Dismissed

Ishwar Changmai v. Kanaklata Gogoi and Ors.

Gauhati HC3 Mar 2025RSA/11/2013

Case brief

AI extract

What is this about?

The appellant, a tenant of co-respondents, challenged the first appellate decree restoring possession to the plaintiffs. The Court held that since the co-respondents who filed the adverse possession counterclaim did not appeal, their decree attained finality. Consequently, no substantial question of law arose for the Court to decide under Section 100 CPC. The appeal was dismissed.

What did the court decide?

None. Appeal dismissed with cost of Rs. 11,000/-. Plaintiffs entitled to costs throughout proceedings.

Ishwar Changmai Vs Kanaklata Gogoi and Ors. — Property and Title | Gauhati HC (2025)

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GAHC010128552013

2025:GAU-AS:2627

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA/11/2013

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ISHWAR CHANGMAI

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S/O LATE JATIN CHANGMAI, R/O VILL. JALBHARI, MOUZA-GOHAIN, P.S.GHILAMORA, DIST. LAKHIMPUR, ASSAM.

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VERSUS

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KANAKLATA GOGOI and ORS W/O LATE UCHEN GOGOI.

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2:MRITUL GOGOI @ MITUL GOGOI

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S/O LATE UCHEN GOGOI S/O LATE UCHEN GOGOI BOTH ARE RESIDENT OF VILL. CHOWKHAM MOUZA-GOHAIN P.S. GHILAMORA DIST. LAKHIMPUR ASSAM PIN.

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3:SMTI SUWANI GOGOI W/O LATE SUKHEN GOGOI R/O VILL. CHOWKHOWA MOUZA GOHAIN DIST. LAKHIMPUR

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4:RAJIB GOGOI

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S/O LATE SUKHEN GOGOI R/O VILL. CHOULKHOWA MOUZA GOHAIN DIST. LAKHIMPUR

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5:SMTI GITAMONI GOGOI

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W/O SRI PRASANTA HAZARIKA VILL. GELEKI GAON GHILAMARA DIST.LAKHIMPUR ASSAM.

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6:SMTI KARISMITA GOGOI W/O MRIDUL GOGOI VILL. MILAN NAGAR DIST. LAKHIMPUR ASSAM

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Advocate for the appellant : Mr. S. P. Roy, Advocate

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Mr. N. K. Kalita, Advocate

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Advocate for the Respondents : Mr. T. R. Gogoi, Advocate

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BEFORE

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HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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Date of Hearing : 04.03.2025 Date of Judgment : 04.03.2025

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. S. P. Roy, the learned counsel appearing on behalf of the appellant and Mr. T. R. Gogoi, the learned counsel appearing on behalf of the respondents.

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The instant Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree dated 18.10.2012 passed in Title Appeal No.5/2011 by the Court of the learned Civil Judge, Lakhimpur, North Lakhimpur whereby the Appeal was allowed thereby

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setting aside the judgment and decree passed by the Court of the learned Munsiff No.2, Lakhimpur, North Lakhimpur (hereinafter referred to as ‘the learned Trial Court’) dated 02.06.2011 in Title Suit No.6/2009 and further the suit of the plaintiffs was decreed.

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It is seen that the Coordinate Bench of this Court vide the order dated 15.03.2013 had admitted the instant Appeal by formulating two substantial questions of law which reads as under:-

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(1) Whether the counter claim presented by the defendants has been dismissed on the basis of findings not on materials on record but on the determination of title of the plaintiffs, who were defendants in the counter claim?

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(2) Whether the learned lower Appellate Court misconstrued the evidence adduced by the parties on the basis of adverse possession claimed by the counter claimant, which was even supported by plaintiffs own witnesses, in favour of the counter claim?

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The question which arises in the instant Appeal is as to whether the two substantial questions of law so formulated by the Coordinate Bench of this Court vide the order dated 15.03.2013 are involved in the instant Appeal. For the purpose of

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adjudication of the said aspect, this Court finds it relevant to take note of the facts leading to the filing of the instant Appeal.

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The plaintiffs had filed a suit being Title Suit No.6/2009 before the Court of the learned Munsiff No.2, North Lakhimpur seeking declaration of right, title and interest over the suit land; to deliver khas possession of the suit land by evicting the defendants therefrom; to recover the arrear rent from the defendant No.3 after his ejectment and also to issue a permanent injunction against the defendants restraining them and their agents from interfering with the possession of the plaintiffs after delivery of khas possession of the suit land to them.

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It was pleaded in the plaint that the entire suit land covered by Periodic Patta No.228 was a joint Patta land. It was settled with the father-in-law of the plaintiff No.1 and his two other brothers. There was an amicable partition of the family properties and the two brothers, namely, Bhola Chutia and Pandu Chutia shifted to other place, thereby leaving the entire land of KP Patta No.228 in favour of the father-in-law of the plaintiff No.1, namely, Kamalchan Chutia (since deceased). In the said suit, the legal heirs of Late Bhola Chutia and Late Pandu Chutia were also made parties as proforma defendants. It is the further case of the plaintiffs that the suit land was mutated in the name

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of the husband of the plaintiff No.1 and the father of the plaintiff No.2 after the death of Late Kamalchan Chutia as well as the other two sharers. It was further mentioned that although the Pattadars used to write “Chutia” as their title, their sons wrote “Gogoi” instead of “Chutia”. In the suit, it was stated that the defendant No.1 was allowed to take care of the land for some time in the year 2002 by rearing fish in two ponds and also stay in the farmhouse constructed. In the year 2004, the defendant No.1 handed over the possession of the suit land to the plaintiffs. Thereupon, the plaintiffs rented out the said farmhouse standing over the suit land to the defendant No.3 who was a primary school teacher of Dhokuakhana at a monthly rent of Rs.200/-. The defendant used to pay the rent initially but defaulted from the month of September, 2007. It is under such circumstances, the plaintiff No.1 served a legal notice on 03.10.2008.

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It is the further case of the plaintiffs that the defendant Nos.3 inspite of receipt of the legal notice did not pay the arrear rent and also did not send any reply. Rather, the defendant No.3 in collusion with the defendant Nos.1 & 2 dispossessed the plaintiffs from the entire suit land and built a thatched house near the farmhouse standing over the suit land. Situated thus, the plaintiffs issued another legal notice to all the three defendants on 27.01.2009 and demanded vacant possession. To the said

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notice, a reply was sent wherein it was stated that the suit land was sold to the defendant Nos.1 & 2 by the father of Late Ushen Gogoi, i.e. the father-in-law of the plaintiff No.1 and the defendant Nos.1 & 2 had inducted the defendant No.3 in the portion of land as tenant since 2003. It is under such circumstances, the plaintiffs had filed the suit seeking the reliefs as above mentioned.

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Pursuant to the filing of the suit and the summons being served, the defendant Nos.1, 2 & 3 jointly filed their written statement and in the said written statement, the defendant Nos.1 & 2 also raised the counterclaim. In the said written statement jointly filed by the defendant Nos.1, 2 & 3, it was stated that the defendant Nos.1 & 2 had hostile title/adverse possession against the plaintiff Nos.1 & 2. It was denied that the plaintiff No.1 inducted the defendant No.3 in the farmhouse as a tenant. It was specifically stated that the defendant No.3 is a tenant of the defendant No.1. It was denied that the defendant No.3 paid the rent to the plaintiff No.1 till August, 2007. It was also mentioned that the defendants have possession over the suit land since 1989 and the defendant Nos.1 & 2 are in continuous possession of the suit land for more than 20 years as their own and the defendant No.3 considered the defendant Nos.1 & 2 as the real owner of the suit land and paid the house

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rent to them. On the basis thereof, the defendant Nos.1 & 2 sought for a decree declaring that the defendant Nos.1 & 2 acquired the right of adverse possession over the suit land; for declaration of confirmation of possession of the suit land by the defendant No.1 and a permanent injunction restraining the plaintiffs from interfering with the possession of the defendants over the decretal land.

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To the said counterclaim, the plaintiffs also filed their written statement wherein the plaintiffs reiterated their stand made in the suit and further stated that the defendant Nos.1 & 2 had all along acknowledged the ownership of the suit land belonging to the recorded Pattadars, and as such, the question of adverse possession did not arise.

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On the basis of the said pleadings, as many as six issues were framed by the learned Trial Court. On behalf of the plaintiffs, four witnesses were examined and various documents were exhibited. On behalf of the defendants, two witnesses were examined.

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The learned Trial Court vide the judgment and the decree dated 02.06.2011 dismissed the suit of the plaintiffs, but decreed the counterclaim of the defendants and further ordered that the defendants are entitled to have their possession over the suit land and are also entitled to permanent injunction against the

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plaintiffs.

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The plaintiffs thereupon preferred an Appeal which was registered and numbered as Title Appeal No.5/2011. The learned First Appellate Court, after framing the points for determination, allowed the Appeal thereby setting aside the judgment and decree passed by the learned Trial Court in Title Suit No.6/2009; declared that the plaintiffs have right, title and possession over the suit land; that the defendant Nos.1, 2 & 3 are to be evicted from the suit land. The counterclaim of the defendant Nos.1 & 2 was also dismissed. Being aggrieved, the present Appeal is been filed by the defendant No.3 as the Appellant.

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This Court has duly heard the learned counsels appearing on behalf of the parties and perused the materials on records including the lower Court records.

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In the backdrop of the above, the question arises as to whether the two substantial questions of law so formulated arise in the instant Appeal. It is pertinent to mention that the defendant No.3 did not file the counterclaim. The counterclaim was filed by the defendant Nos.1 & 2 and these two defendants did not file the Appeal and under such circumstances, the decision of the learned First Appellate Court in respect to the dismissal of the counterclaim filed by the defendant Nos.1 & 2

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had attained finality. It is also relevant to note that the defendant No.3 never claimed title but rather claimed to be tenant of the defendant Nos.1 & 2. It is also pertinent to observe that with the dismissal of the counterclaim and the decree in favour of the plaintiffs against the defendant Nso.1 7 2 which had attained finality, the defendant No.3’s position was rendered to trespasser.

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In the background of the above, let this Court take up the first substantial question of law. The first substantial question of law relates to as to whether the counterclaim presented by the defendants have been dismissed on the basis of findings not on materials on record but on determination of title of the plaintiff, who were defendants in the counterclaim. In the opinion of this Court as the defendant Nos.1 & 2 having allowed the dismissal of the counterclaim to attain finality and the defendant No.3 who is the present appellant having not filed the counterclaim, the substantial question of law so formulated on the question of dismissal of the counterclaim in the opinion of this Court cannot be said to be involved in the present Appeal.

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This Court has further taken note of the second substantial question of law so formulated which is as to whether the lower Appellate Court misconstrued the evidence adduced by the parties on the basis of adverse possession claimed by the counter claimant. In the opinion of this Court, the said

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substantial question of law also cannot said to be involved in the instant Appeal taking into account that the Appeal has not been filed by the defendant Nos.1 & 2 whose counterclaim has been dismissed and the defendant Nos.1 & 2 have accepted the dismissal of the counterclaim. In opinion of this Court that once the counterclaim had been dismissed and the defendant No.3 having denied the title, the suit in question is no longer a suit for eviction of a tenant, but it is rather a suit for recovery of possession. The materials on record and the discussion so made by the learned First Appellate Court in respect to the points for determination categorically show that the defendant No.3 could place no materials to show that he had a better right to remain in possession.

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Considering the above, as there are no substantial questions of law involved, the instant Appeal stands dismissed with cost quantified at Rs.11,000/-. In addition to that, the plaintiffs shall be entitled to costs throughout the proceedings.

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Return the LCR(s).

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JUDGE

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Comparing Assistant

Ishwar Changmai v. Kanaklata Gogoi and Ors.

Case brief

What is this about?

What did the court decide?

Ishwar Changmai v. Kanaklata Gogoi and Ors.

Case brief

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What did the court decide?

What the court decided

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