Page No.# 1/14 vs Sri Monoranjan Deka @ Baruah And 4 ...
2021 Latest Caselaw 310 Gua

                                                               Page No.# 1/14

GAHC010149652018




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

                          Case No. : RSA/219/2018

         SRI BUBUL DEKA @ KOCH AND 13 ORS
         S/O DANDI RAM DEKA @ KOCH
         RESIDENT OF VILL HATIAMUKH, PO HATIAMUKH, MOUZA GOVA, PS
         JAGIROAD, DIST MORIGAON, ASSAM 782411

         2: SRI AMRIT DEKA @ KOCH
          S/O DANDI RAM DEKA @ KOCH
         RESIDENT OF VILL HATIAMUKH
          PO HATIAMUKH
          MOUZA GOVA
          PS JAGIROAD
          DIST MORIGAON
         ASSAM 782411

         3: SRI BASANTA DEKA
          RESIDENT OF VILL HATIAMUKH
          PO HATIAMUKH
          MOUZA GOVA
          PS JAGIROAD
          DIST MORIGAON
         ASSAM 782411

         4: SRI ANANTA DEKA
          S/O LATE MANESWAR DEKA @ KOCH
         RESIDENT OF VILL HATIAMUKH
          PO HATIAMUKH
          MOUZA GOVA
          PS JAGIROAD
          DIST MORIGAON
         ASSAM 782411

         5: ON THE DEATH OF CHENIRAM DEKA HIS LEGAL HIER SRI SUSHEN
         DEKA
          S/O CHENIRAM DEKA
                                       Page No.# 2/14

RESIDENT OF VILL HATIAMUKH
PO HATIAMUKH
MOUZA GOVA
PS JAGIROAD
DIST MORIGAON
ASSAM 782411

6: SRI ANIL DEKA
 S/O CHENIRAM DEKA
RESIDENT OF VILL HATIAMUKH
 PO HATIAMUKH
 MOUZA GOVA
 PS JAGIROAD
 DIST MORIGAON
ASSAM 782411

7: SRI GOLOK DEKA
 S/O CHENIRAM DEKA
RESIDENT OF VILL HATIAMUKH
 PO HATIAMUKH
 MOUZA GOVA
 PS JAGIROAD
 DIST MORIGAON
ASSAM 782411

8: SANJAY DEKA
 S/O CHENIRAM DEKA
RESIDENT OF VILL HATIAMUKH
 PO HATIAMUKH
 MOUZA GOVA
 PS JAGIROAD
 DIST MORIGAON
ASSAM 782411

9: SMTI DAMAYANTI DEKA
 D/O CHENIRAM DEKA
RESIDENT OF VILL HATIAMUKH
 PO HATIAMUKH
 MOUZA GOVA
 PS JAGIROAD
 DIST MORIGAON
ASSAM 782411

10: ON THE DEATH OF KUMUD DEKA
 HIS LEGAL HEIR SMTI. MAINEE SAIKIA
W/O LATE PROMOD DEKA
RESIDENT OF VILL HAWLA BHETI
 PO HATIAMUKH
                                                      Page No.# 3/14

MOUZA GOVA
PS JAGIROAD
DIST MORIGAON
ASSAM 782411

11: SMTI TUTU DEKA
W/O SRI RAJU DEKA (D/O PROMOD DEKA)
VILLAGE JAGIROAD TOWN
 PO JAGIROAD

12: SMTI MUN DEKA
 D/O LATE PROMOD DEKA

13: SMTI POLI DEKA
W/O SRI BANGSHI DEURI (D/O LATE PROMOD DEKA)
VILLAGE BORKHOLA
 PO HATIMUKH
 DIST MORIGAON
ASSAM 782411

14: SMTI NAINI DEKA
 D/O LATE BOGIRAM DEKA AND SMTI BASANTI DEKA (BASANTI DEKA IS
THE DAUGHTER OF OF LATE HARAI DEKA)
VILLAGE HATIMUKH
 PS JAGIROAD
 DIST MORIGAON
ASSAM 78241

VERSUS

SRI MONORANJAN DEKA @ BARUAH AND 4 ORS
S/O LATE SONESWAR DEKA
RESIDENT OF VILL HATIAMUKH, PO HATIAMUKH, MOUZA GOVA, PS
JAGIROAD, DIST MORIGAON, ASSAM 782411

2:SRI PRADIP DEKA @ BARUAH
 S/O LATE SONESWAR DEKA
RESIDENT OF VILL HATIAMUKH
 PO HATIAMUKH
 MOUZA GOVA
 PS JAGIROAD
 DIST MORIGAON
ASSAM 782411

3:RANJIT [email protected] BARUAH
 S/O LATE SONESWAR DEKA
RESIDENT OF VILL HATIAMUKH
 PO HATIAMUKH
                                                                               Page No.# 4/14

             MOUZA GOVA
             PS JAGIROAD
             DIST MORIGAON
             ASSAM 782411

            4:SMTI CHANDRAWATI DEKA @ BARUAH
             D/O LATE SONESWAR DEKA
            RESIDENT OF VILL HATIAMUKH
             PO HATIAMUKH
             MOUZA GOVA
             PS JAGIROAD
             DIST MORIGAON
            ASSAM 782411

            5:SMTI. KANMAI DEKA @ BARUAH
            W/O LATE SONESWAR DEKA
            RESIDENT OF VILL HATIAMUKH
             PO HATIAMUKH
             MOUZA GOVA
             PS JAGIROAD
             DIST MORIGAON
            ASSAM 78241

Advocate for the Petitioner   : MR. A ALAM

Advocate for the Respondent :




                                     BEFORE
                     HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 01-02-2021

Heard Mr. A. Alam, learned counsel for the appellant at the stage of hearing under Order XLI Rule 11 of the CPC.

2) The respondent is the plaintiff in T.S. No. 12/2012. The said suit was decreed on 20.12.2003 by the learned Civil Judge, Morigaon in favour of the respondent. The appellants preferred an appeal, which was registered as T.A. No. 3/2004 and the learned appellate Court allowed the appeal and remanded the suit back to the learned trial Court for a fresh decision. On remand, the learned trial Court had framed additional issues and opportunity was granted to both sides to adduce evidence on the additional issues. The suit Page No.# 5/14

was thereafter decreed vide judgment and decree dated 31.03.2015 passed by the learned Civil Judge, Morigaon. The aggrieved appellants had preferred an appeal, which was registered as T.A. No. 1/2015, which was dismissed by the learned District Judge, Morigaon vide judgment and decree dated 20.12.2017. The concurrent finding by the learned Courts below is now assailed by the appellants- defendants.

3) The case of the respondent- plaintiff in the plaint is that Late Harai Deka, who was the predecessor- in- interest of the parties, was the owner of the landed properties mentioned in the plaint. He died leaving behind four sons and one daughter, i.e., Soneswar Deka (predecessor-in- interest of respondent nos. 1 to 5, Dandiram Deka (father of appellant nos. 1 and 2), Maneswar Deka (father of appellant nos. 3 and 4), and Cheniram Deka [predecessor- in- interest of appellant nos. 5 to 9 and 10(i) to 10(iv)]and Basanti Deka (mother of appellant no.11). It was projected that after the death of Late Harai Deka, the land left behind by him was amicably partitioned amongst the four brothers, each getting 1/ th share and that each of them possessed their share and while the names of other three

brothers was mutated, the name of the original plaintiff, i.e. the predecessor- in- interest of the respondent nos. 1 to 5 was not mutated in respect of periodic patta no.112. It was projected that the plaintiff was in government service and remained outside home district for some time and during this time, to deprive the plaintiff of his share of inheritance, a forged purported will no. 4/68 dated 05.07.1968 of Late Harai Deka was created and taking advantage of orders passed in proceedings under section 145/146 Cr.P.C., the original plaintiff was collusively dispossessed by the original defendants (predecessor- in- interest of the appellants). Accordingly, the suit was filed for declaration of right, title and interest over the suit land described in schedule of the plaint, for recovery of khas possession and other consequential reliefs.

4) The following issues were framed for trial:-

1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable in its present form in view of Letter of Administration granted by District Judge, Morigaon in connection with Misc.(P) Case No.26/98 in favour of defendants No.1 and 2 in view of subjudiced the matter Page No.# 6/14

before the Hon'ble High Court?

3. Whether the suit is properly valued and necessary advalorem Court Fee for the purposes has been paid?

4. Whether the suit is barred by limitation?

5. Whether the Will No.4/68 dated 5.7.68 is collusive and fraudulent and as such can be declared to be void and inoperative at law?

6. Whether the plaintiff has right, title and interest in respect of the suit land described in Schedule-'A'(1) to Schedule-'A'(9) as prayed for?

7. Whether there was any amicable partition among the legal heirs of Late Harai Deka after death of said Harai Deka and thereby plaintiff entered into possession of suit land as claimed and the defendants forcibly dispossessed the plaintiff on any date from his possession of suit land and as such the plaintiff is entitled for recovery of khas possession?

8. Whether any precept can be issued on land revenue authority for correction of land revenue record?

9. Whether the plaintiff/ plaintiffs are entitled to get a decree as prayed for?

5) The plaintiff's side had examined three witnesses and exhibited 10 following documents, viz., certified copy of jamabandi of PP no. 180 (Ext.1), certified copy of jamabandi of PP no. 64 (Ext.2), certified copy of jamabandi of PP no. 178 (Ext.3), certified copy of jamabandi of PP no. 112 (Ext.4), certified copy of jamabandi of PP no. 62 (Ext.5), copy of order dated 04.01.1996 in MR Case No. 315/93 (Ext.6), certified copy of order in MR Case No. 315/93 (Ext.7), copy of order dated 19.01.2000 in MR Case No. 154/96 (Ext.8), certified copy of CM Case No. 18/2000 (Ext.9), certified copy of MR Case No. 50/99 (Ext.10). The appellants- defendants had examined three witnesses and had exhibited the following documents, viz., certified copy of jamabandi of PP no. 180 (Ext.Ka), certified copy of jamabandi of PP no. 64 (Ext.Kha), certified copy of jamabandi of PP no. 178 (Ext.Ga), certified copy of jamabandi of PP no. 112 (Ext.Unga), certified copy of order dated 01.03.2001 in Misc.(P) Case No. 26/1998 (Ext.Cha), land revenue receipt dated 20.04.2001 of Page No.# 7/14

PP nos. 64, 180, 179, 203 and 62 (Ext.Chaa).

6) It appears from the judgment passed by the learned trial Court that during the pendency of the suit, the original plaintiff had expired and the respondents herein are the substituted plaintiffs.

7) In respect of issue no.6, the learned trial Court took note of judgment dated 05.04.2012, passed by this Court in FAO No. 31/2001, wherein it was held that the will no. 4/1968 dated 05.07.1968 could not be proved by the appellants in this instant appeal and accordingly, after elaborately discussing the evidence on record, held that despite their name not being mutated, the respondents herein were held to be entitled to one-fourth share of land in dag no. 375 along with three brothers. The respondents were held to be entitled to 1/ th 4 share of the suit properties on the strength of inheritance as per Hindu Succession Act,

1956. In view of finding recorded in respect of issue no.6, the issue nos. 2 and 5 were decided in the affirmative. In respect of issue no.7, it was held that a co-owner is deemed to be in possession of the joint properties of his co-owner until and unless there is clear ouster of the co-owner, who was not in actual possession and, as such, it was held that the co- owner was entitled to seek declaration of right, title, interest and possession of his share and in order to get possession thereof, and the issue no.7 was answered accordingly. In respect of issue no.1, it was held that there was cause of action for the suit. In respect of issue no.4, it was held that the defendants did not raise the plea of adverse possession and clear ouster of the plaintiff and, as such, it was held that the suit was not barred under Article 65 of the Limitation Act. It was also held that as the suit for recovery of possession is based on title, the suit was instituted within the period of limitation prescribed under Article 58 of the Limitation Act. Resultantly, in connection with issue nos. 8 and 9, the respondents herein were held to be entitled to get relief. The suit was accordingly, decreed by declaring the

respondents to be entitled to 1/4th share and to be entitled to get partition of their share and

to get possession of their share. It was ordered that preliminary decree be drawn up.

8) The learned first appellate Court upon discussing the evidence of the witnesses, it was held that the suit was rightly decided by the learned trial Court and that no interference was required with the impugned judgment and decree.

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9) The learned counsel for the appellants has submitted that Soneswar Deka had written a letter of relinquishment dated 03.02.1967 to his father. Moreover, by will dated 08.07.1969, Late Harai Deka had divested Soneswar Deka from his estate. Thus, Soneswar Deka was ousted from the property of his father since 03.02.1967. Therefore, it is submitted that substantial question of law that arises for determination in the present appeal is whether the learned Courts below had erred in not framing any issue relating to relinquishment and ouster of Soneswar Deka from the property of Late Harai Deka and whether the concurrent finding are perverse on such count. It is submitted that another substantial question of law that arises for decision in this appeal is that whether the concurrent finding is vitiated by non consideration of contents of letter of relinquishment and the will, for collateral purpose to appreciate that there was ouster of Soneswar Deka from the suit property.

10) It is seen that the learned first appellate Court had not formulated any point of determination as required under Rule 31 of Order XLI of the CPC. Moreover, the learned first appellate Court had also not discussed the issues framed for trial. In other words, the learned appellate Court had not re-appreciated the decision of the learned trial Court on the issues framed for trial. Therefore, the first appellate Court is not in accordance with the form in which an appellate judgment in a civil suit is required to be delivered. However, on appreciation of the finding recorded by the learned first appellate Court, it appears that the appellants have not suffered any prejudice on the aforesaid two counts. It is seen that the first appellate Court, being the last Court of facts had elaborately discussed the pleadings and evidence on record. In the absence of issue-wise discussion in the first appellate judgment, the issues have herein after been revisited.

11) The issue no. 6 as framed by the learned trial Court is pivotal for the decision in all other issues. In this regard, the learned first appellate Court had elaborately dealt with the pleadings of the parties. The learned first appellate Court had made reference to the arguments made by the learned counsel for the appellant, which is enumerated in para-8 of the first appellate judgment as reproduced herein below:-

"8. By preferring this Title Appeal, the appellants/ defendants challenged the same on various counts.

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It is contended that learned trial Court erred both in facts and law at the time of passing the judgment and also failed to appreciate the evidence on record properly. It is further contended that the learned trial Court is based on presumption, surmise and conjectures which are not relevant to the facts and circumstances of the case and as such the same is liable to be set aside. It is further contended that the learned trial Court wrongly decided Issue No.1 to Issue No.9 and as such, the decision of the learned trial Court is not sustainable in the eye of law and same is liable to be set aside."

12) The learned first appellate Court had discussed the evidence of all three PWs and all the DWs and concluded that the predecessor- in- interest of the respondents was one of the four sons of Late Harai Deka and that from the judgment dated 05.04.2012, rendered by this Court in FAO No. 31/2001, it had surfaced that the will no. 4/68 dated 05.04.2012 executed by Harai Deka could not be proved by the appellants. By referring to the evidence of DW-1, it was held that there was an admission that the name Soneswar Deka, the predecessor- in- interest of the respondents along with his brothers was mutated in four out of 5 pattas of the suit land in the revenue records. Accordingly, it was concluded that the learned trial Court had rightly decided the suit.

13) In this regard, it is seen that notwithstanding the deficiencies in the form in which the first appellate judgment was rendered, but the concurrent finding of fact remains that all the parties to the suit are legal heirs of Late Harai Deka, who left behind four sons and one daughter. The concurrent finding of fact is that the due execution of will in question no. 4/68 dated 05.04.2012 executed by Harai Deka was not proved. Therefore, the consequence that would follow is that the ouster of the right, title, interest and possession of the respondents or their predecessor- in- interest, who have jointly and severally inherited the estate of Late Harai Deka cannot be presumed. As indicated herein before, the learned counsel for the appellant has referred to two modes of ouster of right, title and interest of Late Soneswar Deka, the predecessor- in- interest of the respondents, viz., (1) relinquishment vide letter dated 03.02.1967, and (2) purported will dated 05.07.1968 of Late Harai Deka.

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14) The learned counsel for the appellants has strongly argued regarding letter of relinquishment dated 03.02.1967 by Soneswar Deka purportedly written to his father Late Harai Deka. The list of exhibits has been reproduced herein before and it is seen that the appellants did not exhibit the said piece of writing either before the learned trial Court or before the first appellate Court. Upon a perusal of the judgment passed by both the learned Courts below, it is seen that no evidence was tendered by the appellants to show that the value of land allegedly relinquished by Soneswar Deka was less than Rs.100/-. This is of relevance because a document of relinquishment is a compulsorily registrable document as per section 17(1)(b) of the Registration Act, 1908. Thus, as the purported letter of relinquishment was un-registered, the provisions of section 49(c) mandates that no such document shall be received as evidence of any transaction affecting such property. The learned counsel for the appellant had submitted that for collateral purpose, the said letter of relinquishment may be read, but the said submission, unfortunately, is not the correct proposition of law. In this regard, the proviso to section 49 of Registration Act, 1908 provides that "Provided that an unregistered document affecting immovable property and required by this Act and Transfer of Property Act, 1882 (4 of 1882), to be registered may be received in evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument." The present suit is neither for any contract in a suit for specific performance, nor for any collateral transaction not required to be effected by registered instrument. Therefore, the said argument is not acceptable on facts and in law. Hence, the appellants have miserably failed to lead legally admissible evidence of ouster of the respondents from the suit property, specifically with regard to their joint share, claiming from their predecessor- in- interest, late Soneswar Deka. In light of the discussions above, it is the considered opinion of this Court that the appellants have not suffered any conceivable prejudice by lack of discussions by the learned first appellate Court on issues framed for trial. Therefore, there is no point in relegating the parties before the first appellate Court.

15) The learned counsel for the appellant had forcefully submitted that although the letter by which the respondent- plaintiff had relinquished his share was specifically pleaded in the written statement, but the learned Courts below had committed gross illegality Page No.# 11/14

in proceeding with the trial without framing issue on relinquishment of the suit property by the respondent. However, in this connection, it is seen that non- framing of issues cannot be allowed to be raised in the Second Appeal. If one needs an authority on the point, the case of Md. Majibur Rahman Vs. Md. Sabed Ali & Anr., (1996) 1 GLT 272 (para 18) may be referred to.

"18. It was urged by the appellant's counsel that observations made by the lower appellate Court might adversely affect plaintiff-appellant's title. It is therefore, made clear that any observation relating to title made by the Court below shall not prejudice either party in their respective claims based on title. It was also urged by the learned counsel for the appellant that the matter should be remanded to the lower appellate Court because the whole matter being wrongly handled at the trial as well as at the lower appellate stage. In this connection he also referred to the issued as framed by the trial Court and the want of reason on the part of the lower appellate Court. It is too late in the day to contend and complain about the framing of issues for which a specific date for settlement of issues is fixed by the trial Court. Any party aggrieved by the issues as framed or omission to frame a particular issue, can apply to the Court for correction/ modification or addition of issues. If it is not done at the proper stage it cannot be allowed to be urged as a ground in second appeal."

16) It cannot be said that learned trial Court had erred in not framing any issue relating to relinquishment and ouster of Soneswar Deka from the property of Late Harai Deka. The parties had led evidence, without making any attempt to get such an issue framed. It is not the case of the appellants that no specific date was fixed for framing of issues. Moreover, it has already been mentioned herein before that in the present case in hand, the suit was remanded by the learned first appellate Court after framing additional issues. Even in course of the previous first appellate proceedings, when the suit was remanded and even at the re-trial stage, no steps was taken by the appellant to get an issue framed on relinquishment and ouster of the right, title, and interest of the respondents. Therefore, when the point relating to relinquishment was neither urged nor proved by the appellants before both the Courts below, the learned first appellate Court was not obliged to frame a point of determination on relinquishment and ouster. As already indicated hereinbefore, even if the Page No.# 12/14

appellant had made any attempt to prove relinquishment, a document tendered towards evidence could not have been read in evidence by the Court. For the same reasons, contents of not-admissible document cannot be read even for the purpose of proving relinquishment or ouster. The Court is unable to accept the contention of the learned counsel for the appellant that "relinquishment" and "ouster" can be said to be a "collateral" purpose of a letter of relinquishment because such a submission is not backed by reference to any provisions of law, or legal interpretation given by any Court of law. Thus, the finding rendered by the learned first appellate Court, though not in proper form, cannot be said to be vitiated for non- consideration of pleadings or evidence on record. It can be culled out from the learned first appellate judgment that it had concurred with the decision of the learned trial Court on the issues framed for trial. Thus, it is reiterated at the cost of repetition that the appellants have not suffered any prejudice owing to the defect in the form in which judgment was rendered by the learned first appellate Court. The finding returned by the learned Courts below is not found to be perverse.

17) As on date, the judgment dated 05.04.2012 passed by this Court in FAO No.31/2001 is holding the field. By the said judgment it was held that the Will No.4/1968 dated 05.07.1968 could not be proved by the appellants. In view of the said finding, the issue no. 2 there is no way that the present suit can be said to be not maintainable. Resultantly, the right of inheritance flowing to the respondent cannot be wished away in respect of his

¼th share of the suit land/ properties through his deceased father. Accordingly, the decision rendered by the learned trial Court on issue no.6 is found to be sustainable. In view of the hearing referred above judgment passed in FAO No.31/2001, there is nothing on record to show that the suit was not maintainable for declaration of right, title, interest and recovery of

khas possession of the suit land to the extent of ¼ th share of the suit land/ properties, as such, the finding of the learned trial Court is found sustainable. For the same reason, there is no necessity to answer issue no.5. As in the present case, the share of the respondent nos.1 to 5 has been determined by the learned trial Court. There is no instrument of partition and the procedure for partition as prescribed under Assam Land and Revenue Regulation, 1886 has not proved. Hence, the Court has no material to find fault with the decision rendered on issue no.7 by holding that the co-owner is deemed to be possession of the joint properties of Page No.# 13/14

his co-owner and unless there was clear ouster of the respondent nos.1 to 5. Hence, this Court finds no fault with the finding returned by the learned trial Court in respect of issue no.7 as there is no evidence to the effect that there was an amicable partition amongst the legal heirs of late Harai Deka. In respect of issue no.3 there is nothing on record to show that the suit is not properly valued and appropriate court fees has not been paid thereon. The appellant could not successfully demonstrate before the learned trial Court or the first and second appellate Court that there is a legal bar for issuance of precept on the land revenue authority for correction of land revenue record because it is not in dispute that the Civil Court has the power to answer in respect of immovable property. Hence, the revenue authorities would be bound by declarations issued by the learned Civil Court and it would become the consequential duty of the land revenue staff to correct the land records in consonance with the judgment and decree passed lawfully. Accordingly, the learned trial Court had decided issue no.8 correctly. Neither before the learned trial Court nor before the learned first appellate Court, any effort was made by the appellants to show that the respondent had paid inadequate Court fees and that the Will No.4/68 dated 05.07.1968. Accordingly, the Court cannot find any fault that the decision rendered by the learned trial Court on issue no.4. It is further seen that as triable issues exist in the suit, the decision of the learned trial Court on issue no.1 warrants no interference. Consequently, in view of the discussions above, the respondents/ plaintiffs are found entitled to the decree as prayed for, which is the issue no.9 decided by the learned trial Court.

18) In the case of Syeda Rahimunnisa Vs. Malan Bi, (2016) 10 SCC 315 , it was held by the Supreme Court of India to the effect that concurrent finding of facts by trial court and lower appellate court cannot be reopened in second appeal in absence of perversity.

19) In the present case in hand, this is not a case where material and relevant facts were ignored, or any legal principles had not been applied in appreciating the evidence, or that the learned Courts below had arrived at a decision upon taking into consideration irrelevant factors. This is also not a case where any evidence has been misread. This is also not a case where the evidence as a whole, does not lead to preponderance of probability that the respondents had failed to show that they were legal heirs of Late Harai Deka so as to disentitle him of inheritance as per Hindu Succession Act, 1956.

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20) As a result, the Court is constrained to hold that no substantial questions of law arise for decision in this case in hand and, as such, this appeal stands dismissed. However, without any cost for this appeal.

21)             Let the decree of dismissal of the appeal be prepared.

22)              The Registry shall notify the dismissal of this appeal to the Court of the

learned District Judge, Morigaon in connection with Title Appeal No. 1/2015, disposed of vide judgment and decree dated 20.12.2017.

JUDGE

Comparing Assistant