Page No.# 1/10 GAHC010059092026 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/44/2026 ABHOYANAND BORTHAKUR S/O LATE MUKTI NATH BORTHAKUR, R/O SUBOSINI ROAD, TINSUKIA, P.O., P.S. AND DIST- TINSUKIA, ASSAM, PIN-786125 VERSUS BIJOYNAND BORTHAKUR AND 2 ORS. S/O LATE MUKTI NATH BORTHAKUR, R/O SUBOSINI ROAD, TINSUKIA, P.O., P.S. AND DIST- TINSUKIA, ASSAM, PIN-786125 2:SAMIRAN DAM S/O MILAN KRISHNA DAM R/O C/O M/S SANDHYA ELECTRICALS G.N.B. ROAD TINSUKIA TOWN P.O. P.S. AND DIST- TINSUKIA ASSAM PIN-786125 3:PALASH MONI HAZARIKA S/O LATE MOINA HAZARIKA C/O M/S DOOMDOOMA ENTERPRISE R/O CHALIHA NAGAR SECTOR-1 BY LANE-7 P.O. P.S. AND DIST- TINSUKIA ASSAM PIN-78612 Advocate for the Petitioner : MR. A K GUPTA, MR. R K MAHANTA Page No.# 2/10 Advocate for the Respondent : MR. S R GOGOI (FOR CAVEATOR), BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 24.06.2026 1. Heard Mr. A. K. Gupta, the learned counsel for the appellant. Also heard Mr. S. R. Gogoi, the learned counsel for the respondents. 2. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant, namely, Shri Abhoyanand Borthakur impugning the judgment and decree dated 19.02.2025 and 20.12.2025 respectively, passed by the Court of learned Civil Judge (Senior Division), Tinsukia, in Title Appeal No. 10/2024 whereby the judgment dated 29.06.2024 and decree dated 05.07.2024, by the Court of learned Civil Judge (Junior Division) No. 1, Tinsukia, in Title Suit No. 21/2011 was affirmed and the appeal filed by the present appellant was dismissed. 3. The facts relevant for consideration of the this appeal, in brief, are that the present respondent No. 1, namely, Bijoynand Borthakur had filed a title suit before the Court of learned Munsiff No. 2, Tinsukia praying for the relief of declaration of possessory title, right and interest of the plaintiff over the suit premises as described in Schedule-A to the plaint. It was further stated therein in the plaint that Schedule-A premises includes the premises described in Schedule-B and Schedule-C of the plaint. The plaintiff also sought relief of recovery of possession of the suit premises by evicting the defendant therefrom. The suit was contested by the present appellant by filing joint written statement along with defendant No. 2, wherein it was claimed by the present appellant Page No.# 3/10 that the suit premises was purchased by their father Mukti Nath Borthakur from one Ramdin Shukla in the year 1974 and thereafter the suit premises was divided into two parts by the father of the defendants and were given to defendant No. 1 i.e., the present appellant as well as defendant No. 2. 4. On the basis of the pleadings of the parties, the trial court framed following issues: - “I. Whether there is cause of action for the suit? II. Whether the suit is time barred? III. Whether the suit is bad for non-joinder of necessary party, particularly Tinsukia Municipal Board? IV. Whether the plaintiff has right, title and interest over schedule A? V. Whether the plaintiff took the suit premises (schedule A) on rent from the Tinsukia Municipal Board, Tinsukia, Assam in 1974? VI. Whether the plaintiff had been in khas physical possession of the suit premises since 1974 until dispossessed? VII. Whether the defendant no. 1 & 2 had dispossessed the plaintiff from the suit premises illegally? VIII. Whether the plaintiff is entitled to recover possession of the suit premises? IX. Whether the defendant no. 3 & 4 are the bonafide tenants under defendant no. 2 & 1? X. Whether the plaintiff is entitled to get permanent injunction against defendant no. 3 & 4 as prayed for? XI. Whether the plaintiff is entitled to get the judgment & decree as prayed? XII. To what other relief(s) the parties are entitled?” Page No.# 4/10 5. In support of his case, the plaintiff examined three witnesses and exhibited twelve documents as Exhibit-1 to Exhibit-12. Whereas, the defendant side adduced the evidence of three witnesses and exhibited some documents which were marked as Exhibit-A to Exhibit-I. Ultimately, the trial court decided the issues in favor of the plaintiff and decreed the suit by its judgment dated 29.06.2024 directing the recovery of khas possession of Schedule-A property and delivery of same to the plaintiff. 6. Being aggrieved by the judgment of the trial court, the present appellant preferred an appeal before the Court of learned Civil Judge (Senior Division), Tinsukia. The said appeal was registered as Title Appeal No. 10/2024. The appeal was contested by the plaintiff. However, by judgment dated 19.12.2025, the First Appellate Court dismissed the appeal and affirmed the judgment of the trial court. The said judgment of the First Appellate Court has been impugned in this appeal. 7. Mr. A. K. Gupta, the learned counsel for the appellant has submitted that the trial court has committed perversity in coming to the finding that the plaintiff is entitled to possessory rights and decree of eviction against the present appellant mainly on the basis of Exhibit-5 to Exhibit-12, which were exhibited by the official witness, i.e., PW-3. He submits that though a Co- ordinate Bench of this Court, by its order dated 08.11.2013 passed in CRP No. 247/2013 has modified the order of the trial court of issuing notice to PW-3 for clarifying that though PW-3 may be summoned for recording his evidence, however, he may not be directed to produce any document from the record. 8. The learned counsel for the appellant submits that the appellant in Page No.# 5/10 spite of the clear prohibition by this Court, by the said order, the PW-3 brought the official documents which were later on exhibited as Exhibit-8, 9, 10, 11 and 12. He submits that it is clear from the evidence of PW-1, who is the plaintiff of the case, that he exhibited only four documents i.e., Exhibit-1 to Exhibit-4. As such, he submits that the documents exhibited by the official witness, i.e., PW-3 were brought by the said witness in violation of the direction of this Court passed in CRP No. 247/2013. Hence, the trial court ought not to have relied upon the said exhibits and by relying upon the same, it has committed perversity. 9. The learned counsel for the appellant has also submitted that the trial court also committed perversity in holding that the petitioner was in possession of the suit premises. He submits that it also committed perversity by relying on the testimony of PW-1 to the effect that when PW-1 came to Guwahati in the year 2008 after going back, he found that the lock of the suit premises was broken by the respondent. 10. He submits that during cross-examination, PW-1 has deposed that no FIR was lodged against the breaking of the lock of the suit premises. Further, he submits that the trial court also did not consider that it was not natural on the part of plaintiff to wait for three years of filing the suit after being dispossessed from the suit premises. Hence, he submits that the conclusion arrived at by the trial court regarding possession of the said premises in favor of the plaintiff and dispossession thereof by the respondent was perverse. As such, he submits that the substantial question of law suggested by the appellant in his memo of appeal may be formulated and this appeal may be admitted. 11. Though, Mr. S. R. Gogoi, learned counsel has appeared for the Page No.# 6/10 respondent No. 1 i.e., plaintiff, however, since in hearing under Order 41 Rule 11 of the Code of Civil Procedure, 1908 only appellant's side is to be heard while deciding the question as to whether there is any substantial question of law involved in this case at the time of admission of the appeal, hence, this Court will only take into consideration the submissions of learned counsel for the appellant as well as materials available on record to come to the finding as to whether any substantial question of law is involved in this case or not. 12. As regards what may be regarded as substantial question of law in a second appeal filed under Section 100 of the Code of Civil Procedure, 1908, the Supreme Court of India has observed in the case of “Kondiba Dagadu Kadam v. Savitribai Sopan Gujar”, reported in “(1999) 3 SCC 722”as follows:- “4. It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549 : 65 Bom LR 267] held that: “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from Page No.# 7/10 difficulty or calls for discussion of alternative views. If the 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 that the plea raised is palpably absurd the question would not be a substantial question of law.” 5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 13. From above, it appears that the concurrent finding of facts, howsoever erroneous, cannot be disturbed by the High Court in exercise of the powers under Section 100 of the Code of Civil Procedure, 1908. The substantial question of law has to be distinguished from a substantial question of fact. 14. Further, mere wrong application of settled principles of law on the facts of a particular case would not be termed as substantial question of law unless the court comes to a conclusion that the courts below have committed perversity. 15. The Apex Court in the case of “Associate Builders Vs. Delhi Development Authority” reported in “(2015) 3 SCC 49”has observed as follows:- “32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp Page No.# 8/10 (2) SCC 312] , it was held : (SCC p. 317, para 7) “7. … It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.” In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429] , it was held : (SCC p. 14, para 10) “10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.” 16. Thus, from above, it appears that there is a broad distinction between decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. However, if there is some evidence on record which is acceptable and which could be relied upon, howsoever, compendious it may be, the conclusion would not be treated as perverse and the finding would not be interfered with. 17. In the instant case, the order of the Co-ordinate Bench in CRP No. 247/2013 had restrained the plaintiff to issue summons to the official witnesses Page No.# 9/10 only for recording his evidence and clarified that he may not be directed to produce any documents. The official witness, namely, PW-3, has exhibited some documents as Exhibit-8, 9, 10, 11 and 12. However, it appears that it is not clear from the testimony of PW- 3 as to whether the documents exhibited as Exhibit- 8 to Exhibit- 12 were brought by him on the basis of summons issued to him by the Court or they were the plaintiff's documents. No cross-examination to that effect was done by the present appellant. As such, there is nothing on record to indicate that by exhibiting the said documents, the plaintiff has in any manner violated the order dated 08.11.2013, passed in CRP No. 247/2013. This Court is, therefore, of the considered opinion that the trial court as well as the first appellate court by relying on the aforementioned documents have committed no perversity. It is not a case where the decision arrived at by the courts below were on the basis of no evidence or evidence which is thoroughly unreliable and no reasonable person would have acted upon it. 18. Secondly, to arrive at a conclusion that in the year, 2008, when the PW- 1 came to Guwahati and after going back, he found that the lock of the suit premises was broken by the respondent, the courts below relied upon the testimony of PW-1. As such, it is also not a case where there was no evidence to arrive at the conclusion reached by the courts below. 19. If we apply the test of perversity as propounded by the Apex Court in the case of “Associate Builders Vs. Delhi Development Authority” (supra), it becomes clear that the decision arrived at by both the courts whereby the suit of the plaintiff was decreed cannot be regarded as perverse. 20. In view of discussions made and reasons stated in the foregoing paragraphs, this Court is of considered opinion that the appellant has failed to Page No.# 10/10 make out a case to show that any substantial question of law is involved in this appeal and therefore, in absence of such substantial question of law, this appeal may not be admitted under Section 100 of the Code of Civil Procedure, 1908. 21. Accordingly, this appeal is not admitted and dismissed. JUDGE Comparing Assistant