegally and forcefully dispossessed the 'E-1' schedule land on 25.04.2014?
(vi) Whether the order of the Additional Deputy Commissioner, Barpeta, dated 04.05.2013, is ultra-vires and is inoperative in the eye of law?
Page 12 of 24(vii) Whether the main defendants can be treated as the mere trespassers of the 'A-1', B-1', C-1, D-1 and E-1 schedule land within the 'A', 'B', 'C', 'D' and 'E', schedule land respectively?
(viii) Whether the main defendants are liable to be evicted from the 'A-1', 'B-1', 'C-1', 'D-1' and 'E-1' schedule land within the 'A', 'B', 'C', 'D' and 'E' schedule land respectively removing any structure and structures there from and to deliver the khas possession in favour of the plaintiffs respectively?
(ix) Whether the plaintiff is entitled to a decree as prayed for?
(x) To what relief(s) the parties are entitled?
Thereafter, recording evidence and hearing both the parties, vide judgment and decree dated 26.02.2020, the learned trial Court decreed the suit by granting following reliefs:-
(a) It is declared that plaintiff No. 3 has right, title and interest over schedule 'A-1' land;
plaintiff Nos. 1 & 2 have right, title and interest over schedule 'B-1' and 'C-1' land and plaintiff No. 1 has right, title and interest over scheduled 'D-1' and 'E-1' land.
(b) It is declared that defendants are mere trespasser over schedule 'A-1' to schedule 'E- 1' land and they are liable to be evicted removing structures etc. therefrom.
(c) Permanent injunction is granted against the defendants from entering and creating Page 13 of 24 disturbance in the suit schedule 'A-1' to 'E- 1' land.
(d) Cost of the suit.
Then, being aggrieved, the appellants herein had preferred an appeal, being Title Appeal No. 07/2020, challenging the judgment and decree, so passed by the learned trial Court. The learned first appellate Court, had formulated four points for determination:-
(i) Whether the learned trial court had rightly decided the issue Nos. 3 & 4, wherein the learned trial court had held that the plaintiffs have the right, title and interest over the suit land?
(ii) Whether the learned trial court had rightly decided the issue No. 6, wherein the learned trial Court had held that the defendants do not have the locus standi to challenge the cancellation of the Rayati Khatians as they are not the occupancy tenants or their successors and that the same cannot be held to be ultra vires?
(iii) Whether the learned trial court had rightly decided the issue Nos. 5, 7 & 8, wherein the learned trial court had held that the defendants are merely trespassers and liable to be evicted from the suit land? and
(iv) Whether the learned trial court had rightly decided the issue Nos. 1, 2, 9 & 10?
Thereafter, hearing both the parties and considering the facts and circumstances on the record, the learned first Page 14 of 24 appellate Court, vide judgment dated 24.10.2024, and decree dated 05.11.2024, had dismissed the appeal with cost."
Being aggrieved, the appellants herein preferred this regular second appeal under Section 100 of the CPC.
Submission:-
6. Mr. Sarma, learned counsel for the appellants submits that both the learned courts below while dealing with the factum of possession had recorded a perverse finding and that at no point of time, the plaintiffs were in possession of the suit land and the allegation of dispossessing of the plaintiffs, by the defendants, is a false contention. Mr. Sarma further submits that the appellants herein had file one petition, under Order 41 Rule 27 of the CPC for allowing them to adduce additional evidence, being Petition No. 1146/2023. But, the said petition was dismissed by the learned first appellate Court separately, vide order dated 24.10.2024, and that the grounds for rejection of the aforesaid petition are not at all tenable. And therefore, the present appeal is preferred by suggesting following substantial questions of law:-
(i) Whether the learned courts below was wrong in declaring and confirming the right, title and interest of the respondents/plaintiffs over the suit land in absence the proof of Exhibit Nos. 6, 7 & 8 (i.e. the Sale Deed No. 989/13, 992/13 and 993/13) in accordance with Section 65 of Evidence Act (Now Section 60 of Bharatiya Sakshya Adhiniyam, 2023)?
(ii) Whether the learned first appellate court was wrong in dismissing the petition No. Page 15 of 24 1146/2023, filed under Order 41 Rule 27 of the CPC, while the un-demolished possession of the appellants over the suit land, which also contradicts the delivery of possession in terms of Exhibit Nos. 6, 7 & 8 is sustainable?
(iii) Whether the learned courts below was wrong in discarding the Exhibit Nos. A, B, C & D (i.e. Rayati Khatians), which derives the possession of the appellants/defendants over the suit land and also contradicts the delivery of possession of the suit land in terms of Exhibit Nos. 6, 7 & 8 and thereby, the impugned judgment and decree is sustainable?
(iv) Whether the learned courts below was wrong in not dealing with Sections 58 & 65 of Limitation Act, 1963 and the provision of Assam (Temporarily Settled Areas) Tenancy Act, 1971 particularly Section 19 of the said Act while affirming the judgment and decree of the learned trial court?
(v) Whether the findings of the learned courts below are perverse to the extent of the findings about the possession of the appellants/defendants over the suit land and thereby, the same is sustainable?
6.1. Mr. Sarma has referred following case laws of Hon‟ble Supreme Court in support of her submission :-
(i) Mehrunnisa (Smt) and Others vs. Visham Kumari (Smt) and Another, reported in (1998) 2 SCC 295;
and Page 16 of 24
(ii) Kulwant Kaur and Others vs. Gurdial Singh Mann (dead) by LRS. and Anothers, reported in (2001) 4 SCC 262.
Findings of this court :-
7. Having heard the submission of Mr. Sarma, learned counsel for the appellants, I have carefully gone through the memo of appeal as well as the grounds mentioned therein and also gone through the impugned judgment, dated 24.10.2024 and decree dated 05.11.2024, passed by the learned first appellate Court, in Title Appeal No. 07/2020 and also gone through the judgment and decree dated 26.02.2020, passed by the learned trial Court, in Title Suit No. 51/2014 and also perused the case laws referred by Mr. Sarma.
8. That a perusal of the memorandum of appeal presented before this Court reveals that the appellant had not mentioned any grounds for appeal. It had only mentioned the suggested substantial question of law. There is no whisper about the grounds giving raise to substantial question of law.
9. It appears that in respect of the pleading of the parties relating to right, title and interest of the plaintiffs over the suit land, the learned trial Court, had framed the issue No. 4, and from the evidence so led by the parties, had arrived at a finding that the plaintiff Nos. 1, 2 & 3 have purchased their respective plots of land viz. schedule „A-1‟ to schedule „E-1‟, from the rightful owner and as such, they have right, title and interest over their respective purchased plots of land.
Page 17 of 249.1. Further, it appears that while dealing with issue Nos. 5, 7 & 8, the learned trial Court had held that in the light of the evidence on record, it appears that the defendants are not legal heirs of the Rayoti Khatian Holders nor they claim their right, title and interest through the original pattadar directly over the suit land and as such, it is candidly clear that they have no right, title and interest over the suit land. The learned trial Court also held that during the cross- examination, DW-2 and DW-5 stated that they know schedule „A-1‟ land, which is occupied by defendant Nos. 1 - 6; schedule „B-1‟ land is occupied by defendant Nos. 6 & 7; schedule „C-1‟ land is occupied by defendant Nos. 9 & 10; and schedule „D-1‟ land is occupied by defendant Nos. 11 & 12. The DW-2 also stated that schedule „E-1‟ land is occupied by defendant No. 7. Thereafter, the learned trial Court went on to record that it is an admitted fact that the plaintiff Nos. 1, 2 & 3 have purchased schedule „A-1‟ to „E-1‟ land by registered sale deed from the rightful owners, whereas defendant Nos. 1 - 7 and 9 - 12 are occupying the said land without any right, title and interest whatsoever and as such, they are not only mere trespassers but also liable to the evicted there from. Thereafter, decided the said issues in affirmative.
10. And from a perusal of the impugned judgment of the learned first appellate Court, in respect of issue Nos. 5, 7 & 8, had held that the suit land originally belonged to one Nripendra Nath Ray and after his death, the same was developed by his legal heirs and thereafter, the plaintiffs have purchased the same vide registered sale deed and thereafter, it had held that the plaintiffs have the right, title and interest over the suit land.
Page 18 of 2410.1. The learned first appellate Court also held that though the defendants had contended that they and their predecessors are the occupancy tenants in respect of the suit land, yet, they have miserably failed to prove the same and therefore, the status of the defendants is nothing but that of a trespasser and as such, they are liable to be evicted.
10.2. Having examined the aforementioned finding of the learned trial Court as well as the learned first appellate Court, in the light of the submission of Mr. Sarma, learned counsel for the appellants and also in the facts and circumstances of the record, this Court is of the view that finding so recorded by the learned courts below, cannot be said to be perverse on account of misreading or misinterpretation of the evidence on record.
11. Though Mr. Sarma, learned counsel for the appellants, referring to the decision of Mehrunnisa (Supra), submits that the learned courts below had acted on an assumption not supported by any evidence in respect of possession and failed to consider the documents of the defendants, yet it appears that the present case is factually distinguishable from the said case. And as such, the ratio laid down in the said case would not be applicable in all force to the given facts and circumstances on the record of the present case. Besides, it is the pleaded case of the plaintiffs that the defendants had dispossessed them on 25.04.2014, from schedule „A-1‟, „B-1‟, „C- 1‟, „D-1‟ and schedule „E-1‟ land and started cultivation over the same.
Page 19 of 2412. It also appears that the learned first appellate Court had held that the present appellants are not the occupancy tenants and the Exhibit Nos. 6, 7 & 8, i.e. the Rayati Khatians, based on which the defendants have been claiming their right, title and interest and also claiming their possession of the suit land, yet, the same has already been cancelled, and the petition filed by the appellants, before the learned first appellate Court, under Order 41 Rule 27 of the CPC is also dismissed for adducing additional evidence. The finding so recorded appears to be based on the evidence so adduced by the parties and supported by the reason and the same seems to be not unreasonable or the result of non consideration of relevant evidence. The Rayati Khatians, based upon which the defendants had claimed the title over the suit land had already been cancelled by the revenue authority. And barring the same they had failed to produce any document to substantiate their claim of title over the suit land. And the same appears to be duly taken note of by both the learned courts below.
13. Thus, having examined the impugned judgment and decree so passed by the learned first appellate Court as well as learned trial Court, in the light of the submission of Mr. Sarma, learned counsel for the appellants, and also in the light of the given facts and circumstances on the record, this Court is of the view that no substantial questions of law, as suggested in by Mr. Sarma, flows out from the impugned judgment and decree so passed by the learned first appellate Court.
Page 20 of 2414. I have also gone through the other decision referred by Mr. Sarma, learned counsel for the appellants in Kulwant Kaur (supra) and I find that the said decision also would not come into his assistance since no element of perversity could be demonstrated by Mr. Sarma in the impugned judgment and decree.
15. Moreover, there is concurrent finding of facts by both the learned courts below. 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 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 Page 21 of 24 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 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 Page 22 of 24 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 arrived at by the courts below are binding on the High Court.‛
16. 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 Page 23 of 24 suggested, and further considering the submissions of learned counsel for the appellants, 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. It is well settled that concurrent finding of facts are binding upon this Court.
17. In the result, the memorandum of appeal is summarily rejected, leaving the party to bear its own cost.
JUDGE Comparing Assistant Page 24 of 24