On The Death Of Tafazzul Ali His ... vs On The Death Of Khalil Mia His Legal ...
2021 Latest Caselaw 2820 Gua

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GAHC010181322004




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

                                   Case No. : RSA/200/2004

             ON THE DEATH OF TAFAZZUL ALI HIS LEGAL HEIRS AUBAKTA ALI
             BORBHUIYA AND ORS




             VERSUS

             ON THE DEATH OF KHALIL MIA HIS LEGAL HEIRS MUSSTT. RAIBUN
             NESSA AND ORS




Advocate for the Petitioner   : MR.A R SIKDAR

Advocate for the Respondent :




                                          BEFORE
                                       CIVIL BENCH-I

                                           ORDER

11.11.2021

Heard Mr. A.R. Sikdar, learned counsel for the appellants.

2. This appeal was admitted on the following substantial questions of law :

A. Whether there is any lawful necessity to remand the case to frame issues on the Page No.# 2/3

questions of right, title and interest of the defendants over the suit land by way of adverse possession and also about the right, title and interest of the plaintiffs over the suit land while both the said issues are already discussed and decided by the trial court in discussing and deciding the Issue No.4 ?

B. Whether the learned lower Appellate Court was right in setting aside the judgment and decree of the trial court and remanding the case to the trial court without setting aside the findings of the learned trial court specifically the Issue No.4 where it has been decided that the defendants have failed to prove their adverse possession and the plaintiffs right, title and interest over the suit land has been decided in their favour ? C. For that fact of handing over the possession of the suit land by Hatim Mia to the predecessors of the plaintiffs is on record vide Ext.1 (sale deed) and in that circumstances whether the defendants contention denying the handing over the possession of the suit land to the predecessors of the plaintiffs without any support of evidence is lawful as per section 92 of the Evidence Act ?

3. I have perused the judgment impugned in the instant proceedings i.e. the judgment dated 09.08.2004 passed in Title Appeal No.16/2002. Upon perusal of the said judgment it reveals that the Appellate Court had remanded the case for fresh adjudication by framing 2 (two) Issues which are (1) Whether the defendants acquired right, title and interest over the suit land by way of adverse possession (2) Whether the plaintiffs had any right, title and interest over the suit land. Although the Appellate Court uses the provisions of Order XLI Rule 25 CPC but a perusal of the impugned judgment shows that it is in fact an exercise under Order XLI Rule 23A and consequently a appeal lies under the provisions of Order XLIII Rule 1(u) read with Section 104 of the CPC. Consequently the instant appeal under Section 100 is not maintainable.

4. Mr. Sikdar submits that the Trial Court while disposing of the suit should not be influenced by the judgment and decree dated 08.03.2002 passed in Title Suit No.60/1999 as well as the judgment and order dated 09.08.2004 passed in Title Appeal No.16/2002 while adjudicating the suit as in the impugned judgment and order dated 09.08.2004 the Appellate Court have already set aside the judgment and decree dated 08.03.2002 passed in Title Suit No.60/1999.

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5. It is observed that the Trial Court shall adjudicate the suit afresh without being influenced by the judgment and decree dated 08.03.2002 passed in Title Suit No.60/1999.

6. With the above observations, the instant appeal stands dismissed. No cost. Send the LCR below.

JUDGE

Comparing Assistant