Gauhati High Court
Page No.# 1/5 vs Amjad Miah And 4 Ors on 15 February, 2022
Page No.# 1/5
GAHC010019682019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/44/2019
REHENA BEWA AND 4 ORS.
W/O LATE CHAND MLIAH SK.
R/O BOGULAMARI, A.M.CO. ROAD, P.O. A.M. CO ROAD, ASSAM, DHUBRI-
783323, P.S. AND DIST. DHUBRI, ASSAM, PIN - 783127.
2: REJAUL SK.
S/O LATE CHAND MLIAH SK.
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M. CO ROAD
ASSAM
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSAM
PIN - 783127.
3: RIAJUL SK
S/O LATE CHAND MLIAH SK.
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M. CO ROAD
ASSAM
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSAM
PIN - 783127.
4: RAHUL AMIN
S/O LATE CHAND MLIAH SK.
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M. CO ROAD
ASSAM
DHUBRI- 783323
Page No.# 2/5
P.S. AND DIST. DHUBRI
ASSAM
PIN - 783127.
5: AFRUJA BIBI
D/O LATE CHAND MLIAH SK.
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M. CO ROAD
ASSAM
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSAM
PIN - 783127
VERSUS
AMJAD MIAH AND 4 ORS.
S/O LATE ALIMUDDIN SK.
R/O BOGULAMARI, A.M.CO. ROAD,
P.O. A.M.CO. ROAD,
DHUBRI- 783323,
P.S. AND DIST. DHUBRI, ASSAM
2:USUF SK
S/O LATE ALIMUDDIN SK.
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M.CO. ROAD
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSAM
3:IDRIS ALI SK
S/O LATE ALIMUDDIN SK.
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M.CO. ROAD
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSAM
Page No.# 3/5
4:ASHIDUL SK
S/O LATE TAHER MIAH SK
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M.CO. ROAD
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSAM
5:ARIFUL SK.
S/O LATE TAHER MIAH SK
R/O BOGULAMARI
A.M.CO. ROAD
P.O. A.M.CO. ROAD
DHUBRI- 783323
P.S. AND DIST. DHUBRI
ASSA
Advocate for the Petitioner : MR. R K JAIN
Advocate for the Respondent : MR. K BHATTACHARJEE
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 15-02-2022
Heard Mr. R.K. Jain, learned counsel for the petitioners. Also heard Mr. K.
Bhattacharjee, learned counsel for the respondents.
2. This civil revision petition is directed against the order dated 17.12.2018 passed by the
learned Munsiff No. 1, Dhubri in Misc. (J) Case No. 63 of 2018.
3. It is to be mentioned here that vide the impugned order, the learned Munsiff No. 1,
Dhubri has dismissed the petition filed by the petitioners under Section 151 CPC for restoring
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the possession of the suit land to the petitioners as the defendants has violated the order
dated 07.10.2016 passed in Misc. (J) Case No. 176/2016 whereby the learned court below
held that cause of action of the petitioners does not fall under Section 151 CPC as there are
other provisions to deal with the same.
4. It is to be mentioned here that the petitioner as plaintiff has instituted a Title Suit being
No. 458/2018 before the learned Munsiff No. 1, Dhubri for declaration, cancellation of deed of
affidavit and deed gift and for permanent injunction in respect of a plot of land measuring 16
Bighas comprising of Dag No. 95 under Kheraj Patta No. 164 and another plot of land
measuring 6 Bighas comprised in Dag No. 118 and Kheraj Periodic Patta No. 691, in total 22
Bighas of land situated in village-Falimari Part-I, under P.S. and Revenue Circle Dhubri, in the
district Dhubri. The petitioners have also filed another petition under Order XXXIX Rule 1 & 2
of the CPC read with Section 151 CPC for restraining the respondents from disturbing their
possession over the suit land. Then after hearing the parties vide order darted 07.10.2016 the
learned Munsiff No. 1, Dhubri has granted temporary injunction restraining the defendant
from entering into the suit land until further order. But, prior to that day i.e. on 01.10.2016
the defendants forcibly encroached upon the suit land. Thereafter the petitioners again filed a
petition under Order XXXIX Rule 2A of CPC for violation of the order dated 7.10.2016 and
filed another petition under Section 151 CPC praying for restoration of the possession but the
trial court vide order dated 17.12.2018 dismissed the petition. Being highly aggrieved, the
petitioners approached this court by filing the present petition.
5. Mr. R.K. Jain, learned counsel for the petitioners referring one judgment of Kolkata High
Court in Sujit Pal Vs. Prabir Kumar Sun and Others in F.M.A.T. No. 2279 of 1985 and another
judgment of Rajasthan High Court in Mangilal Vs. Ichku Devi and Others in Civil Revision
Petition No. 942/1995 and another judgment of Hon'ble Supreme Court in K.K. Velusamy Vs.
N. Palanisamy, in Civil Appeal Nos. 2795 and 2796 of 2011, arising out of SLP (Civil) Nos.
18211-18212 of 2010, submits that the possession of the petitioners can be restored by
invoking jurisdiction under Section 151 CPC though there is no specific provision provided in
the CPC. Mr. Jain further submits that the learned court below has dismissed the petition on
the ground that other alternative provisions are there to deal with the matter without
indicating the same and as such the impugned order passed by the learned court below is
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illegal and therefore contended to set aside the same.
6. On the other hand, Mr. K. Bhattacharjee, learned counsel for the respondents submits
that the Rajasthan High Court in the case referred by Mr. R.K. Jain, learned counsel for the
petitioners, interfered with the matter on the basis of the report of the committee and that
he has no objection if by setting aside the impugned order the matter is remanded to the
learned court below to appoint a commission and to ascertain the real facts and thereafter to
pass a fresh order upon the same. Mr. R.K. Jain, learned counsel for the petitioners also
agreed to the same.
7. In view of above, the impugned order dated 17.12.2018 stands set aside and the
matter is remanded to the learned court below with a direction to appoint a commission to
ascertain the ground realities as to whether the defendants have dispossessed the petitioners
or not and thereafter to pass a fresh order upon the petition filed under Section 151 CPC,
after affording opportunity of being heard to both the parties.
8. In terms of above, this civil revision petition stands disposed of at this admission stage.
JUDGE
Comparing Assistant
