RSA/186/2013 Page 1 GAHC010131392013 IN THE GAUHATI HIGH COURT HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) RSA/186/2013 1. Saraswati Bala Das Baishya, W/O Shri Kandarpa Pathak, R/O Village Mirzapur, P.O. and P.S. Azara, District -Kamrup, Assam. ……..Appellant -Versus- 1. Prabhat Ch. Baishya @ Das S/O Late Jagu Ram Das, R/O Village Mirzapur, P.O. and P.S. Azara, Distrcit - Kamrup, Assam ……Respondent BEFORE HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA Advocate for appellant : Ms. M. D. Choudhury, Advocate Advocate for respondent : Mr. S. Sharma, Advocate RSA/186/2013 Page 2 Date on which judgment is reserved : 20.01.2026 Date of pronouncement of judgment : 11.05.2026 Whether the pronouncement is of the Operative part of the judgment : N/A Whether the full judgment has been Pronounced : Yes Judgment & Order 1. Heard Ms. M. D. Choudhury, the learned counsel for the appellant. Also heard Mr. S. Sharma, the learned counsel for the respondent. 2. This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908, by the appellant, Saraswati Bala (Das) Baishya, impugning the judgment and decree dated 09.05.2013 and 14.05.2013, respectively, passed in Title Appeal No. 73/2012 by the Court of the learned Civil Judge No. 2, Kamrup (Metro), Guwahati, whereby the judgment and decree passed in Title Suit No. 16/2006 by the Court of the learned Munsif No. 2, Kamrup, Guwahati, was upheld. 3. The facts relevant for consideration of the instant appeal, in brief, are that the present appellant, as plaintiff, had filed a title suit before the Court of the learned Munsif No. 2, Guwahati for declaration of her right, title, and interest over the plot of land mentioned in Schedule A of the plaint, measuring about 8 bighas, 12 lechas, and 2 poa, covered by Dag Nos. 86, 107, 140, 164, 315, 523, 353, 551, 526, and 547 RSA/186/2013 Page 3 under K.P. Patta No. 191 of village Mirzapur, Mouza Ramcharani, in the district of Kamrup. 4. It was contended by the plaintiff before the trial court that the aforesaid plot of land was transferred to her by her late mother, namely, Nareshwari Baishya, by executing a registered gift deed on 15.07.1981. It was also contended that the aforesaid land belonged to the father of the present appellant, namely, late Jagyaram Baishya (Das). After the death of Jagyaram, the name of the mother of the appellant, namely, the late Nareshwari Das, was mutated in the records of rights in place of Jagyaram Das. 5. It is also contended that the present appellant is one of the nine children of the late Jagyaram Baishya and she looked after her mother until her death. It is also contended in the plaint that after her mother's death, the appellant constructed a small house of her own over 1 katha of land out of 4 kathas of land covered under Dag No. 526 under Patta No. 191. It was contended in the plaint that the present respondent, namely, Prabhat Chandra Baishya @ Das, who was arrayed as defendant No. 1 in Title Suit No. 16/2006, had forcibly occupied the remaining 3 kathas of land under Dag No. 526 of KP Patta No. 191. 6. It was also contended that the rest of the land, which was gifted to the present appellant by her late mother, and which has been mentioned in Schedule B of the plaint, has been unauthorizedly occupied by respondent No. 1. As such, the present appellant was compelled to approach the Court of the RSA/186/2013 Page 4 Munsif No. 2, Guwahati, by filing Title Suit No. 16/2006, seeking the above-mentioned reliefs against the defendant. 7. The appellant had prayed for the relief of declaration of her right, title, and interest over the land described in Schedule A to the plaint. She also prayed for recovery of possession of the land mentioned in Schedule B of the plaint, as well as for confirmation of possession over the land mentioned in Schedule C. She also prayed for a permanent injunction restraining defendant No. 1 from entering the land mentioned in Schedules A, B, and C, as well as from obstructing the appellant and her family members from using the latrine and bathroom which were constructed over the land covered by Dag No. 526 under Patta No. 191. 8. The present respondent/defendant No. 1 contested the suit, filed by the present appellant, by filing a written statement and counterclaim. 9. In the written statement, the defendant No. 1 took the defence of non-joinder of necessary parties, as the younger brother of the late Jagyaram Das, who was possessing half of the portion of the Basti land, and other Pattadars were not made parties to the suit. It was also contended that the land described in Schedule C of the plaint had been bequeathed to the defendant by the late Jagyaram Das by executing a will on 01.04.1969. It was also contended that the Court of the District Judge, Kamrup, had also granted probate in respect of the said will. RSA/186/2013 Page 5 10. It was also stated in the written statement that the plaintiff/present appellant and her sisters also filed a revocation case for the revocation of the probate granted to respondent No. 1. The said case was registered as Revocation Case No. 385/1995, which was also dismissed by the Court. The appellant preferred an appeal which was registered as MFA No. 197/1998 in this court. However, this Court, by judgment dated 18.11.2025 passed in MFA No. 197/1998, dismissed the said appeal. 11. The defendant No.1 also took the plea that in terms of the probate granted in Probate Title Suit No. 7/1972, he is possessing the land which was bequeathed to him by the late Jagyaram Das. It was also contended that the present appellant was allowed by the defendant to reside in a house standing over 1 katha of land covered by Dag No. 526 under Patta No. 191 as a permissive occupier. 12. In the counterclaim, the defendant No.1 prayed for declaring the gift deed dated 15.07.1981 as illegal, inoperative, and not binding on defendant No. 1. 13. Upon the pleadings of the parties, the Trial Court framed 6 issues, which are as follows: i. Whether the suit is maintainable? ii. Whether there is any cause of action for the suit? iii. Whether the defendant has right over the suit land? iv. Whether the plaintiff has right, title and interest over the Schedule A land? v. Whether the counter- claim is maintainable? RSA/186/2013 Page 6 vi. Whether the defendants are entitled for decree as prayed for? 14. In support of their respective cases, both parties adduced the evidence of three witnesses each. After considering the evidence on record, the Trial Court, by its judgment dated 16.05.2012, in Title Suit No. 16/2006, decided the issue nos. 1, 2, and 3 in affirmative. However, it decided the issue no. 4 in negative and held that the mother of the plaintiff, namely late Nareshwari Baishya, did not have the right, title, and interest over the entire Schedule A land, as such, on the strength of the gift deed executed by her, the plaintiff cannot get right, title, and interest over the Schedule A land. 15. The Trial Court also held that the suit filed by the present appellant was not maintainable, and accordingly, decided Issue No. 1 in negative. The Trial Court also decided the issue regarding the maintainability of the suit in negative. Further, as it found the counterclaim to be barred by the law of limitation, as such, Issue No. 6 was also decided in the negative by the Trial Court. Accordingly, both the suits and the counterclaim were dismissed by the Trial Court. 16. Being aggrieved by the judgment of the Trial Court, the present appellant preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 against the said judgment before the Court of the Civil Judge (Senior Division) No. 2, Kamrup, Guwahati. The said appeal was registered as Title Appeal No. 73/2012. In the aforesaid appeal, the First RSA/186/2013 Page 7 Appellate Court formulated the following points for determination: i. Whether the judgment and decree passed by the Trial Court is just and proper and needs interference in this appeal. 17. However, by the judgment dated 09.05.2023, the First Appellate Court dismissed the appeal and upheld the judgment delivered by the Trial Court in Title Suit No. 16/2006. 18. Being aggrieved by the aforesaid judgment passed by the First Appellate Court, the present appellant has preferred the instant Regular Second Appeal. This Court, while admitting the appeal on 27.01.2014, formulated the following two substantial questions of law: i. Whether the courts below committed an error by holding that the mother of the plaintiff had no right to transfer the suit property by a gift deed. ii. Whether the courts below committed an error by holding that a Hindu widow is not entitled to inherit the immovable property left by her husband under the Hindu Succession Act. 19. Ms. M. D. Choudhury, the learned counsel for the appellant submitted that both the Trial Court as well as the First Appellate Court erred in framing as well as deciding Issue No. 3 in favour of the defendant No.1, in as much as there was no RSA/186/2013 Page 8 prayer by the defendant No.1 seeking his right, title, and interest over the suit lands. She submits that the counterclaim was filed by the defendant No.1 only to the extent of challenging the validity of the gift deed in favour of the present appellant. Nothing more was sought. However, the said challenge was held by both courts to be barred by limitation. As such, she submits that the Trial Court, as well as the First Appellate Court, went beyond the pleadings in framing Issue No. 3 and thereafter, deciding the said issue in favour of the defendant. 20. The learned counsel for the appellant submitted that the mother of the appellant, being the widow of Jagyaram Das and a class I heir, is entitled to inherit his property; as such, she was well within her rights to give the said property to her daughter by executing a registered gift deed. 21. The learned counsel for the appellant also submitted that the family settlement deed dated 18.04.1954 partitioning the property between the father of the appellant, as well as her uncle, which was relied upon by the Trial Court and the First Appellate Court is in respect of some other plot of land. The dag number and patta number mentioned in the said family settlement deed (Exhibit D-3) do not tally with the dag number and patta number mentioned in the gift deed (Exhibit 1). 22. The learned counsel for the appellant has submitted that the plot of land which was gifted by Nareshwari Baishya in favour of the present appellant was inherited by Nareshwari Baishya RSA/186/2013 Page 9 from her deceased husband, Jagyaram Baishya, and her name was also mutated in the records of rights; therefore, she had all the rights to give that land to her daughter. The Trial Court and the First Appellate Court committed an illegality and arrived at a wrong decision that Nareshwari Baishya did not have any right to give the aforementioned land. 23. She further submits that even the challenge to the aforesaid gift deed in the form of a counterclaim was dismissed by the Trial Court and said decision was concurred with by the First Appellate Court. As such, the validity of the gift deed is not affected and the said gift deed is still valid. She submits that the Trial Court and the First Appellate Court, by ignoring the gift deed in favour of the present appellant, committed an error and arrived at a wrong conclusion. 24. She further submits that even the possession of the gifted land was handed over to the present appellant in terms of Section 122 of the Transfer of Property Act, 1882, and by failing to take the same into consideration, the Trial Court arrived at a wrong conclusion, as did the First Appellate Court. 25. The learned counsel for the appellant thus, submits that the Trial Court and the First Appellate Court committed an error by holding that the mother of the present appellant had no right to transfer the suit property by executing a gift deed. She submits that they also committed an error by holding that she was not entitled to inherit the immovable property left by her deceased husband. As such, she submits that both substantial questions of law formulated by this Court should RSA/186/2013 Page 10 be decided in favor of the present appellant and the judgment and decree passed by the First Appellate Court as well as by the Trial Court should be set aside. 26. On the other hand, Mr. S. Sharma, the learned counsel for the respondent submitted that the Trial Court and the First Appellate Court rightly considered the materials available on record and came to the correct finding by dismissing the suit of the present appellant. 27. He submits that in the exercise of its powers under Section 100 of the Code of Civil Procedure, 1908, this Court cannot unsettle a concurrent finding on a question of fact by the Trial Court and the First Appellate Court to the effect that the mother of the present appellant had no right to gift the entire land mentioned in Schedule A of the plaint to the present appellant as she was not the sole legal heir of the late Jagyaram Baishya. 28. He further submits that the questions formulated by this Court in the instant appeal are not substantial questions of law, as to decide the said questions, the court would have to go into the materials on record and, thereupon, the questions of fact as well. He submits that the Trial Court rightly relied upon the family settlement deed, exhibited as Exhibit D-3, by which the land was amicably settled and partitioned between the late Jagyaram Baishya and Tanu Ram Das @ Bhakheri and his brother. He submits that the dag number and patta number mentioned in the family settlement deed may not match the gift deed because the family settlement was made in the year RSA/186/2013 Page 11 1954 and the numbers mentioned therein are the old numbers, whereas the same land was gifted by the mother of the present appellant by mentioning the new dag number and patta number. 29. The learned counsel for the respondents submits that the suit also fails for non-joinder of necessary parties, as the Pattadars, including the brother of Jagyaram Baishya, were not made parties to the suit. He also submits that half of the land mentioned in the schedule to the plaint was bequeathed by the father of the present appellant to the present respondent by executing a deed which is exhibited as Exhibit 4, and in respect of which probate has also been granted by a competent court. 30. The learned counsel for the respondent submitted that the Trial Court and the First Appellate Court took into consideration the materials before them and arrived at the right conclusion. He submits that the decision of the First Appellate Court and the Trial Court may not be regarded as a perverse finding; as such, the general view that the High Court will not interfere with concurrent findings of fact would be applicable in this case and the second appeal is not maintainable. He submits that the substantial questions of law formulated by this Court while admitting the instant appeal are, therefore, to be decided in favour of the respondent and the instant appeal may be dismissed. In support of his submission, he has cited the following rulings: RSA/186/2013 Page 12 i. Hero Vinoth (minor) Vs. Seshammal, reported in (2006) 5 SCC 545 ii. Kasturi Vs.. Iyyamperumal and Others, reported in (2005) 6 SCC 733 iii. Rabindranath Panigrahi Vs Surendra Sahu, reported in AIR Online 2025 SC 146 31. I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by the learned counsel in support of their respective submissions. 32. It is a settled proposition of law that the High Court, in exercise of its powers under Section 100 of the Code of Civil Procedure, 1908, will not interfere with the concurrent findings of fact of the courts below, unless the decision is found to be perverse. Regarding the question as to when a decision can be regarded as perverse, the Supreme Court of India, in the case of “Associate Builders Vs. Delhi Development Authority” reported in (2015) 3 SCC 49, observed that there is a broad distinction between decisions which are perverse and those which are not. The relevant excerpts from the aforesaid judgment are quoted hereinbelow: “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) RSA/186/2013 Page 13 “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 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.” 33. Thus, it appears that if a decision is arrived at on no evidence or evidence, which is thoroughly unreliable and no reasonable RSA/186/2013 Page 14 person would act upon it, the order would be perverse and not otherwise. 34. In the instant case, the Trial Court as well as the First Appellate Court came to a finding that the landed properties which were gifted by the mother of the present appellant, namely, late Nareshwari Baishya to him by executing a gift deed, were not entirely owned by her as the portion of the said property were earlier bequeathed by late Jaggu Ram Baishya to the defendant. The court below also came to a conclusion that apart from late Nareshwari Baishya, there were other legal heirs of Jaggu Ram Baishya. Hence, in absence of any transfer of property by way of gift or sale to Nareshwari Baishya, the property would on death of Jaggu Ram Baishya devolved upon his all legal heirs and therefore, late Nareshwari Baishya alone does not have the right to gift the entire property to the plaintiff. 35. The First Appellate Court also observed that the gift being a mode of transfer of ownership, the donor must have the ownership right in the property at the time of executing the gift deed. However, in the instant case, the plaintiff/appellant has failed to show as to how late Nareshwari Baishya acquired the right, title and interest over the entire property which she gifted to the present appellant. 36. This Court does not find the reasoning of the Appellate Court as well as trial court to be erroneous, as otherwise also, on death of late Jaggu Ram Baishya, he left behind not only Nareshwari Baishya but his nine offsprings and all of them RSA/186/2013 Page 15 being class 1 legal heirs would inherit equal shares in his properties, therefore, the widow of Jaggu Ram Baishya namely Nareshwari Baishya alone could not have gifted the entire property left by Jagguram Baishya. 37. It is also pertinent to mention here that nowhere in the impugned judgment of the First Appellate Court or the Trial Court it was observed that a Hindu widow is not entitled to inherit immovable property left by her husband. However, merely because the name of Nareshwari Baishya was mutated in records of right, she does not get the right to inherit entire property left by her late husband Jaggu Ram Baishya to the exclusion of other class I legal heirs. 38. On death of her husband she only inherits his property in equal share with other class I heirs namely her children. Accordingly, though, she had inherited the properties of late Jaggu Ram Baishya to the extent of shares to which she is entitled as per Hindu Succession Act, 1956 along with other class I heirs, however, she cannot exclude other class I heirs and transfer the entire property of late Jaggu Ram Baishya herself alone. 39. The appellant/plaintiff has failed to show anything or produce any evidence to justify that the property which was gifted by late Nareshwari Baishya to her was inherited by late Nareshwari Baishya to the exclusion of other class I heirs of late Jagguram Baishya. Thus, though, a Hindu widow is entitled to inherit immovable property left by her husband as a class I heir of her husband under Hindu Succession Act, RSA/186/2013 Page 16 1956, however, as the children of late Jaggu Ram Baishya are also class I heirs and they cannot be excluded from inheriting the property of late Jaggu Ram Baishya in equal shares with other class I heirs. 40. This Court, therefore, finds no perversity in the judgment of the First Appellate Court as well as the Trial Court justifying any interference in the impugned judgment by this Court in exercise of powers under Section 100 of the Code of Civil Procedure, 1908. 41. The substantial questions of law formulated in this Regular Second Appeal are, accordingly, answered. 42. This appeal is found devoid of any merit and accordingly, dismissed. 43. Prepare the decree, accordingly. 44. Send back the records of the Trial Court as well as of the First Appellate Court to the respective Courts along with a copy of this judgment. JUDGE Comparing Assistant Digitally signed by Amita Sharma Date: 2026.05.13 16:54:11 +05'30'