Appealing against a Title Suit decree declaring a Sale Deed forged and dismissing a counter-claim. The High Court dismissed the appeal, finding no perversity in lower courts appreciating evidence of death vs deed execution.
Appeal dismissed; parties to bear own costs; LCR sent below.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010169552006
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/60/2006
MUSTT. AIMONA KHATUN and ORS D/O LATE KURPAN ALI, W/O ABDUR RAHMAN.
2: 2. ABDUR RAHMAN
S/O LATE FORMAN KHAN MUNCHI BOTH OF THEM ARE RESIDENTS OF VILL-BALAPATHER MOUZA-TITAPANI P.S. BAGHBOR DIST-BARPETA ASSAM
VERSUS
ON THE DEATH OF ABDUL BASER HIS LEGAL HEIRS MALEKA KHATUN WIFE and ORS SAHIDUL ISLAM SON JAHERUL ISLAM SON SONABHANN DAU SHAHIDA KHATUN DAU
2:ON THE DEATH OF SHIRAJ UDDIN HIS LEGAL HEIRS MD. SAIDUR
MD. SARIFUL MD. ZAKIR
3:3. SAHAR KHAN
S/O KUDDUS KHAN VILL-BALAPATHER MAUZA-TITAPANI P.S. BAGHBOUR DIST-BARPETA ASSAM.
4:4. IBRAHIM ALI
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S/O UNKNOWN VILL-CHAPARA PLEADER'S CLERK OF BARPETA COURT CARD NO.53 AND BELONGS TO "TARANI SANGHA" OF BARPETA COURT P.S. and DISTRICT-BARPETA ASSAM.
5:5. SEIKH ABUL HUSSAIN
S/O BARU MIA VILL-GURIALGURI SHOWPUR MOUZA-RUPASHI P.S. SORBHOG DIST-BARPETA ASSAM
BEFORE
HON’BLE MR. JUSTICE DEVASHIS BARUAH
For the appellants : Mr. M.A. Sheikh
…. Advocate.
For the respondents no.1 : None appeared.
Date of hearing & judgment : 11.11.2021
JUDGMENT AND ORDER (ORAL)
Mr. M.A. Sheikh, learned counsel appearing for the appellants. None appeared on behalf of the respondents.
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“(1) Whether the finding of the Court below suffers from perversity as the Court failed to appreciate the evidence of PW-2 and 3 in its proper perspective?.”
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right, title, interest and confirmation of possession in respect to the schedule land as described in the said purported Deed of Sale; for partition of the B-Schedule land in favour of the defendant no.1; to issue a precept to the Revenue Authority for partition of the B- Schedule land by separate dag and patta; appoint commission for partition as well as for cost.
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certified copy of the said purported Deed of Sale would reveal that one Sahar Khan had identified the vendor to the Sub-Registrar and that Sahar Khan was examined as DW-4. I have also perused his evidence. The defendants also examined the writer of the Deed who was DW-3. However, the attesting witness of the said purported Deed of Sale was not a witness to the suit. The Trial Court while deciding the issue no.(iv) drew adverse presumption on the ground that neither Abul Hussain who had escorted Late Habibar Rahman nor attesting witnesses to the purported Deed of Sale were made witnesses to the suit. Accordingly the Trial Court held that the purported Deed of Sale dated 06.02.2001 is a forged and fraudulent document and did not confer any title upon the defendant no.1. As the issue no.(iv) was decided against the defendants and others issues which were consequential to the decision of issue no.(iv) were decided in favour of the plaintiffs and against the defendants/counter-claimants. Accordingly the suit was decreed in favour of the plaintiffs and the counter-claim which was filed by the defendants was dismissed.
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a counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints. It is also relevant to note that reading of Rule 6D of Order VIII would go to show that if in any case in which the defendants set up a counter-claim and the suit of the plaintiff is stayed, discontinued or dismissed the counter-claim may nevertheless be proceeded with. Thus a reading of the said Rules of Order VIII would clearly go to show that a counter-claim is nothing but a cross-suit which instead of being separately filed the provisions of Code of Civil Procedure permits that defendant to file in the very suit filed by the plaintiff and when in a suit there is a counter-claim, it is to be treated as two suits tried together analogously. The Code of Civil Procedure permits the Trial Court to pass a common judgment in two or more suits tried together and the same is also applies to the Appellate Court, two or more Appeals heard together and a common judgment may be passed. Consequently when two or more suits are tried together or two or more appeals are heard together and a common judgment is passed it is the necessity of law that the judgment and decree passed in each of the suits have to be challenged separately whether it is a Trial Court’s decree or even a Appellate Court’s decree. However, in the instant case it would be seen that against the Trial Court judgment and decree dated 29.06.2004 passed in Title Suit No.29/2002 the appellants have preferred only one appeal whereby the suit filed by the plaintiffs i.e. the respondents herein was decreed in favour of the plaintiffs and the counter-claim filed by the defendants (the appellants herein) was dismissed. Similarly on a perusal of the impugned judgment and decree passed by the Trial Court would also show that the Appellate Court had confirmed the decree passed by the Trial Court by decreeing the suit in favour of the plaintiffs as well as also confirmed the decree of the Trial Court in so far as the dismissal of the counter-claim and one Second Appeal has been filed before this Court. In this regard it would be relevant to take note of that in present facts that the decree passed by the Trial Court in favour of the plaintiffs and the decree passed dismissing the counter-claim if not assailed would act as a res judicata and thereby forbid the First Appellate Court or even this Court to pass a decree which would be contrary to the decree passed in the counter-claim which had attained finality on account of not being assailed. On this ground alone the instant Second Appeal is not maintainable.
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been framed it is the duty of this Court to see as to whether the decision in the substantial question of law as framed if decided would change the result of the proceedings. In this regard reference may be made to the judgment of the Supreme Court rendered in the case of Santosh Hazari vs. Purushottam Tiwari reported in (2001) 3 SCC 179, wherein it was observed that though the phrase “substantial question of law” is not defined in the Code, the word substantial as qualifying “question of law” means having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradistinction to – technical, of no substance or consequence or academic merely. Paragraph 14 of the said judgment being relevant is quoted hereinbelow:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial”, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”
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challenge to a finding of fact on the ground of perversity can be a substantial question of law but to decide the same to be a substantial question of law effecting the cause of the instant proceedings, it is necessary for the appellants to show that the findings of facts stand vitiated on wrong test and on the basis of assumption and conjecture and resultantly there is an element of perversity involved therein.
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evidence have been appreciated does not raise any substantial question of law. Again the issue of the suit being a representative suit and as such the suit was not maintainable without compliance with Order 1 Rule VIII of the CPC also does not inspire this Court to formulate a separate substantial question of law inasmuch as the plaintiffs had independent right to file the suit without complying to the provisions of Order 1 Rule VIII of the CPC. Consequently, I am of the opinion that no further substantial question of law arises. The Appeal being devoid of any merits accordingly is dismissed.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the finding of the court below suffers from perversity for failing to appreciate the evidence of PW-2 and PW-3?
Whether the appeal is maintainable given the dismissal of the counter-claim by the second and third appeals?
Colour shows how this judgement treated each authority
Santosh Hazari vs. Purushottam TiwariExplained¶13
Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 · Who else cites this
4 provisions across 1 enactments
MUSTT. AIMONA KHATUN
ABDUR RAHMAN
MALEKA KHATUN
SAHIDUL Islam
SEIKH ABUL HUSSAIN
DEVASHIS BARUAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
