Page No.# 1/5 vs The State Of Assam And 2 Ors
2021 Latest Caselaw 126 Gua

                                                                  Page No.# 1/5

GAHC010309622019




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

                            Case No. : RSA/16/2020

         SRI NONI GOPAL ROY AND 5 ORS
         S/O- LATE LAXMAN NAMASUDRA, R/O- VILL. AND P.O. SUPRAKANDI, P.S.
         AND DIST.- KARIMGANJ, ASSAM.

         2: SRI BENI MADHAB NAMASUDRA
          S/O- LATE LAXMAN NAMASUDRA
          R/O- VILL. AND P.O. SUPRAKANDI
          P.S. AND DIST.- KARIMGANJ
         ASSAM.

         3: ON THE DEATH OF RANA KUMAR NAMASUDRA
          HIS LEGAL HEIRS SMTI. BANI ROY
         W/O- LATE RANA KUMAR NAMASUDRA @ RANA ROY
          R/O- VILL.- KAMARGRAM
          P.O. SHYAMNAGAR
          P.S. AND DIST.- KARIMGANJ
         ASSAM.

         4: SRI TRIDEB ROY
          S/O- LATE RANA KUMAR NAMASUDRA @ RANA ROY
          R/O- VILL.- KAMARGRAM
          P.O. SHYAMNAGAR
          P.S. AND DIST.- KARIMGANJ
         ASSAM.

         5: SRI JOYDEB ROY
          S/O- LATE RANA KUMAR NAMASUDRA @ RANA ROY
          R/O- VILL.- KAMARGRAM
          P.O. SHYAMNAGAR
          P.S. AND DIST.- KARIMGANJ
         ASSAM.

         6: SMTI. SULAKSONA ROY
          D/O- LATE RANA KUMAR NAMASUDRA @ RANA ROY
                                                                                  Page No.# 2/5

             R/O- VILL.- KAMARGRAM
             P.O. SHYAMNAGAR
             P.S. AND DIST.- KARIMGANJ
             ASSAM

            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            NOTICE TO BE SERVED THROUGH THE GOVT. PLEADER

            2:THE DEPUTY COMMISSIONER
             KARIMGANJ
             P.O. PS AND DISTRICT KARIMGANJ
            ASSAM
             PIN 788710

            3:CIRCLE OFFICER
             KARIMGANJ SADAR CIRCLE
             KARIMGANJ
             P.O. PS AND DISTRICT KARIMGANJ
            ASSAM
             PIN 78871

Advocate for the Petitioner   : MR. A IKBAL

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 18.01.2021

Heard Mr. A. Ikbal, learned counsel for the appellants. Also heard Mr. G. Bordoloi, learned Govt. Advocate appearing for the respondents.

2. This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 04.09.2019 passed by the learned Civil Judge, Karimganj in Title Appeal No.47/2018 thereby affirming the judgement and decree dated 29.08.2018 passed by the learned Munsiff No.1, Karimganj in Title Suit No.313/2015 by which the suit filed by the appellants-plaintiffs was dismissed.

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3. The learned counsel for the appellants has referred to the materials available with the memo of appeal to project that the suit land described in the plaint was the jote land of Late Laxman Namasudra, the father of the appellants-plaintiffs, who had taken the land with jote rights from the then zamindar, namely, Gourish Chandra Roy and had been possessing the suit land exclusively, openly and peaceably without interruption with the knowledge of all and the father of the appellants had been paying the regular land revenue to the said zamindar. In course of time, upon promulgation of the Assam State Acquisition of Zamindaries Act, 1951, the father of the appellants had acquired the status of land holder by operation of law and he continued to exercise his said right, title and interest over the suit land measuring 21.15 Acres as jotedar in respect of land covered by dag no.588 (old) and 590 (old) of Khatian No.268 under Mouza- Umarpur Part-4, Pargona-Dewadi. It is further projected that the land was of Chara and Sailura type, but erroneously recorded in the said khatian as Patit type land and that in the remarks column of the said khatian, the land was erroneously mentioned as grazing land of the villagers. It is also projected that during the first survey and settlement operation, the father of the petitioners had raised strong protest against the incorrect description of the suit land in the khatian and though he was verbally assured of the correction, but the records were never corrected. The father of the appellants had died in the year 1980 leaving behind the appellants as his legal heirs. It is further projected that after the first re-survey and settlement operation, the suit land was recorded against dag no.632 (new) of periodic Khiraji Patta No.213, the same was recorded as Shailura type of land, as such, while the nature of land was correctly recorded, but names of certain persons were illegally included in the land revenue records in respect of Khiraji Patta No.213 and 214 along with the names of the plaintiffs. Accordingly, the aggrieved appellants served a notice dated 18.04.2012 under section 80(1) CPC for making necessary correction in the land revenue records by deleting the names of person illegally included in the said patta and thereupon T.S. No.313/2015 was instituted before the Court of learned Munsiff No.1 at Karimganj. The Court of Munsiff No.1, Karimganj by judgment and decree dated 29.08.2018, decided 6 (six) issues as framed in the suit, viz.

(a) Whether there is any cause of action for filing the suit?

(b) Whether the suit is maintainable in its present form and manner?

(c) Whether the suit is bad for non-joinder of necessary parties?

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(d) Whether Khiraji Patta relating to the suit land were properly published?

(e) Whether plaintiffs are entitles to the decree as prayed for?

(f) Whether relief or reliefs, if any, plaintiffs are entitled to?

4. While deciding issue no.3, it was held that in the absence of necessary parties, the appellants would not be able to get relief and accordingly, by deciding issue no.4 against the appellants, the suit was dismissed.

5. It is seen that while deciding issue no.3, the learned trial Court had recorded that the State of Assam in their in their written statement inter alia stated that ten persons named therein inclusive of the appellants were the recorded pattadars of the suit land and that the appellant had instituted the suit for deletion of the names of other co-pattadars without making them parties to the suit and a finding of fact was written to the effect that the appellants had failed to adduce any title deed in support of their title over the suit land.

6. The aggrieved appellants had preferred an appeal and the learned Civil Judge, Karimganj by the impugned judgment and decree, dismissed the appeal after deciding two points of determination, viz.

(i) Whether the plaintiffs have right, title and interest over the suit land?

              (ii)     Whether      the   impugned      judgment     and    decree    required   any
              interference?

7. While considering the point of determination no.1, the learned first appellate Court by referring to Ext.1, certified copy of khatian no.268, written a finding that the suit land was in the name of Sri Laxman Namashudra, but in the subsequent settlement of operation, the name of the plaintiffs along with other persons were recorded. The plaintiffs did not implead the names of those persons appeared in the patta and, as such, on the ground that the persons whose name appeared in the patta should be given an opportunity to be heard before deleting their names from the patta, it was held that no effective order can be passed against them without hearing and accordingly, second point of determination was answered against the appellants and the appeal was dismissed.

8. Though not annexed to the memo of appeal, the learned counsel for the appellant Page No.# 5/5

has produced a copy of the evidence tendered by three P.W.s and copies of Ext.1 to Ext.10. On perusal of the same, the Court is inclined to hold that the learned trial Court had rightly held while deciding issue no.3 that the suit patta contained entries of ten persons, out of which, three names are of the appellants-plaintiffs. In the plaint, the appellants have prayed for a decree declaring their right, title and interest over the suit land and for confirmation of their possession over the suit land and for a decree declaring that the periodic Khiraji Patta No.213 and 214 in respect of settlement was published with certain names of the other persons illegally along with the names of the appellants. Therefore, the Court cannot find any illegality whatsoever or perversity in the concurrent finding by both the learned Courts below that the reliefs that have been sought for cannot be granted in the absence of necessary parties. If a declaration is required to be made that the names of persons were illegally included in the land revenue records, the concerned parties have a right to be heard before issuance of such declaration by a Court of law. Moreover, the appellants had sought for a decree for mandatory injunction directing the State to correct the periodic Khiraji Patta No.213 and 214 by deleting the names of the illegally inserted persons. In this regard, it is too well settled that an order of injunction cannot be enforced against a person who is not a party to the suit. Accordingly, the appellants are not found entitled to the prayer for mandatory injunction in the absence of necessary parties.

9. Accordingly, although the learned counsel for the appellants had strongly argued the matter based on the grounds and substantial question of law as formulated, but no substantial question of law arise for decision by this Court under the facts and circumstances of the present case in hand. Accordingly, the Court does not find any merit in the appeal and the same is dismissed.

10. Decree for dismissal will be prepared.

JUDGE

Comparing Assistant