Page No.# 1/10 GAHC010105972011 2025:GAU-AS:2263 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/6/2011 MUSTT. ANUWARA BEGUM BARBHUIYA and 2 ORS W/O LATE ABDUL SALAM BARBHUIYA 2: MUSTT. MORIOM NESSA 3: MUBEJJIL HUSSAIN BARBHUIYA D/O and S/O LATE ABDUL SALAM BARBHUIYA VILL. BILPAR DUMKAR P.O. P.S. and DIST. HAILAKAND VERSUS MD.NURUL HOQUE BARBHUIYA and 2 ORS 2:MD. JOYNUL HOQUE BARBHUIYA S/O LATE HILAL UDDIN BARBHUIYA VILL. BILPAR DUMKAR P.O. P.S. and DIST. HAILAKANDI. 3:MD. ABDL WAHID CHOUDHURY @ PUTUL HOQUE CHOUDHURY S/O LATE YUSUB ALI CHOUDHURY HAILAKANDI TOWN WARD NO. For the Appellant(s) : Mr. M. H. Saikia, Advocate For the Respondent(s) : Mr. M. H. Rajbarbhuiyan, Advocate Page No.# 2/10 Date of Hearing : 25.02.2025 Date of Judgment : 25.02.2025 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER (ORAL) Heard Mr. M. H. Saikia, the learned counsel appearing on behalf of the appellants and Mr. M. H. Rajbarbhuiyan, the learned counsel appearing on behalf of the respondents. 2. The instant appeal is filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 31.03.2010 passed in Title Appeal No.1/09 by the Court of the learned Civil Judge, Hailakandi (hereinafter referred to as ‘the First Appellate Court) whereby the judgment and decree dated 29.11.2008 passed in Title Suit No.134/2006 by the learned Court of the Munsiff No.1, Hailakandi (hereinafter referred to as ‘the learned Trial Court’) was affirmed. 3. It is seen from the records that vide an order dated 04.05.2011, the instant appeal was admitted by formulating a substantial question of law which reads as under: “Whether the Courts below failed to find that the suit is not maintainable under the provisions of Section 32-A of the Registration Act, 1908, Order VI Rule 15 CPC and Order VII Rule 11(b) and (c) CPC read with the provisions of the suit valuation and Court fees Act?” Page No.# 3/10 4. The question which arises for consideration in the instant Appeal is as to whether the said substantial question of law is involved in the present appeal. For ascertaining the same, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal. 5. The respondents herein as plaintiffs had instituted a suit being Title Suit No.134/2006. In the said suit, it was the case of the plaintiffs that one Samsul Haque Mazarbhuiyn who was the original owner of a plot of land vide registered Deed of Sale bearing No.7424 dated 29.10.1974 transferred the said plot of land to one Abdul Salam Barbhuiya and Abdul Wahid Choudhury. Late Abdul Salam Barbhuiya pursuant to the purchase was in occupation of the western part of the said plot of land and the eastern part was under the occupation of Late Abdul Wahid Choudhury on the basis of an amicable partition. After the amicable partition, Late Abdul Salam Barbhuiya had constructed one commercial structure on the plot of land and got a municipal holding number bearing No.65/68 of Hailakandi Town, Ward No.2. 6. Pursuant thereto, the plaintiff No.1 entered into an agreement dated 08.05.1997 for tenancy with Late Abdul Salam Barbhuiya. Subsequent thereto, Late Abdul Salam Barbhuiya transferred his share of the land in favour of the defendant No.1 vide a registered Deed No.2267 dated 26.04.1997. The land was specifically described in Schedule-II to the plaint. 7. It is the further case of the plaintiffs that in the first part of July, 2002, the defendant No.1 on account of her financial necessity, proposed to sell the land described in Schedule-II to the plaintiffs which was under the occupation of the plaintiffs at a consideration of Rs.43,000/- and in that Page No.# 4/10 regard had executed an agreement for sale on 25.07.2002 and the plaintiffs paid an amount of Rs.10,000/-. The remaining consideration was to be paid on or before 31.03.2003 and the defendant No.1 was to execute and register the Sale Deed in favour of the plaintiffs. 8. It is the further case of the plaintiffs that on 04.01.2003, the defendant No.1 after receipt of the consideration of Rs.33,000/-, executed the Deed of Sale however, the said Deed of Sale was not registered on account of the permission not being obtained from the Municipal Board, Hailakandi and from the Deputy Commissioner, Hailakandi to effect registration thereupon. It is the case of the plaintiffs that the plaintiffs had requested the defendant No.1 to sign on the permission forms so that the necessary permissions could be obtained. However, the defendant No.1 did not sign those documents. Rather, the defendant No.1 had executed a Deed of Sale dated 06.01.2003 in favour of the defendant Nos. 2 and 3 who were the son and daughter of the defendant No.1. It is under such circumstances, the suit was filed by the plaintiffs seeking a declaration that the agreement dated 25.07.2002 was legally valid and binding and for a direction to the defendant No.1 to register as per the provisions of the Indian Registration Act, 1908; a decree declaring that the Sale Deed executed by the defendant No.1 in favour of the defendant Nos. 2 and 3 bearing deed No.44 dated 06.01.2003 is illegal, fraudulent, collusive and invalid in the eye of law and is liable to be cancelled; a decree for permanent injunction restraining the defendants, their agents etc. from disturbing in the possession of the Schedule-II land by any illegal means. 9. Pursuant to the filing of the said suit, the defendant Nos. 1 and 2 Page No.# 5/10 jointly filed a written statement. In the written statement, various pleas were taken as regards the maintainability of the suit. It is apposite herein to mention the pleas taken as the same have relevance to the substantial question of law so framed by this Court vide the order dated 04.05.2011. The pleas were that the suit was barred under the principles of estoppels, waiver, acquiescence; it was barred under the provisions of the Specific Relief Act, 1963 and the Code of Civil Procedure, 1908; it was barred under the provisions of the Indian Registration Act, 1908 and that the suit merely for registration is not legally tenable without relief for specific performance and also for want of required permission for sale or No Objection Certificate from the concerned authorities. In addition to that, the further preliminary objections were taken as regards non-joinder of necessary parties and the defendant No.3 who was a minor, the suit was not filed through his next friend. 10. On merits, it is the case of the defendants that Late Abdul Salam Barbhuiya and proforma defendant No.4 was the owner of 1 Katha 10 Chattaks and 11 Gondas of land which have been specifically described in Schedule-I to the plaint. The proforma defendant No.4 sold away his half portion i.e. 13 Chattaks 5 Gondas 2 Koras to Saidur Rahman Mazumdar son of Late Abdulla Mia Mazumdar for valuable consideration. Late Abdul Salam Barbhuiya sold away his half share measuring 13 Chattaks 5 Gondas 2 Koras to the defendant No.1 vide the registered Sale Deed dated 24.06.1997. It was admitted that there was a Bharanama/tenancy agreement executed by and between Late Abdul Salam Barbhuiya as owner and one Samsuddin Choudhury as tenant on 12.03.1997. It was stated that there was no lease to the said Samsuddin Choudhury continued and there was receipt of advance Page No.# 6/10 rent from time to time. It was stated that in the early April, 2002 the defendant No.1 received advance rent of Rs.80,000/- to be adjusted at the rate of Rs.100/- per month as against the agreed monthly rent of Rs.450/- in respect to her premises. The said Samsuddin Choudhury had a pan shop- cum-stationary shop therein and has been in continuous possession of the same. It was further stated that the land and house of the defendant No.1 is in the eastern portion of the land of Saidur Rahman Mazumdar who was the purchaser from the proforma defendant No.4. It was denied that there was any legal or valid bainama or agreement of sale as alleged in the plaint. It was stated that there was no deed of sale executed legally and properly and there was no reason or necessity to sell the land and house of the defendant No.1 in the suit patta and dags to the plaintiffs. 11. On the basis of the said pleadings, four issues were framed. They were: “(i) Is there any cause of action? (ii) Is the suit maintainable under the provisions of the Specific Relief Act? (iii) Whether the sale deed dated 04.01.2003 was duly executed? (iv) Whether the plaintiffs are entitled to get a decree as prayed for?” 12. On behalf of the plaintiff, evidence of three witnesses were adduced and various documents were exhibited and on behalf of the defendants, the evidence of two witnesses were adduced and the certified copy of Deed of Sale dated 06.01.2003 was exhibited. The learned Trial Court vide its Page No.# 7/10 judgment and decree dated 29.11.2008 decreed the suit in favour of the plaintiffs holding inter alia that the plaintiffs are entitled to get registration of the Sale Deed i.e. Exhibit-5 from the defendants for the suit land and the plaintiffs are further entitled to get cancellation of the registered Sale Deed dated 06.01.2003 i.e. Exhibit-8. 13. It is relevant to take note of that the learned Trial Court while deciding the said Issue No.2, came to a categorical opinion on the basis of evidence that the plaintiff through PW-1 corroborated that due to non-cooperation of the defendant No.1, the Sale Deed could not be registered without the NOC from the authority and for non-cooperation of the defendant No.1, the NOC could not be obtained. It was further opined that since Exhibit-4, which is an agreement for Sale could be specifically enforced under the provisions of the Specific Relief Act, 1963, the suit was maintainable in its present form. In respect to Issue No.3, the learned Trial Court came to opinion that as the defendant No.1 had executed the unregistered Deed of Sale on 04.01.2003 and as such the Sale Deed in favour of the defendant Nos.2 and 3 by the defendant No.1 was not valid as the defendant No.1 had no right to transfer vide the Deed of Sale dated 06.01.2003. It was also held that the said Deed of Sale dated 06.01.2003 was liable to be cancelled as it was collusive and invalid. The learned Trial Court further held while deciding the Issue No.4 that the plaintiffs had fully established their case and are entitled to the relief to the extent that the plaintiffs have a right to get registration of the Sale Deed i.e. Exhibit-5 from the defendants for the suit land and entitled to get cancellation of the Sale Deed dated 06.01.2003 i.e. Exhibit-8. 14. Being aggrieved, the defendant Nos. 1 and 2 preferred an appeal Page No.# 8/10 which was registered as Title Appeal No.1/09. The learned First Appellate Court vide a judgment and decree dated 31.03.2010 dismissed the appeal. In doing so, the learned First Appellate Court directed that the appellant No.1 was bound to register the Sale Deed dated 04.01.2003 as per the terms and conditions on the Bainanama dated 25.07.2002. It was further opined and ordered that the registered Sale Deed No.44 dated 06.01.2003 was illegal and invalid document. Being aggrieved, the present appeal has been preferred. 15. This Court heard the learned counsels appearing on behalf of the appellant as well as the respondents in respect to the substantial question of law which was formulated by this Court. The substantial question of law which was formulated is on the question as to whether the suit was maintainable in terms with Section 32A of the Registration Act, 1908 or under Order VI Rule 15 of the Code or under Order VII Rule 11(b) and 11(c) of the Code read with the provisions of the Suit Valuation and the Court Fees Act. 16. This Court during the course of hearing enquired as to whether the pleas so taken as regards maintainability was at all agitated before the learned Trial Court as there is no foundation in the pleadings or the issues so framed before the learned Trial Court. The learned counsel appearing on behalf of the appellants could not answer to the same. Be that as it may, this Court finds it relevant to take note of that the question of applicability of Section 32A of the Registration Act, 1908 would arise only at the time when the document is placed for registration. Admittedly, the Deed of Sale though executed on 04.01.2003 but it was not submitted for registration as there Page No.# 9/10 was no permission obtained from the authorities concerned. Under such circumstances, Section 32A of the Registration Act, 1908 cannot be said to have any relation without the document being placed for registration. 17. Order VI Rule 15 of the Code is a provision incorporated as to how the pleadings are to be verified. Nothing could be shown as regards the defect in the verification so made in the pleadings. 18. Order VII Rule 11(b) and (c) relates to rejection of the plaint on account of deficit court fee or when the relief is undervalued. It is however relevant to take note of that in terms of Order VII Rule 11(b) and (c), a suit cannot be rejected out rightly. The learned Trial Court has to give an opportunity to the plaintiff to rectify the said defect. Nothing has been shown by the learned counsel for the appellant in that regard. Additionally, nothing is also apparent from the Lower Court Records. 19. Apart from the above, it is also seen that such issues were not raised and the learned Trial Court had also not mentioned anything in its judgment. Consequently, the applicability of Order VII Rule 11(b) and (c) of the Code have no relevance to the present Appeal. 20. Accordingly, this Court is of the opinion that the substantial question of law so formulated in the present appeal is not a substantial question of law involved. 21. Consequently, the instant appeal stands dismissed with costs quantified at Rs.11,000/-. In addition to that, the plaintiffs would be entitled to costs throughout the proceedings. Page No.# 10/10 22. The Registry is directed to forthwith return the LCR to the learned Court below. JUDGE Comparing Assistant