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2026 DAILYLAW 10239 (GAU)

Md. Mokbul Hussain, S/o-Late Kamaruddin v. Md. Jalal Uddin @ Jamaluddin, S/o-Late Kamaruddin

2026-03-16

Mridul Kumar Kalita

body2026
JUDGMENT : MRIDUL KUMAR KALITA, J. [1] Heard Mr. M.U. Mahmud, the learned counsel for the appellants. Also heard Ms. R. Choudhury, the learned counsel for the respondents. [2] This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants, namely, 1. Md. Mokbul Hussain and 2. Abzol Hussain impugning the judgment and decree dated 12.03.2018, passed by the learned Civil Judge, Bongaigoan, Assam in Title Appeal No. 11/2014, whereby the appeal preferred by the appellant No.1 was dismissed and the judgment and decree dated 18.01.2014, passed by the court of the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 15/2007 was upheld. [3] The facts relevant for consideration of the instant appeal, in brief, are that a plot of land measuring 41 Bighas 1 Katha and 5 Lechas situated in village Nayagaon, under Bijni Revenue Circle was jointly owned by one Sahabuddin Miah and Kamaruddin Shekh. Late Sahabuddin Miah was issueless so he adopted one Ismail Hussain as his foster son during his life time and gave 5 Bighas of land out of the aforesaid land (fully described in Schedule “A” of the plaint) to him. After deducting the aforesaid 5 Bighas of land from 41 Bighas 1 Katha and 5 Lechas, only 36 Bighas 1 Katha and 4 Lechas of land remained of the Schedule “A”, along with another plot of land measuring 4 Bighas 0 Katha and 13 Lechas in village Numberpara under Srijangram, Revenue Circle. It is this total 40 Bighas 1 Katha 18 Lechas of land which is the subject-matter of the suit. [4] It is further averred in the plaint, file the Title Suit No.15/2007, that Sahabuddin, and after him his wife Mohiron Nessa died issueless and after their death Kamaruddin became the sole owner of the aforesaid plot of land. Kamaruddin had two wives, namely, Subjan Nessa and Kodbhanu Nessa. From the first wife, Subjan Nessa, Kamaruddin had two sons and three daughters and from the second wife Kodbanu Nessa, he had two sons and one daughter. Subjan Nessa had pre deceased Kamaruddin, and after the death of Kamaruddin, the plaintiffs, i.e., the two sons and one daughter of Kodbanu Nessa, including their legal representatives had filed a title suit before the court of the learned Munsiff, North Salmara, Abhayapuri, which was registered as Title Suit No. 15/2007. Subjan Nessa had pre deceased Kamaruddin, and after the death of Kamaruddin, the plaintiffs, i.e., the two sons and one daughter of Kodbanu Nessa, including their legal representatives had filed a title suit before the court of the learned Munsiff, North Salmara, Abhayapuri, which was registered as Title Suit No. 15/2007. In the said suit the main reliefs sought for by the plaintiffs were for declaration of their right, title and interest over the property, according to Mohammedan Law, partition of the suit land as per the respective shares which the plaintiffs were entitled to, direction to the revenue authority to mutate the names of plaintiffs in the records of rights in respect of suit property, declaration that the order of Settlement Officer, Goalpara and Bongaigaon district passed on 16.09.2006, in connection with Misc. Appeal Case No. 21/2005 is illegal, collusive and not binding on the plaintiffs, for permanent injunction against the defendants for restraining them from evicting the plaintiffs from Schedule “A” land as well as for declaration that defendants No. 3, 4, 5 have no right, title and interest over the suit land and for recovery of khas possession of the suit land, if same is required necessary. [5] There were 6(six) defendants in the aforesaid suit, however, all of them have filed a joint written statement wherein, they took plea of non-maintainability of the suit on the ground of lack of territorial jurisdiction of the court in which it was filed. They admitted that 5 Bighas of land out of the land owned by Sahabuddin was gifted in favour of Ismail Miah (proforma defendant No. 6). However, it is contended by the present appellants, as defendants, in their written statement filed in the aforesaid title suit, that Sahabuddin had exhibited a registered sale deed on 13.12.1966 transferring 5 Bighas 2 Kathas 17 Lechas of land of Dag No. 708 in Patta No. 185 as well as 1 Bigha 2 Kathas 3 Lechas of land in Dag No. 865 of Patta No. 185 (total 7 Bighas of Schedule “A” land) to his wife Mohiron Nessa. It is contended by the defendants in their written statement that said Mohiron Nessa sold the aforementioned 7 Bighas land to the defendant Nos. 1 and 2 by registered sale deed and same cannot be subject-matter of the partition. It is contended by the defendants in their written statement that said Mohiron Nessa sold the aforementioned 7 Bighas land to the defendant Nos. 1 and 2 by registered sale deed and same cannot be subject-matter of the partition. [6] The defendants have further contended in their written statement that Kamaruddin had gifted two plots of land measuring 1 Bigha 4 Kathas 8 Lechas and 1 Bigha 4 Kathas and 11 Lechas to the defendant Nos. 1 and 2, namely, Md. Mokbul Hussain and Abzol Hussain (present appellants) and since the said plot of land has already been transferred by Kamaruddin in favour of his two sons. The said land cannot be subjected to partition. [7] On the basis of the pleadings of the parties, the trial court framed following issues:- “(1) Whether there is any cause of action? (2) Whether during his life time of Sahabuddin sold 7, Bighas of Land on 30/12/66 vide registered sale deed to his wife Musstt. Mohíron Nessa out of the land described in Schedule "A"? 3) Whether the said Mohiron Nessa sold out 7 Bighas of land on 18/02/1975 by registered sale deed to Maqbul Hussain and Afzal Hussain? (4) Whether the father of the Defendant No. 1 & 2 Kamaruddin during his life time gifted land to Defendant No. 1 &2? 5) Whether the order of S.O., Goalpara and Bongaigaon passed on 16/09/06 in connection with the Misc (Appeal) Case No. 21/05 is illegal, collusive and the same is not binding upon the Plaintiff? (6) Whether the plaintiffs are entitled to get their due share by partitionthe suit land? (7) What relief (S) the plaintiffs are entitled?” [8] The plaintiff’s side examined four witnesses, namely, 1. Md. Jalal Uddin as PW-1, 2. Md. Alauddin as PW-2, 3. Taleb Ali as PW-3 and 4. Amir Uddin as PW-4 and they also exhibited certain documents. On the other hand, the defendants’ side adduced evidence of three witnesses, namely, Maqbul Hussain as DW-1, Tarab Miah as DW-2 and Abdul Miah as DW-3. Ultimately, by the judgment dated 18 th January, 2014, the trial court decreed the suit of the plaintiff. [9] Being aggrieved by the judgment and decree of the trial court, the defendant Maqbul Hussain preferred the Title Appeal No. 11/2014 against the judgment of the trial court. Ultimately, by the judgment dated 18 th January, 2014, the trial court decreed the suit of the plaintiff. [9] Being aggrieved by the judgment and decree of the trial court, the defendant Maqbul Hussain preferred the Title Appeal No. 11/2014 against the judgment of the trial court. The said appeal was registered as Title Appeal No. 11/2014, wherein, the other defendants were made as proforma respondents, including the defendant No. 2, namely, Afzal Hussain. By the judgment and decree dated 12.03.2018, the First Appellate Court dismissed the appeal with cost. The aforesaid judgment has been impugned by the appellants in this instant Regular Second Appeal. [10] This court, by order dated 10.01.2022, formulated following substantial question of law in this appeal: - “Whether the learned courts below were justified in rejecting the prayer of the appellants to produce two registered sale deed vide sale deed No. 7726 dated 30.12.1996 and sale deed No. 326 dated 18.12.1975 of the Sub-Registrars Officer, Bijni can be the subject- matter of partition for other legal-heirs of the seller Late Kamaruddin, i.e. respondents?” [11] Mr. M.U. Mahmud, the learned counsel for the appellants has submitted that the appellants purchased 10 Bighas 3 Kathas 19 Lechas of land from Mohiron Nessa by executing registered sale deed in the year, 1975. He submits that the appellants had filed petition before the trial court for production of aforesaid sale deeds from Sub-Registrars Office, however, the trial court rejected the said prayer in spite of having power to do so under Order 11 Rule 12, 14 and 16 of the Code of Civil Procedure, 1908. [12] He submits that since the land measuring 7 Bighas, which was sold by Sahabuddin to Mohiron Nessa as well as land covering 3 Bighas 3 Kathas and 19 Lechas, which was the gifted land never be subject-matter of partition. He submits that the appellants may not be made to suffer due to lapse on the part of their engaged counsel, who conducted the case before the trial court in not filing the petition for production of the sale deeds at appropriate stage. [13] He submits that in Mohammedan Law a gift may also be made orally, however, in the instant case, there was written deed of gift which the trial court did not allowed to be produced during trial. [13] He submits that in Mohammedan Law a gift may also be made orally, however, in the instant case, there was written deed of gift which the trial court did not allowed to be produced during trial. He submits that both the courts below had erred in rejecting the prayer of the appellants to produce the sale deeds as same were very vital documents which would have established the rights of the appellants over 10 Bighas 3 Kathas 19 Lechas of land which were made the subject-matter of the partition by the impugned judgment. [14] In support of his submissions, the learned counsel for the appellants has cited following rulings of a co-ordinate bench of this court in the case of:- i. “ Janak Lal Basumatary And Anr. Vs. Naba Kumar Sarania (Hira )” reported in order dated 31.03.2016 in I.A.(C) No. 1278 of 2015; ii. “ Roskin Ahmed Vs. Hari Sankar Sahu And Anr. ” (judgment dated 05.09.2019) in CRP (IO) No. 180/2019; iii. “ Raifuddin Ahmed Vs. Om Prakash Khakolia And Ors. ” reported in “2011 GLT 2 289” [15] He submits that the substantial question of law should accordingly be decided in favour of the appellants and the appeal may be allowed. He also submitted that in alternative, the matter may even be remanded back to the trial court/first appellate court for allowing the appellants to adduce additional evidence to bring on record the sale deeds in question and thereafter, decide the matter afresh. [16] On the other hand, Ms. R. Choudhury, the learned counsel for the respondents has raised the preliminary objection regarding maintainability of the instant Regular Second Appeal by respondent No. 2. She submits that the respondent No. 2 had never challenged the judgment of the trial court before the first appellate court and had directly joined the appellant No. 1 in impugning the judgment of the first appellate court wherein, he was only a proforma respondent. She submits that the respondent No. 2 had never challenged the judgment of the trial court before the first appellate court and had directly joined the appellant No. 1 in impugning the judgment of the first appellate court wherein, he was only a proforma respondent. [17] She further submits that the substantial question formulated by this court on 10.01.2022 is not a substantial question of law in as much as it only relates to the rejection of the prayer made by the defendants before the trial court for production of two sale deeds from Sub-Registrar’s Office, whereas, the said rejection order of the trial court was never challenged before appropriate forum (within the period of limitation) and it was raised before the first appellate court and the first appellate court also considered the correctness of the aforesaid order, i.e. order dated 29.06.2011, passed by the trial court. [18] She submits that there was no perversity by the trial court in passing order dated 26.09.2011 as well as in the impugned judgment of the First Appellate Court, where it held that the order dated 29.06.2011 was not a perverse order. [19] She further submits that as regards the oral gift of a portion of suit land as claimed by the appellants, none of the witnesses examined by the defendants/appellants made any whisper about oral gift and therefore, the trial court was right and there was no perversity in disbelieving the oral gift. [20] She further submits that as regards the plea that the appellants were not allowed to adduce additional evidence to bring on record the sale deeds by which lands were sold to the appellants, the appellants never filed any application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 before the first appellate court or even before this court. Hence, the plea that the first appellate court committed perversity by not allowing the appellants to produce the sale deed is not sustainable. [21] She further submits that it is well settled proposition of law that concurrent finding of facts by the trial court and by the first appellate court is binding on the High Court in a regular second appeal and such concurrent finding of facts should not be disturbed. She, therefore, submits that the instant regular second appeal filed by the appellants is liable to be dismissed with cost. She, therefore, submits that the instant regular second appeal filed by the appellants is liable to be dismissed with cost. In support of her submissions, she has cited following rulings:- i. “ Commissioner, Hindu Religious & Charitable Endowments Vs. P. Shanmugama And Others ” reported in “ (2005)9 SCC 232 ;” ii. “State of Kerala And Another Vs. Mohd. Kunhi (Dead) By Lrs. And Others” reported in (2005) 10 SCC 139; iii. “ Harjeet Singh And Another Vs. Amrik Singh And Another ” reported in “(2005) 12SCC 270;” iv. “ Gowtham Chand Vs. A.G. Shivakumar since Dead by LRS & Ors . ”( SLP No.249993/2023). [22] I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions. [23] In a catena of judgment, the Apex Court has held that existence of substantial question of law is the sine-qua-non for exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908. As to what may be regarded as a substantial question of law, various interpretations have been given by the Apex Court as well as by this court. However, it has also been held in the catena of judgments by the Apex Court that where a question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question could not be a substantial question of law. [24] In the instant case, the substantial question formulated by this court on 10.01.2022 is basically as to whether the learned court below were justified in rejecting the prayer of the appellants for production of two sale deeds. Though, the second part of the substantial question which was formulated is somewhat unclear, it may be read as to whether the property which was subject-matter of the aforesaid two sale deeds can be subject-matter of partition in the suit. [25] On a cursory perusal of the aforesaid question, it appears that it mainly pertains to the order dated 26.09.2011, by which the trial court had rejected the prayer for production of the sale deeds by the plaintiff. [25] On a cursory perusal of the aforesaid question, it appears that it mainly pertains to the order dated 26.09.2011, by which the trial court had rejected the prayer for production of the sale deeds by the plaintiff. Thus, it appears to be a question relating to application of the correct law or correct principles of law under a given set of facts and as such in the considered opinion of this court, same cannot be regarded as a substantial question of law. More so, when the aforesaid order dated 29.06.2011, passed in Title Suit No. 15/2007, was not put to any challenge in appropriate proceedings within the prescribed period of limitation by the present appellants. [26] In any view of the matter, the said issue was dealt with by the first appellate court in paragraphs No. 17 and 18 of the impugned judgment and the finding arrived at, by the first appellate court, cannot be regarded as a perverse finding. Hence, the exercise of powers under Section 100 of the Code of Civil Procedure, 1908 by interfering with the impugned judgment may not be justified. [27] It is also a well settled principle of law that High Court in exercising of its powers under Section 100 of the Code of Civil Procedure, 1908 cannot interfere with the concurrent finding of facts of the trial court as well as first appellate court, unless same is alleged to be perverse. However, as discussed earlier since order dated 29.06.2011 was never put to challenge by the appellants in appropriate proceedings. The trial court and the first appellate court came to the findings in favour of the plaintiffs/respondents on the basis of evidence which were before the said court. Hence, the conclusion arrived at by the trial court and the first appellate court may not be faulted with. [28] It also appears that even at the first appellate stage, no application was made by the appellants under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for production of any additional evidence. Hence, the appellate court’s decision of confirming the decision of the trial court cannot be regarded as perverse. [29] One other aspect in this second appeal is that since the respondent No. 2 has not preferred any appeal against the judgment of the trial court. Hence, the appellate court’s decision of confirming the decision of the trial court cannot be regarded as perverse. [29] One other aspect in this second appeal is that since the respondent No. 2 has not preferred any appeal against the judgment of the trial court. Hence, he could not have preferred this second appeal wherein, the judgment of the trial court has only been upheld. [30] In view of the discussions made in the foregoing paragraphs as well as reasons stated therein, this court is of considered opinion that the question formulated by this court on 10.01.2022 is only with regard to applicability of law/general principle to be applied while deciding the prayer of the appellants for production of two sale deeds. The said question, therefore, cannot be regarded as a substantial question of law. Further, as no perversity could be demonstrated by the appellants either on the part of the trial court or on the part of the first appellate court, this is not a fit case to exercise the jurisdiction of this court under Section 100 of the Code of Civil Procedure, 1908 by interfering with the impugned judgment and decree.The instant appeal is, therefore, liable to be dismissed. [31] This appeal is, accordingly, dismissed with cost. [32] Prepare decree accordingly. [33] Send back the records of the first appellate court as well as trial court to the respective courts, along with a copy of this judgment.