Gauhati High Court
Page No.# 1/6 vs Sri Dibeswar Gogoi And 4 Ors on 17 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010029062015
2025:GAU-AS:1685
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/6/2025
SRI KIRAN LIMBU
S/O SRI HARKA BAHADUR LIMBU, R/O BASMOTIA NAHARANI GAON,
MOUZA and P.S. TENGAKHAT, DIST. DIBRUGARH, ASSAM.
VERSUS
SRI DIBESWAR GOGOI and 4 ORS
S/O SRI BANA GOGOI, R/O PHUTAHULA GAON, MOUZA MODERKHAT, P.O.
and P.S. LAHOAL, DIST. DIBRUGARH, ASSAM.
2:MANIK CHAIMURUNG CHRISTIAN
SONS OF LATE PRITAM CHAIMURUNG CHRISTIAN
R/O JUKTALI GAON
MOUZA MODERKHAT
P.S. LAHOAL
DIST. DIBRUGARH
ASSAM.
3:HABIL CHAIMURUNG CHRISTIAN
SON OF LATE PRITAM CHAIMURUNG CHRISTIAN
R/O JUKTALI GAON
MOUZA MODERKHAT
P.S. LAHOAL
DIST. DIBRUGARH
ASSAM.
4:MANCHID CHAIMURUNG CHRISTIAN
SON OF LATE PRITAM CHAIMURUNG CHRISTIAN
R/O JUKTALI GAON
MOUZA MODERKHAT
P.S. LAHOAL
DIST. DIBRUGARH
Page No.# 2/6
ASSAM.
5:YAKUB CHAIMURUNG CHRISTIAN
SON OF LATE PRITAM CHAIMURUNG CHRISTIAN
R/O JUKTALI GAON
MOUZA MODERKHAT
P.S. LAHOAL
DIST. DIBRUGARH
ASSAM
For the Appellant(s) : Mr. K.J. Saikia, Advocate
For the Respondent(s) : None appears
Date of Hearing : 17.02.2025
Date of Judgment : 17.02.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. K.J. Saikia, the learned counsel appearing on behalf the appellant.
2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, "the Code") challenging the judgment and decree dated 23.12.2014 passed by the Court of the learned Civil Judge, Dibrugarh (hereinafter referred to as, "the learned First Appellate Court") in Title Appeal No. 11/2012, whereby the appeal was dismissed and the judgment and decree dated 17.12.2011 passed by the learned Munsiff No. 1, Dibrugarh (hereinafter referred to as, "the learned Trial Court") in Title Suit No. 48/2008 was confirmed.
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3. The instant appeal is being taken up at the stage of Order XLI Rule 11 of the Code to ascertain, as to whether, there arises any substantial question of law that can be formulated.
4. Mr. K.J. Saikia, the learned counsel appearing on behalf of the appellant had proposed a question of law which as per him would be a substantial question of law involved in the instant appeal. The question of law so proposed is, as to whether, the decision on issue Nos. 3, 4 and 5 by the learned First Appellate Court as well as the learned Trial Court is perverse.
5. This Court for the purpose of ascertaining, as to whether, the proposed question of law can at all be formulated as a substantive question of law finds it relevant to take note of the brief facts which led to the filing of the instant appeal.
6. The appellant who was the plaintiff claimed that he had purchased a plot of land, which was described in the Schedule to the plaint, on 17.03.2004 from the proforma defendants and since then he was in possession of the said land till December 2006. It is the further case of the plaintiff that adjacent to the land described in the Schedule is the land of the defendants. In the month of December, 2006 the defendants dispossessed him. On 05.02.2007, when the plaintiff employed some workers to plant tea bushes in the suit land, the defendants did not permit him to do so. The plaintiff therefore filed the suit seeking a declaration that the plaintiff is the owner, occupier with all right, title and interest over the suit premises having his possessory right and for recovery of khas possession; for permanent injunction restraining the defendants, particularly the defendant No. 1 and persons working under him, from entering into and from interfering the plaintiff in peaceful possession of the suit land and Page No.# 4/6 from making any attempt to alienate the same to any third party.
7. It is relevant to take note of that the defendant Nos. 3 to 5 who were arrayed as proforma defendants, filed their written statement denying the claim of the plaintiff. In the said written statement, it was categorically stated that there was no kutcha sale deed executed on 17.03.2004. It was further mentioned that the defendants were in possession of the suit land for the last 15 (fifteen) years and subsequently on consent, the defendants purchased the possessory right from the proforma defendants on 11.11.2003 by executing a kutcha deed in presence of the witnesses by paying a consideration of Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand). It was also mentioned that within the passage of time the defendants planted tea on the aforesaid suit land, ascertaining their right of possession by paying land revenue regularly and without hindrance from anybody and thereafter the defendants have been paying the land revenue regularly.
8. On the basis of the pleadings, the learned Trial Court framed as many as 7 (seven) issues which being relevant are reproduced herein under:
"1) Whether the suit is maintainable in law and in facts?
2) Whether there is a cause of action for the suit?
3) Whether the plaintiffs have right, title and interest over the suit land?
4) Whether the alleged Kutcha deed-containing sale of possession by pro defendants, in favor of plaintiff is forged one?
5) Whether the defendant no. 1 forcefully took possession of the suit land or he has been in possession over the suit land for long years as alleged?
6) Whether the plaintiffs are entitled to the relief's claimed for?
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7) To what relief's the parties are entitled to?"
9. On behalf of the plaintiff, 2 (two) witnesses were examined and some documents were exhibited. On the other hand, the defendants adduced 4 (four) witnesses and no documents were adduced. However, the evidence on affidavit of the DWs/PW2 was expunged.
10. The learned Trial Court vide the judgment and decree dated 17.12.2011 dismissed the suit. Being aggrieved, an appeal was preferred by the appellant which was registered and numbered as Title Appeal No. 11/2012 before the learned First Appellate Court. The learned First Appellate Court vide the judgment and decree dated 23.12.2014 dismissed the said appeal by affirming the judgment and decree passed by the learned Trial Court.
11. In the backdrop of the above, the question therefore arises, as to whether, the question of law so proposed by the learned counsel can be said to be a substantial question of law involved in the instant appeal. It is relevant to take note of that the appellant did not produce any document of sale of the suit land in his favour coming within the meaning of Section 17 of the Registration Act, 1908. It is well settled that any non-testimony document which creates or extinguishes any right over an immovable property above the value of Rs. 100/- (Rupees One Hundred) is required to be registered. The kutcha sale deed which was exhibited can under no circumstances be said to be a deed of sale which would affect any immovable property. Apart from that, there is nothing on record to show that the plaintiff had possession over the suit land. Under such circumstances, the adjudications so carried out by the learned Trial Court as well as the learned First Appellate Court while deciding the issue Nos. 3, 4 and 5 cannot be said to be a adjudication perverse to the evidence on record.
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12. Consequently, the question of law so proposed cannot be said to be a substantial question of law involved in the instant appeal, for which, the instant appeal stands dismissed.
13. In the peculiar facts of the case, this Court is not inclined to impose any costs.
JUDGE Comparing Assistant