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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
Md. Hazi Rais Ali Choudhury S/o Late Hazi Abdul Rashid Choudhury – Appellant
Versus
Tyrun Bibi W/o Late Abdul Latif Laskar – Respondent
RSA No. 15 of 2022
Decided On : 22-06-2022
Code of Civil Procedure, 1908 - Section 100, 100 (4), 145 - Order XLI Rule 11 - Order XLII Rule 1 - Second Appeal - Registered Sale Deed - Title Suit - Challenging judgment and decree - Declaring the title possession - Whether both courts below was justified in declaring the title possession of the plaintiff/respondent without setting aside the Registered Sale Deed which is still in operation in favour of the defendant/appellant and they are still in the possession of suit land - Whether both the courts below arrived at a perverse finding while deciding the Issue No. 5 when the PW-1 admitted that there is no deed of partition and there was no legal partition amongst the co-sharers of the Suit Patta as such in the joint property the appellant/defendants are in possession on the strength of Registered Sale Deed - Whether the two questions of law proposed are substantial questions of law involved in the instant appeal so that the same can be formulated in terms of Section 100 (4) of the Code - Question of law of importance to parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 110 of the Code. (Para 13).
Findings of the Court :
In the opinion of this Court the said cannot be a substantial question of law involved in the instant appeal inasmuch as admission of PW1 that there was no deed of partition was the result for which the suit was partly decreed in favour of the plaintiffs thereby only a part of the suit land, i.e. 1 katha 5 chattaks 8 gondas of land was only decreed in favour of the plaintiffs and the proforma defendants. Further to that, the question as to whether the principal defendants were in possession over the suit land on the basis of registered sale deed No. 1436 dated 10.10.1994 cannot also be taken into account inasmuch as the said purported registered sale deed bearing No. 1436 dated 10.10.1994 was proved by evidence in any manner by the appellants before the Court. Under such circumstances, the said cannot also be a substantial question of law that can be formulated in terms of Section 100 (4) of the Cr.P.C.
Result : Appeal dismissed.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. T. Sheikh, the learned counsel appearing on behalf of the appellants.
2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short “the Code”) challenging the judgment and decree dated 20.01.2021 passed in T.A. No. 4/2017 whereby the said appeal was dismissed thereby affirming the judgment and decree dated 22.02.2017 passed in Title Suit No. 54/2010 by the Court of the Munsiff No. 1, Cachar whereby the suit of the plaintiffs was partly decreed.
3. The instant appeal has been taken up for consideration at the stage of Order XLI Rule 11 of the Code as to whether there arises any substantial question of law for admission of instant appeal to be formulated in terms with Section 100 (4) of the Code.
4. For the purpose of deciding the said aspect of the matter it would be relevant to take note of the brief facts of the case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the trial court.
5. The suit land in question relates to 2nd R.S. Patta No. 29 of Mouza-Taripur Part-I, Ph- Fulbari in Katigorah P.S. The said Patta comprised of Dag No. 64 measuring 9 bighas 13 kathas 9 chattaks and Dag No. 157 which originally comprised of 7 kathas 6 chattaks and now 6 kathas 11 chattaks in view of the acquisition of land by the Government. Therefore, the total area in the Patta No. 29 comprises of 10 bighas 5 kathas. The said land originally belonged to one Akram Ali (since deceased) who had two sons and one daughter, namely, Anjir Ali, Pochan Mia and Akluja Bibi respectively.
6. It is the case of the plaintiffs that after the death of Akram Ali, the two brothers as per their law of inheritance, got one share each and their sister Akluja Bibi got ½ share. The said Akluja Bibi expired leaving behind only one son, i.e. Abdul Latif Laskar (husband of the plaintiff No. 1 and the father of the plaintiff Nos. 2 and 3, proforma Defendant No. 8 to 13 and one Hussain Ali Laskar). It has been mentioned in the plaint that during the lifetime of Akluja Bibi, she resided in the suit land which has been described in the schedule to the plaint and after her death, Abdul Latif Laskar and thereafter the plaintiffs and the proforma defendants continued to possess the suit land.
7. It is the specific case in the plaint that the principal defendants had their land in other Dag of the suit Patta, i.e. Dag No. 64 which the principal defendants had purchased from the legal heirs of Anjir Ali and Pochan Mia and the principal defendants did not have any semblance of right, title and interest over any portion of the suit Dag in any manner. It has been alleged that initially in the year 2007, the principal defendants illegally raised their claim over the land in Dag No. 157 which is the suit land and filed a false complaint against the plaintiffs which was registered and numbered as Case No. 67M/2007 under Section 144 of the Cr.P.C. which was subsequently converted into a proceeding under Section 145 Cr.P.C. The said proceedings was decided against the plaintiffs vide the judgment and order dated 01.06.2009. The plaintiffs thereafter preferred a Criminal Revision No. 74/2009 in the Court of the Sessions Judge, Cachar against the order dated 01.06.2009 which was dismissed by the Additional District Judge (FTC), Cachar, Silchar by the judgment and order dated 20.02.2010.
8. In view of the judgment passed in the 145 Cr.P.C. proceedings against the plaintiffs, the present suit was filed seeking a decree for declaration of ownership, right, title and interest of the plaintiffs and proforma defendants over the suit land; a decree declaring confirmation of possession thereof in favour of the plaintiffs; permanent injunction against the principal defendants restraining them from dispossessing the plaintiffs from the suit land; costs of the suit etc. The said suit was registered and numbers as T.S. No. 54/2010.
9. The principal defendant No. 1 and 2 filed their writt
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