Gauhati High Court
Page No.# 1/16 vs Md. Baharul Islam Choudhury And 8 Ors on 18 February, 2026
Page No.# 1/16
GAHC010106302010
2026:GAU-AS:2350
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/91/2010
MD. SHAFIQUR RAHMAN CHOUDHURY and ANR
S/O LATE HAJI AHMED ALI CHOUDHURY.
2: MD. SIRAJ UDDIN CHOUDHURY
S/O LATE HAJI AHMED ALI CHOUDHURY
BOTH RESIDENTS OF VILL. KARIMGANJ
DIST. KARIMGANJ
ASSAM
VERSUS
MD. BAHARUL ISLAM CHOUDHURY and 8 ORS,
S/O LATE ASSADAR ALI CHOUDHURY.
2:MD. ABDUL QUYAM CHOUDHURY
S/O LATE ASSADAR ALI CHOUDHURY.
3:MD. HARUN RASHID CHOUDHURY
S/O LATE ASSADAR ALI CHOUDHURY.
4:MD. ABAAS UDDIN CHOUDHURY
S/O LATE ASSADAR ALI CHOUDHURY
5:MUSTT. JOBURA KHATUN
W/O LATE ASSADAR ALI CHOUDHURY
6:MUSTT. LAILA BEGUM CHOUDHURY
W/O LATE ABDUL FATTAH CHOUDHURY.
Page No.# 2/16
7:MD. SURAB UDDIN CHOUDHURY
S/O LATE ABDUL FATTAH CHOUDHURY
8:DILWAR HUSSAIN CHOUDHURY
S/O LATE ABDUL FATTAH CHOUDHURY.
9:MD. ANWAR HUSSAIN CHOUDHURY
S/O LATE ABDUL FATTAH CHOUDHURY
ALL RESIDENTS OF VILL. SUPRAKANDI
P.O. MANIKGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM
Advocates for the appellant : Mr. B. Malakar, Adv.
Advocates for the respondents : None appeared.
:::BEFORE:::
HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Date on which judgment is reserved : 12.02.2026.
Date of pronouncement of judgment : 18.02.2026.
Whether the pronouncement is of the : No.
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
Page No.# 3/16
JUDGMENT & ORDER (CAV)
Heard Mr. B. Malakar, learned counsel for the appellants. None appears
for the respondents.
2. This Regular Second Appeal has been preferred against the impugned
Judgment & Decree dated 16.06.2009, passed by the learned Addl. District
Judge, FTC, Karimganj in Title Appeal No. 6 of 2005, allowing the appeal and
thereby reversing the Judgment & Decree dated 09.07.2002 passed by the
learned Civil Judge, Junior Division-I, Karimganj, in Title Suit No. 180/1999,
by which the suit of the plaintiff/present respondents was dismissed.
3. The facts leading to the present second appeal may be briefly outlined.
The present respondents had instituted a suit against the present appellants
before the Court of the learned Civil Judge, Junior Division, Karimganj,
seeking declaration of their landholder right and confirmation of possession
over the scheduled land (hereinafter referred to as the Suit Land), along with
consequential relief of permanent injunction as well as cancellation of the
document described in Schedule-2 to the plaint, i.e., a Sale Deed alleged to
be executed by the plaintiffs in favour of the defendants.
4. It was the case of the plaintiffs that the land described in Schedule-1 of
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the plaint was purchased by the plaintiff No. 1 on 25.1.1976 from Atul
Chandra Malakar and others vide registered document No. 6298 of Sub-
Registrar, Karimganj. On 22.9.1980 the plaintiff No. 1 sold that plot of land to
Abdul Hoque, vide registered Deed No. 9496 of Karimganj Sub-Registrar. The
possession of the land was also delivered to Abdul Hoque on the same date.
On 6.11.1985 said Abdul Hoque sold the said land to plaintiff Nos. 1 to 4 and
their two brother, viz., Abdul Fattah Choudhury and Salim Uddin Choudhury
vide registered document No. 8571 dated 29.11.1985 of Karimganj Sub-
Registrar. Possession of the said land was also delivered to the aforesaid
purchaser and since 6.11.1985, they have been possession the aforesaid land
in ejmali. Abdul Fattah Choudhury and Selim Uddin Choudhury died leaving
behind their legal representative, the plaintiffs No. 5 to 7. The defendants No.
1 and 2 are neighbors of the plaintiffs and they had a good relationship. The
said defendants requested the plaintiff No. 1 to help them in obtaining loan
from the bank. Accordingly, the plaintiff No. 1 put some signatures in both
blank stamp paper and blank plain papers on good faith to help the
defendant Nos. 1 and 2. The plaintiff No. 1 also handed over the xerox copy
of his purchase deed. But on 6.11.1994 the plaintiffs got knowledge that the
defendant Nos. 1 and 2 created a fraudulent sale deed dated 8.4.1994, in
respect of the said land by using the signed blank stamped papers wherein it
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is written that the plaintiff No. 1 received Rs. 10,000/-.
5. The defendant Nos. 1 and 2 submitted their written statement. They
have stated that the suit land (the land described in the schedule-1 of the
plaint) belonging to the plaintiff No. 1 and on 8.4.1994, the plaintiff No. 1
executed sale deed on receipt of Rs 10,000/-, as consideration money and
also handed over the possession of the land to the defendant, but did not
turn up before the Sub-Registrar for registration, that is why registration of
the deed was refused and subsequently on appeal, District Registrar directed
the Sub-Registrar to register it and then the Sub-Registrar registered the
deed.
Following Issues were framed by the court below:-
1. Whether there is any cause of action for the suit?
2. Whether the suit is maintainable in its present from?
3. Whether the plaintiff has got right, title and interest over the suit
land?
4. Whether the deed No. 5103 dated 8.4.1994 is void?
5. Whether the plaintiff is entitled to get relief as prayed for?
6. During trial the plaintiff No. 1 examined himself as P.W 1 and exhibited
Page No.# 6/16three documents vide Exhibit-1, 2 and 3. The defendant side cross-
examination him. The defendant also examined defendant No. 2 as DW 1.
DW 2 is Haji Abdul Salam Choudhury; DW 3 is Sri Satyabrata Choudhurry.
DW 4 is Abdul Latif and DW 5 is Abdul Aziz. At the time of preparing the
judgment, the court below struck of Issue No. 2 and decided all other issues
against the plaintiffs. While deciding the Issue No. 5, the court below hold
that deed No. 8803 dated 29.11.1985 is not admissible in the eye of law due
to non-examination of attesting witness and executants. The court below
dismissed the suit accordingly.
7. Being aggrieved, the plaintiffs therein preferred an appeal as aforesaid,
which came to be decided in favour of the plaintiffs/appellants by the learned
Addl. District Judge, FTC, Karimganj, by way of the impugned order, and the
suit of the plaintiff was decreed.
8. At the time of admission of the instant second appeal, the following
substantial questions of law were formulated:
“(1) Whether the plaintiff could prove the Exhibit-1, sale deed, as
required by law?
(2) Whether the judgment of the learned First Appellate Court is in
accordance with the provisions of Order 41 Rule 31 of the Code of Civil
Page No.# 7/16Procedure, 1908, as there was no discussion on the evidences on
record.”
9. The question No. 1 is taken up first for discussion. The learned Trial
Court, upon discussion of the evidence, held with regard to the question at
hand as follows:-
“Plaintiff side in order to show that the suit land is the joint property
of plaintiff No. 1 and his brothers has produced registered deed No.
8803 dated 29.11.85, but the said document was not proved either
by the Scribe or executants or attesting witnesses as such said
document is not admissible in evidence.”
10. As against the above finding, the learned First Appellate Court came to
the following findings:-
1. The plaintiffs’ claim is based on Exbt.-1 deed dated 29.11.1985.
2. The defendant did not challenge the sale of the Suit land to Dr.
Abdul Hoque in the year 1980 and its resale by Dr. Abdul Hoque
to the plaintiffs and his brothers by way of the sale deed dated
29.11.1985 (Exbt.-1).
3. Hence, the evidence of the PW-1 was sufficient to prove that
the plaintiffs and his brothers purchased the suit land on
Page No.# 8/1629.11.1985 vide the Exbt.-1 sale deed and hence, the said Ext.
has evidentiary value, although the plaintiff did not prove the
signatures of the executants, scribe or the attesting witnesses of
the said Exbt.-1 sale deed.
11. Therefore, the question revolves around whether the Exbt.-1 was
proved in accordance with law, as otherwise, the finding of the learned First
Appellate Court that the same has evidentiary value cannot be sustained in
law.
12. Section 67 of the Evidence Act states as follows:-
“67. Proof of signature and handwriting of person alleged to
have signed or written document produced. — If a document
is alleged to be signed or to have been written wholly or in part by
any person, the signature or the handwriting of so much of the
document as is alleged to be in that person’s handwriting must be
proved to be in his handwriting.”
13. Further, Section 68 of the Evidence Act reads as follows:-
“68. Proof of execution of document required by law to be
attested.–If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an
Page No.# 9/16attesting witness alive, and subject to the process of the Court and
capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a will, which
has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied.]”
14. As per prevalent practice, it is often seen that attestation of all kinds
of transfer under the Transfer of Property Act including sale, lease,
exchange, mortgage, and gift is sought to be proved during trial. However,
the requirement of attestation under the Act is explicitly mentioned in two
kinds of transfer, i.e., mortgage and gift, vide Section 59 and Section 123
respectively. In contrast, as far as sale is concerned, which is dealt with vide
Section 54 of the Transfer of Property Act, the relevant part thereof states
the following:-
“54. Sale how made.- Such transfer, in the case of tangible
immovable property of the value of one hundred rupees and upwards
or in the case of a reversion or other intangible thing, can be made
only by registered instrument.”
15. Whereas Section 59 dealing with mortgage and Section 123 dealing
with gift requires both to be effected by way of a registered instrument,
there is the added requirement that the same should be attested by at least
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two witnesses. However, there is no such requirement in the case of sale
under Section 54.
16. In Bayanabai Kaware vs. Rajendra, reported in (2018) 1 SCC 585, it
was held by the Hon’ble Apex Court that:-
“18……The execution of the sale deed does not need any
attesting witness like the gift deed, which requires at least two
attesting witnesses at the time of its execution, as per Section
123 of the Transfer of Property Act, 1882.”
17. A similar observation was made in Hans Raji vs. Yosodanand, reported
in (1996) 7 SCC 122.
18. Therefore, a sale deed is not a document that is required by law to be
attested and therefore, it is Section 67 of the Evidence Act that would come
into play in case of a sale deed, which requires that if the document is
alleged to be signed by any person, the signature of that person must be
proved. In simple terms, the signature of the executant of the Sale Deed
must be proved in any manner permitted by law to make it admissible in
evidence.
19. It is an admitted fact that the signature of the executant of Exbt-1, Dr.
Abdul Hoque, has not been exhibited or proved in any other manner, as the
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perusal of the evidence of PW-1 makes it abundantly clear. There is no
manner in which the plaintiffs can be said to have proved the signature of
the executant of Exbt-1, either by any direct or circumstantial evidence.
Therefore, the requirement of Section 67 of the Evidence Act has not been
met in the instant case and therefore, the Exbt-1 sale deed cannot be said to
have been proved in accordance with law.
20. Furthermore, Section 91 of the Evidence Act provides as follows:-
“91. Evidence of terms of contracts, grants and other
dispositions of property reduced to form of document. — When
the terms of a contract, or of a grant, or of any other disposition of
property, have been reduced to the form of a document, and in all
cases in which any matter is required by law to be reduced to the form
of a document, no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such matter,
except the document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the provisions
hereinbefore contained.
Exception 1.–When a public officer is required by law to be appointed
in writing, and when it is shown that any particular person has acted as
such officer, the writing by which he is appointed need not be proved.Exception 2.– Wills [admitted to probate in 4 [India]] may be proved
by the probate.”
21. In the instant case, although the document in question, i.e., Exbt-1
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registered sale deed, was tendered in evidence, since it was not proved in
accordance with law as laid down in Section 67 of the Evidence Act, the bar
of Section 91 of the Evidence Act would apply and hence, the learned First
Appellate Court could not have considered the oral evidence of PW-1 with
regard to the disposition of the suit land to hold that the instrument in
question has evidentiary value and thereafter, proceed to decree the suit on
that premise.
22. Further, the finding of the learned First Appellate Court that the
defendants neither challenged the fact of sale of the suit land to Dr. Abdul
Hoque nor the fact of purchase of the suit land by plaintiffs (plaintiff Nos. 1
to 4 and their two brothers) from Dr. Abdul Hoque appears to be vitiated by
perversity, inasmuch as the defendants in their written statement at
paragraph 8 have specifically stated that the rest of the story of the plaintiff
selling the suit land to one Dr. Abdul Hoque and then again repurchasing the
same suit land by the plaintiff No. 1 and his brothers are denied by the
answering defendants.
23. The Hon’ble Supreme Court, with regard to the scope of a Second
Appeal under Section 100 CPC, in Kondiba Dagadu Kadam vs. Savitribai
Sopan Gujar, reported in (1999) 3 SCC 722 has laid down as under:-
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“It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of
fact, being the first appellate court. It is true that the lower
appellate court should not ordinarily reject witnesses accepted by
the trial court in respect of credibility but even where it has rejected
the witnesses accepted by the trial court, the same is no ground for
interference in second appeal when it is found that the appellate
court has given satisfactory reasons for doing so. In a case where
from a given set of circumstances two inferences are possible, one
drawn by the lower appellate court is binding on the High Court in
second appeal. Adopting any other approach is not permissible. The
High Court cannot substitute its opinion for the opinion of the first
appellate court unless it is found that the conclusions drawn by the
lower appellate court were erroneous being contrary to the
mandatory provisions of law applicable or its settled position on the
basis of pronouncements made by the Apex Court, or was based
upon inadmissible evidence or arrived at without evidence.”
24. In the instant case, the conclusions drawn by the learned First
Appellate Court were clearly erroneous, being contrary to the mandatory
provisions of law, i.e., Sections 67 and 91 of the Evidence Act, and also
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against the settled position of law. Furthermore, the conclusions of the First
Appellate Court were clearly based upon inadmissible evidence. Hence, it is a
fit case where interference in second appeal is called for by holding that
Exbt-1 was not proved in accordance with law by the plaintiffs. The question
No. 1 stands answered accordingly.
25. The second question framed at the time of admission of the instant
appeal as a substantial question of law is whether the judgment of the
learned First Appellate Court is in accordance with the provisions of Order 41
Rule 31 of the CPC, as there was no discussion on the evidence on record.
26. Order 41 Rule 31 of the CPC provides as follows:-
“31. Contents, date and signature of judgment.- The judgment of
the Appellate Court shall be in writing and shall state-
(a) The points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief
to which the appellant is entitled.”
27. But the question as framed is limited to whether there was any
violation of the provisions of Order 41 Rule 31 of the CPC due to non-
discussion of the evidence on record, and not of any other requirement laid
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down in the aforesaid provision.
28. The Hon’ble Supreme Court in Somakka (Dead) by LRS vs. K.P.
Basavaraj (Dead) by her LRS, in Civil Appeal No. 1117 of 2009 decided on
13.06.2022, after considering a catena of precedents, held as follows:-
“From the above settled legal principles on the duty, scope and
powers of the First Appellate Court, we are of the firm view and fully
convinced that the High Court committed a serious error in neither
forming the points for determination nor considering the evidence
on record, in particular which had been relied upon by the Trial
Court. The impugned judgment of the High Court is thus
unsustainable in liable to be set aside.”
29. On perusal of the First Appellate Court’s judgment, it does not appear
to be the case where there was no discussion at all of the evidence on record
taken into consideration by the learned Trial Court, but the question of the
extent or adequacy of such discussion of the evidence, is a pure question of
fact and not of law, much less a substantial question of law. Therefore, the
said question does not require adjudication in the present second appeal,
although it may have been amenable to discussion in a civil revision on the
ground of commission of any material irregularity by the learned First
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Appellate Court.
30. In view of what has been discussed above, and in view of the answer
to the substantial question of law No. 1, as formulated by this Court at the
time of admission, the impugned Judgment & Decree of the First Appellate
Court cannot be sustained and is accordingly set aside.
31. The Judgment & Decree of the learned Trial Court stands affirmed and
the instant second appeal stands allowed.
JUDGE
Comparing Assistant
