Gauhati High Court
RSA/305/2014 on 15 September, 2025
Page 1 of 30
GAHC010019092014
2025:GAU-AS:12602
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
RSA/299/2014
Sri Jyotirmoy Deb
S/O Late Digendra Kumar Deb,
R/O Ramani Sagar Road, P.O. Karimganj,
Pin 788710, P.S. Karimganj,
District Karimganj, Assam
.....Appellant
-Versus-
1. Smti Khiti Bala Das
W/O Late Harendra Kumar Das
2. Sri Ajit Kumar Das
S/O Late Harendra Kumar Das
3. Smti Jayanti Banik Das
D/O Late Harendra Kumar Das
4. Smti Joya Nath Das
W/O Sri Sujit Kumar Das
D/O Late Harendra Kumar Das
All Are R/O Bipin Paul Road Karimganj Town
P.O. Karimganj Pin 788710
District Karimganj Assam
5. Smti Maneka Roy Das
W/O Sri Nripati Ranjan Roy
RSA/299/2014
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D/O Late Harendra Kumar Das
R/O Ghatline of Silchar Road Karimganj Town
Pin 788710
P.O. Karimganj
District Karimganj Assam.
6. The President Winner's Club Ramani Sagar
Road Karimganj Town P.O. Karimganj District
Karimganj Assam Pin 788710
7. The Karimganj Municipal Board represented
by its Chairman P.O. Karimganj District
Karimganj Assam Pin 788710
8. The Deputy Commissioner Karimganj P.O.
Karimganj District Karimganj Assam
Pin 788710
9. The Commissioner and Secretary Assam
Urban Development Department,
Government of Assam
Dispur Pin No. 781006
10. The Director Assam Urban Development
Department Hengerabari Guwahati
Pin No. 781006
11. The Settlement Officer Karimganj District Post
Office Karimganj Pin 788710
12. The State Of Assam
13. Smti Namita Das
W/O Late Hrishikesh Das
14. Sri Bibhas Das
S/O Late Hrishikesh Das
15. Sri Partha Das
S/O Late Hrishikesh Das
16. Smti Mita Das
D/O Late Hrishikesh Das
All Are R/O Roynagar Karimganj Town
Pin 788710 P.O. Karimganj
District Karimganj
......Respondents
RSA/299/2014
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Linked Case:RSA/305/2014
Karimganj Municipal Board
Represented By its Shri Dhrubojyoti Das
Executive Officer/Chairman P.O. Karimganj
District Karimganj Assam.
......Appellant
Versus
1. Smti Khiti Bala Das
W/O Late Harendra Kumar Das
2. Sri Ajit Kumar Das
S/O Late Harendra Kumar Das
3. Smti Jayanti Banik Das
D/O Late Harendra Kumar Das
4. Smti Joya Nath Das
W/O Sri Sujit Kumar Das
D/O Late Harendra Kumar Das
All Are R/O Bipin Paul Road Karimganj Town
P.O. Karimganj Pin 788710
District Karimganj Assam.
5. Smti Maneka Roy Das
W/O Sri Nripati Ranjan Roy
D/O Late Harendra Kumar Das
R/O Ghatline Of Silchar Road Karimganj Town
Pin 788710 P.O. Karimganj
District Karimganj Assam.
6. The President Winner's Club Ramani Sagar
Road Karimganj Town P.O. Karimganj District
Karimganj Assam Pin 788710
7. The Deputy Commissioner
Karimganj P.O. Karimganj
District Karimganj
Assam Pin 788710
RSA/299/2014
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8. The Commissioner and Secretary
Assam Urban Development Departments,
Government of Assam
Dispur Pin No. 781006
9. The Settlement Officer, Karimganj District
Post Office Karimganj Pin 78871
10. Smti Namita Das
W/O Late Hrishikesh Das
11. Sri Bibhas Das
S/O Late Hrishikesh Das
12. Sri Partha Das
S/O Late Hrishikesh Das
13. Smti Mita Das
D/O Late Hrishikesh Das
All Are R/O Roynagar Karimganj Town Pin
788710 P.O. Karimganj District Karimganj.
14. Jyotirmoy Deb
S/O Late Digendra Kr. Deb
R/O Ramoni Sagar Road P.O. and District
Karimganj 788710
......Respondents
For Appellant (s) : Mr. Mr. G. N. Sahewalla, Senior Advocate
Mr. K. Bhattacharya, Advocate (in RSA
No.299/2014)
Mr. M. H. Rajbarbhuiya, Advocate (in RSA No.
305/2014)
For Respondent(s) : Mr. S. P. Choudhury, Senior Advocate
Mr. T. R. Gogoi, Advocate
Date of Judgment : 15.09.2025
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BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Mr. K. Bhattacharya, the learned counsel for the appellant in RSA No. 299/2014. Also heard Mr. M. H. Rajbarbhuiya, the learned counsel for the appellant in RSA No. 305/2014. Also heard Mr. S. P. Choudhury, the learned counsel appearing for the principal respondents as well as Mr. T. R. Gogoi, the learned counsel appearing for the respondent Nos. 8, 11 and 12.
2. Since common substantial questions of law were formulated by this Court in both the aforesaid Regular Second Appeals and both arise out of a common judgment, hence, this Court intends to dispose of the aforementioned Regular Second Appeals by this common judgment.
3. The aforementioned Regular Second Appeals under Section 100 of the Code of Civil Procedure, 1908, have been filed by the appellants, impugning the judgment and decree dated 29.08.2014, passed by the learned District Judge, Karimganj in the Title Appeal No. 1/2014, whereby the appeal preferred by the present respondents Nos. 1 to 5 (plaintiffs in the original Title Suit No. 1/2011) was allowed and the judgment and decree dated 21.11.2013 and 29.11.2013 respectively passed by the learned RSA/299/2014 With RSA/305/2014 5 Page 6 of 30 Civil Judge, Karimganj in the Title Suit No. 1/2011 was set aside and reversed.
4. The facts relevant for consideration of the aforesaid Regular Second Appeals, in brief, are that the present respondent Nos. 1 to 5 had filed a Title Suit (Title Suit No. 1/2011) against the present appellants and 11 others before the Court of learned Civil Judge, Karimganj praying for declaration of right, title and interest of the plaintiffs over the suit land and for recovery of Khas possession along with other consequential relief. The said Title Suit was registered as Title Suit No. 1/2011.
5. The plaintiffs' case before the Trial Court, in brief, was that one Aditya Charan Das, and Ram Prasad Das were the original owner in respect of the land described in Schedule-I of the plaint. Aditya Charan Das died issueless while Ram Prasad died leaving his only son Ramani Mohan Das. After the death of Ram Prasad Das, his son Ramani Mohan Das became the owner of Schedule-I land.
6. It has been stated in the plaint that the wife of Aditya Charan Das, namely, Smt. Gunamayee Dashi had acquired limited right to hold property for her lifetime in respect of the property left by her deceased husband, in accordance with the Hindu Law that was prevalent at that time. It is further averred in the plaint that subsequently, by gift dated 15.08.1913 or 16.08.1913 she had gifted her limited right and interest in respect of 50% share of the joint property left by her husband in favour of Ramani Mohan Das. RSA/299/2014 With RSA/305/2014 6 Page 7 of 30 Accordingly, Ramani Mohan Das became the sole and absolute owner of the Schedule land, including the other properties.
7. It is further pleaded in the plaint that over the northern portion of the Schedule-I land, Ramani Mohan Das had excavated a big tank which has been named as Ramani Sagar. The said tank is still in existence toward north-eastern direction of the Schedule-II land intervened by a path running over the land of Ramani Mohan Das. Ramani Mohan Das died leaving behind two sons, namely, Harendra Das and Hrishikesh Das. Both of them also died. The present respondent Nos. 1 to 5 are the heirs of Harendra Das and the proforma respondent Nos. 13 to 16 are the heirs of Hrishikesh Das.
8. With the passing of time the topography and feature of the land left by Ramani Mohan Das in and around the Schedule-I land has undergone change owing to increase of population and building up of new houses. It has been further averred in the plaint that during Settlement operation after the acquisition of the permanent settled estate taluks, the land left by Ramani Mohan Das was surveyed in different plots in separate surveyed dags and many of them were recorded in the name of Harendra Das and Hrishikesh Das and many of these plots were illegally recorded in the name of the Karimganj Municipality and some other persons having no right, title, interest or possession thereto.
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9. The predecessor of the plaintiffs and proforma defendants on several occasions submitted objection petitions to the Settlement Officer for correction of records and for issuing Khatians, Pattas to them in respect of the 2nd Schedule land and some other lands but no action had been taken being influenced by some powerful persons under the shelter of the Karimganj Municipality.
10. It has also been averred that in one of the like case late Harendra Das and Hrishikesh Das had filed Title Suit No. 207 of 1989 in the Court of the then Civil Judge, Junior Division No.1 (now Munsiff No. 1 Karimganj) against the Karimganj Municipal Board and the defendant Nos. 4, 7 & 8 and some other persons in whose favour Settlement records were illegally prepared in respect of surveyed Dag No. 5492 of Mouza-Karimganj Town Sheet No. 64/3 and the said suit had been decreed in favour of the plaintiffs.
11. The predecessors of the plaintiffs and proforma defendants being owners had been possessing the land under plot no. 1 & 2 of the 2nd Schedule land asserting their right, title and interest thereto. In the later part of the 2007 the principal defendant No.1 trespassed in a portion of the said plot 1 and constructed a 'katcha' house thereon and blocked the entry of the plaintiffs on the land of Dag No. 5044. At the same time some other persons constructed a house on plot No.2 of the Schedule-II land and named it as Winner's Club. It is alleged that the defendant No.3 in collusion with defendant No.1 and other defendants were attempting to RSA/299/2014 With RSA/305/2014 8 Page 9 of 30 create some illegal and fraudulent documents to grant settlement/allotment of plot No.1 to the defendant No.1. The plaintiffs therefore served legal notices to the defendant Nos.3 to 8 along with a notice under Section 80 of the Code of Civil Procedure and under Section 326 of Assam Municipal Act on 15.11.2010. Having received the notices, the defendants gave vague reply denying right and title of the plaintiffs. None of the defendant Nos. 1 to 3 had any right and title on the Schedule-II land. Hence, the suit was filed with a prayer for passing a decree declaring right, title and interest jointly in favour of the plaintiffs and proforma defendants on the land mentioned in the Schedule-II of the plaint and for recovery of khas possession of the said land by way of eviction of the defendant Nos. 1 & 2 or any other persons claiming under them by dismantling the house standing thereon. Prayer was also made for declaration that the defendant No.3 and the defendants Nos. 1 & 2 had got no right, title and interest over the 2nd Schedule land and the defendant No.3 had no right to give settlement of the land by lease or by any other mood to the defendant No.1 or any other person. Further prayer is made for declaration that the 'Khatian' No. 3112 in respect of Surveyed Dag No. 5044 of Mouza-Karimganj Town Sheet No. 64/3 had been illegally prepared and issued in the name of the defendant No.3 etc. along with other reliefs.
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12. The defendant raised the formal pleas like that of estoppel, waiver and acquiescence, bad for defect of parties, bad for principles of constructive res-judicata etc. and denied all the averments of the plaintiffs being concocted and misleading. According to him, while he was residing in the adjacent east of Ramoni Sagar came to know that the land covered by Settlement Surveyed Dag No. 5044 (old) was a Government Khas land falling unused and as such around the year 1987-88 he started filling earth to develop the land and also started to possess the land measuring 0.11 acre (11 decimal) covered by Dag No. 5044 for the last 23 years without any interruption or any objection from any corner. While possessing the same he prayed before the Deputy Commissioner, Karimganj to settle the said land in his name. The Deputy Commissioner accordingly made contact with the Government of Assam, Revenue (Settlement) Department vide letter No. KRS- 1/Pt-1/91-92/19 dated 20th July 1991 who asked the Deputy Commissioner vide letter No. RSS 482/92/7 dated 8th July 1992 to submit a formal proposal to settle the said land in favour of the defendants. The Karimganj Municipal Board was also in favour of giving settlement of the said land with the answering defendant No.1, and thus vide letter No. 1-18/92-93/116 dated 19.05.1992 issued by Executive Officer, Karimganj Municipality addressed to Deputy Commissioner, Karimganj gave reply to the letter No. KPS 1/Pt/91-92/12 dated 30.04.1992 of the Deputy Commissioner, RSA/299/2014 With RSA/305/2014 10 Page 11 of 30 Karimganj. Ultimately, the Deputy Commissioner, Karimganj sent proposal to the Government for settling the land with the defendants vide letter No. KDV(G) 50/96-97/71 dated 6th May 1997 to the Under Secretary Government of Assam, Municipal Administration Department, Dispur Guwahati-6. According to defendant No.1, the proposal ought to have been sent to the Revenue Settlement Department, Settlement Branch, Dispur, Guwahati-6 in compliance with Government letter No. RSS 482/92/7 dated 8th July 1992.
13. The defendant's further case was that while being in long possession over the suit land on 20.12.1997 he submitted petition to the Executive Officer, Karimganj Municipality seeking permission to construct katcha house including sanitary latrine on the land. Getting no reply the defendant constructed the suit house on the said land. It is alleged that more than 0.041 acre of land out of 0.151 of land covered by the said Dag No. 5044 had been encroached by the Winners Club (defendant No.2). It is further alleged that the Winners Club instituted Title Suit bearing No. 130/2002 in the Court of learned Civil Judge, Junior Division No.1, Karimganj against the Karimganj Municipal Board and the answering defendant No.1 seeking declaration of their title over the said 0.16 acre of land and for confirmation of possession of the eastern portion of the same and for recovery of khas possession of land under the possession of the answering defendant No.1 i.e., RSA/299/2014 With RSA/305/2014 11 Page 12 of 30 the western portion of the said 0.16 acre of land. The suit was dismissed on contest by judgment and decree dated 30.09.2005.
14. In the written statement submitted by the Karimganj Municipal Board in the aforesaid suit it is, inter-alia, stated that they were not against the giving of settlement of the said land to the answering defendant No.1. The answering defendant No.1 thus approached the Municipal Board seeking no objection certificate for electric connection. The Municipal Board vide letter No. 4/2003-2004/861 dated 11.03.2004 asked the answering defendant for submitting relevant permission of the construction of the house. Thereafter, the answering defendant met the Municipality Authority and explained about the aforesaid petition dated 20.02.1997. Being satisfied the Municipal Authority assured that permission would be issued after issuance of Settlement order over the land. However, the Municipality authority vide letter No. IX-4/07/08/151 dated 30.04.2007 illegally asked the defendant for vacating the land removing the houses standing thereon. Ultimately, the defendant filed Title Suit No. 125/07 before the Court of Munsiff No.1 Karimganj against the Municipal Board and the Government. The case was dismissed vide order dated 09.07.2010. Appeal bearing No. Title Appeal No. 32/2010 was preferred and it is still pending. By this time the Municipal Board took resolution for allotment of the said land in favour of the answering defendant.
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15. In the light of the above, it was pleaded that the plaintiffs, having no right, title, interest and possession over the schedule land of the written statement pertaining to Dag No. 5044, had filed a vexatious suit, and thus it was prayed for dismissal of the same with cost and compensation of Rs. 25,000/- under Section 35A of the Code of Civil Procedure.
16. The defendant No. 2, by filing separate written statement raised the similar nature of legal pleas and stated that all the averments made in Para No. 1 to 10 of the plaint as false and incorrect. According to him, the plaintiffs have no right, title, interest and possession over the suit land. According to the said defendant, the alleged suit land covered by Dag No. 5044 is the property under the ownership of Karimganj Municipality having land holder right and accordingly under the provisions of Assam Land and Revenue Regulation 1886 the alleged suit land has been recorded in the Settlement record in the name of the Karimganj Municipal Board. The Winners Club being represented by defendant No.2 was established in the year 1959 and accordingly got settlement of the eastern portion of the land of the Schedule-II land of this suit appertaining to Dag No. 5044 and constructed house thereon on the eastern portion of the Schedule-II land of the suit. The defendant No.3 mutated the name of the Winners Club in the demand register in respect of the schedule land of the written RSA/299/2014 With RSA/305/2014 13 Page 14 of 30 statement vide holding No. 130 of Ward No. 22 and accordingly taxes were being paid receiving proper receipts thereof.
17. It is alleged that the defendant No.1 subsequently in collusion with the defendant No.3 attempted to get settlement of the 2nd Schedule land of this suit from the office of the defendant No.3 and accordingly the defendant No. 3 called a meeting on 26.07.2002 to discuss the petition submitted by the defendant no.1 praying for a plot of Municipal land. Thereafter, the defendant No.2 raised objection for proposed allotment of land in favour of the defendant No.1 vide letter dated 24.07.2002 with a prayer for cancellation of the proposal. But the petition was not considered and as such the defendant No.2 filed Title Suit No. 130/2002 against the defendant Nos. 1 & 3 which was dismissed vide judgment and decree dated 30.09.2005.
18. It is alleged that during the pendency of the said suit in the last part of the 2003 the defendant No.1 of present suit illegally encroached the western portion of Dag No. 5044. The Trial Court i.e., learned Munsiff No.2. Karimganj as such made a local inspection of the said land i.e., the 2nd Schedule land of this present suit and prepared a memorandum of local inspection thereof noting the nature and feature of the suit property of the said time on 09.12.2003, where it was clearly mentioned that in the north western portion of the suit land there was one very newly constructed katcha house made with bamboo post, wall with RSA/299/2014 With RSA/305/2014 14 Page 15 of 30 new CI sheet roofing etc. The aforesaid occupation and possession of the eastern portion of 2nd Schedule land of the suit by the defendant No. 2 and unauthorized occupation of the western portion of the land by the defendant No.1 were within the knowledge of the plaintiffs of the suit and persons of the locality. The defendant No.2, therefore, denying the right, title, interest and possession of the plaintiffs/appellants over the suit schedule land prayed for dismissal of the suit with cost.
19. The defendant No. 3 by separate written statement took the similar legal pleas like cause of action, maintainability, waiver, estoppel, limitation, non-service of notice under Section 80(1) of the Code of Civil Procedure and under Section 326 of Assam Municipal Act 1956 etc., and denied all the averments made in Para Nos. 1 to 10. According to them all the averments are false and incorrect. It is categorically denied that many of the plots of Ramani Mohan Das recorded in the name of Karimganj Municipality and some other persons and predecessor of the plaintiffs and proforma defendants submitted objections to the Settlement Officer, Karimganj for correction of records. According to them, the alleged suit land covered by Dag No. 5044 is their property having land holder right and accordingly under the provision of ALRR 1886 its name (defendant No.3) have been recorded in the settlement record.
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20. It was contended by the defendant No. 3 that some interested person of the locality of the alleged suit land of the suit encroached a portion of the land of Dag No. 5044 from the eastern part and constructed a house thereon and occupied the said portion as Club House under the name and style a Winners Club and the rest area of the said dag were lying vacant and the defendant No.1 of this suit with evil and ulterior motive for illegal and wrongful gain illegally encroached the western portion of the said dag in the last part of 2003 illegally constructing katcha house and latrine thereon.
21. For the above illegal encroachment of the western portion of the Dag No. 5044, the defendant No.3 issued notice dated 19.07.2002. In challenge thereof the defendant No.2 filed Title Suit bearing No. 130/2002 against the defendant Nos. 1 & 3 which was dismissed vide judgment dated 30.09.2005 passed by the learned Munsiff No.
2. There was no appeal against the judgment and decree. It is further stated that during the pendency of the aforesaid suit the defendant No.1 in the last part of the year 2003 illegally encroached the western portion of the Dag No. 5044. The land of Winners Club of the aforesaid dag was recorded in the Demand Register of the answering defendant No.3 whom taxes are being paid.
22. The defendant's further case is that after the disposal of the aforesaid Title Suit bearing No. 130/2002, the defendant No.3 after RSA/299/2014 With RSA/305/2014 16 Page 17 of 30 observing all formalities issued notice vide Memo No. IX-4/07- 08/152 dated 30.04.2007 asking the defendant No.1 to remove his illegal construction from the suit land pertaining to Dag No. 5044. It was contended that the defendant No.1 having no right, title, interest or possession over the alleged suit land with evil and ulterior motive and for illegal and wrongful gain disregarding the direction of the said notice filed Title Suit bearing No. 125/2007 before the Court of Munsiff No.2, Karimganj against the defendant No.3 and others with false averments claiming the land as government khas land. The suit was dismissed on contest by judgment and decree dated 06.07.2010. Against the same, appeal was preferred bearing Title Appeal No. 32/2010 along with Misc. Case bearing No. 87/2010 which was pending. It is, therefore, pleaded that the plaintiff of the present suit was well acquainted with the aforesaid judgment and decree passed in Title Suit No. 130/2002 and Title Suit No. 125/2007 and its appeal bearing Title Appeal No. 32/2010, filed the present suit having no right, title, interest and possession over the suit land collusively and fraudulently. According to the defendants, the alleged documents mentioned by the plaintiff are not connected in any way with the suit land of this suit. Prayer was, therefore, made for dismissal of this suit with cost and compensation.
23. Upon pleadings, the following six issues were framed by the Trial Court:
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(i) Is there any cause of action for the suit?
(ii) Is the suit maintainable in its present form?
(iii) Is the description of the suit land is correctly given?
(iv) Is the suit barred by limitation?
(v) Whether the plaintiffs are the owners jointly with the proforma defendants of the suit land having right and title as the land holder therein and whether the plaintiffs are entitled to the relief prayed for in the suit?
(vi) To what further relief/reliefs the plaintiffs are entitled?
24. In support of the case the plaintiffs examined as many as 2 (two) witnesses including the plaintiff No.3 and exhibited many documents including the copy of decree of both the cited cases, notice, gift deed, map of the relevant dag, title deed, reply letter etc.; whereas the only the defendant No.3 examined one witness and exhibited the judgment and decree of Title Suit No. 130/2002, Title Suit No. 125/2007 and the report of local inspection made in Title Suit No. 130/2002 and certified copy of 'chitta' of the suit dag; whereas the defendant Nos. 1 & 2 adduced no evidence.
25. The Trial Court after hearing both sides and perusal of the evidence on the record, passed the impugned judgment deciding the Issue Nos. 1, 2, 3 & 5 in the negative, Issue No. 4 as RSA/299/2014 With RSA/305/2014 18 Page 19 of 30 redundant and decided the Issue No.6 against the plaintiff without granting any relief.
26. Being aggrieved by the decision of the Trial Court, the respondent Nos. 1 to 5 of this Regular Second Appeal filed an appeal before the Court of learned District Judge, Karimganj impugning the judgment and decree passed by the learned Civil Judge, Karimganj in Title Suit No. 1/2011. The said appeal was registered as Title Appeal No. 1/2014.
27. The First Appellate Court after going through the pleading, evidence on record, impugned judgment of the Trial Court as well as after considering the submissions of learned counsel for both sides passed the judgement dated 29.08.2014 in Title Appeal No. 1/2014 allowing the appeal and setting aside the judgment of the Trial Court. The respondent Nos. 1 to 5 of this Regular Second Appeal were found to be the owners of the suit land and the present appellant was directed to be evicted from the suit premises by demolishing the structures standing thereon.
28. Being aggrieved by the aforesaid judgment and decree, passed in the appeal by the First Appellate Court, the appellants have preferred the aforementioned Regular Second Appeals.
29. Though, in their respective Memo of Appeal, the appellants have formulated five substantial questions of law, however, this Court RSA/299/2014 With RSA/305/2014 19 Page 20 of 30 by order dated 09.12.2014 had formulated following two substantial questions of law in RSA No. 299/2014:
(i) Whether the findings of the learned Appellate Court below in respect of Issue No. 3 is perverse to the evidence of the Court as the plaintiffs failed to say that the area and owners of the Western Dag No. 5052 and Southern Dag No. 5034, the adjacent land in holding that mere failure of PW-1 to state some names of the owners of different Dag is not sufficient enough to hold that suit land is not properly identified as per Order 7 Rule 3 of the Code of Civil Procedure, 1908.
(ii) Whether in absence of any objection by the predecessor of the plaintiffs at the time of preparation of settlement revenue records in respect of Schedule-I land and suit land in respect of Title Suit No. 207/89 decreed in favour of plaintiffs being different from the learned First Appellate Court erred in law as well as in facts in deciding Issue No. 5 in favour of plaintiffs holding that mere mutation does not create any title over land, which the plaintiffs claim as illegally and collusively procured earlier.
30. Further, in RSA No. 305/2014 by order dated 18.12.2014, this Court has formulated following substantial questions of law:
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(i) Whether there being no averment in the plaint that the decretal lands in Exhibit No. 7 and 8 and also the Exhibit No. 10, Gift deed relate to the suit land, the learned Lower Appellate Court acted correctly while deciding Issue No. V in affirmative by holding that these are 'additional' documents in proof of plaintiffs continuous right and interest?
(ii) Whether the learned Lower Appellate Court committed perversity while deciding Issue No. III, by observing "it is clearly evident that the suit land is properly described"?
(iii) Whether in the absence of any objection from the predecessors of plaintiffs in the matter of preparation of settlement revenue record in respect of the suit land in Schedule-I, learned Lower Appellate Court acted rightly in deciding Issue No. I in affirmative?
(iv) Whether the learned Lower Appellate Court erred in law in deciding Issue No. V while the suit land of Title Suit No. 207/89 though decreed in favour of plaintiff's predecessor is a different land and there was no objection from the predecessor of the plaintiffs during settlement survey of Schedule-I land?
(v) Whether in view of PW-1's evidence on record, the plaintiffs having failed to describe the area and the owners of the southern dag and western dag of the alleged suit land, the RSA/299/2014 With RSA/305/2014 21 Page 22 of 30 decision in Issue No. III is sustainable under Order 7 Rule 3 of Civil Procedure Code?
31. Mr. G. N. Sahewalla, the learned senior counsel for the appellant has submitted that as per Paragraph No. 6 of the plaint filed before the Trial Court in Title Suit No. 1/2011, it has been stated that the appellant had entered into the portion of plot 1 of Schedule-II land and constructed a kutcha house there. He also submits that the Trial Court has rightly held while deciding the Issue No. 3, that the plaintiff (PW-1) could not describe the boundary of the suit land (2nd Schedule Land) properly so far it relates the western and southern boundary and has correctly held that the suit land was not properly described in the schedule of the plaint.
32. Mr. G. N. Sahewalla, the learned senior counsel for the appellant has submitted that the PW-1 also, while deposing before the Trial Court, failed to give proper description of the suit land, therefore, the Trial Court had correctly decided the Issue No. 3 against the plaintiff. He further submits that the reference by the First Appellate Court to the joint petition filed in the Title Suit No. 207/89 is not relevant to the present case as the same relates to the land covered by the Dag No. 5492, which is situated far away from the disputed land of the present case.
33. The learned senior counsel for the appellant has submitted that as regards to the land in Schedule-II of the suit land, same is neither possessed by the plaintiffs nor their names are there in the records RSA/299/2014 With RSA/305/2014 22 Page 23 of 30 of rights. He has submitted that the PW-1 could not say before the Trial Court as to which deeds relates to the suit land as she has exhibited several deeds. He also submits that the Exhibit-7 and Exhibit-8, i.e., the copies of decree in Title Suit No. 447/1920 and the certificate for delivery of possession pertains to the land covered by different dag number, therefore, same is not relevant.
34. He also submits that First Appellate Court relied on judgment and decree passed in Title Suit No. 207/89 stating that the plaintiff had filed the Title Suit for cancellation for wrong and collusive mutation by ignoring the fact that the said suit was in respect of the land covered by Dag No. 5492, which is different from the suit land.
35. He further submits that in Paragraph No. 33 of the impugned judgment, the Appellate Court has observed that the PW-1 in his cross examination has stated that the suit land of Title Suit No. 207/891 owned by them and the suit land of the said suit and the present suit are not the same but both lands fall within the Schedule-I of the present suit which was relied upon by the First Appellate Court in spite of the fact that Dag Number of the present suit is 5044, whereas, the Dag Number of the suit land of Title Suit No. 207/89 is 5492 and as such conclusion arrived at by the First Appellate Court while deciding the Issue No. 3 is perverse.
36. The learned senior counsel for the appellant has also submitted that while the First Appellate Court relied on the judgment of the Apex Court regarding the proposition of law that only mutation RSA/299/2014 With RSA/305/2014 23 Page 24 of 30 cannot give title to the land, however, it ignored the facts of the instant case, in as much as after abolition of Jamindari by Jamindari Abolition Act, the Khaitan was issued in favour of the Karimganj Municipal Board and the same is continuing without any objection and possession of the said land is also not with the plaintiff and as such the finding of the Appellate Court while deciding the Issue No.5 is also perverse.
37. On the other hand, the learned counsel for the principal respondent has submitted that it is an undisputed proposition of law that in exercise of its powers under Section 100 of the Code of Civil Procedure, 1908, the High Court cannot reappreciate the facts and evidence unless it involves substantial questions of law. He submits that the First Appellate Court has categorically mentioned in the impugned judgment that identification of the suit land by the dag number is sufficient. He submits that the purpose of assigning a dag number to a plot of land is for identification and, therefore, the First Appellate Court made no error by relying upon the dag number of the disputed land for its identification. He further submits that the First Appellate Court was also correct in holding that the mutation in the records of right does not in itself proves title over the land unless the source of title is proved. He submits that the Karimganj Municipal Board has failed to prove any document of title and the fact that in a similar case mutation was illegally done earlier against land covered by Dag No. 5094 has RSA/299/2014 With RSA/305/2014 24 Page 25 of 30 been proved by the plaintiffs by executing decree of the Title Suit No. 207/1999.
38. The learned counsel for the principal respondents has submitted that the first substantial question of law formulated in the RSA No. 305/2014 is purely a question of fact and it is not a substantial question of law as such same cannot be raise in this Regular Second Appeal. In support of his submission, the learned counsel for the respondent has cited a ruling of the Apex Court in the case of "Municipal Committee, Hoshirarpur Versus Punjab SED"
reported in (2010) 13 SCC 216 .
39. The learned counsel for the principal respondents has further submitted that the second substantial question of law formulated in RSA No. 305/2014 is also a question of fact. He further submits that the fourth substantial question of law is a mere repetition of third question so formulated. He further submits that the fifth question is also a question of fact and a clear repetition of second question. He submits that as no substantial question of law is involved in both the Regular Second Appeals, the same are liable to be dismissed and the impugned judgment and decree need no interference.
40. I have considered the submissions made by the learned counsel for both sides in both the appeals. I have also gone through the materials available on record including the records of the Trial Court as well as of the First Appellate Court.
RSA/299/2014 With RSA/305/2014 25 Page 26 of 30
41. The substantial question of law No. 1 formulated in RSA No.299/2014 and the substantial question of law No. 2 as well as No. 5 formulated in RSA No. 305/2014 are identical and, therefore, taken up for consideration together.
42. The aforementioned questions of law mainly revolves around the question of perversity as to whether the conclusion arrived at by the First Appellate Court that the suit land has been properly described was perverse in view of the fact that the PW-1 failed to state the names of owners and failed to describe the land adjacent to the suit land (Schedule-II land).
43. A decision may be regarded as perverse if no reasonable person would have arrived at the same on the basis of evidence which is available on record. A decision would necessarily be perverse if it is based on no evidence at all. It is also perverse when it is based on some irrelevant materials. It is also perverse when while arriving at the decision, vital evidence has been ignored.
44. The Apex Court, has observed in the case of "Associate Builders Versus DDA" reported in (2015) 3 SCC 49 as follows: -
32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], it was held : (SCC p. 317, para 7) "7. ... It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant RSA/299/2014 With RSA/305/2014 26 Page 27 of 30 material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429] , it was held :
(SCC p. 14, para 10) "10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse.
But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
45. The First Appellate Court, while considering the Issue No.3 and coming to the conclusion that the suit land has been properly described mainly relied on the fact that the suit land was identified by mentioning the dag number which is sufficient for its identification as per Order 7 Rule 3 of the Code of Civil Procedure, 1908. Further, it also took into consideration the sketch map of the disputed land which was exhibited as Exhibit 13(1) which clearly shows each and every dag of the scheduled land and its surrounding dags.
46. The First Appellate Court came to the finding that mere failure on the part of PW-1 to state some names of the owners of different RSA/299/2014 With RSA/305/2014 27 Page 28 of 30 dags is not sufficient to hold that land has not been properly identified. If we peruse the Schedule-II of the plaint it becomes clear that the suit land has been clearly described therein by mentioning the dag number, i.e., Dag No. 5044 of Mouza Karimganj Town, Sheet No. 64/3 Ward No.22 of Karimganj Town with surrounding boundaries mentioned therein.
47. The Order 7 Rule 3 of the Code of Civil Procedure, 1908 clearly stipulates that where the subject matter of a suit is an immovable property, the plaint shall contain a description of property sufficient to identify it and in case the property can be identified by numbers in the record of settlement, it shall specify such numbers. In the instant case, the dag number of the suit land has been clearly specified in the plaint. Thus, the finding of the First Appellate Court that the suit land has been properly described may not be regarded as based on irrelevant materials or it is such that it can be regarded as so outrageously defying logic as to suffer from vice of irrationality. The finding of the First Appellate Court that since the land could be properly identified, mere failure on the part of the PW-1 to state some names of the owners of different dags may not be sufficient to come to conclusion that the suit land is not properly described. This finding is based on the materials available on record before the Appellate Court, therefore, same cannot be regarded as perverse. The aforementioned substantial questions of law are accordingly decided against the appellate in negative.
RSA/299/2014 With RSA/305/2014 28 Page 29 of 30
48. Similarly, the substantial question of law No.2 formulated in RSA No. 299/2014 as well as substantial questions of law Nos.1, 3 and 4 formulated in RSA No.305/2014 being similar are taken up for consideration together.
49. The crux of the aforementioned substantial questions of law is that while deciding Issue No. 5, the First Appellate Court did not take into consideration the fact that after abolition of Jamindari system, the Khaitan was issued in favour of the Karimganj Municipal Board and it is continuing the possession over the said land without any objection. Further, the First Appellate Court, merely on the basis of the fact that mutation does not create any title over the land, decided the Issue No. 5 in affirmative in favour of the plaintiff and against the defendants, therefore, whether the said finding is perverse.
50. The evidence on record indicates that the Schedule-II land of the pliant is a part of Schedule-I land. Further, in respect of Schedule-I land the right, title and interest over the same was decreed in favour of the predecessor in interest of the plaintiffs in Title Suit No. 447/1920, the decree passed in the same has been exhibited as Exhibit-7. It also appears that the delivery of possession of said land was also handed over to the predecessor in interest of the plaintiffs, which is clear from Exhibit-8. The First Appellate Court has taken into consideration the aforementioned facts while arriving at the findings in respect of the Issue No. 5. Moreover, it is RSA/299/2014 With RSA/305/2014 29 Page 30 of 30 a settled proposition of law that revenue records is not a document of title and mere mentioning of the names in the records of right would not show that the title also belongs to the person whose name has been so recorded. Thus, the First Appellate Court rightly came to the conclusion that the defendant No. 3 (Appellant in RSA No.305/2014) has failed to prove any document of title to show their ownership over the suit land and, therefore, it correctly decided the Issue No.5 in favour of the plaintiffs on the basis of the principle of the preponderance of probability.
51. As the findings of the First Appellate Court is based on the materials on record, same cannot be regarded as perverse. While arriving at its finding, the First Appellate Court has based its decision on the materials and has properly reasoned the conclusion arrived at by it, the aforementioned substantial question of law are, therefore, decided against the appellants.
52. Accordingly, both the abovementioned Regular Second Appeals are dismissed with cost.
53. Registry to prepare the decree and send back the record of the Trial Court as well as First Appellate Court with a copy of this judgment to the concerned courts.
JUDGE Comparing Assistant RSA/299/2014 With RSA/305/2014 30