Sathi Dey Choudhury And Anr. vs Mita Bhattacharjee And 4 Ors.

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GAHC010268502022

2026:GAU-AS:12773
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/9/2023
SATHI DEY CHOUDHURY AND ANR.
W/O JAYANTA DEY CHOUDHURY,
R/O HOUSE NO. 28, B.K. KAKATI ROAD, ULUBARI, GUWAHATI- 781007 IN
THE DISTRICT OF KAMRUP (M), ASSAM.
2: JOYDEEP DEY CHOUDHURY
S/O JAYANTA DEY CHOUDHURY

R/O HOUSE NO. 28
B.K. KAKATI ROAD
ULUBARI
GUWAHATI- 781007 IN THE DISTRICT OF KAMRUP (M)
ASSAM
VERSUS
MITA BHATTACHARJEE AND 4 ORS.
W/O DIPANKAR BHATTACHARJEE,
R/O BHOLANATH MANDIR PATH, ULUBARI, GUWAHATI- 781007, DIST.-
KAMRUP (M), ASSAM.
2:USHA PURKAYASTHA
W/O BENU MADHAV PURKAYASTHA

R/O COLONY BAZAR
KAHILIPARA
GUWAHATI- 781018
DIST.- KAMRUP (M)
ASSAM.
3:DIPANJALI DEKA
W/O DINESH DEKA

R/O UDALBAKRA

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NIRJA PATH
LALGANESH
GUWAHATI- 34
DIST.- KAMRUP (M)
ASSAM.
4:NIKHILESH PAUL
S/O LATE SUBAL KRISHNA PAUL

R/O UDALBAKRA
NIRJA PATH
LALGANESH
GUWAHATI- 34
DIST.- KAMRUP (M)
ASSAM.
5:SADHAN PAUL
S/O LATE SUBAL KRISHNA PAUL

R/O UDALBAKRA
NIRJA PATH
LALGANESH
GUWAHATI- 34
DIST.- KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR. S BISWAS, MS D DEVI
Advocate for the Respondent : MR. N BHARALI (all respondents), S ALI(all respondents),MR A
BHUYAN(all respondents),MR. R BARUAH(all respondents)

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

Advocate(s) for the Appellants : Mr. S. Biswas,
Advocate.

Advocate(s) for the Respondents : Mr. S. Ali,
Advocate.

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Date on which judgment is reserved : 04.08.2026.
Date of pronouncement of judgment : 03.09.2026.
Whether the pronouncement is of the
operative part of the judgment? : YES.
Whether the full judgment has been
pronounced? : YES.

JUDGMENT AND ORDER (CAV)
Heard Mr. S. Biswas, learned counsel appearing for the appellants. Also heard Mr. S. Ali, the
learned counsel representing the respondents.

2. This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) whereby
the judgment dated 09.11.2022 passed by the court of learned Addl. District Judge No.3, Kamrup(M),
Guwahati in Title Appeal No.05/2020, which affirmed the judgment and decree dated 03.05.2019
passed by the learned Civil Judge No.1, Kamrup(M) at Guwahati passed in T.S. No.354/2019.
3. The factual matrix leading to filing of this appeal is – late Gopal Dey Choudhury was the owner
of 10 lechas of land. He had four daughters and one son. All the four daughters are already married.
They live in their matrimonial houses. Only the son Jayanta Dey Choudhury occupied the land of his
deceased father.
4. In the meantime, Jayanta Dey Choudhury expired. One of the married daughters of Gopal Dey
Choudhury also expired leaving behind her legal heirs. Now, these legal heirs of the deceased daughter
and the other three daughters of Gopal Dey Choudhury have claimed shares in the land left behind by
their father.
5. According to law, the daughters of late Gopal Dey Choudhury are also entitled to equal shares in
the property left behind by their father.
6. The appellants submit that one part of the land of late Gopal Dey Choudhury has a transformer
installed by the electricity authorities and this transformer occupies 2 lechas of the said land. According
to the appellants, the remaining 8 lechas of lands are to be divided into 5 parts and if it is done, the
appellants will have less than 2 lechas of land. The appellants claimed that less than 2 lechas of land is
not sufficient for building a house thereon. The appellants referring to Section 2 of the Partition Act,
1893 has pleaded that the other 4 parts of the land should be sold and they will buy the said 4 parts of
the land.
7. This appeal was admitted for hearing upon the following substantial questions of law-
I. Whether Section 6 of the Hindu Succession (Amendment) Act, 2005 is applicable in the
present case where the parties are guided by daybhaga school of law?
II. Whether the findings arrived into by both the courts below is perverse having not
considered the evidence on record?
8. Mr. Biswas has submitted that this Court should take a humanitarian approach in this appeal.
According to Mr. Biswas, if less than 2 lechas of land is given to the appellants, that will mean that
they will have to leave that land because they will not be able to build their house there.
9. Mr. Ali has submitted that there are, in fact, no substantial questions of law in this appeal.

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According to Mr. Ali, it is an admitted fact in this appeal the appellants would get equal shares of the
land. Mr. Ali has submitted that the size of the land that will devolve upon the appellants is not matter
to be considered in this case.
10. Mr. Ali has relied upon a judgment of the Supreme Court that was delivered in Govindaraju v.
Mariamman , (2005) 2 SCC 500 . Paragraph 16 of the said judgment is quoted as under:
16. As per settled law, the scope of exercise of the jurisdiction by the High Court in second appeal
“
under Section 100 is limited to the substantial questions of law framed at the time of admission of the
appeal or additional substantial questions of law framed at a later date after recording reasons for the
same. It was observed in Santosh Hazari case [(2001) 3 SCC 179] that a point of law which admits of no
two opinions may be a proposition of law but cannot be a substantial question of law. To be a
“ substantial ” question of law it must be debatable, not previously settled by the law of the land or a
binding precedent and answer to the same will have a material bearing as to the rights of the parties
before the court. As to what would be the question of law “ involving in the case ” it was observed that to
be a question of law “ involving in the case ” there must be first a foundation for it laid in the pleadings
and the question should emerge from the sustainable findings of fact arrived at by the court of fact and it
must be necessary to decide that question of law for a just and proper decision between the parties.”

11. I have considered the submissions made by the learned counsels of both sides.
12. I have sufficient reasons to hold that the questions of law formulated as substantial questions of
law in this appeal cannot, in any way, be termed to be questions of law much less a substantial question
of law. The questions formulated, in fact, are questions of facts and in a second appeal, this Court is not
entitled to reappreciate the evidence. There are no substantial questions of law in this appeal.
13. Under the aforesaid circumstances, this court is of the opinion that the instant appeal has no merit
at all and stands dismissed accordingly.
Send back the TCR.

JUDGE
Comparing Assistant