Sheikh Noor Islam vs Sheikh Noor Iman Muktar
2021 Latest Caselaw 2526 Gua

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GAHC010066312018




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

                                 Case No. : CRP(IO)/110/2018

            SHEIKH NOOR ISLAM
            S/O- LT SHEIKH NOOR MOHAMMAD, R/O- VILL- JATIA, KAHILIPARA
            ROAD, H/NO. 53, P.S. DISPUR, P.O. KAHILIPARA, KAMRUP (M)-DIST,
            ASSAM, GHY-19



            VERSUS

            SHEIKH NOOR IMAN MUKTAR
            S/O- LT SHEIKH NOOR MOHAMMAD, R/O- SOUTH SARANIA ASHRAM
            ROAD, NEAR ASCARD BANK, ULUBARI, P.S. PALTANBAZAR, P.O.
            ULUBARI, KAMRUP (M) DIST, GHY-7, ASSAM



Advocate for the Petitioner   : MR. B ULLAH

Advocate for the Respondent : MR. M K SHARMA




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 26-10-2021

Heard Mr. L.K. Borah, learned counsel for the Petitioner as well as Mr. A. Iqbal, the learned counsel for the Respondent.

2. The Respondent, as Plaintiff, had instituted a Title Suit being Title Suit No. 278/2014 before the Court of the Munsiff No. 1, Kamrup(Metro) at Guwahati seeking inter alia for Page No.# 2/6

declaration of right, title and interest and for permanent injunction. For the purpose of the instant dispute, it would be relevant to take note of, that in the suit filed by the Respondent, he had claimed a declaration that the open space in between the defendant's building, i.e,. Munni Market building and the SN Market building belongs to the plaintiff, as well as for permanent injunction. For the purpose of convenience, the reliefs claimed for in Title Suit No. 278/2018 is quoted herein below :

"(i) For the permanent injunction restraining the defendant and his agents/men from entering into the open space described in the schedule of the plaint.

(ii) For removal of water out- let pipes which are coming from the defendant's building (viz., Munni Market and Nikita Market and connected in the wall of the plaintiff's building (i.e., S.N. Building) and also restrained the defendant from using the drain of the plaintiff.

(iii) For removal of the gate placed by the defendant in between the Munni Market building and the S.N. building and thereby make the space open and free for the use of the plaintiff.

(iv) For permanently restraining the defendant to stop falling water in the plaintiff's building from the roof of the Munni Market and Nikita Market buildings of the defendant.

(v) For not to disturb the plaintiff in peaceful occupation of the plaintiff's building as well as using the open space of the plaintiff.

(vi) For declaration that the open space in between the defendant's building, i.e., Munni Market building and the S.N. Market building belongs to the plaintiff having his exclusive right, title and interest thereon.

(vii) For the cost of the suit.

(viii) For any other relief to which the plaintiff is entitled to."

3. It is also relevant herein to mention the schedule of Title Suit No. 278/2018 and the same for the sake of convenience is also quoted herein below :-

" SCHEDULE Page No.# 3/6

One R.C.C. building in the name and style of S.N. Market building having two parallel drains in the eastern and western side situated over a plot of land having land of Dag No. 299, 1617 and Patta No. 1240, 68 of Village- Ulubari under Ulubari Mouza, in the district of Kamrup(Metro), Assam. And also 7 ft. x 60 ft.) wider open space in between the building of Munni Market and the S.N. Market building.

The plaintiff's building along with drains and the open space of the plaintiff is bounded by --

              North             - G.S. Road.
              South             - Munni Market Complex (defendant's building).
              East              - Jhumarmal Jain.
              West             - Nikita Market (defendant's building)."

4. Consequent to the filing of the suit by the respondent, the petitioner as defendant filed Title Suit No. 480/2016 claiming inter alia for declaration of right, title and interest in respect to the schedule -C land and for recovery and delivery of khas and vacant possession of the schedule-C land as well as for permanent injunction. For the purpose of the instant case, the reliefs so sought for in Title Suit No. 480/2016, is quoted here-in-below : -

"It is therefore, most respectfully prayed that your Honour would graciously be pleased to pass;

(i) a decree for recovery and delivery of khas and vacant possession of the land described in schedule --"C" below by removing and demolishing the house and structure i.e. Mid Line Hotel of the defendant therefrom;

(ii) a decree declaring right, title and interest of the plaintiff over the suit land described in schedule -"C" below if the title of the plaintiff is disputed by the defendant ;

(iii) a decree of permanent injunction restraining the defendant, his agents, servants, workmen and employees etc. from interfering with the peaceful possession of the plaintiff over the suit property as described in schedule

--"C" below;

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              (iv)     a decree for the cost of the suit ;

              (v)     a decree for any other relief or reliefs to which the plaintiff is entitled
                       under the law and equity."

5. The schedule- "C" land described in the plaint of Title Suit No. 480/2016 and the same for the sake of convenience is also quoted hereinbelow :-

SCHEDULE -"C"

(Suit property) Land measuring more or less 10 lechas covered by Dag No. 1617 of K.P. Patta No. 1240 of Sahar Ulubari, Part-II, Mouza, Ulubari, Kamrup (Metropolitan) District Guwahati, Assam being part of schedule--"A" land. On this plot of land the defendant has constructed a Market known as S.N. Market and he is running his Hotel business under the name and style of "MID Line Hotel" on the

1st and 2nd floor of the building and defendant rented the ground floor of building to different tenants and bounded by :-

1. North :- Guwahati Shillong Road.

2. South:- Land of Dag No. 299 of the defendant.

3. East : Munni Market.

4. West :- Nikita Market."

6. It is also relevant herein to mention that the Respondent herein had filed his written statement in Title Suit No. 480/2016 and along with written statement he had also separately filed his counter claim against the Petitioner/plaintiff. In the counter claim, the Respondent, amongst others, sought for declaration of his right, title and interest in respect to a schedule-"A" of the counter claim, which is the same land as schedule-"C" of the plaint in Title Suit No. 480/2016.

7. The Respondent herein had filed an application under Section 10 of the Code of Civil Procedure, 1908 for stay of Title Suit No.480/2016 pending disposal of Title Suit No.278/2014. The Petitioner herein filed an application objecting to the application filed under section 10 CPC. It is the specific case of the Petitioner in its objection that the subject matter Page No.# 5/6

in both the suits are completely different, and as such, the question of staying the suit filed by the Petitioner does not arise in the facts and circumstances of the case.

8. The trial court vide an order dated 22/03/2018 passed in Title Suit No. 480/2016 had stayed Title Suit No. 480/2016 on the ground that the suit property is one and the same and parties are also same in Title Suit No. 278/2014 and Title Suit No. 480/2016. The Trial Court further held that the relief claimed in both the suits are also same and by the same parties.

9. I have perused the impugned order as well as the plaint in Title Suit No. 278/2014 and the plaint in Title Suit No. 480/2016 as well as the counter claim filed in Title Suit No. 480/2016. A perusal thereof, I am of the opinion, that the learned Trial Court had completely mis-directed itself in coming to the finding that the relief claimed in both the suits are one and the same, inasmuch as, if the relief claimed in Title Suit No. 278/2014 is the same, then the respondent would not have filed its counter claim in Title Suit No. 480/2016.

10. However, taking into consideration that a judgment passed in Title Suit No. 278/2014 would adversely impact the plaintiff in Title Suit No. 480/2016 and the stay in respect to the adjudication of the rights of the Petitioner in Title Suit No. 480/2016 pending disposal of Title Suit No. 278/2014 would adversely impact the rights of the petitioner, I am of the considered opinion, that it would be in the interest of justice that Title Suit No. 278/2014 be transferred to the Court of Civil Judge No. 1, Kamrup(Metro) at Guwahati, wherein Title Suit No. 480/2016 is pending and both the title suits, i.e., Title Suit No. 278/2014 and Title Suit No. 480/2016 be amalgamated and the Court of Civil Judge No. 1, Kamrup(Metro) at Guwahati, thereupon shall dispose off the suits in accordance with law.

11. The counter claim filed by the respondent in Title Suit No. 480/2016 shall be treated as a part of Title Suit No. 278/2014 and the suit shall proceed accordingly. In this regard, reference may be made to the judgment of the Supreme Court rendered in the case of Chitivalasa Jute Mills Vs. Jaypee Rewa Cement reported in (2004) 3 SCC 85 and the Court shall proceed in terms of the observations made in paragraph No. 12 of the said judgment. The said paragraph 12 is quoted here-in-below for the sake of convenience--

"12. The two suits ought not to be tried separately. Once the suit at Rewa has reached the Court at Visakhapatnam, the two suits shall be consolidated for the purpose of trial and decision. The Trial Court may frame consolidated issues.

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The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam."

12. For the purpose of amalgamating both the suits, I have exercised the powers under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure.

13. The counsels for the Petitioner and Respondent are at liberty to file appropriate application before the Courts below for complying with the observations made herein.

14. With the above observations, the instant petition stands disposed of. No cost. The interim order passed stands vacated in view of the above.

15.

JUDGE

Comparing Assistant