Dismissed
Md. Bhola Sk. and 3 Ors. v. Md. Saha Alom and 6 Ors.
Gauhati HCRSA/89/2021
Case brief
from the order text
What is this about?
GAHC010066332021 THE GAUHATI HIGH COURT…
What the court decided
AI extract
GAHC010066332021 THE GAUHATI HIGH COURT…
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.
Page No.# 1/4
GAHC010066332021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/89/2021
MD. BHOLA SK. AND 3 ORS. S/O- LATE BAHADUR SK., R/O- VILL.- JORDANGA PT-II, P.O. AND P.S. MANKACHAR, DIST.- SOUTH SALMARA MANKACHAR, ASSAM, PIN783131.
2: MD. FULBABU S/O- LATE BAHADUR SK. R/O- VILL.- JORDANGA PT-II P.O. AND P.S. MANKACHAR DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783131. 3: ELACHI NESSA D/O- LATE BAHADUR SK. W/O- AZAD SK. R/O- VILL.- JORDANGA PT-II P.O. AND P.S. MANKACHAR DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783131. 4: FULECHA NESSA D/O- LATE BAHADUR SK. W/O- AFTAR HUSSAIN R/O- VILL.- JORDANGA PT-II P.O. AND P.S. MANKACHAR DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783131 VERSUS
MD. SAHA ALOM AND 6 ORS.
Page No.# 2/4
S/O- LATE AKBOR ALI, R/O- THAKURBARI. 2:ALO RANI D/O- LATE AKBOR ALI W/O- MONIZAMAL R/O- THAKURBARI.
3:MD. SHAKIBUL ALI S/O- LATE AKBOR ALI VILL.- JORDANGA ALL ARE UNDER P.S. MANKACHAR DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783131. 4:ON THE DEATH OF ABDUL MONNAF HIS LEGAL HEIRS NUR HALIMA BEWA (WIFE) VILL.- KUCHNIMARA 5:NUR HABIBI (MINOR SON) VILL.- KUCHNIMARA 6:MINIZAY KHATUN (DAUGHTER) W/O- FAKIR SK. VILL.- KUCHNIMARA 7:MANJUMA KHATUN (DAUGHTER) W/O- ABU ZAFOR VILL.- KUCHNIMARA VILL.- JORDANGA PT-I ALL ARE UNDER P.O. AND P.S. MANKACHAR DIST.- SOUTH SALMARA MANKACHAR ASSAM PIN- 783131
Advocate for the Petitioner : MD A HUSSAIN
Advocate for the Respondent :
Page No.# 3/4
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 11.11.2021
Heard Mr. A Hussain, learned counsel for the appellant.
This application preferred under the provision of section 100 CPC has been filed challenging the judgment and decree dated 20.01.2021 passed in Title Appeal No.60/2018 whereby the judgment and decree dated 08.11.2018 passed by the learned Munsiff Hatsingimari in Title Suit No.130/2016 was affirmed.
Mr. A Hussain, learned counsel appearing on behalf for the appellant submits that both the Courts below failed to take into consideration Exhibit-2, which is the death certificate of Late Bahadur Seikh showing his date of death to be 04.11.1979 in the proper perspective and consequently, the judgment and decree passed by the Courts below suffers from perversity for not taking the vital evidence as regards the death of late Bahadur Seikh.
For appreciating the said contention, it would be relevant to take note of that a proceeding under Section 100 of the CPC, 1908 confers jurisdiction upon the High Court only when there arises a substantial question of law involved in the case. To be a substantial question it must be a question of law which is debatable, not previously settled by the law of land or by binding precedent and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before this Court is concerned. It is also relevant to take note of that to be a question of law “involving in the case”, there must be first the foundation for it laid in the pleadings and the question should emerge from the substantial findings of fact arrived by the Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case.
In the backdrop of the above and taking into consideration the submission made by the learned counsel for the appellant and more particularly the materials on record upon which the impugned judgment and decree passed
Page No.# 4/4
by both the appellate Court as well as by the Trial Court, the pleadings of the parties as well as the Memo of Appeal it would transpire that though the appellants have exhibited the death certificate as Exhibit-2 but there was no compliance to Section 67 of the Indian Evidence Act, 1872 as well as the well established principles of law that mere marking a document as an exhibit does not dispense with the proof of it and the said document has to be proved by reliable evidence to that effect.
In the instant case, the exhibit-2 which is the death certificate of late Bahadur Seikh stating the date of death to be 04.11.1979 was obtained only one month prior to the filing of the suit in the month of August 2010. Neither the person who executed exhibit-2 nor had any office staff who would recognize the signature of the person who executed the said document, adduced any evidence to vouchsafe the authenticity of exhibit-2.
Mr. Hussain further submits that the sale deed bearing No.2421 dated 12.07.1974 was executed by the mother and the mother could not have executed the said sale deed as she had no authority to do so.
I have perused the copy of the plaint enclosed to the Memo of Appeal and I do not see any pleadings to the said effect, meaning thereby that there is no foundation laid for the purpose of framing a substantial question of law which would have a material bearing in the adjudication of the lis.
In view of the above, I am of the opinion that there is no substantial question of law which arises in the instant appeal for which the instant appeal stands dismissed. No costs.
JUDGE
Comparing Assistant
1 issue framed by the court
Whether a substantial question of law arises on the failure of the lower courts to properly evaluate an unproved death certificate.
2 provisions across 2 enactments
MD. BHOLA SK. AND 3 ORS.
MD. SAHA ALOM AND 6 ORS.
DEVASHIS BARUAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court