Page No.# 1/14 GAHC010240082024 2025:GAU-AS:5079 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/215/2024 JYOTSNA RANI DAS LASKAR AND 3 ORS W/O LATE JALADHAR DAS LASKAR @ LATE JALADHAR DAS, RESIDENT OF VILLAGE SIBPUR PART I, PO HAZARIGRAM BAZAR, PS LAKHIPUR DIST CACHAR, ASSAM 788101 2: SMTI. JHARNA RANI DAS D/O LATE JALADHAR DAS LASKAR @ LATE JALADHAR DAS RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR PS LAKHIPUR DIST CACHAR ASSAM 788101 3: SRI AMIT RANJAN DAS S/O LATE JALADHAR DAS LASKAR @ LATE JALADHAR DAS RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR PS LAKHIPUR DIST CACHAR ASSAM 788101 4: SRI ASHISH RANJAN DAS S/O LATE JALADHAR DAS LASKAR @ LATE JALADHAR DAS RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR PS LAKHIPUR DIST CACHAR ASSAM 78810 VERSUS RABIJUL HAQUE LASKAR AND 5 ORS Page No.# 2/14 S/O LATE MOHAMMAD ALI LASKAR, A PERMANENT RESIDENT OF VILLAGE SINGERBOND PART II, PO AND PS LAKHIPUR, DIST CACHAR, ASSAM 788101 PRESENTLY RESIDING AT VILLAGE SIBPUR PART I, PO HAZARIGRAM BAZAR, PS LAKHIPUR DIST CACHAR, ASSAM 788101 2:SMTI KALPANA DAS W/O SRI TUNU DAS D/O LATE ADHAR CHAND DAS RESIDENT OF VILLAGE AND PO HARINAGAR BAZAR PS LAKHIPUR DIST CACHAR ASSAM 788107 3:SRI JAYANTA DAS S/O LATE ADHAR CHAND DAS RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR PS LAKHIPUR DIST CACHAR ASSAM 788101 4:SRI SASADHAR DAS @ SASADHAR DAS LASKAR S/O LATE DURLAV PATN RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR PS LAKHIPUR DIST CACHAR ASSAM 788101 5:SRI ASHWINI KUMAR DAS S/O LATE ADHAR CHAND DAS RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR PS LAKHIPUR DIST CACHAR ASSAM 788101 6:SMTI MOINA DAS W/O MONORANJAN DAS D/O LATE ADHAR CHAND DAS RESIDENT OF VILLAGE SIBPUR PART I PO HAZARIGRAM BAZAR Page No.# 3/14 PS LAKHIPUR DIST CACHAR ASSAM 78810 Advocate for the Appellant : Mr. S. D. Purkayastha, Advocate Advocate for the Respondents : Ms. R. Rongmei, Advocate BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH Date of Hearing : 25.04.2025 Date of Judgment : 25.04.2025 JUDGMENT AND ORDER (ORAL) Heard Mr. S. D. Purkayastha, the learned counsel appearing on behalf of the appellant. Ms. R. Rongmei, 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 05.09.2024 passed in Title Appeal No.31/2017, whereby the Appeal so filed by the respondent No.1 herein who was the defendant No.3 in the suit was allowed thereby setting aside the judgment and decree dated 26.09.2017 passed by the learned Court of the Munsiff, Lakhipur, Cachar (for short, ‘the learned Trial Court’) in Title Suit No.125/2012. 3. The instant Appeal is taken up at the stage of Order XLI Page No.# 4/14 Rule 11 of the Code to ascertain as to whether any substantial question of law can be formulated in terms with Section 100 (4) of the Code. For ascertaining the said aspect, this Court finds it relevant to take note of the brief facts which led to the filing of the instant Appeal. 4. For the sake of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court. 5. The appellants herein as plaintiffs instituted a suit before the learned Trial Court which was registered and numbered as Title Suit No.125/2012. The case of the plaintiffs in the suit is that the 2nd RS Patta No.98 corresponding to RS Patta No.83 of Mouza- Sibpur Part-I, Pargona-Rupaibali was issued in the name of the predecessors-in-interest of the plaintiffs as well as the principal defendant Nos.1 & 2 and the proforma defendant Nos.4 to 6. After the death of Durlav Patni, the names of the three sons, namely, (i) Adhar Chand Das, (ii) Jaladhar Das and (iii) Sasadhar Das were mutated in the said Patta in his place vide entry dated 25.11.1972. The 2nd RS Patta No.98 comprises of a total area of 8 bighas 12 kathas 6 chattaks which have been more specifically described in Schedule I and the sons of Durlav Patni, i.e. Adhar Chand Das, Jaladhar Das and Sasadhar Das got by way of Page No.# 5/14 inheritance 1/3rd share in the Schedule land, i.e. 2 bighas 17 kathas 7 chattaks 6 gondas and odd lands. It was the case of the plaintiffs that after the death of Durlav Patni, the three sons had amicably partitioned the Schedule-I land by metes and bounds and thereupon the three sons of Lake Durlav Patni started to enjoy their respective allotted shares in the locality within definite boundaries, openly, peacefully and without any interruption. It is the further case of the plaintiffs that the defendant Nos.1 & 2 illegally executed a registered Deed of Sale in favour of the defendant No.3 in respect to a plot of land admeasuring 3 kathas 6 chattaks within specific boundaries. The land which was sold vide the Sale Deed in favour of the defendant No.3 as per the plaintiffs fell within the share of the plaintiffs and it is under such circumstances, the plaintiffs have sought for declaration of their right, title, interest and possession over the Schedule III land of the plaint which is included within Schedule-I and Schedule-II land and confirmation of possession thereof and if during the trial the plaintiffs are illegally dispossessed by the defendants, then to get khas possession of the Schedule-III; for passing a decree in favour of the plaintiffs that purported the Sale Deed is partly void-ab-intio, illegal, inoperative without consideration so far as it attracts Schedule- III land; for permanent and temporary injunction etc. Page No.# 6/14 6. The Defendant Nos.1 & 2 jointly filed their written statement stating inter-alia that the Sale Deed was executed by virtue of the right, title and possession of the vendors in favour of the vendee. The defendant No.3, however, did not file his written statement and the suit proceeded ex-parte. It is relevant to take note of that pursuant to the filing of the suit, an amendment application was filed whereby an additional paragraph was inserted, i.e. paragraph No.14(a) that during the pendency of the suit the plaintiffs were dispossessed from the Schedule-III land and the defendant No.3 was trying to construct upon the Schedule-III land. 7. On the basis of the pleadings as many as 7 issues were framed which being relevant are reproduced herein under:- 1) Whether there is any cause of action for filing this suit? 2) Whether the suit is maintainable in its present form and manner? 3) Whether the suit is barred by limitation? 4) Whether the suit is bad for mis joinder and non joinder of parties? 5) Whether the plaintiffs have right, title and interest over the schedule-III land of the suit? Page No.# 7/14 6) Whether the Sale Deed as mentioned in schedule IV of the plaint is partly, void, fraudulent and collusive and inoperative so far relates to schedule III land and is liable to be cancelled? 7) Whether the plaintiffs are entitled to decree/releifs as prayed for? 8. On behalf of the plaintiffs two witnesses were examined and two documents were exhibited. Exhibit No.1 was the Jamabandi of the 2nd RS Patta No.98 and Exhibit No.2 was the certified copy of the Deed of Sale which has been specifically described in Schedule-IV to the plaint. On the other hand, the defendant Nos.1 & 2 did not participate in the suit after submitting the written statement. The defendant No.3 cross-examined PW1 and PW2 only on the point of law. 9. The learned Trial Court vide the judgment and decree dated 26.09.2017 partly decreed the suit against the defendant Nos.1 & 2 with cost and ex-parte against the defendant No.3. 10. It is relevant to take note of that the learned Trial Court while deciding the Issue No.5 as to whether the plaintiffs had right, title and interest over the Schedule-III land came to a categorical finding that the plaintiffs had joint right, title and interest along with the defendant Nos.1 & 2 over the Schedule Page No.# 8/14 III land which was a part and parcel of the Schedule I land. On the issue as to whether the Sale Deed as mentioned in Schedule IV to the plaint is partly void, fraudulent, collusive and inoperative so far as it relates to the Schedule III land and is liable to be cancelled, the learned Trial Court held that the plaintiffs had joint right, title and interest over the land sold by the defendant No.1 & 2 vide the Sale Deed and further, there was no evidence that the defendant Nos.1 & 2 sold the land after due notice to the plaintiffs or that the plaintiffs had knowledge or information as to the execution of the Sale Deed prior to the execution. Under such circumstances, it was opined that the Sale Deed so far it relates to the land over which the plaintiffs have joint right, title and interest with the defendants is void and inoperative under law and liable to be partly cancelled so far as it attracts the land of the plaintiffs. 11. The learned Trial Court while deciding the Issue No.7 also came to a finding that the plaintiffs are also entitled to get khas possession of the Schedule III land so far as it attracts the land of the plaintiffs and further issued a permanent injunction not to disturb the peaceful possession of the plaintiffs in Schedule III land so far as it attracts the land of the plaintiffs. 12. This Court has duly perused the impugned judgment of the learned Trial Court and it surprises this Court as to the Page No.# 9/14 contradictory findings arrived at by the learned Trial Court in as much as, on one hand, the learned Trial Court had arrived at the categorical finding that it was a joint possession of the plaintiffs as well as the defendant Nos.1 & 2 and on the other hand held that the plaintiffs are entitled to get khas possession of the Schedule III land. This Court is further surprised with a decree to the effect that the defendants were also permanently restrained from disturbing the peaceful possession of the plaintiffs in respect to the Schedule III land so far as it attracts the land of the plaintiffs without ascertaining as to whether the plaintiffs had absolute and exclusive title over the Schedule III land. 13. Be that as it may, the defendant No.3 preferred an Appeal before the Court of the learned Civil Judge (Senior Division) No.1, Cachar, Silchar (for short, ‘the learned First Appellate Court’) which was registered and numbered as Title Appeal No.31/2017. The learned First Appellate Court after taking note of the grounds of objection framed a point of determination which reads as under:- Whether the learned Trial Court’s decision is just and proper and whether the impugned judgment and decree passed by the learned Trial Court needs interference in this appeal? 14. The learned First Appellate Court after taking into account the evidence as well as the provisions of Section 44 of the Page No.# 10/14 Transfer of Property Act, 1882 came to a categorical finding at paragraph No.23 that the defendant Nos.1 & 2 have transferred to the defendant No.3 a plot of land which falls within their saleable right and also handed over the possession. The learned First Appellate Court further observed that the possession of the defendant No.3 cannot be disturbed in any manner until partition of the land is done. Paragraph No. 23 of the said judgment and decree passed by the learned First Appellate Court being relevant to the question of law so proposed by the learned counsel appearing on behalf of the appellants is reproduced herein under:- “23. In the instant case, share of the defendant Nos.1 and 2 is 2 Bigha 17 Katha 7 Chattak 6 Gondas of land and by executing the Agreement they have delivered possession of 3 Katha 4 Chattak of land to the defendant No.3, the present appellant of this instant appeal, and therefore, the possession of the appellant cannot be disturbed in any manner until partition of land is done. Therefore, the appellant is entitled to the rights of transferor in the joint property. The appellant shall enjoy his possessory right as co-sharer, but his right in the un- partitioned property shall be subject to final determination in the partition suit. Hence, in view of the above, this Court is of the opinion that the learned Trial Court failed to appreciate this aspect of the matter that the defendant No.3/appellant has acquired his right from the transferor, who is one Page No.# 11/14 of the co-owner of the suit property. Hence, the decision arrived by the learned trial Court in Issue No.6 of the main suit is not just and proper and is wrong and hence, interfered with by this first appellate Court.” 15. The learned First Appellate Court on the basis of the above findings interfered with the judgment and decree passed by the learned Trial Court and dismissed the suit of the plaintiffs vide the judgment and decree impugned in the instant proceedings and it is under such circumstances, the present Appeal has been filed. 16. Mr. S. D. Purkayastha, the learned counsel appearing on behalf of the appellants submitted that although three questions of law have been proposed to be substantial questions of law involved in the Memo of Appeal, but he would insist upon the question No.2 which is mentioned in the Memo of Appeal. The said question No.2 being relevant is reproduced herein under:- 2. Whether findings of the learned First Appellate Court in deciding the Issue No.6 reversing the decision of the learned Trial Court and holding that the defendant No.3 has acquired his right, title from the transferor who is one of the co-owners, therefore, his possession over the Schedule-III land cannot be disturbed in view of Section 44 of the Transfer of Property Act, 1882 is sustainable in law? 17. The question therefore arises as to whether the question Page No.# 12/14 No.2 can be formulated as a substantial question of law in terms with Section 100 (4) of the Code. 18. This Court has duly perused the materials on record including the plaint as well as the LCR which was called for by this Court vide the order dated 20.11.2024. From the materials on record, more particularly the Exhibit No.1, it is clear that the land mentioned in Schedule I to the plaint belonged to both the plaintiffs as well as the defendant Nos.1 & 2. It is an admitted fact that could be seen from the plaint itself that the right of the defendant Nos.1 & 2 each over the Schedule I land was 2 bighas 17 kathas 7 chattaks 6 gondas. What was sold to the defendant No.3 by the defendant Nos.1 & 2 was only an area of 3 kathas 4 chattaks which was within their salable right in terms with Section 44 of the Transfer of Property Act, 1882. It is apparent from the judgment and decree of the learned Trial Court that the defendant No.3 is in possession of the Schedule III land. It is also pertinent to take note of that in the above quoted paragraph No.23 of the judgment of the learned First Appellate Court, it was observed that the defendant No.3’s right to possession over the Schedule III land is subject to any final determination by way of partition. Therefore, from the above observations of the learned First Appellate Court, it is apparent that though in the Sale Deed there is a mention about the boundaries which comes Page No.# 13/14 within the ambit of the Schedule-III land, but the said Sale Deed would be subject to any partition being sought for by the co- sharers which includes the Defendant No.3 over the Schedule-I as the Defendant No.3 vide the Deed of Sale stepped into the shows of the Defendant Nos.1 & 2 in so far as the area of the land transferred vide the Deed of Sale. 19. In view of the above proposition, let this Court now take into consideration as to whether the question of law so proposed by the learned counsel is a substantial question of law which can be formulated. 20. It would be seen that the question proposed was that whether the learned First Appellate Court was justified in holding that the defendant No.3 had acquired his right, title and interest from the transferor and therefore his possession over the Schedule III land cannot be disturbed in view of Section 44 of the Transfer of Property Act, 1882. The said question so proposed in the opinion of this Court is totally misconceived and do not arise at all taking into account the various observations made by the learned First Appellate Court at paragraph No.23 as quoted herein above. 21. Considering the above, this Court does not find any substantial question of law which can be formulated in the Page No.# 14/14 instant Appeal for which the Appeal stands dismissed. 22. In view of the peculiar facts of the case, this Court is not inclined to impose any cost. 23. Return the LCR. JUDGE Comparing Assistant