The main legal point established in the judgment is that a suit seeking declaration of title and interest over land may be barred under Section 154 of the Assam Land and Revenue Regulations, and the burden of proof lies with the plaintiffs to establish their title over the land.

B.K. Sharma, J.

1. This second appeal was twice decided, first in 1995 and secondly in 1997. However, on both the occasions, the matter was carried on appeal before the Hon'ble Supreme Court and on both the occasions, the matter was remanded back for fresh decision and that is how, the matter is again taken up. It will be appropriate to refer to the orders passed by the Apex Court at this stage.

Order dated 3.3.1996 Civil Appeal No. 4798 of 1996 Chandra Das v. State of Assam and Ors. This appeal has been filed on behalf of the defendants to the suit for setting aside the judgment of the High Court in Second Appeal No. 171 of 1994.

The suit in question had been filed on behalf of the respondent Nos. 6 and 7 (hereinafter referred to as the respondents). It was decreed by the trial court. The appeal filed on behalf of the appellant was allowed and the suit was dismissed. Being aggrieved by the judgment of the court of appeal, the second appeal was filed on behalf of the aforesaid respondents which has been allowed by the impugned order. The learned Judge at the beginning of the judgment itself has observed:

As the lower appellate court has reversed the findings in all the issues of the trial court, this Court now required to examine the entire materials on record and to see if the lower appellate court has not determined the issues on facts or it has determined the issues by reason of any illegally the issues by reason of any illegality, omission, error or defect. It is well settled position of law that in a suit for declaration of title and interest and consequent possession a person has to prove title over the land and that - is a finding of fact. If the decision arrived in fairly, in accordance with procedure prescribed it is not liable to be reopen. In this case, plaintiffs' case based entirely on record and therefore this Court has to re-appreciate the materials on record to ascertain the legal aspect thereof.

This Court has on several occasions pointed out the limitation prescribed by Section 100 of the Code of Civil Procedure on the power of the High Court while hearing and disposing of a second appeal. There is no question of re-appreciating the materials on record.

Accordingly, we allow this appeal and set aside the impugned judgment of the High Court. We request the High Court to hear and dispose of the said appeal as early as possible. Incidentally, we may mention that notice had been issued by this Court to the respondents so that the dispute may be settled between the parties. The High Court shall also examine as to whether the dispute between the parties can be amicably settled on terms and conditions acceptable to both the parties. No costs.

Order dated 21.9.2004

Civil Appeal No. 1457 of 1999

Chandra Das v. State of Assam and Ors.

Heard the learned Counsel for the parties.

This is the second time that the matter has come to this Court. On the first occasion, this Court disposed of the appeal by order dated 3rd October, 1996 finding fault with the judgment of the High Court made in the second appeal stating that it committed an error in re-appreciating the evidence sitting in second appeal and that it failed to notice the limitation prescribed under Section 100 of the Code of Civil Procedure 1908 (for short, "the Code") in dealing with second appeals. In view, the judgment passed in the second appeal was set aside and the matter was remitted to the High Court for disposal afresh of the second appeal. While doing so, incidentally, this Court observed that all efforts could be made by the parties to settle the dispute, having regard to the nature of the dispute. As can seen from the impugned judgment, the High Court did not consider as to whether the requirements of Section of 100 of the Code were complied with. The High Court, in our view, committed the same error which was committed on the earlier occasion, namely, it has re-appreciated the evidence again and passed the impugned judgment.

This court has repeatedly ruled