DR MAZAHARUL SULTAN v. THE STATE OF ASSAM & Ors.

permanent injunction restraining and prohibiting the defendant and their officers, employee and associated for evicting the plaintiff from the schedule land and the strength of the notices of Eviction issued by the Circle Officer, Tezpur Revenue Circle vide Notice No.TRC-10/2008-11/4497, dated 13.10.2011 and Notice in Eviction Case No.2/2011-12 under Rule 18(2), 18(3) of the Assam Land and Revenue Regulation Settlement Rules and the cost of the suit.

4. The case of the appellant/plaintiff is that the land described in the schedule of the plaint is a part of a total land measuring 4 katha 14 lecha covered by P.P. No.83(old), 85(new) under Dag No.117 of village Gotlong, Mouza-Bhairabpad, under Tezpur P.S. is under possession of the plaintiff, where he had constructed M.A. Sultan Alternative Clinic and Sahaj Arunudoy Kendra and pattadar of the said land was one Md. Rustam Ali. Said land was acquired by the State Government for construction of Page No.# 3/14 highway connecting Mison Chariali with Kaliabhumura Bridge. And the Government of Assam, Revenue Department paid for the 2 katha only, as only 2 katha land was acquired. But, at the time of correction of the land records, the Revenue Department had corrected its record mistakenly showing the acquisition of 4 katha 14 lecha and included the same in Govt. Dag No.108, 117 of village Gotlong, Mouza Bhairabpad, PS- Tezpur, District-Sonitpur, Assam. After the death of Rustam Ali and his son, his grandson Md. Marfat Ali became the owner and possessor and he was in khas possession of the total land covered by P.P. No.85, Dag No.117 and out of which 2 katha land was acquired by the Government and remaining 2 katha 14 lecha of land was in possession of Md. Marfat Ali. Thereafter, Marfat Ali on 15.06.1990 filed a petition before the Deputy Commissioner, Sonitpur at Tezpur for conversion of the land measuring 2 katha 14 lecha into periodic patta. The petition was sent to the S.D.C. (Circle Officer), Tezpur for report, but no report has been furnished due to illness of Md. Marfat Ali, who could not pursue the matter. As a matter of fact only 2 katha of land was acquired from the P.P. No.85 and compensation for 2 katha land was paid, but mistakenly total land of P.P. No.85 shown in the land records as Government land. Thereafter, Marfat Ali on 18.05.1988, upon execution of registered Sale Deed No.1133, for the year 1988 of Tezpur Sub-Registry Office, sold a land measuring 2 katha covered by P.P. No.85 under Dag No.117 to Sukdeo Sarmah and delivered possession thereof and Sukdeo Sarmah 12.01.2009, donated the above stated land to M.A. Sultan Alternative Clinic and Sahaj Arunudoy Kendra i.e. in favour of the plaintiff and then the plaintiff constructed house and structures for the clinic in the schedule land by incurring expenses more than Rs.60 lakhs. He also paid land revenue for the P.P. No.85 and the Government land and the Government has been accepting the same regularly in the name of Sukdeo Sarmah and others. Thereafter, the Circle Officer, Tezpur Revenue Circle, had issued notice to the plaintiff on 14.10.2011 stating that the plaintiff on 14.10.2011 has in possession of the Government land measuring 2 katha 10 lecha, out of total land measuring 45 bigha 19 lecha under Dag No.108 and Page No.# 4/14 directed to vacate the land forthwith and the said notice was issued without giving any chance of show-cause and hearing to the plaintiff and even without any eviction notice also and as such, the said notice is null, void and without jurisdiction. And thereafter, a team of District Administration led by Additional Deputy Commissioner, Circle Officer with police used forces, and on 14.10.2011, had demolished a portion of house/structure of the plaintiff standing on the schedule land. However, they could not evict the plaintiff from the schedule land on 14.10.2011 and he is still in possession of the schedule land and house structures standing thereon. Thereafter, on 13.01.2012, he had received a notice of Eviction Case No.2/2011-12 under Rule 18(2), 18(3) of the Assam Land and Revenue Regulation Settlement Rules from the Circle Officer, Tezpur Revenue Circle, directing him to vacate the land measuring 2 katha 10 lecha of Dag No.108/117, otherwise he will be evicted forcibly without mentioning the issuing number and date and before issuance of the notice in Eviction Case No.2/2011-12, no enquiry had been made by the authority concerned and he was not given any chance to show cause or hearing and without observing all rules and regulations, directly issued the notice. It is also stated that the schedule land is more than 150 ft. away from the highway and the defendants are in confusion in previous notice dated

13.10.2011, in which they were directed to vacate the land of Dag No.108, and in that notice, there was no mention about eviction case number and without conducting any enquiry and without giving any chance to the plaintiff, the defendants are trying to evict the plaintiff illegally and by use of force and that he is not a trespasser into the schedule land and he has been paying land revenue regularly for the schedule land and therefore, he had instituted the suit seeking the relief mentioned herein above.

5. The respondents/defendants had filed their written statement denying the statement and averment made by the plaintiff in the plaint. In the written statement, the respondents have taken a stand that the suit is not maintainable and it is misconceived, misleading, malicious, motivated and concocted and filed with malafide intention and instituted on false and fraudulent misrepresentation and the plaintiff has Page No.# 5/14 no locus standi to institute the suit and no notice under Section 80 CPC was served before institution of the same and he has not approached the Court with clean hands and bad for non-joinder and mis-joinder of parties. It is stated that the land was earlier in the name of Rustam Ali and on 09.09.1981, the Government of Assam acquired the entire land of 4 katha 14 lecha for construction of NH-37, for which the Government paid adequate compensation for the entire land and it is false that only 2 katha of Government roadside reserved land in Dag No.117 and paid compensation only for 2 katha of land. On the other hand, the Government had acquired the entire 4 katha 14 lecha land in Dag No.117 and paid compensation for the entire land and the name of Md. Marfat Ali was never mutated in the record of right and the Government had acquired the entire land of 4 katha 14 lecha land in Dag No.117 and under such circumstances, it is contended to dismiss the suit which was instituted with ulterior motive, by granting compensatory cost under Section 35(A) of the CPC.

6. Upon the pleadings of the parties, the learned Trial Court has framed 7(seven) issues, which are as under:- (i) Whether there is any cause of action for the suit? (ii) Whether the suit is liable to be dismissed for non-joinder of necessary party? (iii) Whether the plaintiff has right, title and interest over the suit land? (iv) Whether the plaintiff had/have possession over the suit land? (v) Whether the Notice No.TRC-10/2008-11/4497 dated 13.10.2011, and the Notice in eviction case No.2/2011-12, under Assam Land and Revenue Regulation Settlement Rules 18(2)/18(3) issued by Circle Officer, Tezpur Sadar Circle is null and void and without jurisdiction and thereby inoperative in law? (vi) Whether the plaintiff is entitled to the decree as prayed for? (vii) To what other relief/s plaintiff is entitled for?

7. Thereafter, the learned Trial Court after examining 5 witnesses of the plaintiff Page No.# 6/14 and considering 24 numbers of exhibits and one witness of the defendants and one exhibit, decided the Issue No.(i) in affirmative, Issue No.(ii) in negative, Issue Nos.(iii) and (iv) in negative and Issue Nos.(vi) and (vii) in negative and thereafter dismissed the suit, with compensatory cost of Rs. 10,000/.

8. Being aggrieved, the appellant herein has preferred an appeal before the learned Civil Judge (Sr. Division), Sonitpur, Tezpur, being Title Appeal No.08/2022, and thereafter, hearing both the parties, the learned First Appellate Court had affirmed the judgment and decree passed by the learned Trial Court, however, partly allowed the appeal to the limited extent that the direction, awarding compensatory cost of Rs.10,000/- under Section 35(A) is interfered with.

9. Being aggrieved, the appellant approached this Court by filing the present appeal on several ground, mainly – (i) That the learned Appellate Court as well as the learned Trial Court had committed grave mistake in accepting the eviction notice dated 13.10.2011 (Exhibit-1) mentioning the petitioner’s land under Dag No.108 and the subsequent eviction notice dated 13.01.2012 Exhibit-2) mentioning the petitioner’s land under Dag No.108/117, in the Eviction Case No.2/2011-12, under the provision of Rule 18(2) and (3) of the Assam Land and Revenue Regulation Settlement Rules issued by the Circle Officer without any authority under the settlement rules. (ii) That the learned Appellate Court as well as the learned Trial Court has committed error in law in deciding the Issue Nos.(iii), (iv), (v), (vi) & (vii) against the appellant. (iii) That the learned Appellate Court as well as the learned Trial Court had failed to realize that the land in question is a private land covered under Dag No.117 of P.P. No.85 and that was remained under the possession of predecessor in interest, namely, Marfat Ali, the grandson of original landowner Rustam Ali, after Page No.# 7/14 acquiring 2 katha 0 lecha land out of the total land of 4 katha 14 lecha in 1981 for construction of National Highway 37A, connecting Kaliabhomora bridge and the compensation was only paid in respect of 2 katha to the original pattadar Rustam Ali. (iv) That, the learned Appellate Court as well as the learned Trial Court has failed to realize the implications of the stand taken by the defendants regarding acquisition of the entire land of 4 katha 14 lecha instead of 2 katha of land of the predecessor in interest of the suit land covered under Dag No.117 of P.P. No.85 of Gotlong village and shifting the burden of proof upon the defendants and to discharge the responsibility in conformity to Section 101 to 103 of the Evidence Act. (v) That, the copy of Jamabandi (Exhibit-18) merely showing the notes of the Circle Officer, dated 10.07.1988 that in pursuance of the order dated 01.07.1982 passed in Land Acquisition Case No.7/80-81, in reference to Government notification dated 09.09.1981, land measuring 4 katha 14 lecha covered under Dag No.117 and P.P. No.85 has been acquired and converted to a Government land without any proof of notification, payment and acceptance of compensation cannot be held to be a land acquired under due process of law and that the judgment dated 20.02.2026, and the decree 06.03.2026, are bad in the eye of law and liable to be interfered with. (vi) That the learned Appellate Court as well as the learned Trial Court had failed to realize the implications of receiving land revenue (Exhibit-6, 7, 8 and 9) in respect of the suit land in spite of alleged acquisition of the land without any conclusive proof of required condition precedent to the alleged land acquisition and hence, the order dated 20.02.2026 and decree dated 06.03.2026 passed in Title Appeal No.08/2022 is bad in law.

10. Upon the aforesaid ground, following substantial questions of law are Page No.# 8/14 suggested:- I. Whether in absence of any process of acquisition of land followed in accordance with law i.e. copy of the notifications in respect of acquisition of the land in question and subsequent acquisition of the land, payment and received of the compensation, the land acquisition process can stated to be completed to stack the claim of the defendants/respondents, over the land of the plaintiff. II. Whether the eviction notices dated 13.10.2011 and 13.01.2012, in respect of the land other than the land in possession of the plaintiff, issued by the Circle Officer, Tezpur Revenue Circle, under Rule 18(2) and 18(3) of the Assam Land and Revenue Regulation Settlement Rules in reference to Eviction Case No.2/2011-12, can be validly accepted has been issued by the competent authority and is sufficient to decree the suit as well as appeal in favour of the defendants/respondents? III. Whether the judgment and decree dated 20.02.2026 and 06.03.2026 respectively passed by the learned Civil Judge (Sr. Division), in Title Appeal No.08/2022 can be accepted, without disposing the Misc.(J) Case No.44/2023, under Order XLI Rule 27 CPC, by which the appellant/plaintiff prayed for additional evidence in the appellate stage, in view of the judgment and order dated 06.06.2025, passed by this Court in CRP(IO) No.337/2024, whereby clear direction was given to consider the said application as per the mandate of the Supreme Court in the case of Union of India v. Ibrahim Uddin and another, reported in (2012) 8 SCC 148?

11. However, Mr. Mahanta, learned counsel for the appellant submits that the application filed under Order XLI Rule 27 CPC was however disposed of by the learned Appellate Court vide order dated 20.02.2026 on the date of disposal of the appeal and as such, the appellant has abandoned the substantial question of law No.(III) and confined to substantial question Nos.(I) & (II) only. Page No.# 9/14

11.1 Mr. Mahanta has also referred to a decision of Hon’ble Supreme Court in the case of D.B. Basnett (Dead), through LRs v. Collector, East District, Gangtok, Sikkim and another, reported in (2020) 4 SCC 572, to contend that there cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) and the burden is on the State to prove that the process as envisaged under the Act is followed and the compensation paid and following the procedure under Section 4(1) of the 1894 Act is mandatory and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated and entry into the premises based on such non-compliance would result in the entry being unlawful.

11.2 Under such circumstances, he has contended to admit the appeal and to issue notice to the respondents and to call for the record and thereafter, to decide the substantial question of law.

12. The learned Government Advocate for the respondents, however, supported the impugned judgment and decree passed by the Appellate Court.

13. This Court has carefully gone through the memo of appeal and the grounds mentioned therein and the suggested substantial questions of law and also the decision, so relied upon by Mr. Mahanta, learned counsel for the appellant and also gone through the impugned judgment and decree dated 20.02.2026 and 06.03.2026, respectively passed by the learned First Appellate Court and also the judgment and decree dated 04.04.2022, passed by the learned Munsiff No.2, Sonitpur, Tezpur, in Title Suit No.05/2012 and also through the pleadings of the parties (plaint and written statement) to examine the issue of involvement of any substantial question of law so as to admit this appeal for hearing.

14. It is to be noted here that the plaintiff has preferred the title suit seeking the relief as stated in paragraph No.3 of this order. A bare perusal of the aforementioned plaint, it appears that nowhere in the said plaint, the plaintiff/appellant herein has Page No.# 10/14 challenged the acquisition process. What is being challenged is the notice dated

13.10.2011 issued in Eviction Case No.2/2011-12, under Rule 18(2), 18(3) of the Assam Land and Revenue Regulation Settlement Rules and also for permanent injunction restraining the defendants and their officers evicting the plaintiff from the schedule land and the schedule land is 2 katha 10 lecha of Dag No.108/117. Since, nowhere in the pleadings, the parties have raised the issue regarding the acquisition process, to the considered opinion of this Court, cannot be allowed to setup a new case in second appeal, or raise a new issue not supported by pleading or evidence on record. In arriving at such a finding, this derived authority from a decision of Hon’ble Supreme Court in Panchugopal Baruah & Ors. vs. Umesh Ch. Goswami reported in 1997 (4) SCC 713. In that view of the matter, this court is unable to agree with the submission of Mr. Mahanta, learned counsel for the appellant that the substantial question of law No.(I) as suggested by the appellant, is involved in this appeal.

15. Further, while dealing with the Issue Nos.(iii) and (iv) as to whether the plaintiff has the right, title and interest over the suit land and had possession over the suit land, the learned Trial Court, discussing the evidence of the plaintiff (PW-1), Manoranjan Debnath (PW-2), Subroto Lodh (PW-3), Jimi Kakati, Lat Mandal (PW-4) and extra writer of Sub-Registrar Office, Tezpur, namely, Maidul Islam (PW-5) and also the evidence of Circle Officer Shri Pankaj Chamuah (DW-1) and the documents exhibited by the plaintiff and further considering a decision of this Court in Mustab Ahmed v. State of Assam and another, reported in 2017 (3) GLT 41, had arrived at a clear finding that the suit land had already acquired by the Government, vide order dated 09.09.1981, from Rustam Ali as per Exhibit-C and Exhibit-18 and that the suit land is Government land and the title holder of the suit land is Government of Assam and the plaintiff has no right, title and interest over the suit land. And further, in respect of Issue No.(v), whether the Notice No.TRC-10/2008-11/4497 dated

13.10.2011 and the Notice in Eviction Case No.2/2011-12 under the Assam Land and Revenue Regulation Settlement Rules 18(2)/18(3) issued by the Circle Officer, Tezpur Page No.# 11/14 Sadar Circle is null and void and without jurisdiction and thereby inoperative in law, the learned trial court, considering the relevant provision and also the evidence brought on record and further the decision of this Court in Bandhana Goala v. Assam Board of Revenue, reported in AIR 1972 Gau 11 and in Bhanumati Ghosh v. State of Assam, reported in 2015 (4) GLT 370, held that there is no infirmity in the procedure initiated against the encroachers of valuable assets of the State and also held that the land is needed for public interest and individual right, if any, must make the way and thereafter, held that the notice was issue in compliance to the provision of law and there is no infirmity with the procedure initiated against the plaintiff.

16. The learned Appellate Court also, in the impugned judgment and decree, had affirmed the aforementioned finding of the learned Trial Court after considering the materials available on the record. It had arrived at the finding that the claim of the plaintiff that 2 katha 14 lecha land was not acquired by the State is not supported by any document such as acquisition record, map, measurement report or revenue entry showing that this portion was left out. It had also arrived at the finding that the plaintiff’s claim of title suffers from two basic weakness, firstly, he has not been able to show that the land was not covered by the acquisition and vested in the Government and secondly his claim ultimately rests on an unregistered gift, on the strength of which none in can transfer the ownership of immovable property and thereafter, arrived at the finding that the finding of the learned Trial in respect of Issue Nos.(iii) and (iv) are reasonably possible and legally sustainable view based on the evidence on record. Thereafter, it had also arrived at a finding in respect of Issue No. (v) that the plaintiff has failed to establish any jurisdictional defect or mandatory illegality, vitiating the notice and in the absence of proof of title or lawful possession, he cannot obtain a declaratory decree of nullity merely on account of irregularities in notice particulars.

17. It also appears that though, a contention is being made by the plaintiff that the Page No.# 12/14 suit land is under his possession and he has possessed the same on the strength of a gift deed, yet, the said gift deed is an unregistered document. Section 17 which mandates the compulsory registration of documents transferring immovable property (sell, gift, mortgage etc.) valued at Rs.100 or more and non-registration makes the deed inadmissible as evidence under Section 49 of the Registration Act, 1908. Further, Section 54 of the Transfer of Property Act, 1882 also requires that a sell of immovable property in case of tangible immovable property of the value of worth Rs.100/- and upward can only be made by registered instrument.

18. Since here in this case, the document i.e. the gift deed relied upon by the plaintiff is an unregistered document his contention that on the strength of which he has been possessing the land and paying the land revenue, to the considered opinion of this Court, cannot be legally accepted.

19. Moreover, another aspect of the matter, which cannot be lost sight of is that while instituting the suit against the State respondents, the plaintiff has not issued the notice under Section 80 of the CPC. The Section specially bars in instituting the suit against the Government without issuing notice and on such count also, though no issue has been framed in this regard by both the Courts below, this Court is of the view that the same cannot be overlooked. Though a plea has been taken in the written statement, no issue was framed on that count by the learned courts below.

20. It is also to be noted here that there is concurrent finding of facts recorded by both the learned courts below in respect of the notices and the process initiated against the appellant herein by the respondent. It is well settled that when both the learned courts below had arrived at the concurrent finding, based upon proper appreciation of facts and evidence and the materials on the record. And when no perversity, illegality or irregularity in those finding could be demonstrated, this court is unable record concurrence with the submission of Mr. Mahanta that the suggested second substantial question of law is involved here in this appeal. Page No.# 13/14

21. It is to be noted here that in the case of Pertap Chunder Ghose vs. Mohendranath Purkait, reported in ILR (1890) 17 Cal 291 (PC), the Privy Council has observed that the limitation as to the power of the Court imposed by Sections 100 and 101, in a second appeal, ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact. In the case of Ramgopal vs. Shamskhaton, reported in ILR (1893) 20 Cal 93 (PC), the Privy Council emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below. The same principle has been reiterated in Rudr Prasad vs. Baijnath, reported in ILR (1893) 15 All 367. The Court observed that a judge, to whom a memorandum of second appeal is presented for admission, is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily.

22. In Santosh Hazari v. Purushottam Tiwari (Dead) By Lrs, reported in (2001) 3 SCC 179, a three-Judge Bench of Hon’ble Supreme Court has delineated the scope of Section 100 CPC, and held that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. It was also held that the word substantial, as qualifying ‘question of law’, means—of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely.

23. In H.P. Pyarejan vs. Dasappa, reported in (2006) 2 SCC 496, Hon’ble Supreme Court observed that the judgment of High Court suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes re- Page No.# 14/14 appreciation of evidence.

24. It is also to be noted here that in the case of Thiagarajan vs. Sri Venugopalaswamy B. Koil, reported in (2004) 5 SCC 762, Hon’ble Supreme Court has held as under :- “The High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible.”

25. Similar observation was made by Hon’ble Supreme Court, in the case of State of Kerala vs. Mohd. Kunhi, reported in (2005) 10 SCC 139, has held as under :- “The High Court is not justified in interfering with the concurrent findings of fact. This court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure.”

26. Herein in this case, considering the submission of Mr. Mahanta, learned counsel for the appellant, and also considering the facts and circumstances in the entirety and also in view of the discussion, so directed herein above, this Court is of the view that none of the grounds specified in Section 100 CPC exist here in this appeal, so as to admit this appeal.

27. In the result, this appeal is dismissed summarily. JUDGE Comparing Assistant