Gauhati High Court
Page No.# 1/24 vs Rumi Banik on 19 December, 2025
Page No.# 1/24
GAHC010123492025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3719/2025
SMTI NIVA BANIKYA
D/O LATE TARINI CHARAN BANIKYA
W/O LATE BHUBAN DAS
RO RANI ABHAYESPARI PATH
WARD NO 11
ABHAYAPURI
PS ABHAYAPURI
DISTRICT BONGAIGAON
PIN 783384
2: SHRI MANDEEP DAS
S/O LATE BHUBAN DAS
RO RANI ABHAYESPARI PATH
WARD NO 11
ABHAYAPURI
PS ABHAYAPURI
DISTRICT BONGAIGAON
PIN 783384
3: SHRI PRANDEEP DAS
S/O LATE BHUBAN DAS
RO RANI ABHAYESPARI PATH
WARD NO 11
ABHAYAPURI
PS ABHAYAPURI
DISTRICT BONGAIGAON
PIN 783384
VERSUS
RUMI BANIK
WO SANKAR BANIK
DO LATE RABINDRA DEY
Page No.# 2/24
RO SWARUPANANDA ROAD
GOBINDAPOLLY
HOJAI
WARD NO 6
PO AND PS HOJAI
DIST HOJAI
ASSAM
PIN 782435
2:PHUKAN ADHIKARY
S/O LATE ARABINDA ADHIKARY
RO VILL BATABARI
WARD NO 11
PO AND PS ABHAYAPURI
DISTRICT BONGAIGAON
ASSAM
------------
Advocate for : MS A SAIKIA
Advocate for : MR. B J MUKHERJEE appearing for RUMI BANIK
Linked Case : RSA/236/2024
NIVA BANIKYA AND 2 ORS
W/O LATE BHUBAN DAS
RESIDENT OF WARD NO. 11
BATABARI
ABHAYAPURI TOWN
PO AND PS ABHAYAPURI
DIST BONGAIGAON
ASSAM 783384
2: SRI PRANDEEP DAS
S/O LATE BHUBAN DAS
RESIDENT OF WARD NO. 11
BATABARI
ABHAYAPURI TOWN
PO AND PS ABHAYAPURI
DIST BONGAIGAON
ASSAM 783384
3: SRI MANDEEP DAS
S/O LATE BHUBAN DAS
RESIDENT OF WARD NO. 11
BATABARI
Page No.# 3/24
ABHAYAPURI TOWN
PO AND PS ABHAYAPURI
DIST BONGAIGAON
ASSAM 783384
VERSUS
RUMI BANIK AND ANR
D/O LATE JITENDRA BANIKYA
W/O SANKAR BANIK
RESIDENT OF VILLAGE HOJAI
PO AND PS HOJAI
DIST NAGAON
ASSAM 782435
2:SRI PHUKAN ADHIKARY
S/O LATE ARABINDA ADHIKARY
RESIDENT OF BATABARI
PS ABHAYAPURI
DIST BONGAIGAON
ASSAM 783384
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Advocate for : MR JITENDRA DAS
Advocate for : MS R SAHA appearing for RUMI BANIK AND ANR
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 19.12.2025
1. Heard Ms. A. Saikia, the learned counsel for the applicants. Also heard Mr. D. Mazumdar, the learned senior counsel assisted by Mr. B. J. Mukherjee, the learned counsel for the respondent.
2. This Interlocutory Application has been filed by the applicants/appellants in connection with the RSA No. 236/2024 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 praying for amendment of Memorandum of Appeal in the RSA No. 236/2024.
3. The present applicants have filed the connected RSA No. 236/2024 Page No.# 4/24 herein they have impugned the judgment and decree dated 07.09.2024 passed in Title Appeal No. 17/2016 by the Court of learned Civil Judge (Senior Division), Bongaigaon whereby the judgment and decree dated 31.08.2016 passed in Title Suit No. 30/1998 was upheld by the First Appellate Court.
4. In the Memo of Appeal of the RSA No. 236/2024, the appellants have proposed the following substantial questions of law -
(i) Whether the findings of both the learned trial as well as the first appellate courts are perverse in holding that the plaintiff No.2 has right, title and interest over schedule "C" Land by virtue of the sale deed No. 1214/1998 and 1215/1998, without there being any pleading in the plaint that the plaintiff No. 1 has sold the Schedule "C" Land to the plaintiff No.2 by the said sale deed.
(ii) Whether the findings of both the learned trial as well as the first appellate court below are perverse in holding that the Exhibit No.2 Gift Deed has been duly proved in accordance with law without there being any materials on record of its due execution and acceptance by the donee as per Section 122 of the Transfer of the Property Act, 1882.
5. The learned counsels for both sides were heard on the question as to whether any substantial question of law is involved in the connected RSA or not. However, before passing of any orders by this Court on Page No.# 5/24 the existence or otherwise of any substantial question of law in the connected RSA, the present applicants had engaged Ms. A. Saikia as their counsel. The applicants, thereafter, had filed another Interlocutory Application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 before the delivery of orders in RSA No. 236/2024 in respect of substantial question of law involved in the connected RSA. On the basis of the said application, I.A.(C) No. 1949/2025 was registered and the delivery of orders in RSA No. 236/2024 was deferred.
6. Thereafter, by filing the instant Interlocutory Application under Order 6 Rule 17 of the Code of Civil Procedure, 1908, the applicants have prayed for amendment of the Memo of Appeal by incorporating the facts stated in the Paragraph No. 3 to 28 of the Interlocutory Application No. 1949/2025.
7. The learned counsel for the applicants has submitted that the decree in the Title Suit No. 30/1998 as well as that of the Title Appeal No. 17/2016 were obtained by the respondent by practicing fraud upon the said courts.
8. It is pertinent to mention herein that since the connected RSA No.236/2024 has not yet been admitted and the respondents have appeared in the said RSA on their own as caveators, the Interlocutory Application No. 1949/2025 has not yet been decided and the same is still pending before this Court.
9. The learned counsel for the applicants has submitted that the suit filed by respondents is barred under Section 9 of the Code of Civil Page No.# 6/24 Procedure, 1908 read with Regulation 154 of the Assam Land and Revenue Regulation, 1886.
10. The learned counsel for the applicants has submitted that the procedure adopted by the trial court during the trial is also perverse in the way that the present respondents were allowed to amend their plaint on two occasions without describing the reasons for the said amendments.
11. The learned counsel for the applicants has further submitted that the trial court also failed to consider that the signatures of the proforma defendant Shri. Jitendra Narayan Banikya in the gift deed as well as in the affidavit were fake signatures.
12. The learned counsel for the applicants has further submitted that during pendency of the RSA, a certificate has been issued by the Chairman, Abhayapuri Municipal Board on 15.07.2025 stating that the appellant No.1 and her family members have been residing in the Holding No. 149/3 of Ward No. 11, Batabari since 1985. She therefore, submits that the said facts are required to be brought on record by amending the Memo of Appeal. She further submits that the decree in the Title Suit No. 30/1998 and the Title Appeal No. 17/2016 were obtained by practicing fraud upon the court.
13. The learned counsel for the applicants has submitted that the following grounds as well as substantial questions of law are required to be incorporated in the Memo of Appeal by way of amendment for the ends of justice:
Grounds Page No.# 7/24 i. For that the Trial Court judgement of Title suit 30/1998 dated 31st August 2016 is completely Per-incuriam, erroneous, infirm and perverse. The Title Suit was not maintainable due to civil court's jurisdiction is barred under Section 9 of the Civil Procedure code. Land of 7B and 3K belongs to the Appellants and Appellants No. 1 inherited the same from her father originally then she got her own Katiyan Rayati patta and settlement documents as she was in possession since 1982. Niva Banikya's name is included in the citha as well as she has been paying the revenue tax to the government was overlooked by the courts and suppressed due to connivence and collusion of her counsel and the other party. The documentary evidence is on record of the main suit to her rights claim was discarded. It is an admitted fact that the Appellants are in possession and the perversity of the order extends to declare such a possession and title illegal. Both the Trial Court judgement and the First Appeal judgement are per- incuriam and perverse on this legal framework. Hence cancellation and setting aside of the impugned judgement and decree is of utmost necessity to correct the judicial wrong done to the Appellant citizens of this country within the justice delivery system.
ii. For that the original case Title Suit 30/98 is not maintainable under section 9 of the CPC, since civil court jurisdiction is barred by section 154 of the Assam Land and Revenue Regulations 1886, the contents of the same are listed Page No.# 8/24 above. The ambit of these acts and regulations are well covered by section 52 (a) of BSA the new evidence Act. Hence the findings are irregular due to lack of jurisdiction. Wholly the Trial court judgement as well as the Appellate Court judgement was passed by incompetent courts without jurisdiction or power to decide and or adjudicate the unmaintainable title suit. Therefore, such impugned decree and judgments are to be promptly set aside, to correct the judicial mistake.
iii. For that on the date of filing of the Title Suit the disputed land was already mutated in the name of Appellant No. 1 as per rights over land section 6,7,8 and 9 of the Assam Land and Revenue Regulations 1886. Therefore, records of rights as per section 39 and 40 of the Assam Land and Revenue Regulations 1886 as described above. Where it is an admitted fact that the Appellants are in possession of the land and the land is settled in their names through succession. The issue no. 2, 3 and 4 was poorly addressed. Therefore, infirmity and perversity of the judgement dated 31 August 2016 page no. 60 paragraph no. 33 brazenly discarded hard documentary evidence of jamabandi and mutation, ownership, rights, title, interest and possession of the Appellant no. 1. The error of the Trial court had been contributed by the collusion of the Appellant's counsel with the opposite party because of which he did not defend the inherent rights of the Appellant as described in paragraph 32 of the judgement. Many such errors Page No.# 9/24 and frauds have been committed in collusion by the Appellant's counsel and the parties to grab the said property. iv. For that the original case Title Suit 30/98 is not maintainable as the same was instituted based upon fake documents i.e., the gift deed no. 33 (wrongly mentioned as 351 or 531) dated 20.02.1997, which was also the cause of action by the Plaintiff to claim right, title and interest and possession over the Disputed Land of 7B 3K. The gift deed was executed by the doner without his proper name and signature, without the witness of any credible witness. It can be safely presumed that the Gift deed was manufactured in the absence of the doner and the Plaintiff (since deceased) waited until his death to prove the same. A fraud upon the court was committed by the original petitioner Gita Dey by impersonating as Gita Banikya, who prepared most of the documents after her employer's (Jitendra Narayan Banikya's death) December 2006. For that fraudulent use of fake identification of the original petitioner Gita Dey and her daughter Rumi Dey @ Rumi Banik such as a next of kin certificate, Pan card, voter card, Aadhar card to establish false identity as Jitendra Narayan's Banikya's wife and daughter (Whereas Gita was the wife of Lt Rabindra Dey and Rumi was the daughter of Rabindra) to obtain the decrees.
v. For that suppression of facts such as the Petition No. 1 is the Rayoti Khatiyan since 1983 and this is in the knowledge of the Defendants. For suppression of facts that the mutation Page No.# 10/24 of Gita Banikya was cancelled due to lacking Katiyan rights of her employer Jitendra Narayan Banikya over the 7B 3K land, suit land which was always vested upon the Appellant No. 1 and she has exhibited documentary evidence to this effect, which is Ext. No. G. Both the Trial court as well as Appellate Court ignored this vital documentary evidence, which was enough to prove as per land records, the Defendant/Plaintiff did not have any right, title or interest in the disputed land. vi. For that suppression of fact and concealment of document that Aruna Bala Ray was the wife of Jitandra Narayan Banikya at the time of execution of the fraudulent gift deed committed by the plaintiff/defendants. Even in the written statement filed with the Gauhati High Court in the RSA 236/2024 the suppression of these facts is eminent. The gift deed numbers are mentioned incorrectly paragraph 2 where it is written as 351 but it is found to be 33/97. Suppression of the fact that Jitendra Narayan Banikya was never in possession of the scheduled land, only his sister Appellant No. 1 was in possession of the land and cultivated it herself and with hired workers. She had built the house she is living in with financial help from her husband. But these facts were suppressed and the court failed to bring out the entire truth in the proceedings. Therefore, the impugned judgements are to be set aside on the grounds of fraud among the other grounds listed out in the interest of justice and to correct the wrong done.
Page No.# 11/24 vii. For that the Title Suit No. 30/1998 was instituted and adjudicated without presence or consent of Jitendra Narayan Banikya. Even in the written statement, suppression of all the facts can be seen, such as the Deed of declaration (agreement) No. 4 dated 19.01.1998 was never cancelled and this was the last document executed by the elder brother of Petitioner No.1 before his passing away. That elder brother Late Sri Jitendra Narayan Banikya in favour of Niva Banikya was the last executed document by him with his full signature. He never appeared in court to dispute the Power of attorney No. 48 dated 12.01.1998 as well as the Declaration of deed. And the defendants tactfully suppressed these facts. He never appeared in the court as Performa Defendant. For in all the fraudulently prepared documents the name of Jitendra Narayan Banikya appears as Jiten Banikya, reflecting the coercion and fraud played by the caretaker Gita Banikya and the Land broker Phukan Adhikary. Therefore, the impugned judgements are to be set aside on the grounds of fraud among the other grounds listed out in the interest of justice and to correct the wrong done.
viii. For that Decree in TS 30/98 and judgement in 17/2026 is obtained by fraud and collusion of the Defendants and the counsel of the petition Abdus Samad. He did not file the various land documents of his client the defense side to protect the right, title, interest of the Defendant/13518 appellant, who were in possession of their ancestral land and Page No.# 12/24 had all the rights, title, interest and claim over it, while he let the case drag over 18 years in the Munsiff court at Abhayapuri, and about 8 years in the Appellant court in Bongaigaon district he neglected to get the fake gift deed cancelled. Particularly the paragraph 32 of the impugned judgement of trial court makes the collusion quite apparent. Therefore, the impugned judgements are to be set aside on the grounds of fraud among the other grounds listed out in the interest of justice and to correct the wrong done.
ix. For that Abdus Samad (Appellant's previous counsel) had all the land documents in his files and in his possession, but he did not file them in both courts, misleading the clients all the while. The land documents were found on the files returned by him, upon checking on 25th March 2025. For Abdus Samad did not file a counter claim and written statement for 2 amendment petitions filed by the Plaintiff/ Defendant (Gita) and did not raise objections for the grounds taken for impleadment of Phukan Adhikary and Rumi Banik respectively in the two amendments. Where provision of Lis pendens would be invoked to block any further complications in the disputed land. As reflected in the order-sheet of the Trial Case No. 30/1998, the amendments were not objected to and no written statement was filed on behalf of the Appellants due to the collusion between the Opposite Party and counsel of the Appellants. That all the criminal indictments/allegations/averments made against the Page No.# 13/24 defendants in IA 1949/2025 are not contested and refuted, hence it may be deemed proven. Therefore, the impugned judgements are to be set aside on the grounds of fraud among the other grounds listed out in the interest of justice and to correct the wrong done.
x. For that the plaintiff/defendant No. 2 was unlawfully included in the subsequent amendments and his sale deeds 1214 and 1215 duly exhibited as Exhibit No. 30 and 31 have no legal bearing/status since the seller itself did not have title, rights or interest to pass on to any other person. Here the question of law of using criminal means to obtain civil rights comes in play.
SUBSTANTIAL QUESTIONS OF LAW:
a) Whether the Khiraj periodic pattadar Petitioner (Niva Banikya)'s land admeasuring 7B 3K i.e. D/L, which she acquired by right of inheritance and she is in possession for the last 43 years can be alienated by her deceased brother's caretaker (Geeta Dey), who does not have a right, claim, interest or possession over the land via a civil court title suit which is barred under section 9 of the civil procedure code 1908 ? The section 154 bars civil courts in matters covered under Assam Land and Revenue Regulation 1886. The section 52 (a) of BSA covers cognizance of all laws of the land presently prevailing for jurisdiction and maintainability.
Whether jurisdictional errors committed by the Trial court as Page No.# 14/24 well as Appeals court is apparent on the face of record ? Whether the courts were competent to try the matter due to section 9 of CPC?
b) Whether the highest doctrine of Actus curiae neminem gravabit, which translates to "an act of the court shall prejudice no man". This principle holds that a party should not suffer because of a mistake, error, or delay on the part of the court should be applied on the face of such per-incuriam?
c) Whether the section 38 of BSA applies in the judgement and decrees in TS 30/98 and in T.A. 17/2026 as they were obtained by fraud, concealment and collusion of the Defendants and the counsel of the petition Abdus Samad. Abdus Samad did not file the various land documents of his client i.e. thereby concealing them from the defense side and failed/neglected to protect the rights of the Defendant/appellant who were in possession of their ancestral land and had all the rights, title, interest and claim over it, while he let the case drag over 18 years in the Munsif court at Abhayapuri, and about 9 years in the Appellant court in Bongaigaon district. Whether the courts had taken into account the documents as described under section 3, 4 and 5 of BSA when adjudicating the matter in respect of possession documents? Whether this possession can be declared illegal by a court not competent to decide?
d) Whether the substantial questions of law regarding cause of action and maintainability of the Title Suit 30/98 Page No.# 15/24 Dated: 24.07.1998, was covered up by fraud. It was instituted based upon a fake document i.e. the gift deed no. 33 (opposite side have mentioned as 351) dated 20.02.1997. The gift deed cannot be valid since the doner (Jitendra Narayan Banikya) of the gift deed did not have the right, title or claim to the D/L property to make a gift under section 122 and 123 of the transfer of property act 1882, since no deliver of possession could be proved? Hence, can the Hon'ble court cancel the invalid instrument and declare it null and void? Whether it can be considered under section 51- Facts judicially noticeable need not be proved, of the BSA? And Section 38 of the BSA?
e) Whether there is a cause of action by the present defendants (Rumi Banik and Phukan Adhikary) valid? Who cannot claim the D/L based upon the unproven rights of the doner. Who never had any right, title and interest can be made accountable for the fraud the committed upon the courts by way of submitting fraudulent documents, suppressing facts and impersonating under the ambit of burden of proof in section 104- Burden of proof, 105-On whom burden of proof lies, 106 Burden of proof as to particular fact and 107 Burden of proving fact to be proved to make evidence admissible?
f) Whether a fraud upon the court was committed by the original petitioner Gita Dey by impersonating as Gita Banikya, who prepared most of the documents after her employer's death? Whether fraudulent use of fake identification of the Page No.# 16/24 original petitioner Gita Dey and her daughter Rumi Dey @ Rumi Banik such as a next of kin certificate, Pan card, voter card, Aadhar card to establish false identity as Jitendra Narayan Banikya's wife and daughter (Whereas Gita was the wife of Lt Rabindra Dey and Rumi was the daughter of Rabindra) to obtain the decrees is a fraud upon the court should get court's notice under section 51 Facts judicially noticeable need not be proved, of the BSA? And Section 38 of the BSA? And under the ambit of section 100 of CPC to reverse all the unlawful judgments/decrees passed. And to take cognizance of such wrongdoing and give exemplary damage cost upon such defendants.
g) Whether suppression of facts such as the Petition No. 1 is the Katiyan Rayati since 1983 and this is in the knowledge of the Defendants, that her name is included in the Citha dated:
28.01.2005; in the Khiraj periodic pattadar rayati list date 31.03.2009; as well as in the revenue Kaityan Rayati for the D/L property dated 22.07.2005. She has been paying the revenue tax to the government, is committed by the connivance of the counsel and the other party should Facts judicially be considered under section 51 noticeable need not be proved, of the BSA? And Section 38 of the BSA? And under the ambit of section 100 of CPC to reverse all the unlawful judgements passed. And to take cognizance of such wrongdoing and give exemplary damage cost upon such defendants.
Page No.# 17/24
h) Whether suppression of facts that the mutation of Gita Banikya was cancelled due to lacking Katiyan rights of her employer Jitendra Narayan Banikya over the land property of his sister the Appellant No. 1. And suppression of fact that Aruna Bala Ray was the wife of Jitandra Narayan Banikya in 1997 at the time of execution of the fraudulent gift deed was committed by the plaintiff/defendants? Claiming her to be second wife whereas law recognized her as the only wife in maintenance Misc case no. 60/1997 and solved on dated 23.06.1998. Therefore, Geeta @ Gita cannot be his wife. Whether these findings can be considered under section 51- Facts judicially noticeable need not be proved, of the BSA? And Section 38 of the BSA? And under the ambit of section 100 of CPC to reverse all the unlawful judgements passed. And to take cognizance of such wrongdoing and give exemplary damage cost upon such defendants.
i) Whether misrepresentation of facts that Jitendra Narayan Banikya was in possession of the land of 7B 3K, thereby defendant No. 2 are entitled to claim any relief given that fact that Jitendra Naryana Banikya was never in possession of the land and never built the house, and the defendants have made a false case to grab the land property and house built and lived in by the Petitioners comes under the ambit of section 100 of the CPC and setting aside of the judgements duly obtained by fraud and delivered by courts not competent to try is for greater good of the society? And under Page No.# 18/24 the ambit of section 100 of CPC to reverse all the unlawful judgements passed. And to take cognizance of such wrongdoing and give exemplary damage cost upon such defendants.
j) Whether the fraud and coercion was apparent in the documents wherein all the fraudulently prepared documents the name of Jitendra Narayan Banikya appears as Jiten Banikya, reflecting the coercion and fraud played by the caretaker Gita Banikya and the Land broker Phukan Adhikary amount to a fraud upon the court and should be considered under section 51 Facts judicially noticeable need not be proved, of the BSA? And Section 38 of the BSA? And under the ambit of section 100 of CPC to reverse all the unlawful. judgements passed. The question of law of using criminal means to obtain civil rights comes is to be answered in this case. And to take cognizance of such wrongdoing and give exemplary damage cost, particularly upon Plaintiff/defendants No. 2.
14. The learned counsel for the applicant/appellant has submitted that the aforementioned amendments are prayed for by the applicants/appellants as the same are necessary for showing that fraud has been played upon the Court by the respondent while obtaining the judgment and decree in their favour in Title Suit No. 30/1988 as well as Title Suit No. 17/2016.
15. She submits that it is a settled proposition of law that when a judgment or decree obtained by fraud, it is nullity and non est in the Page No.# 19/24 eye of law and it can be challenged in any proceeding in any Court even in collateral proceedings.
16. In support of her submission the learned counsel for the applicants has cited the following rulings:
i. S.P. Chengalvaraya Naidu (Dead) Vs Jagannath (Dead) reported in (1994) 1 SCC 1 ii. A.V. Papayya Sastry & Ors Vs. Government of A.P. & Ors reported in (2007) 4 SCC 221 iii. Daulatram Lakhani Vs. The State of Assam and others reported in 1989 1 GLR 131 iv. State of Nagaland and Another Vs. Smti Berila reported in 2008 (1) GLT 1061 v. B.K. Narayana Pillai Vs. Pararneswaran Pillai and Another reported in (2000) 1 SCC 712 vi. Arun Gogoi Vs Labanya Das & Others reported in 2017 (4) GLT 622 vii. Amiya Bala Dutta Vs. Mukut Adhikari and Others reported in 1998 (4) GLT 137
17. On the other hand, Mr. D. Mazumdar, the learned senior counsel for the respondents has opposed the prayer for amendment of the memo of appeal by the appellants on the ground that the same is only an attempt by the applicants/appellants to prevent the respondents to enjoy the benefit of decree granted by the Trial Court as well as the First Appellate Court in their favour after a protracted Page No.# 20/24 litigation.
18. He submits that the amendment petition has been filed by the applicant after this court had heard both sides in the connected RSA No. 236/2024 on the question as to whether any substantial question of law is involved. He submits that since the learned counsel for the respondents has given verbal undertaking before the court that before passing of the order regarding existence or otherwise of any substantial question of law in the connected RSA the respondents/decree holder would not pray for execution of the decree, hence, any attempt to protract the litigation on flimsy ground would cause prejudice to the respondents.
19. The learned senior counsel for the respondents submits that a regular second appeal can only be heard on the substantial question of law involved in the case, however, he submits that by the proposed amendment the applicant has prayed for incorporating disputed question of facts which were never raise before the trial court or before the First Appellate Court.
20. He submits that the allegation of fraud has been made by the applicants even against the engaged counsel of the applicant before the trial court and the First Appellate Court, namely, Mr. Abdus Samad, who is not a party in the present proceedings. Further, no allegations against the said counsel were ever made by appellants before the Trial Court or before the First Appellate Court as such there is no pleading or any evidence to that effect on the record. Hence, he submits that this court cannot determine the said questions of facts in the connected RSA.
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21. He further submits that the bar of Section 154 (1) of the Assam Land and Revenue Regulation, 1886 is not an absolute bar and civil court are not precluded from exercising its jurisdiction under Section 9 of the Code of Civil Procedure, 1908, where a relief of declaration of the title is prayed for. In support of his submission, the learned senior counsel for the respondent has cited following rulings:
(i) Abdul Rejak Laskar Vs. Mafizur Rahman reported in 2024 SCC OnLine SC 3845
(ii) Daulatram Lakhani Vs. State of Assam and Others reported in (1989) 1 GLR 131
22. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on records. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.
23. Though, there is no dispute over the settled proposition of law that if a judgment or the decree is obtained by playing fraud upon the court same is nullity and non est in the eye of law and it can be challenged in any Court even in the collateral proceeding, however, if such a plea is raised for the first time at the second appellate stage, this Court is of the considered opinion that there should be materials available on record on examination of which the Appellate Court may verify the same. If the allegations of fraud are made for the first time and there is no evidence on record to substantiate such allegations, the best course available before a party alleging that the judgment and decree in a case have been obtained by playing fraud Page No.# 22/24 upon the court is to file a separate suit seeking a relief of nullity of the decree obtained by fraud. In such a suit, specific pleadings regarding allegations of fraud have to be made and evidence has to be adduced by the party alleging such fraud and the Court after giving opportunity to the other side and after considering the evidence adduced by both the parties may give a decision on such plea of fraud raised by the aggrieved party.
24. However, in a case if such a plea is raised for the first time at the stage of second appeal there has to be already some material on the records, on the basis of which, the court may arrive at a conclusion regarding the correctness or otherwise of the allegation of fraud made by one of the parties.
25. The limitation on a Second Appellate Court under Section 100 of the Code of Civil Procedure, 1908 is also relevant in this regard.
Under Section 100 (5), it is provided that a second appeal shall be heard on the substantial question of law formulated by it. Further, under Section 103 of the said code, though, the High Court has power to determine the issue of facts also, however, for that the evidence on record must be sufficient to determine such issue of fact.
26. In the instant Interlocutory Application, the applicants/appellants have made several serious allegations like connivance and collusion between the engaged counsel of the applicants in the Trial Court as well as the First Appellate Court and the respondents. The allegations regarding suppression of material facts and forging of gift deeds and other documents are also made. It is also alleged that the Page No.# 23/24 original petitioner Gita Dey impersonated as Gita Banikya by using fake identification document. Further, allegations are also made against counsel of the applicants, namely, Abdus Samad of committing fraud in collusion with the respondents. These allegations are levelled for the first time in the Interlocutory Applications filed by the present applicants and are in the realm of allegations only. In the records of the Trial Court as well as of the First Appellate Court, no whisper about the aforementioned allegations has been made. Neither there is any evidence to that effect on record. A bare perusal of the averments sought to be incorporated by the applicant in the memo of appeal, by way of proposed amendment, as indicated in paragraph No. 13 of this order hereinbefore, it appears that scathing allegations have been made against the respondents and the earlier engaged counsel for the applicants, namely, Abdus Samad for the first time. It is pertinent to mention herein that Mr. Abdus Samad is not before this Court to defend the accusations made against him. If the said amendments are allowed, the memo of appeal would appear like a plaint in a suit for nullity of decree on the basis of allegations of fraud and the proceeding in the second appeal would traverse beyond the provisions of the Code of Civil Procedure, 1908, governing the procedure in respect of a Regular Second Appeal as contained in Section 100 to Section 103 of the said code.
27. Though, this Court is of the considered opinion that the applicants may file a fresh suit for nullity of the impugned decree passed by the First Appellate Court as well as by the Trial Court on the basis of Page No.# 24/24 allegations of fraud made by them in the instant Interlocutory Application, however, as the proposed amendments involves disputed questions of facts raised for the first time and no evidence to that effect is there on record, same cannot be allowed to be incorporated by way of amendment in the memo of appeal of the connected Regular Second Appeal.
28. In light of discussions made in the foregoing paragraphs and reasons stated therein, the prayer for amendment of memo of appeal made by the applicants is rejected and this Interlocutor Application is dismissed.
JUDGE Comparing Assistant