Page No.# 1/11 GAHC010211442024 2025:GAU-AS:6017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/14/2025 MADAN MALAKAR AND 7 ORS S/O LATE UMESH MALAKAR, RESIDENT OF B.S.F CAMP ROAD, KARIMGANJ, PO KARIMGANJ, DIST. KARIMGANJ, ASSAM 788712 2: SMTI ANITA MALAKAR D/O LATE UMESH MALAKAR W/O SRI CHITTA MALAKAR RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 788712 3: SMTI MOMOTA MALAKAR D/O LATE UMESH MALAKAR RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 788712 4: CHITTA MALAKAR S/O LATE ROSENDRA MALAKAR RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 788712 5: MOMPI MALAKAR D/O LATE ROSENDRA MALAKAR Page No.# 2/11 RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 788712 6: RAHUL MALAKAR S/O LATE ROSENDRA MALAKAR RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 788712 7: SRI RAJU MALAKAR S/O LATE ROSENDRA MALAKAR RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 788712 8: RUPA MALAKAR D/O LATE ROSENDRA MALAKAR RESIDENT OF B.S.F CAMP ROAD KARIMGANJ PO KARIMGANJ DIST. KARIMGANJ ASSAM 78871 VERSUS ANAM UDDIN CHOUDHURY S/O LATE SHAFIQUL HAQUE CHOUDHURY, RESIDENT OF VILLAGE KHUD PURAHURIA PO MANIKGANJ, DIST KARIMGANJ, ASSAM Page No.# 3/11 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the appellant(s) : Mr. N Dhar Advocate for the respondent(s) : Mr. HK Baruah Date of hearing : 14.05.2025 & Judgment JUDGMENT & ORDER (ORAL) Heard Mr. N Dhar, the learned counsel appearing on behalf of the appellant. Mr.HK Baruah, the learned counsel appears on behalf of the respondents. 2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dated 26.06.2024 passed in Title Appeal No.02/2002 by the Court of the learned District Judge, Karimganj (hereinafter referred to as, ‘the learned First Appellate Court’) whereby the appeal was dismissed thereby affirming the judgment and decree dated 09.05.2018 passed by the Court of the learned Civil Judge, Karimganj (hereinafter referred to as, ‘the learned Trial Court’) in Title Suit No.50/2013, whereby the suit was decreed in favour of the plaintiff. 3. 3. The instant appeal is being taken up at the stage of Order XLI Rule 11 of the Code to ascertain, as to whether, any substantial question of law can be Page No.# 4/11 formulated in the instant appeal. 4. Mr. N Dhar, the learned counsel appearing on behalf of the appellant submitted that though in the memo of appeal various questions have been proposed, but he would propose the following two questions of law to be substantial questions of law involved in the instant appeal, which are reproduced hereinunder: (1). As to whether the impugned judgment and decree passed by the learned courts below in decreeing the suit filed by the plaintiff and thereby declaring the title of the plaintiff over the entire suit land ignoring the pleadings in the plaint and solely basis of the sale deed (i.e.exhibit-6) executed in favour of the plaintiff ignoring ignoring the final khatian of the suit land and that too without impleading the actual owners and co-sharers of the suit land have resulted into the perversities and miscarriage of justice? (2). For that in any view of the matter, the impugned judgment, order and decree passed by the learned courts below are otherwise bad in law and as such these are liable to be set aside and quashed. 5. The question which arises before this Court is as to whether these questions of law can be at all formulated as substantial questions of law arising in the instant appeal. For the purpose of ascertaining the same, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal. For the sake of convenience, the parties herein are referred to in the same status as they were before the learned Trial Court. Page No.# 5/11 6. The respondent herein as plaintiff had instituted a suit being Title Suit No.50/2013 before the learned Trial Court. The case of the plaintiff in the said suit is that one Sudhir Kumar Deb was the original owner of the suit land and property who sold the same in favour of one Niroda Sundari Goswami vide the registered sale deed No. 7020/7030 dated 28.04.1966 and further in favour of Navagopal Goswami vide sale deed No. 206 dated 12.01.1973. The said Niroda Sundari Goswami expired leaving behind one son namely Navagopal Goswami, who became the absolute owner of the suit land and property. Navagopal Goswami also passed away leaving behind four daughters namely (1).Jharna Goswami, (2).Gita Goswami, (3). Mita Goswami and (4). Sapna Goswami as his legal heirs and successors. 7. On the basis of an amicable arrangement amongst the four daughters of Late Navagopal Goswami, the eastern part of plot No.1 of the suit land ad measuring 0.08 acres and the entire plot No.2 of the suit land fell in the share of Jharna Goswami, Gita Goswami and Mita Goswami and the rest area of plot No. 1 of the suit land measuring 0.03 acres fell in the exclusive share of Sapna Goswami. 8. In course of time, the said Jharna Goswami, Gita Goswami and Mita Goswami sold their part of the share vide the registered sale deed No. 3066 dated 25.08.2008 in favour of one Abdul Malik Choudhury and the said Abdul Malik Choudhary sold the same in favour of Abdul Ajim and Jamal Uddin. Sapna Goswami also sold her share of the suit land in favour of Salma Begum vide the registered sale deed No. 4689 dated 19.09.2011 and in that way Abdul Ajim, Page No.# 6/11 Jamal Uddin and Salma Begum became the owner of the entire suit land and property in place of Navagopal Goswami as his legal heirs. The said Abdul Ajim, Jamal Uddin and Salma Begum resold the suit land and the property in favour of the plaintiff vide the sale deed No. 340 dated 06.02.2013 and accordingly the plaintiff became the absolute owner having right, title, interest and possession over the same. The plaintiff’s further case is that on account of his business he used to reside at Dimapur, Nagaland and after a few months of the purchase of the suit land the defendants requested him to allow them to reside as a licensee over the same and considering the plight of the defendants the plaintiff allowed them to reside in the suit land and property as licensee with a condition that the defendant should not part with the possession of any portion of the suit property with anybody or change the nature and feature of the suit property and as well as to vacate the possession on demand being made. 9. It is the further case of the plaintiff that on 31.10.2013 when he visited the suit property, he found that the defendant illegally constructed 2 Nos. of kuccha houses over the suit property without his knowledge and in violation of the terms and conditions, for which, they were allowed to live as a licensee. The plaintiff requested the defendants on the very day to vacate the suit property expressing his need for construction of a residential house, but the defendant not only refused to vacate the suit property, but also threatened the plaintiff that they would change the nature and feature of the suit property. It is under such circumstances, the suit was filed seeking right, title and interest over the suit land as described in Schedule-1 to the plaint for recovery of khas possession of the suit land as described in the First Schedule to the plaint and the house described at serial No. 1 of the Second Schedule mentioned in the Page No.# 7/11 plaint by evicting the defendants therefrom and the defendants be directed to hand over the peaceful vacant possession of the First Schedule land and the house described in Sl.No. 1 of the Second Schedule by demolishing the houses described as Sl.Nos. 2 and 3 of the Second Schedule in favour of the plaintiff within the time as may be specified by the Court; for a decree for recovering compensation from the defendant at the rate of Rs.400/- only per day from the date of institution of the suit till the plaintiff gets vacant possession of the suit land; for permanent injunction, etc. 10. The defendants jointly filed their written statement-cum-written objection. In the said written statement-cum-written objection, the averments made in the plaint were denied. It was stated that the defendants were licensees under Jharna Goswami and not the plaintiff. It was also mentioned that the defendants were residing in the houses which were constructed by the defendants since long back with due permission of Jharna Goswami. Further to that, the defendants also stated that Jharna Goswami had agreed to sell the suit land to the defendants and entered into a sale agreement and Jharna Goswami also obtained Rs. 20,000/- as advance from the defendant No. 1 out of the total value of the land at Rs.80,000/-, but subsequently Jharna Goswami did not agree to sell her portion and also did not raise any objection for residing over her land as a licensee and the defendants were, therefore, residing over the said land as licensee under Jharna Goswami. 11. On the basis of the pleadings, the learned Trial Court framed as many as four issues which being relevant are reproduced herein under: Page No.# 8/11 (i). Is there any cause of action for the suit? (ii). Whether the suit is maintainable in its present form? (iii). Whether the plaintiff has right, title, interest over the 1st Schedule land and maliki right over the 2nd Schedule land? (iv). Whether the plaintiff is entitled to get relief as prayed for? 12. On behalf of the plaintiff, four witnesses were examined and various documents were exhibited. It is very pertinent to mention that the documents which were exhibited included Exhibit 2 - Sale Deed No. 3066 dated 25.08.2008; Exhibit 3 - Power of Attorney No. 65 (iv) dated 20.04.2005; Exhibit 4 - Sale Deed No. 25 dated 05.01.2009; Exhibit 5 - Sale Deed No. 2938 dated 19.09.2011; Exhibit 6 - Sale Deed No. 340, dated 06.02.2013 and Exhibit 7 and 7(1) were revenue paying receipts. 13. On behalf of the defendants, one witness adduced evidence and he exhibited certain tax receipts as Exhibit A and B and certified copy of the Electoral Roll being Exhibit C to E. 14. Amongst the four issues which were framed, the issue No. 3 is of relevance which pertains to, as to whether, plaintiff had right, title and interest over the First Schedule land and malki right over the Second Schedule land. The learned Trial Court after duly taking note of the evidence on record came to a categorical finding that the plaintiff had absolute right, title and interest over the suit property described in the Schedules to the plaint and the defendant had no Page No.# 9/11 right to retain the possession of the suit property. On the basis of the said issue No. 3, all other issues were decided thereby the suit was decreed in terms with the reliefs so claimed in the plaint. 15. Being aggrieved, the defendants preferred an appeal before the learned First Appellate Court which was registered and numbered as Title Appeal No. 02/2022. The learned First Appellate Court dismissed the said appeal thereby affirming the judgment and decree passed by the learned Trial Court. It is under such circumstances, the present appeal has been filed. 16. In the backdrop of the above, let this Court take note of as to whether the questions of law so proposed can be at all be formulated as substantial questions of law involved in the instant repeal. The first question proposed is as to whether the impugned judgment and decree passed by the learned Courts below in decreeing the suit of the plaintiff and thereby declaring the title of the plaintiff over the entire suit land, ignoring the pleadings in the plaint and solely making basis on Exhibit 6 executed in favour of the plaintiff ignoring the final Khatian of the suit land and, that too, without impleading the actual owners and co-sharers of the suit land have resulted in perversity and miscarriage of justice. 17. This Court finds it very pertinent to mention that a perusal of the written statement so filed by the defendants do not mention anything as regards any Khatian being issued in favour of the defendants. The written statement is completely silent as to who were the co-owners of the suit land and that the suit is bad for non-joinder of necessary party. Page No.# 10/11 18. This Court at this stage finds it relevant to take note of Order I Rule 13 of the Code and upon application of the said provisions, it is seen that as the defendants had not raised the issue as regards non-joinder of any parties, the defendants/the appellants herein are estopped by law from raising such an issue at this Second Appellate stage. As regards the question that the learned Courts below have ignored the final Khatian, it is relevant to take note of that there is nothing mentioned in the written statement as regards issuance of a final Khatian in favour of the appellants. No evidence also has been led in that regard. It is a settled principle of law that to be a substantial question of law, the same has to have roots in the pleadings, the issues so framed as well as the findings of the learned Courts below. As nothing is mentioned as regards the final Khatian, the same cannot be formulated as a substantial question of law. 19. This Court further takes note of that both the learned Courts below on the basis of appreciation of the evidence have categorically held that the plaintiff has the right, title and interest over the suit land. The said Sale Deed on the basis of which the plaintiff claims right, title and interest have also not been challenged by the defendants. Consequently, the question of law so proposed under no circumstances can be said to be a substantial question of law which can be formulated. 20. The second question of law which has been proposed is as to whether, the impugned judgment, order and decree passed by the learned Courts below are otherwise bad in law and as such liable to be set aside and quashed. The question of law so proposed reminds this Court of the judgment of the Supreme Page No.# 11/11 Court in the case of State Bank of India & Others Vs. S.N Goyal reported in 2008 (8) SCC 92 wherein the Supreme Court had observed that such questions of law cannot be substantial questions of law in a second appeal. 21. Considering the above, as this Court does not find any substantial question of law that can be formulated, the instant appeal cannot be proceeded with. Accordingly, the appeal stands dismissed. 22. In the peculiar facts of this case, there shall be no order as to costs. JUDGE Comparing Assistant