Research › Search › Judgment

Gauhati High Court · body

2026 DAILYLAW 10136 (GAU)

Phani Chandra Das v. Sunil Das

2026-01-30

Susmita Phukan Khaund

body2026
JUDGMENT : SUSMITA PHUKAN KHAUND, J. 1. This second appeal was admitted on the following substantial question of law:- “Whether the judgment and decree passed by the lower appellate Court is vitiated by perversity?” Factual Matrix :- 2. The title suit was brought up by the plaintiffs Sunil Das and Subhas Das against Amulya Das and his legal heirs. The plaintiff’s case is that a parcel of land ad-measuring 1 Bigha 2 Kathas 10 Lechas described in the schedule kha of the plaint was under the ownership and possession of Surendra Das. This parcel of land will hereinafter be referred to as the suit land. After the death of Surendra Das, his legal heirs, namely Sudhangshu, Sukdev, Sushil and Biswadev, inherited the suit land. On 10.02.2005, the plaintiffs purchased this parcel of land from Sudhangshu Das and others by executing a registered Sale Deed No. 57/2005. However, on 05.09.2005, the defendants No. 1 to 7 entered into the suit land and constructed one thatched house and encroached the suit land by constructing a fence, thereby dispossessing the plaintiffs. The plaintiff No. 2 Subhash Das then filed a case under Section 145/146 of the Code of Criminal Procedure, 1973 (CrPC for short) and the suit land was attached. Upon objection by the defendants, the attachment was vacated. The case was then transferred to Tamulpur and was numbered as 4M/2010. 3. The defendants contested the title suit and submitted a written statement contending inter-alia that there is no cause of action and the suit is barred by limitation and thus, not maintainable. It has been averred that Surendra Das was the original owner of the suit land and during his lifetime the defendants had purchased the suit land about 28-30 years ago from the original owner Surendra Das. The defendant No. 1 had taken possession of the suit land and had been residing on the suit land for about 28-30 years peacefully. The Sale Deed No. 57/2005 is thus illegal as the defendants have already acquired right, title and interest by way of adverse possession over the suit land. Decision of the Trial Court :- 4. The following issues were framed by the learned Trial Court :- “1. Whether there is cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Decision of the Trial Court :- 4. The following issues were framed by the learned Trial Court :- “1. Whether there is cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the defendant no 1 to 4 acquired right, title and interest over the suit land by way of adverse possession? 4. Whether the plaintiffs are entitled to the decree as prayed for? 5. To what other relief/reliefs the parties are entitled to?” 5. It was held by the Trial Court that the plaintiffs claimed to have purchased the suit land on 10.02.2005 and the defendants have dispossessed them on 05.09.2005. The plaintiffs then filed the Case No. 205m/2005 under Sections 145/146 CrPC and later on, this case was transferred to Tamulpur and numbered as 4M/10. Thereafter, the plaintiffs filed the Title Suit No. 41/2013 in the year 2013 for declaration, partition, possession and other consequential relief and thus, the suit was not barred by limitation. 6. On issue Nos. 4 and 5, it was held by the learned Trial Court that on 10.02.2005, the plaintiffs purchased the suit land described in schedule kha of the plaint, from Sudhangshu Das, legal heir of the original owner Surendra Das. Allegedly, on 05.09.2005, the defendants No. 1 to 7 entered into the suit land and constructed one thatched house, and encroached the suit land by encompassing the same with a boundary fence, thereby dispossessing the plaintiffs. This impelled the plaintiffs to file a case under Sections 145/146 of the CrPC, which was transferred to Tamulpur and was numbered as 4M/10. The defendants however stated that Surendra Das was the original owner of the suit land and during his lifetime they had purchased the suit land about 28- 30 years ago from the original owner and had taken possession of the suit land and have been residing thereon peacefully. The Sale Deed No. 57/05 was claimed to be illegal by the defendants as they have already acquired right, title and interest over the suit land by way of adverse possession. 7. The learned Trial Court did not accept the validity of the Sale Deed exhibited by PW-1 Subhash Das, assigning reasons that the plaintiffs have failed to prove the execution of the Sale Deed by adducing evidence of the attesting witnesses. 8. 7. The learned Trial Court did not accept the validity of the Sale Deed exhibited by PW-1 Subhash Das, assigning reasons that the plaintiffs have failed to prove the execution of the Sale Deed by adducing evidence of the attesting witnesses. 8. It was held by the Trial Court that PW-1 stated that the defendants are in possession of the suit land after the quarrel. PW-2 Sukdev Das stated during his cross-examination that he heard about the dispossession by the defendants but he did not witness them dispossessing. PW-3 Ranjit Sutradhar, in his cross-examination stated that the defendants are in possession of the suit land since 2005 and Subhash and others were in possession for 3-4 years and he admitted that the defendants are in possession of the suit land. PW-4 Krishna Charan Das stated in his cross-examination that the defendants are in possession of the suit land and he also admitted that in a separate proceeding, he had stated that the defendants are in possession of the suit land for about 17-18 years. 9. On the basis of the evidence of the witnesses, the learned Trial Court held that the evidence clearly depicts that the plaintiffs have admitted that the defendants are in possession of the suit land for about 17-18 years. It was also held that as the plaintiffs’ evidence reveals that the defendants have acquired right, title and interest over the suit land by way of adverse possession to the knowledge of the original owners and without any resistance from the original owners or any other persons, the plaintiffs failed to establish their claim, and the suit was dismissed. Findings of the learned Appellate Court :- 10. A point for determination was formulated by the learned Appellate Court that whether the impugned judgment and decree dated 20.06.2016 in Title Suit No. 41/2013 is sustainable in law. 11. The learned Appellate Court of first instance concurred with the finding of the learned Trial Court relating to the issue on limitation. The evidence was discussed by the Appellate Court and it was held that the defendants failed to discharge their burden to prove adverse possession. 12. The defendant No. 1 Amulya Das stated in his evidence as DW-1 that the suit land was sold to him by Surendra Das, orally about 30 years back on a consideration. The evidence was discussed by the Appellate Court and it was held that the defendants failed to discharge their burden to prove adverse possession. 12. The defendant No. 1 Amulya Das stated in his evidence as DW-1 that the suit land was sold to him by Surendra Das, orally about 30 years back on a consideration. The Appellate Court took note of this deposition observing that the amount of consideration for transfer of land from the vendor to the vendee was not mentioned by the defendants. The evidence of the witnesses was taken into consideration by the Appellate Court of first instance, who proceeded to discuss the evidence by elaborating in the judgment that DW-1 stated that he took possession of the suit land with his family by constructing a house thereon. He and his family members have been in possession of the suit land for last 30 years adversely and hostile to the original owner and they had acquired right over the suit land. During cross- examination, DW-1 stated that he purchased the land in the year 1983 but he did not have any document. He also stated that he has no residential house within the four boundaries of the suit land. Surendra Das died in the year 1985-86 but he did not make the legal heirs of Surendra Das or the neighbouring persons witnesses in the title suit. He did not submit any revenue paying receipts. His son, DW-2 also stated that they have been in possession of the suit land for the last 30 years by constructing a house. They have land on the eastern side of the suit land, but DW-2 could not give the accurate measurement of land which they have on the eastern side of the suit land. DW-3 and DW-4 stated that they saw the defendants cultivating the suit land for last 25 to 30 years and DW-4 further stated that the defendants have land on the eastern side of the suit land. 13. This evidence of the defendants’ witnesses was analyzed and it was held that major contradictions surfaced. In their evidence, the defendant’s witnesses DW-1 and DW-2 stated that the suit land was under their possession for last 30 years and they have a house and basti over the suit land whereas DW-3 and DW-4 contradicted their version by stating that they have seen the defendants cultivating on the suit land. In their evidence, the defendant’s witnesses DW-1 and DW-2 stated that the suit land was under their possession for last 30 years and they have a house and basti over the suit land whereas DW-3 and DW-4 contradicted their version by stating that they have seen the defendants cultivating on the suit land. DW-1 contradicted his own version by stating that Nagen has a house on the eastern side of the suit land. 14. Taking into account the contradictions and the fact that the defendants’ witnesses did not mention about any jirat planted in the last 30 years, the Appellate Court held that the defendants failed to rebut the pleadings and the evidence of the plaintiffs. It was further held by the learned Appellate Court that the defendants did not adduce evidence of the neighbours to prove their continuous possession of the suit land by constructing any house on the suit land. The defendants did not produce any revenue paying receipts or any other documents to prove their possession over the suit land which was under their possession for a prolonged period. It was also observed by the learned Court that the defendants have vacillated by their contradictory statements, being the plea of continuous possession for 30 years by way of purchasing the suit land vis-à-vis the plea of adverse possession. It was held by the learned Appellate Court that there cannot be any valid Sale orally if the value of the land is more than Rs.100/- (Rupees One Hundred). 15. It was also held by the learned Appellate Court of first instance that Exhibit-3, Sale Deed No. 57/2005 was proved by the plaintiffs’ witnesses including the vendor who proved the execution of the Sale Deed whereas the defendants through their evidence as well as the cross-examination of PW-1, PW-2 and PW-3 have failed to show that they were in possession of the suit land for the last 30 years by constructing a house thereon. PW-3 admitted in his cross-examination that the defendants have no house constructed over suit land, which is an agricultural land. It was thereby held that the defendants failed to prove that they have orally purchased the suit land from Surendra Das and they have been possessing the suit land for the last 30 years by constructing their house thereon and by residing in the house with their family members. 16. It was thereby held that the defendants failed to prove that they have orally purchased the suit land from Surendra Das and they have been possessing the suit land for the last 30 years by constructing their house thereon and by residing in the house with their family members. 16. The decision of the learned Trial Court was thus reverted by the learned Appellate Court. 17. Heard learned counsel Mr. D. Choudhury for the appellant and learned counsel Ms. F. Begum assisted by learned counsel Mr. A Hussain for the respondents No. 1 and 2. Arguments for the Appellant :- 18. It is submitted on behalf of the appellants that the suit land was purchased by the appellants and the original owner Late Surendra Das was contemplating to execute an agreement but this did not materialize and the appellants have no Sale Deed executed, relating to transfer of land from Surendra Das during his lifetime in their favour. 19. It is contended that the plaintiffs have falsely made out a case of dispossession and the Trial Court correctly held that the defendants were in possession of the suit land. The Trial Court correctly dismissed the suit but the Appellate Court erroneously reverted the judgment of the Trial Court in Title Appeal No. 16/2016 by relying on the Sale Deed marked as Exhibit-3. The Appellate Court erroneously held that the defendants failed to produce any revenue receipts. It is submitted that the revenue receipt does not establish ownership and possession of immovable property. The learned Appellate Court had ignored the fact that DW-2 averred in his cross-examination that they (appellants) have a house in the suit land. The evidence of the prosecution witnesses as well as the witnesses of the defendants have clearly established that the defendants have been cultivating the suit land but the learned Trial Court ignored the evidence relating to cultivation of the suit land by the defendants and reverted the judgment of the Trial Court in Title Suit No. 41/2013. Arguments for the Respondents :- 20. The learned counsel for the respondents laid stress in her argument that there is no infirmity in the judgment and decree passed by the learned Appellate Court and no interference is warranted. It has been correctly held by the learned Appellate Court that the defendants failed to prove that they have a residential house constructed over the suit land. The learned counsel for the respondents laid stress in her argument that there is no infirmity in the judgment and decree passed by the learned Appellate Court and no interference is warranted. It has been correctly held by the learned Appellate Court that the defendants failed to prove that they have a residential house constructed over the suit land. No electricity bill or revenue paying receipts or any other documents substantiating continuous possession over a prolonged period of 30 years were submitted by the defendants whereas on the contrary the plaintiffs exhibited their Sale Deed. The transfer of land by way of oral agreement cannot be taken into consideration. Any immovable property over Rs.100/- (Rupees One Hundred) has to be registered. There was no prayer for cancellation of the Sale Deed marked as Exhibit-3 by the defendants. Learned counsel for the respondents/plaintiffs have relied on the following decision :- Manhoor Fatima Imran @ Ors. vs. M/s Visweswara Infrastructure Pvt. Ltd. & Ors. in connection with Special Leave to Petition (C) No. 1866/2024 21. It is submitted that the learned Appellate Court has correctly decreed the suit of the plaintiffs as prayed for. 22. Issue No. 5 as discussed clearly reveals that the suit was decreed in favour of the plaintiffs. Analysis, Reasoning and Conclusion : 23. It was correctly held by the learned Appellate Court that the Sale Deed was proved by the plaintiffs. Sound reasonings were recorded by the learned Appellate Court while deciding the appeal. This Court would like to concur with the findings of the learned Appellate Court on the issue No. 4. The Appellate Court elaborately discussed the evidence of the plaintiff No. 2, Subhash Das, who deposed as PW-1 that he along with the other plaintiff, purchased the suit land from the original owner Surendra Das vide registered Sale Deed No. 57/2005 dated 10.02.2005. This Sale Deed was produced and marked as Exhibit-3. PW-1 exhibited signatures of the vendor, writer and the attesting witnesses. PW-1 stated through his evidence that after purchasing the suit land, they took possession of the same. On 05.09.2005 at about 8.00 PM, the defendants dispossessed them by constructing a thatched house and a fence. This evidence of PW-1 was substantiated and corroborated by the evidence of PW-2, Sukhdev Das. PW-1 stated through his evidence that after purchasing the suit land, they took possession of the same. On 05.09.2005 at about 8.00 PM, the defendants dispossessed them by constructing a thatched house and a fence. This evidence of PW-1 was substantiated and corroborated by the evidence of PW-2, Sukhdev Das. PW-2, Sukhdev Das, Son of Surendra Das, stated that he and his brothers have executed the Sale Deed relating to the suit land and thereafter, they have handed over the possession of the suit land to the plaintiffs. He affirmed the execution of the registered Sale Deed by stating that Exhibit-3 (6-10) are his signatures. PW-2, son of Surendra Das, who was the original pattadar and owner of the suit land, also identified the thumb impression of his brother Sudhangsu Das, signatures of his other brothers and also the legal heirs of Surendra Das, Biswadev Das and Sushil Das. Thus, it was correctly held by the learned Appellate Court that the execution of the registered Sale Deed was proved by the evidence of one of the vendors. As the vendor himself admitted the execution of the Sale Deed, the examination of the attesting witnesses was indeed not required. 24. This also answers the substantial question of law that the judgment and decree passed by the lower Appellate Court is indeed not vitiated by perversity. The defendants failed to prove their ownership vis-à-vis adverse possession over the suit land. The defendants resorted to contradictory pleas. Initially, they stated that they had purchased the suit land on an oral transfer made by Surendra Das, whereas on the contrary, they stated that they have acquired right over the suit land by way of adverse possession which is continuous and hostile to the knowledge of the plaintiffs. Through their contradictory statements they failed to prove that they constructed any house over the suit land and are residing in any house constructed over the suit land. There has to be some semblance of proof in the form of at least a revenue receipt or evidence of witnesses, substantiating their claim that the they have any residential structure constructed over the suit land. 25. It has been held by the Hon’ble Supreme Court in Mahnoor Fatima Imran (supra) that :- “15. There has to be some semblance of proof in the form of at least a revenue receipt or evidence of witnesses, substantiating their claim that the they have any residential structure constructed over the suit land. 25. It has been held by the Hon’ble Supreme Court in Mahnoor Fatima Imran (supra) that :- “15. The respondents herein who were the writ petitioners have emphasised their claims on the basis of the decision in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. The said decision has been cited to argue that the title deeds; registered instruments of conveyance, are to be deemed valid unless set aside or declared void by a Civil Court of competent jurisdiction. There is no such dictum in the said decision wherein a Division Bench of this Court was concerned with conveyances made on the strength of agreements of sale, General Power of Attorney and Wills. The issue addressed was avoidance of execution and registration of deed of conveyances as a mode of transfer of a free hold immovable property, especially in the teeth of Section 17 and Section 49 of the Registration Act. The tendency to adopt Power of Attorney sales along with execution of sale agreements and a bequeath by way of will, instead of execution and registration of proper deeds of conveyance on receipt of full consideration was deprecated. We extract paragraphs 15 to 17 of an earlier order dated 15.05.2009 in the said case, extracted as such in para 15 of the aforesaid decision: “15. The Registration Act, 1908 was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. 16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future 'any right, title or interest' whether vested or contingent of the value of Rs. 100 and upward to or in immovable property. 17. 16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future 'any right, title or interest' whether vested or contingent of the value of Rs. 100 and upward to or in immovable property. 17. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affecting such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.” **** * * “17. It is in this context that we must examine the document of 19.03.1982, an agreement which is said to have been validated in the year 2006. We immediately notice that the very contention of the writ petitioners is only that they have obtained proper conveyances by registered sale deeds from Bhavana society, whose claim is under the agreement of 1982, which has not till date been registered and hence cannot be recognized as a valid mode or instrument of transfer of immovable property, going by the above decision.” **** * * “25. We make it clear that we have not said anything about the possession of 99.07 acres which will have to be agitated in appropriate proceedings. As far as the writ petition praying for a direction not to dispossess, we find that the writ petitioners to have not established a valid title. We prima facie find the title to be suspect, which would disentitle them from claiming a rightful possession, which also has not been proved.” 26. In the instant case, it was admitted by the defendants that they have not prayed for cancellation of the Sale Deed No. 57/2025. The pleadings and the evidence of the defendants cannot be given credence as they submitted of an oral transfer of land by the original owners. Not a single document was submitted by them to prove that they have been in possession of the suit land continuously. Registration of transfer of the suit land is out of question. Moreover, their submissions were contradictory. The appellant/defendant(s) stated that they have purchased the land from the original owners and subsequently, they stated that they have become the owners of the suit land by way of adverse possession. Registration of transfer of the suit land is out of question. Moreover, their submissions were contradictory. The appellant/defendant(s) stated that they have purchased the land from the original owners and subsequently, they stated that they have become the owners of the suit land by way of adverse possession. The transfer of the suit land vide Sale Deed No. 57/2005 was proved by the plaintiffs through oral as well as documentary evidence. Through their pleadings and through their evidence, the witnesses PW-1, PW-2 and PW-3 categorically stated that the plaintiffs had purchased the suit land and they were in possession over the same and on 05.09.2005, the defendants dispossessed them. On cross-examination of the above witnesses, the defendants failed to show that they were in possession of the suit land by constructing any house theron. In fact, DW-1, Amulya Das (father of DW-2, Phani Das), admitted in his cross-examination that he does not have a residential house within the four boundaries of the suit land. 27. It surfaced through the evidence of DW-1 that Surendra Das died in the year 1985-86 and he did not make the legal heirs of Surendra Das or any neigbours witnesses in the title suit. 28. The Appellate Court has correctly discarded the evidence of DW-2 (son of DW-1), who admitted in his cross-examination that he could not give the exact measurement of the suit land and contradicting his father’s evidence, he stated that a house was constructed in the suit land. 29. I find force in the argument of the learned counsel for the respondents that the evidence of DW-1 and DW-2 relating to the land on the eastern side of the suit land was also contradictory as DW-1 stated that the house of Nagen is located on the eastern side of the suit land whereas the evidence of DW-2 disclosed that they have another plot of land towards the eastern side of the suit land. It was correctly held by the learned Appellate Court that the possession of the defendants were not affirmed and substantiated by DW-2, DW-3 and DW-4, who stated that they had witnessed the defendants cultivating the suit land. They did not state or affirm that the defendants had property over the suit land. 30. It was correctly held by the learned Appellate Court that the possession of the defendants were not affirmed and substantiated by DW-2, DW-3 and DW-4, who stated that they had witnessed the defendants cultivating the suit land. They did not state or affirm that the defendants had property over the suit land. 30. In view of the foregoing discussions, it is thereby held that the decision of the learned Appellate Court that Exhibit-3, Sale Deed No.57/2005 dated 10.02.2005, affirming the right, title and interest of the plaintiffs over the suit land is found to be sustainable. Thereby, I record my concurrence to the decision of the Appellate Court that the plaintiffs have proved that they purchased the suit land from the legal heirs of Surendra Das on 10.02.2005 vide Sale Deed No. 57/2005, Exhibit-3 and on 05.09.2005, at about 8.00 PM, the defendants dispossessed the plaintiffs and constructed a thatched house and a boundary fence. 31. The order of dismissal in Title Suit No. 41/2013 was correctly set aside and the order of the learned Court in Title Appeal No. 16/2016, decreeing the suit in favour of the plaintiffs/respondents, is hereby upheld. 32. In view of the foregoing discussions, Appeal is dismissed as the appeal is bereft of merits. 33. No order as to costs. 34. Send back the records of Title Suit No. 41/2013 and Title Appeal No. 16/2016. 35. Decree to be prepared as directed by the Appellate Court in Title Appeal No. 16/2016.