Bhubaneswar Das And 6 Ors vs Surjya Kakati And 3 Ors

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GAHC010187142014

2026:GAU-AS:12771
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/265/2014
BHUBANESWAR DAS and 6 ORS
2: JOGENDRA NATH BARMAN

3: MANIRAM BARMAN

4: DINABANDHU BARMAN

5: NAGENDRA NATH BARMAN
ALL ARE SONS OF LATE BALIRAM KUMAR
R/O VILL. AKHARA
UNDER NAMBARBHAG MOUZA IN THE DIST. OF NALBARI
WITHIN THE STATE OF ASSAM.
6: SMTI LAKSMIPRIYA BARMAN
D/O LATE BALIRAM KUMAR
R/O VILL. AKHARA
UNDER NAMBARBHAG MOUZA IN THE DIST. OF NALBARI
WITHIN THE STATE OF ASSAM.
7: SMTI GITANJALI KUMARI
W/O AJIT KUMAR
R/O VILL.MUGKUCHI KUMARPARA
IN THE DIST. OF NALBARI ASSAM
WITHIN THE STATE OF ASSAM

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VERSUS
SURJYA KAKATI and 3 ORS
S/O LATE KANTI KAKATI, R/O VILL. AKHARA, UNDER NAMBARBHAG
MOUZA IN THE DIST. OF NALBARI, WITHIN THE STATE OF ASSAM.
2:LAND ACQUISITION OFFICER
NALBARI
ASSAM
3:DEPUTY COMMISSIONER
NALBARI
ASSAM.
4:STATE OF ASSAM
REPRESENTED BY CHIEF SECY. GOVT. OF ASSAM
DISPUR
GUWAHATI-
Advocate for the Petitioner : MD.A HUSSAIN, MR.D DAS,MR.M BERIA,MR.K
CHOUDHURY,MS.K M SARMA,MR.K SARMA
Advocate for the Respondent : GA, ASSAM, MR.R SARMA(R-1),,,,MR.P P BARUAH(R-1)

:: BEFORE ::
(HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA)

Advocate(s) for the Appellants : Mr. K. Sarma.

Advocate(s) for the Respondents : Mr. R. Sarma,
and
Mr. T.R. Gogoi,
G.A., Assam.

Date on which judgment is reserved : 13.08.2026.
Date of pronouncement of judgment : 03.09.2026.
Whether the pronouncement is of the

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operative part of the judgment? : YES.
Whether the full judgment has been
pronounced? : YES.

JUDGMENT AND ORDER (CAV)
Heard Mr. K. Sarma, learned counsel appearing for the appellants. Also heard Mr. R. Sarma,
learned counsel representing Respondent No.1 as well as Mr. T.R. Gogoi, the learned Government
Advocate, Assam representing Respondent Nos.2, 3 and 4.

2. This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) whereby
the judgment dated 21.07.2014 passed by the learned Civil Judge, Nalbari in Title Appeal No.07/2014
affirming the judgment and decree dated 23.12.2013 passed by the learned Munsiff No.1, Nalbari in
Title Suit No.61/2009, has been challenged.
3. The appellants being the legal heirs of Late Baliram Kumar, are the owner of a plot of land
covered by Dag No.411 of N.K.P. No.5 under Katain No.105. A portion of the land was acquired by the
State for construction of the National Highway. They were given the compensation of the land. The
appellants, now, claim that they had a house over the said land and they should get compensation for
the loss of that house also.
4. The appellants had admitted before the trial court that on the basis of an advice of the concerned
Circle Officer, they had already demolished that house on their own.
5. The trial court dismissed the suit of the plaintiff on the ground that the plaintiff failed to prove
that there was, in fact, a house over the land. The appellate court also agreed with the decision of the
trial court and dismissed the first appeal.
6. The second appeal was admitted for hearing upon the following substantial question:
i. Whether the learned court below committed error in not declaring the title of the plaintiff
over the suit house on the basis of the proved documents?
7. I have considered the submissions made by the learned counsels of both sides.
8. The so-called substantial question of law framed in this appeal, is a question of fact dependent
upon evidence. The appellants adduced evidence in this case and failed to prove that there was, in fact,
a house over his land.
9. In Veerayee Ammal v. Seeni Ammal , (2002) 1 SCC 134 , the Hon’ble Supreme Court has held as
under:
“ 7. Section 100 of the Code of Civil Procedure (hereinafter referred to as “the Code”) was amended by
amending Act 104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it
was satisfied that the case involved a substantial question of law. Such question of law has to be precisely
stated in the memorandum of appeal and formulated by the High Court in its judgment, for decision. The
appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the
case before the High Court did not involve any such question. The amending Act was introduced on the basis
of various Law Commission reports recommending making of appropriate provisions in the Code of Civil

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Procedure which were intended to minimise the litigation, to give the litigant a fair trial in accordance with
the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that
justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the
community and restrict the second appeals only on such questions which are certified by the courts to be
substantial question of law. We have noticed with distress that despite amendment, the provisions of Section
100 of the Code have been liberally construed and generously applied by some Judges of the High Courts
with the result that objective intended to be achieved by the amendment of Section 100 appears to have been
frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not
be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi [AIR 1959 SC 1204]
held: (AIR p. 1205, para 3)
“ It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this
Court, that a High Court, on second appeal, cannot go into questions of fact, however erroneous the
findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed,
the learned counsel for the plaintiff-respondents did not and could not contend that the High Court was
competent to go behind the findings of fact concurrently recorded by the two courts of fact.””

10. Unlike the second appellate court, the first appellate court is the final court of facts. Pure findings
of fact remain immune from challenge before the High Court in second appeal. The first appellate court
is also a final court of law in the sense that it’s decision on a question of law, even if erroneous, may
not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has
ceased available to correct the errors of law or the erroneous findings of first appellate court even on
question of law, unless such question of law be a substantial one.
11. In the case in hand, the appellants had to prove that there was a house over the land and they
failed to do so. This is a finding of fact by the trial court and affirmed by the first appellate court.
12. In this appeal, there is no substantial question of law to be decided by this Court. Under the
circumstances, this Court is of the opinion that this appeal has no merit at all and stands dismissed
accordingly.
Send back the TCR.

JUDGE
Comparing Assistant