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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2924 - 2925 OF 2014

Phanidhar Kalita     ..        Appellant(s)

-vs-

Saraswati Devi & Anr.     ..     Respondent(s)

J U D G M E N T C. NAGAPPAN, J.  

1. These appeals are preferred against the judgment and decree  

dated 23.3.2007 in R.S.A. No.116 of 2000 and the order dated  

1.4.2008 in Review Petition no.1 of 2008 passed by the learned  

single Judge of the Guwahati High Court, whereby the High Court  

has partly allowed the Regular Second Appeal and dismissed the  

Review Petition, both filed by the appellant herein.  

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2. The appellant/plaintiff herein filed the Title Suit no.11 of  

1987 against the respondent/defendant no.1 herein in the Court of  

Civil Judge (Junior Division) no.2, Mangaldoi for declaration of  

title  in  respect  of  1  katha  16 lechas  of  land  described  in  

schedule-1 to the plaint covered by Dag no.52/575 of P.P. no.960  

situated in village Mangaldoi gaon and also for recovery of khas  

possession of the suit land described in schedule-2, which is a  

part of the land in schedule-1 by demolishing the structure put  

by respondent no.1 herein/defendant no.1 and also for permanent  

injunction  restraining  the  respondents  herein/defendants  from  

raising new constructions on the suit land.  The case of the  

appellant/plaintiff  is  that  he  purchased  1  bigha  of  land,  

mentioned  in  schedule-1, from  one  Mukta  Ram  Saikia  by  Exh.4  

registered sale deed dated 12.7.1977 and took possession of the  

same and got mutation of his name in the revenue record and  

obtained patta Exh.5 also.  It is his further case that the  

respondent no.1/defendant no.1 also purchased 1 bigha of land  

from the original common owner Bati Ram, which is the adjacent  

northern portion of the appellant/plaintiff’s land in schedule-1  

and in November, 1978 respondent no.1/defendant no.1 constructed a  

thatched  house  by  encroaching  some  portion  of  the  

appellant/plaintiff’s land in schedule-1 and on measurement, it  

is found that respondent no.1/defendant no.1 had encroached an

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extent of 1 katha 16 lechas which is described as schedule-2 in  

the plaint.

3. Respondent  no.1/defendant  no.1  filed  written  statement  

stating that she purchased 1 bigha of land from Bati Ram on  

4.8.1955  and  constructed  a  thatched  house  and  she  has  not  

encroached  on  the  suit  land  as  alleged  by  the  

appellant/plaintiff.    

4. Respondent no.2 herein/defendant no.2 impleaded himself in  

the suit and in his written statement he took the identical plea  

raised  by  the  respondent  no.1/defendant  no.1  in  her  written  

statement.   He  further  asserted that he  never sold  the  suit  

property  to  the  appellant/plaintiff  and  the  sale  deed  dated  

12.7.1977 is  a  forged  one  and  he  also  filed  a  counter  claim  

seeking declaration of title to the suit property and recovery of  

possession of the same from the appellant/plaintiff.

5. The  said  counter  claim  was  resisted  by  the  

appellant/plaintiff by filing a written statement.  

6. The trial Court framed 17 issues and the appellant/plaintiff  

examined himself and examined 5 other witnesses and marked 22  

documents on his side.  The respondents/defendant no.1 and 2  

examined themselves and examined 4 other witnesses on their side.

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The Trial Court on consideration of the oral and documentary  

evidence dismissed the suit as well as the counter claim.  The  

appellant/plaintiff preferred an appeal against the dismissal of  

the suit in Title Appeal no.8 of 1998 before the Civil Judge  

(Senior  Division),  Darrang  at  Mangaldoi  and  the  respondent  

no.2/defendant no.2 preferred a cross objection and the Lower  

Appellate  Court  dismissed  both  on  contest.   The  

appellant/plaintiff preferred Second Appeal in R.S.A. no.116 of  

2000  and  the  Guwahati  High  Court  held  that  the  

appellant/plaintiff had title to the suit property in schedule-1  

and partly allowed the appeal.  The appellant/plaintiff herein  

filed Review Petition no.1 of 2008 stating that since the main  

relief  had  been  granted,  the  consequential  relief  for  khas  

possession of schedule-2 property ought to have been granted to  

him.  The High Court dismissed the Review Petition.  Challenging  

the rejection of the relief of recovery of khas possession of  

schedule-2 property and the relief of permanent injunction in  

the  Judgment  as  well  as  Review,  the  appellant/plaintiff  has  

preferred the present appeals to this Court.

7. The learned counsel appearing for the appellant submitted  

that the High Court held that the findings of the Courts below  

with  regard  to  the  validity  of  sale  deed  of  the  

appellant/plaintiff was perverse and allowed the Second Appeal in

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part but erred in not granting the other reliefs prayed for by  

the  appellant/plaintiff  in  the  suit  namely  recovery  of  khas  

possession  of  schedule-2  property  and  permanent  injunction,  

though it had framed substantial questions of law with regard to  

them.   We  also  heard  the  learned  counsel  appearing  for  the  

respondents.

8. The appellant/plaintiff herein has prayed for declaration of  

his  title  to  the  suit  property  in  schedule-1  and  also  for  

recovery of khas possession of the land described in schedule-2  

which is part of land in schedule-1 by demolishing the structure  

put by the respondent no.1/defendant no.1 herein and also for  

permanent  injunction  restraining  the  respondents/defendants  

herein from putting up new construction at the suit land.  By  

concurrent  findings,  the  Trial  Court  and  the  Lower  Appellate  

Court dismissed the entire suit.  The High Court admitted the  

Second Appeal preferred by the appellant/plaintiff by framing the  

following substantial questions of law :

“(i) Whether  the  learned  courts  below  were  

justified in holding that Ext.4 sale deed was  

not proved, merely because the executant of  

the deed was not examined?

(ii) Whether the learned courts below failed  

to consider some relevant materials such as

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Ext.2, Ext.5 and whether non-consideration of  

such material has vitiated the judgments?

(iii)Whether  the  learned  trial  court  was  

justified  to  brush  aside  the  amin  

commissioner’s report by observing that it was  

incomplete and biased?”

By an elaborate judgment the High Court held that the findings of  

the courts below that the appellant/plaintiff had failed to prove  

his registered sale deed dated 12.7.1977 are perverse and upheld  

the title of the appellant/plaintiff to the suit property in  

schedule-1 and accordingly partly allowed the appeal by setting  

aside the portion of the judgment and decree of the courts below  

in that regard.  In other words, the High Court answered the  

substantial question of law no.1 only and omitted to answer the  

other  two  substantial  questions  of  law  cited  supra.   The  

appellant/plaintiff  pointed  out  the  said  omission  by  filing  

Review in Review Petition no.1 of 2008.  However, the High Court  

dismissed it by holding that no ground is made out for Review.

9. The learned counsel for the appellant/plaintiff contended  

that  on  appellant/plaintiff’s  petition  Amin  Commissioner  was  

appointed  to  measure  the  land  in  possession  of  the  

appellant/plaintiff as well as respondent no.1/defendant no.1 and  

the said Amin Commissioner was examined as Court witness no.1 and  

the  Courts  below  were  not  justified  to brush  aside  the  Amin

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Commissioner’s report and decree ought to have been granted with  

regard  to  the  other  reliefs  prayed  for  by  the  

appellant/plaintiff.   Per  contra  the  learned  counsel  for  the  

respondents/defendants contended that the Amin Commissioner has  

not measured the whole of surrounded dags of suit land and his  

report is incomplete, as rightly held by both the Courts below  

dealing on factual matrix.

10. We  carefully  considered  the  rival  contentions  and  the  

records.   The  title  of  the  appellant/plaintiff  to  the  suit  

schedule-1 property has already been declared by the High Court  

and that finding has become final.  The Trial Court as well as  

the Lower Appellate Court held that the Amin Commissioner has not  

measured  the  dags  falling  north  east-east  west  of  the  

appellant/plaintiff’s  land  and  the  respondent  no.1/defendant  

no.1’s land.  Whether schedule-2 is encroached property of the  

respondent  no.1/defendant  no.1  as  alleged  by  the  

appellant/plaintiff has  to be determined  for adjudicating the  

other reliefs claimed in the plaint.

11. In the interest of justice, we deem it fit to remit the  

matter to the Trial Court for fresh adjudication with regard to  

the reliefs of recovery of possession and permanent injunction  

only.

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12. The appeals are allowed and the impugned judgment and decree  

of the High Court, declining the reliefs of recovery of khas  

possession of schedule-2 property and permanent injunction, are  

set aside and the matter is remitted to the Trial Court for fresh  

adjudication with regard to the said reliefs only and the parties  

are  permitted  to  adduce  evidence  and  the  Trial  Court  after  

adjudication shall pass a comprehensive decree in respect of all  

the reliefs claimed in the suit.  No costs.  Since the title suit  

is of the year 1987 the Trial Court shall endeavour to dispose of  

the same as expeditiously as possible preferably within a period  

of six months from the date of receipt of records.  

………………………….J.  (T.S.  

Thakur)

        …………………………J.   (C. Nagappan)

New Delhi; March  14, 2014.