RSA/156/2023 GAHC010193582023 2025:GAU-AS:14793 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) RSA/156/2023 Soma Deb @ Soma Paul W/O Chiranjit Paul, D/O Late Dinesh Deb and Late Pushpa Deb, A Resident of Chinmoy Road Bye Lane, Shibbari Road, Tarapur, Silchar, P.O.- Tarapur Sub Office, P.S.- Silchar, Pin- 788003, District-Cachar, Assam. …..Appellant -Versus- 1. Sib Sankar Singh S/O Late Dal @ Dhal Singer Singh, R/O Shibbari Road, Tarapur, Silchar, P.O.- Tarapur Sub Office, P.S.- Silchar, Pin- 788003, District- Cachar, Assam. 2. Sudip Kumar Singh S/O Sib Sankar Singh R/O Shibbari Road Tarapur Silchar P.O.- Tarapur Sub Office P.S.- Silchar Pin- 788003 Dist.- Cachar Assam. 3. Struck Off. Vide Hon'ble Court's Order Dtd. 23/09/2024 Passed In RSA No.156/2023. RSA/156/2023 4. Dilip Singh S/O Sib Sankar Singh R/O Shibbari Road Tarapur, Silchar P.O.- Tarapur Sub Office P.S.- Silchar Pin- 788003 District- Cachar, Assam. 5. Sanjib Singh S/O Sib Sankar Singh R/O Shibbari Road Tarapur Silchar P.O.- Tarapur Sub Office P.S.- Silchar Pin- 788003 District - Cachar Assam. 6. Shewanand Singh S/O Sib Sankar Singh R/O Shibbari Road Tarapur Silchar P.O.- Tarapur Sub Office P.S.- Silchar Pin- 788003 Distrcit- Cachar Assam 7. Parbati Singh D/O Sib Sankar Singh R/O Shibbari Road Tarapur Silchar P.O.- Tarapur Sub Office P.S.- Silchar Pin- 788003 Distrcit - Cachar Assam ……Respondents For Appellant : Mr. S. D. Purukayastha, Advocate For Respondent(s) : Ms. S. Roy, Advocate Date of Judgment : 26.09.2025 RSA/156/2023 BEFORE HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA JUDGMENT 1. Heard Mr. S. D. Purukayastha, the learned counsel for the appellant. Also heard Ms. S. Roy, the learned counsel for the respondents. 2. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the appellant, Smt. Soma Deb @ Soma Paul, impugning the judgment and decree dated 30.05.2023 passed by the Court of learned Civil Judge No. 2, Cachar, Silchar, whereby the appeal preferred by the present appellant against the judgment and decree dated 26.05.2019, passed by the learned Munsiff No. 1, Cachar in Title Suit No. 30/2018, was dismissed and the judgment and decree of the Trial Court was upheld. 3. The facts relevant for consideration of this appeal, in brief, are that the respondents herein, as plaintiffs, had filed a title suit for recovery of khas possession of the suit land in the Court of learned Munsiff No. 1, Cachar at Silchar. The said title suit was registered as Title Suit No. 30/2018. The present appellant was one of the defendants in the said suit. 4. The plaintiff's case set out in the plaint was that they got the suit land, including other land, exclusively as of their leasehold right in RSA/156/2023 Title Suit No. 37/1994, in the Court of the Civil Judge, learned Munsiff No. 4, by way of partition. In execution of the decree of partition, passed in the said suit in the Title Execution Case No. 03/1997, as per allotment prepared and accepted by the Court, the present respondents were given specific possession of the suit land, along with the other land, on 04.12.1998, by the Civil Nazir, as identified by the Amin Commissioner, appointed by the Court, and the said delivery of possession was confirmed by the Court in its order dated 15.12.1998. 5. The present respondents, as plaintiffs, further pleaded in their plaint that the predecessor in interest of the defendants, namely, Dinesh Deb (since deceased), who was known to plaintiffs for a long time, sought permission of the plaintiffs to occupy the suit property and to reside in a house standing thereon with his family members for about six months or so, and he agreed to quit and deliver vacant possession of the suit property on the expiry of the period of six months, or whenever he is called upon by the plaintiffs to do so. Pursuant to the said undertaking and agreement said Dinesh Deb, occupied the suit property. 6. Having occupied the suit property, said Dinesh Deb died on 10.02.2004, leaving behind the defendants (the present appellant) as his legal heirs. After the death of Dinesh Dev, the defendants sought the plaintiffs' permission to continue to occupy suit property for a further period of one year or so, as they were unable to RSA/156/2023 arrange alternative residential accommodation. Later on, as the plaintiffs required the suit property for their own use and occupation, they requested the defendants for handing over the vacant khas possession of the suit property. However, as defendants did not comply with the request, the plaintiffs instituted the Title Suit No. 30/2010 for recovery of khas possession of the suit property. 7. The defendants appeared in the suit and filed their written statement, wherein they took the defence of adverse possession, and pleaded that the suit is barred by limitation, in view of their adverse possession over the suit land for last 25 years. It was also pleaded that the suit land comprises an area of more than two kathas four chataks of land, owned and possessed by one Karunamoy Bhattacharjee of Tarapur Part 2, Sibbari Road and the predecessor in interest of the defendants, namely, Dinesh Deb, forcefully took possession of the suit land, denying the ownership of Karunamoy Bhattacharjee about 25 years ago, and started residing over the suit land. It was also pleaded that the predecessor in interest of the defendant, namely Dinesh Deb, had acquired title over the suit land by way of adverse possession. 8. The defendants denied the claim of the plaintiffs over the suit land. The plea of the plaintiffs that they got physical possession of the suit land in the Title Execution Case, in the execution of the RSA/156/2023 decree, was completely denied by the defendants in their written statement. 9. On the basis of the pleadings of the parties, the Court of learned Munsiff No. 1, Cachar at Silchar, framed following issues in the Title Suit No. 30/2010: (i) Is there any cause of action for the suit? (ii) Whether the suit is maintainable? (iii) Whether the suit is barred by limitation? (iv) Whether the defendants are licensee under the plaintiffs? (v) Whether the plaintiffs are entitled to recovery of khas possession of the suit land? (vi) To what decree/relief the plaintiffs are entitled? One additional issue was also framed during the course of the hearing, i.e., as to “whether the defendants acquired the right, title and interest over the suit land by way of adverse possession?” 10. In support of their case, the plaintiffs examined one plaintiff witness and exhibited seven documents. On the other hand, the defendants examined two defendants’ witnesses however they exhibited no documents. 11. After considering the evidence on record as well as after hearing the submissions of the learned counsel for both sides, the Trial Court, by judgment dated 26.08.2019 decreed the Title Suit No. 30/2010 in favour of the plaintiffs. It also decided the plea of RSA/156/2023 adverse possession taken by the defendants against them by holding that the defendants have failed to prove their plea of adverse possession. 12. Being aggrieved by the judgment and decree of the Trial Court, the present appellant (defendant) preferred a Title Appeal before the Court of the learned Civil Judge No. 2, Cachar, Silchar on various grounds. The said Title Appeal was registered as Title Appeal No. 13/2019. The First Appellate Court formulated following point for determination in the first appeal: (i) Whether the judgment and decree passed by the First Appellate Court and the Trial Court holding that the appellate/defendants are licensee under plaintiff/respondent is sustainable in law? 13. The First Appellate Court after examining all the issues decided by the Trial Court as well as considering the evidence adduced by both the parties before the Trial Court upheld the judgment dated 26.08.2019 and decree dated 07.09.2019 passed by the Trial Court in Title Suit No. 30/2010 and dismissed the appeal. 14. Aggrieved with the aforesaid judgment, the appellant has filed the instant Regular Second Appeal impugning the judgment of the First Appellate Court. At the time of admission of the instant Second Appeal, a coordinate Bench of this Court had formulated the following substantial question of law in this appeal: RSA/156/2023 (i) Whether the impugned judgments and decree passed by the First Appellate Court and the Trial Court holding that the appellant/defendants are licensee under the plaintiff/respondents is sustainable in law. 15. At the time of hearing of the instant appeal, the following additional substantial question of law was formulated by this Court: (ii) Whether the suit for recovery of possession without seeking declaration of right, title and interest over the suit property is maintainable when the defendants specifically denied the plaintiff’s claim and claimed adverse possession against the third-party owner. Consequently, whether the impugned judgment and decree are sustainable in law. 16. Mr. S. D. Purkayastha, the learned counsel for the appellant has submitted that the Trial Court had decided the issue No. (iv), in favour of the plaintiff, without considering the fact that the plaintiffs did not prove the original decree of Title Suit No. 37/1994. He further submits that the testimony of PW-1, during cross examination, it was admitted by the PW-1 that “it may be the owner of the suit land is Karunamoy Bhattacharjee”, which show that the serious doubt was raised regarding title of the plaintiffs over the suit land. He submits that the Trial Court and the First Appellate Court had erred in not taking into consideration this aspect. He also submits that the plaintiff also failed to prove that RSA/156/2023 the suit land of the instant case is covered by the suit land of the Title Suit No. 37/1994. He also submits that the Trial Court as well as the First Appellate Court had erred in not considering the fact that the evidence of DW-1 and DW-2 proves the fact that the defendant/present appellant was possessing the suit land adverse to be the real owner, Karunamoy Bhattacharjee. He also submits that the fact the decree of Title Suit No. 37/1994 was not exhibited by the plaintiffs before the Trial Court, however, the Trial Court relied on the said decree to decide the issues in favour of the plaintiffs. He further submits that the plaintiff witnesses failed to prove the contents of the Exhibit Nos. 1 to 7 as those exhibits were merely marked without proving the contents of the said documents. The learned counsel for the appellant has also submitted that the Trial Court as well as the First Appellate Court also erred in not considering the fact that the plaintiffs failed to prove that the predecessor in interest of the defendant was a licensee in respect of the suit land. 17. On the other hand, Ms. S. Roy, the learned counsel for the respondent has submitted that the first substantial question of law formulated by this Court is not a substantial question of law at all, as in its present form, the said question formulated by the Court would involve appreciation of evidence on record to find out as to whether the Trial Court as well as the First Appellate Court arrived at a erroneous finding of facts or not. She submits that the documents exhibited by the plaintiffs in the Title Suit, i.e. Exhibit RSA/156/2023 Nos. 1 to 7 clearly indicates to the title of the plaintiffs over the suit land. She submits that though, the decree passed in Title Suit No. 37/1994 was not exhibited, however, the other documents, which were exhibited are sufficient to come to the conclusion that the possession over the suit property was handed over to the plaintiffs in execution of the decree passed in Title Suit No. 37/1994. She submits that the Exhibit Nos. 4, 5, 6 and 7 proves the same and there remains no doubt regarding the said fact as the said exhibits remain uncontroverted. 18. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the records of the Trial Court as well as the First Appellate Court. 19. There is no dispute regarding the settled proposition of law that a second appeal can be filed only if a substantial question of law is involved in the appeal. It is also to be kept in mind that there is a distinction between a question of law simpliciter and a substantial question of law. The tone and tenor of the first question formulated in this appeal itself indicate that it does not pertain to any substantial question of law. To answer the said question, the entire evidence shall have to be reappreciated. Such an exercise cannot be carried out at the stage of second appeal. Moreover, the said question is directed against concurrent finding of facts recorded by the Trial Court as well as the First Appellate Court, RSA/156/2023 which is impermissible at the stage of a second appeal. Unless a plea of perversity is there, the court, and the stage of second appeal cannot go into the question as to whether the judgement of the Trial Court and the First Appellate Court are erroneous, by reappreciating the evidence. This Court is therefore of the considered opinion that the first question formulated by this court is not a substantial question of law, and hence, cannot be examined in a Regular Second Appeal at the third stage of litigation. 20. With regard to the additional substantial question of law formulated by this Court, the learned counsel for the appellant submits that as the defendants had denied the title of the plaintiffs over the suit land and had claimed adverse possession over same against one Karunamoy Bhattacharjee, the appellants (defendant) were able to raise sufficient cloud against the title of the plaintiff and, therefore, he submits that unless the plaintiffs prayed for a declaration of right, title and interest over the suit land, the suit for recovery of possession is not maintainable. In support of his submission, he has cited a ruling of the Apex Court in the case of “Anathula Sudhakar Vs P. Buchi Reddy (Dead) By Lrs & Ors” reported in (2008) 4 SCC 594. 21. He further submits that the Trial Court has wrongly appreciated the ratio of the case of legal heirs of Arati Lahkar and others Vs. Legal Heir of Abhijit Barua reported in 2014 (2) GLT 577 RSA/156/2023 without considering the fact that the facts of the instant case are distinguishable from that of the case cited by the Trial Court as well as the Appellate Court in the impugned judgment. He further submits that the question of maintainability of the suit being a question of law, it need not to be specifically pleaded in the written statement and it can be even raised at the stage of the first appeal. 22. He further submits that the First Appellate Court as well as the Trial Courts were wrong in stating that the present appellant (defendant) failed to plead the reasons as to why the suit was not maintainable in the written statement and, therefore, decided the Issue No. (ii) in favor of the plaintiffs. In support of his submission, the learned counsel for the appellant has cited the ruling of Kerala High Court in the case of "Union of India Vs. M. S. Gopal Krishna" reported in 2015 (4) KLT 68 as well as a ruling of this Court in the case of “State of Tripura Vs. Tapas Deb Choudhury” reported in 2014 (2) GLT 701. 23. On the other hand, the learned counsel for the respondents has submitted that the plaintiffs/respondent filed this suit, i.e. Title Suit No.30/2010 on the basis of their leasehold right declared by a Court of competent jurisdiction in the Title Suit No. 37/1994. She submits that by merely claiming adverse possession against a third party who is not the owner of the land, no cloud can be created over the rights of the plaintiffs declared by the Court in the case in RSA/156/2023 the Title Suit No. 37/1994, more so when the decree and judgment passed in Title Suit No. 37/1994 remain unchallenged. She has further submitted that both the Trial Court as well as the First Appellate Court after considering the evidence on record have reached a conclusion that the present appellant has failed to prove the plea of adverse possession and accordingly, has decided the issue against them. 24. She submits that this concurrent finding of both the Trial Court as well as the First Appellate Court may not be disturbed unless there is a perversity in reaching the said conclusion. However, in the instant case she submits that there is no perversity as the above- mentioned Courts reach the said conclusion on the basis of materials on record. She submits that even if it is assumed that the decision of both the Courts is erroneous on some count, even then such erroneous judgment cannot be disturbed in second appeal unless there is perversity in reaching the conclusion arrived at by the First Appellate Court and the Trial Court. 25. Moreover, the learned counsel for the respondents has submitted that in view of failure of the defendants to prove the plea of adverse possession, the question of maintainability of the suit is not sustainable and the Trial Court as well as the First Appellate Court have correctly decided the issue of maintainability against the defendants. Page 14 of 16 RSA/156/2023 26. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. 27. The second substantial question of law revolves around the fact that the appellants have taken the plea of question of maintainability of the Title Suit No.30/2010 on the ground that no relief of declaration of right, title and interest of a suit land was claimed by the plaintiffs though the title of the plaintiffs was clouded by the defendants by taking the plea of adverse possession against a third party i.e., Karunamoy Bhattacharjee. However, when we peruse the judgment of the First Appellate Court as well as the Trial Court, it appears that both the Courts after considering the evidence on record came to a concurrent finding that the defendants (the present appellant) failed to prove the plea of adverse possession. 28. This concurrent finding of fact arrived at by both the courts cannot be regarded as a perverse finding as it was based on evidence on record and thorough examination of the testimony of DW-1 and DW-2 adduced by the present appellant as the defendant in the Title Suit No.30/2010. Even if it is assumed that the conclusion arrived at by the Trial Court as well as the First Appellate Court is erroneous, the same cannot be gone into again at the stage of second appeal by re-appreciating the evidence as apparently the said finding cannot be regarded as perverse. Moreover, the RSA/156/2023 evidence on record also shows that both the Courts also came to the conclusion that the possession of the suit property was handed over to the predecessor in the interest of the present defendants in execution of the decree passed in Title Suit No. 37/1994 and the documentary evidence adduced by the plaintiffs in the title suit clearly indicates that the possession of the suit property was handed over to the plaintiffs in the execution proceeding which arose in connection with judgment and decree passed in Title Suit No. 37/1994. 29. On perusal of the materials available on record as well as the impugned judgments, this Court is of the considered opinion that the court below rightly concluded that the defendants failed to prove the plea of adverse possession. Moreover, the plaintiffs were able to prove the fact before the Trial Court that their right, title and interest over the suit property has already been settled by the judgment and decree of the competent Court passed in Title Suit No. 37/1994 and the possession of the suit property was handed over to them by Civil Nazir in the Title Execution Case No. 03/1997, wherein the decree passed in Title Suit No. 37/1994 was executed in favour of the decree holders/present respondents. Under such circumstances, this Court is of considered opinion that by merely taking a bald plea of maintainability in the written statement by the present appellant in the suit filed by the plaintiffs i.e. Title Suit No.30/2010 cannot be dismissed on the ground of maintainability. RSA/156/2023 The second substantial question of law is accordingly decided against the appellant. 30. In view of the discussions and the reasons stated in the foregoing paragraphs, the questions formulated in the instant Regular Second Appeal are decided against the appellant and, accordingly, this Regular Second Appeal is dismissed. 31. Send back the records of the First Appellate Court as well as the Trial Court to the respective Court from where they were requisitioned. Also send a copy of this judgment along with the same. JUDGE Comparing Assistant