Gauhati HC Dismisses Second Appeal in Lakhimpur Land Partition Dispute, Holds Plaintiffs Failed to Prove Title Through Claimed Ancestor

The Gauhati High Court dismissed a second appeal in a long-running Lakhimpur land dispute, holding that plaintiffs claiming through Badal Hussain produced no title deed establishing his ownership of the suit land.

Justice Kalyan Rai Surana of the Gauhati High Court, sitting singly, dismissed a second appeal under Section 100 of the Code of Civil Procedure arising from a title-cum-partition suit over a plot of land measuring 1 Katha 2 Lecha in Ward No. 1, Mouza Bihpuria, Lakhimpur district. The appellants — plaintiff nos. 3 to 7 in the original suit — had challenged concurrent findings of the Civil Judge (Senior Division), Lakhimpur, and the Additional District Judge (F.T.C.), Lakhimpur, both of whom dismissed their claim. The High Court found no perversity in those concurrent findings and held that the plaintiffs had failed to establish any right, title, or interest in the suit land through their claimed ancestor, late Badal Hussain. The court also declined to grant the appellants liberty to pursue partition proceedings under the Assam Land and Revenue Regulation.

The Dispute Before the High Court

The suit, registered as T.S. No. 10/2002 before the Civil Judge (Senior Division), Lakhimpur, North Lakhimpur, was filed by eight plaintiffs. The appellants in the second appeal were plaintiff nos. 3 to 7, described as sons of one Multan Seikh.

The plaintiffs' case rested on a genealogical claim. They pleaded that late Badal Hussain was the father of Abdul Aziz, Md. Khalil, Md. Sultan Seikh, and Md. Multan Seikh. Sultan Seikh and Multan Seikh had, according to the plaint, jointly purchased the suit land from one Siva Nath Sarma, and the land was mutated in their names vide an order dated 06.06.1933. The suit land was originally covered by Dag No. 33 of Patta No. 33 and, at the time of filing, by Dag No. 653 of Patta No. 52 of Ward No. 1, Mouza Bihpuria.

The plaintiffs further pleaded that a Partition Deed dated 21.08.1961 and a Deed of Agreement dated 18.03.1971 had partitioned the suit land among the sons of Badal Hussain by registered deed. An amicable partition was also said to have taken place on 21.03.1993, with parties and witnesses signing a sketch map showing definite boundaries.

The immediate trigger for the suit was a fire on 06.04.2002 at approximately 3.40 AM, which gutted shops and rented houses on the suit land. The plaintiffs alleged that the defendants took advantage of the situation to occupy land in excess of their entitled shares and refused to demarcate boundaries. Defendant no. 1 was also alleged to have sold more than his share to defendant no. 7 through a sale deed dated 04.11.1993.

The plaintiffs sought a declaration of their right, title, and interest; appointment of a court commissioner for measurement; recovery of khas possession; and a permanent injunction against the defendants.

What the Trial Court and First Appellate Court Decided

The trial court framed six issues, including whether the suit land was ancestral property of both sides, whether an amicable settlement had been executed, and whether the defendants had trespassed after 06.04.2002.

On issues 3 and 4, the trial court found the evidence of the plaintiff's witness Aftab Alam to be inconsistent and contradictory. It held that the plaint contained no plea showing that Badal Hussain had owned or possessed the suit land. The documents Ext. 2 and Ext. 3 were held to be illegal because they did not bear the signature of Sultan Seikh. The trial court concluded that no amicable partition had been proved in accordance with law and dismissed the suit. It directed the plaintiffs to seek partition under the Assam Land and Revenue Regulation or to file a separate partition suit.

The first appellate court, the Additional District Judge (F.T.C.), Lakhimpur, dismissed the appeal on 13.06.2008 in T.A. No. 15/2006, affirming the trial court's findings on all issues.

The second appeal was admitted on 27.02.2009 on three substantial questions of law: whether the courts below had acted perversely by not considering material evidence; whether the first appellate court had failed to re-appreciate evidence; and whether the first appellate court's view that a civil court could not pass a partition decree — partition being a matter for revenue authorities — was legally tenable.

How the High Court Reasoned

Justice Surana examined the pleadings, the trial court record, and the documentary exhibits in detail.

On the question of title, the court observed that the plaintiffs had exhibited draft and final jamabandis as Ext. 4, Ext. 11, Ext. 12, Ext. 13, Ext. 14, Ext. 21, Ext. 25, and Ext. 26. These revenue records reflected the names of Sultan Seikh and Multan Seikh as recorded pattadars. However, the original sale deed by which Sultan Seikh and Multan Seikh had purportedly purchased the land from Siva Nath Sarma was never exhibited. The court found no documentary evidence linking Badal Hussain to any right, title, or interest in the suit land.

The court stated plainly that <“a mere entry of a name in the jamabandi, in absence of any title, would not confer any right whatsoever over the suit land.” Revenue entries under Regulation 40 of the Assam Land and Revenue Regulation, 1886 carry some relevance, the court acknowledged, but they cannot substitute for a title deed when a party is asserting a legal right in a title suit.

The court also addressed the 21.03.1993 sketch map. It held that signatures of some persons on a rough map drawn by the parties could not constitute a document creating valid title, particularly when the claimants derived their interest through Badal Hussain and Multan Seikh, neither of whom had any pleaded or proved basis of title.

On the registration point, the court applied Section 17(1)(b) of the Registration Act, 1908, which mandates compulsory registration of any instrument that creates, declares, or assigns rights in immovable property worth more than Rs. 100. Any such document that is not registered cannot be read in evidence by virtue of Section 49 of the Registration Act. This bar applied to the partition documents relied upon by the plaintiffs.

On the first substantial question of law, the court held that the non-discussion of all witnesses and exhibited documents by the trial court and the first appellate court did not amount to perversity. Since the plaintiffs had failed to prove title at the threshold, a detailed discussion of all evidence was unnecessary. The concurrent findings were not vitiated by non-application of mind.

On the second substantial question, the court held that the first appellate court's failure to frame points of determination as required under Order 41, Rule 31 CPC was not fatal in the circumstances. The first appellate court had dealt with all the issues framed by the trial court, and no documentary exhibit had been proved to establish title in favour of the plaintiffs or their claimed predecessor Badal Hussain.

On the third substantial question, the court clarified the legal position: a civil court does have the power to pass a decree for partition and determine the shares of various co-sharers. The first appellate court's view that partition was exclusively a revenue matter was not entirely correct. However, the court held that this was an academic point in the present case because the suit itself was not structured as a partition suit — no prayer for a preliminary decree to determine shares had been made. In any event, the appellants had failed to prove their right, title, or interest, which was a prerequisite for any partition relief.

The Liberty Question

After the appeal was dismissed, counsel for the appellants made an oral prayer. The trial court, while dismissing the suit, had granted the plaintiffs liberty to approach the revenue authorities under the Assam Land and Revenue Regulation or to file a fresh partition suit. The appellants sought the same liberty from the High Court.

Justice Surana declined. The court reasoned that the concurrent finding of both courts below was that the plaintiffs had no right, title, or interest in the suit land. Granting liberty to pursue partition proceedings in the absence of any proved title would be impermissible. The liberty granted by the trial court could not be extended at the second appeal stage given those concurrent findings.

Outcome

The second appeal in RSA/23/2009 was dismissed. All three substantial questions of law were answered against the appellants. No order as to costs was made. The judgment and decree of dismissal passed by the Civil Judge (Senior Division), Lakhimpur, in T.S. No. 10/2002 on 06.09.2005, as affirmed by the Additional District Judge (F.T.C.), Lakhimpur, in T.A. No. 15/2006 on 13.06.2008, stands.