Gauhati High Court
Page No.# 1/7 vs Md. Saifuddin Sikdar And Ors on 26 April, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/7
GAHC010000912006
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/9/2006
MUSTT. MARIUM NESSAR and ORS
W/O LATE HUSSAIN ALI
2: MD. MUKTAR ALI
S/O LATE HUSSAIN ALI
3: MD. MORTAZ ALI
4: MD. RAFIK ALI
5: MD. SHARIFUL ALI
6: MAFIDA KHATOO
VERSUS
MD. SAIFUDDIN SIKDAR and ORS
S/O HAIDAR R/O JASHIHATI MAUZA D.C BOUSI BARPETA ASSAM
2:OMAR ALI
S/O LATE HAZARAT ALI VILL BARBARIJAR MAUZA HOWLY DIST
BARPETA ASSA
Advocate for the Petitioner : MR.K BASAR
Advocate for the Respondent : MR.B AHMED
Page No.# 2/7
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (ORAL)
Date : 26-04-2022 Heard Mr. H. Das, the learned counsel for the Appellants and Mr. N. Haque, the learned counsel appearing for the Respondents.
2. The instant appeal under Section 100 of the Code of Civil Procedure, 1908 arises out of the judgment and decree dated 12/8/2005 passed in Title Appeal No. 8/2004 by the Court of the Civil Judge (Senior Division), Barpeta, whereby the judgment and decree dated 1/4/2004 passed by the Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 150/2002 was set aside.
3. This Court vide an order dated 27/01/2006 admitted the instant Second Appeal on the following substantial questions of law which arises for consideration which are reproduced below :-
1. Whether the claim of the defendant as to having any interest over the annual leased land by dint of purchase by his mother can be effected for granting periodic patta of land ignoring possession of the plaintiff ?
2. Whether the defendant has derived any interest over the suit land which is annual patta land and was in possession of the deceased plaintiff, without any transfer on creation of any interest in favour of the defendant ?
3. Whether the defendant can claim the interest of his mother as to have been created in his favour during the lifetime of his mother, Abjan Nessar?
4. Whether mutation of annual patta holder in respect of annual patta land can be cancelled without issuing non-renewal notice in favour of that person ?
4. For deciding as to whether the said questions of law arises in the instant appeal, it would be relevant to take note of the facts in brief. The appellants who are Page No.# 3/7 the Plaintiffs alleged that a plot of land measuring 3 Bigha 3 Katha 5 Leches covered by Dag No. 375 under annual patta at village Joshihati was the acquired property of the father of the Plaintiff Nos. 1, 2 and 4 and proforma defendant namely Hazrat Ali who died in the year 1972. During the settlement operation the Government of Assam settled the suit land in favour of Hazrat Ali and accordingly the annual patta was issued in his favour. Thereafter for a long time the Government discontinued issuance of annual patta every year and went on carrying the name of the annual pattadar in the Chita book. Out of the four sons of Hazrat Ali, the proforma defendant got his share in the ancestral share in the ancestral property and he does not have claim over the suit land. After the death of Hazrat Ali in the year 1972, the suit land remained under the possession of the plaintiffs who went on possessing jointly without any partition. The Plaintiff No. 4 died in the year 1999 and his legal heirs continued the joint possession with the other plaintiffs. Plaintiff No. 3 is the cousin of the Plaintiff No. 1, 2 and 4 and he was allowed to possess 1 bigha of the land within the suit land by the other plaintiffs since the death of the original pattadar late Hazrat Ali. On 8.8.2002 the Plaintiff No. 1 went to the office of the Mouzadar and found that the defendants had already paid the revenue for the suit land for the year 1408 BS and accordingly the Mouzadar issued a certificate to that effect. Thereafter on enquiry in the Office of the Circle Officer at Sorbhog on 29/8/2002, the Plaintiffs came to know that in the present Chitha the name of the Defendants appears as pattadars of the suit land. Thereafter on 3/9/2002, the defendants forcefully entered into the suit land and dispossessed the plaintiffs. It is on the basis thereof that the plaintiffs have filed the suit seeking a decree declaring that the plaintiffs have right, title and interest over the suit land substantiating that the mutation of the name of the defendants over the suit land is a nullity and is inoperative in the eye of law; for a precept be sent to the Revenue authority to correct the revenue records in the light of the decree passed in the suit ; for a decree for delivery of khas possession of the suit land by evicting the Defendants therefrom following the due process of law and for the cost of the suit.
Page No.# 4/7 Interesting to mention that in the said suit neither the Government of Assam is a party nor any of its officials. There is also no challenge to the entering of the defendants' name in the Chitha.
5. Be that as it may, the defendants filed their written statement wherein apart from taking the various preliminary objections, it was stated that on 11/7/1993 the Plaintiff No. 2, Sabed Ali and the Proforma Defendant No. 1, Omar Ali and one Hussain Ali executed a katcha sale deed in favour of the mother of the Defendants Saifuddin Sikdar. In the katcha sale deed, the Plaintiff No. 1 was willing to join as a seller but refused to do so on the ground of non-existence of his share in the suit Dag. The Plaintiff earlier sold his share to one Burhan Ali Sikdar. The matter of the sale of the suit land to the defendants was clearly known to the plaintiffs. The vendor at the time of mutation allowed the name of the defendants to be the pattadars of the suit land which was subsequently converted into Periodic Patta by the order of the Deputy Commissioner, Barpeta dated 19/4/2003 and later on vide an order dated 20/4/2003 Circle Officer, Barnagar converted the suit land measuring 2 Bighas 4 Kathas 15 Lechas out of 3 Bigha 3 Kathas 5 Lechas under Dag No. 375 as Periodic Patta and the remaining 3 Kathas 10 Lechas as Annual Patta in the name of the Defendants. It was also stated in the written statement that the Annual Patta land measuring 3 Kathas 10 Lechas and the Period Patta land measuring 2 Bighas 4 Kathas 15 Lechas have been in possession of the Defendants. It further appears that pursuant thereto also there was no challenge to the issuance of the Periodic Patta as well as the Annual Patta to the Defendants.
6. The Trial Court framed as many as eight issues. On the basis of the evidence the Trial Court decreed the suit in favour of the plaintiffs. On appeal, the First Appellate Court taking into consideration that the Annual Patta could be sold and considering the katcha sale done by the plaintiffs to the Defendants were in accordance with law allowed the appeal. The plaintiffs as appellants thereafter preferred the instant Second Appeal by proposing the substantial questions of law Page No.# 5/7 which were framed by this Court on 27/1/2006.
7. Before further going into the questions as to whether the substantial questions of law on the basis of which the instant appeal was admitted do actually arise or are involved to the instant Second Appeal, it would be relevant to take note of the judgment of the Supreme Court rendered in the case of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179 and more particularly to paragraph 12, 13 and 14 which for the sake of convenience are quoted herein below :--
"12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju:
"[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the Page No.# 6/7 rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
13. In Dy. Commr., Hardoi v. Rama Krishna Narain also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 110 of the Code.
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
8. A perusal of the observations rendered by the Supreme Court in the above judgment stipulates that to be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the substantial findings of fact arrived at by the Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It has also been observed that the proper test for determining whether a question of law raised in a case is a "substantial", the said question of law must be a debatable, not previously settled by law of the land or a binding precedent and must have a material bearing on the decision of Page No.# 7/7 the case, if answered either way, insofar as the rights of the parties before the Court are concerned.
9. In the instant case, it could be seen that prior to the filing of the suit, the Plaintiffs had knowledge that the defendants names were duly inserted in the record of rights. It further appears from the evidence on record that on 19/4/2003 the Annual Patta was partly converted into Periodic Patta as well as Annual Patta by the Deputy Commissioner, Barpeta and the said Periodic Patta and Annual Patta were issued in favour of the Defendants. It also appears from the records that on 20.4.2003 the Circle Officer, Barnagar converted the suit land i.e. 2 Bighas 4 Kathas 15 Lechas out of 3 Bigahs 3 Kathas 5 Lechas under Dag No. 375 as a Periodic Patta and rest of 3 Kathas 10 Lechas which has been kept as Annual Patta was also issued in favour of the Defendants. This aspect of the matter has not been put to any challenge by the appellants in any proceedings. Consequently, the questions of law which have been quoted herein above as framed by the order dated 27/1/2006 does not arise for determination in the instant appeal without a challenge to the conversion of the Periodic Patta in the name of the defendants as well as allotment of the Annual Patta in favour of the defendants. Consequently, the said questions of law so framed being not substantial questions of law involved in the instant appeal, the instant appeal stands dismissed.
10. Registry is directed to return the LCR to the learned Court below.
JUDGE Comparing Assistant