Page No.# 1/9 vs Basiran Nessa And 10 Ors
2021 Latest Caselaw 3506 Gua

                                                                Page No.# 1/9

GAHC010079782018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP(IO)/124/2018

         KARIMON NESSA AND 8 ORS
         W/O LATE KURBAN ALI, (PRESENTLY W/O ABDUR RAHIM), R/O VILL-
         JHARPARA PT. II, PS ABHAYAPURI, PO LENGTISINGA, DIST.
         BONGAIGAON, ASSAM

         2: ALIMON NESSA
          D/O LATE KURBAN ALI
         W/O ABDUS SALAM
          R/O VILL. BHELUAPARA
          PS ABHAYAPURI
          PO LENGTISINGA
          DIST. BONGAIGAON
         ASSAM

         3: ABDUR RAHIM
          S/O LATE ABDUL GANI KHA
          R/O VILL JGARPARA PT.II
          PS ABHAYAPURI
          PO LENGTISINGA
          DIST. BONGAIGAON
         ASSAM

         4: NASER ALI MONDAL
          S/O LATE SOLEMAN ALI MONDAL
          R/O BHADAIPARA
          LENGTISINGA
          PS ABHAYAPURI
          PO LENGTISINGA
          DIST. BONGAIGAON
         ASSAM

         5: NUR MOHAMMAD MONDAL
          S/O LATE SOLEMAN ALI MONDAL
          R/O VILL- BHADAIPARA
                                                        Page No.# 2/9

LENGTISINGA
PS ABHAYAPURI
PO LENGTISINGA
DIST. BONGAIGAON
ASSAM

6: SOKINA KHATUN
W/O MD. NASER ALI MONDAL
 R/O VILL- BHADAIPARA
 LENGTISINGA
 PS ABHAYAPURI
 PO LENGTISINGA
 DIST. BONGAIGAON
ASSAM

7: MOMTAZ BEGUM
W/O NUR MOHAMMAD MONDAL
 R/O BHADAIPARA
 PS ABHAYAPURI
 PO LENGTISINGA
 DIST. BONGAIGAON
ASSAM

8: TOMSER ALI
 S/O LATE AZAHAR ALI
 R/O VILL-JHARPARA PT.II
 PS ABHAYAPURI
 PO LENGTISINGA
 DIST. BONGAIGAON
ASSAM

9: SOHID ALI
 S/O LATE AZAHAR ALI
 R/O VILL- JHARPARA PT. II
 PS ABHAYAPURI
 PO LENGTISINGA
 DIST. BONGAIGAON
ASSA

VERSUS

BASIRAN NESSA AND 10 ORS
D/O LATE HUSSAIN ALI, W/O AMIR ALI, R/O VILL BHADAIPARA, PS
ABHAYAPURI, PO LENGTISINGA, DIST. BONGAIGAON, ASSAM, PIN-783384

2:ALOKJAN NESSA ALIAS NEKJAN NESSA
 D/O LATE KURBAN ALI
W/O ABDUL AZIZ KHAN
                               Page No.# 3/9

R/O VILL JHARPARA PT. II
PS ABHAYAPURI
PO LEGTISINGA
DIST. BONGAIGAON
ASSAM
PIN-783384

3:MUSLIM ALI
 S/O LATE KANSU SHEIKH
 R/O VILL DUMURIA PT. I
 PS ABHAYAPURI
 PO LENTISINGA
 DIST. BONGAIGAON
ASSAM
 PIN-783384

4:MASIRAN NESSA
W/O TAIJUDDIN AHMED
 D/O LATE KANSU SHEIKH
 R/O VILL DUMURIA PT. I
 PS ABHAYAPURI
 PO LENTISINGA
 DIST. BONGAIGAON
ASSAM
 PIN-783384

5:SUKUR ALI
 S/O LATE KANSU SHEIKH
 R/O VILL DUMURIA PT. I
 PS ABHAYAPURI
 PO LENTISINGA
 DIST. BONGAIGAON
ASSAM
 PIN-783384

6:NARESH GHOSH
 S/O LATE HEM CHANDRA GHOSH
 R/O VILL JHAARPARA PT. II
 PS ABHAYAPURI
 PO LENTISINGA
 DIST. BONGAIGAON
ASSAM
 PIN-783384

9:BALAI SURNAKAR
 S/O LATE ANIL CH. SURNAKAR
 R/O VILL JHARPARA PT. II
 PS ABHAYAPURI
                                                                           Page No.# 4/9

             PO LENTISINGA
             DIST. BONGAIGAON
             ASSAM
             PIN-783384

             10:FAKAR UDDIN
              S/O JUBBAR ALI
              R/O VILL JHARPARA PT. II
              PS ABHAYAPURI
              PO LENTISINGA
              DIST. BONGAIGAON
             ASSAM
              PIN-783384

             11:KASEM ALI
              S/O MOHAMMAD ALI. R/O VILL JHARPARA PT. II
              PS ABHAYAPURI
              PO LENTISINGA
              DIST. BONGAIGAON
             ASSAM
              PIN-78338

Advocate for the Petitioner   : MR. B J MUKHERJEE

Advocate for the Respondent : MS. R CHOUDHURY




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 17.12.2021

Heard Mr. B. J. Mukherjee, learned counsel appearing on behalf of the petitioner and Ms. R. Choudhury, learned counsel appearing on behalf of the respondent no.1 and Mr. S. K. Sahariah, learned counsel appearing on behalf of the respondent nos. 2, 6 & 9.

1) This is an application under Article 227 of the Constitution of India challenging the order dated 02.02.2018, whereby an amendment Page No.# 5/9

sought for by the respondent no. 1 was permitted.

2) The brief facts of the instant is that respondent no.1 as plaintiff had instituted the suit being Title Suit No. 21/2006 before the Court of Munsiff of North Salmar for declaration of his share, for recovery of possession and for their consequential reliefs. A perusal of the plaint of Title Suit No. 21/2006 (New/ Title Suit No.13/2005 old) would go to show that suit was in effect a suit for partition. In paragraph no. 3 of the said suit the respondent no.1 has specifically pleaded that the plaintiff along with proforma defendant no. 1, 2 & 3 are the sons and daughters of the late Mayton Nissa and that they are entitled to the share of the property which their mother Mayton Nissa was entitled to get. However as the proforma defendant nos. 1, 2 and 3 were not interested to file the suit on account on their financial conditions, the said sons and daughters of late Mayton Nissa were arrayed as proforma respondent nos. 1, 2 & 3. Thereupon, after pleadings were complete evidence laid, the suit was dismissed by the judgement and decree dated 19.10.2015 by the Court of Munsiff at North Salmar.

3) Being aggrieved, the respondent no. 1 herein preferred an appeal before the Civil Judge, Bongaigaon and the said appeal was registered and numbered as Title Appeal no. 3/2016. During the pendency of the said appeal, an application under Order VI Rule 17 was filed, whereby the respondent no. 1 herein sought for amendment to the reliefs as sought for in the plaint.

4) The said amendments can be seen from reading of paragraph 14 Page No.# 6/9

to16 of the said amendment application which is quoted for sake of the convenience herein below:

"14. That the existing prayer 21 (a) be deleted and the following prayer be inserted-

(a) For a declaration that the mother of the plaintiff Late Mayton Nessa is entitled to 1 bigha 19 lecha out of the schedule 'A' land-which has been shown specifically as schedule 'B'. That legal heirs of Late Mayton Nessa-now the plaintiff and the proforma- defendant no.1, 2 & 3 are jointly entitled to their mothers share.

15. That the following prayer be added after Para 21 (a) as- "(a-1) For a declaration that out of schedule 'A' land left by the Late

Korban Ali, the defendant no.1 is entitled to 1/8 th share i.e. 2 katha 11 lecha of land only.

"(a-2) For a declaration that out of 'A' land left behind by Late Korban Ali,

the defendant no. 2 is entitled to 1/3rd share i.e. 01 bigha 19 lecha of land.

(a-3) For a declaration that out of schedule 'A' land, the defendant no.3

is entitled to 1/3rd share i.e. 1 bigha 19 lecha of land i.e. defendant no. 1, 2 & 3 are jointly entitled to in total land of 2 bigha 4 katha 9 lecha out of schedule 'A' land.

16. That after Para no. 21(c), the following prayer are to be added- "(17 CC) A preliminary decree be passed as per prayer made in Para no. 21 (a), (a-1), (a-2) (a-3).

(17-CCC) for appointment of Deputy Commissioner/Circle Officer, Srijangram, as commissioner to partition the schedule 'A' by metes and Page No.# 7/9

bounds and to submit report to the honourable court for passing final decree and to pass final decree embodying the preliminary decree."

5) Against the said application filed by the respondent no. 1 herein before the Appellate Court, a written objection was filed by the petitioner herein, challenging the said application on the ground of its maintainability as well as also denying to the statements and averments contained therein.

6) The First Appellate Court vide an order dated 28.02.2018 permitted the said amendment with a cost of Rs. 2,000/-. It is against the said order that the petitioner is before this Court under Article 227 of the Constitution of India.

7) I have heard the learned counsels for the parties at length. I have also perused the plaint, the judgment and decree dated 19.10.2015 passed in Title Suit No. 21/2016, the amendment application, the objection so filed there against as well as the impugned order. A perusal of the plaint discloses that it is a suit for partition, whereby the plaintiff was asking for his share to which he was entitled to as per law. It is no longer res integra that if the relief can be culled out from the pleadings contained in the plaint, irrespective of whether the relief has sought for specifically or not, the said relief can very well be granted. It is also a well settled that there is a difference when it comes to amendment of the pleadings and when an amendment is sought to the reliefs sought for. In respect to the amendment sought for in so far as the pleadings are concerned, there is also a necessity to controvert those pleading whereas when an amendment is sought for as regards the reliefs, there Page No.# 8/9

is no necessity for controverting the same as relief sought for is based upon pleadings.

8) The amendment which have been sought for in the instant case, is amendment to the reliefs whereby the plaintiff/respondent no.1 have specified with more precise detail, the entitlement of the plaintiff along with proforma defendant nos. 1, 2 and 3 to their share in respect to the schedule land. Further to that it being an admitted fact that the land in question is a land assessable to revenue, and as such, the provisions of Order XX Rule 18(1) read with Section 54 would be applicable, so that amendment has been sought for in so far as paragraph no. 16 of the amendment application.

9) In that view of the matter, I am of the opinion that the Appellate Court were justified in permitting the amendment sought for in so far as the reliefs were concerned. As such, under such circumstances, the order impugned in the instant proceedings does not call for any interference and accordingly, the instant petition stands dismissed.

10) As the amendment which have sought for is only in respect of the amendment of the reliefs sought for, the Appellate Court before whom the records are there, shall direct the Sheristidhar of that Court to incorporate the reliefs sought for in the plaint and thereupon, to proceed with the disposal of appeal in accordance with law.

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11) It has been submitted by Ms. R. Choudhury, learned counsel that although vide order dated 25.04.2018, this Court had stayed further proceeding of Title Appeal No. 3/2016 but subsequently vide an order dated 26.04.2019 the said order was vacated. However, in view of the pendency of the instant proceedings, the First Appellate Court has not taken up the said appeal for hearing. In view of the disposal of the instant application, it is directed that the First Appellate Court shall proceed with the disposal of the appeal in accordance with law by taking into consideration the observations made herein above.

JUDGE

Comparing Assistant