Md. Omar Ali Sikdar vs Md. Ajahar Ali And Ors
2022 Latest Caselaw 2416 Gua

                                                               Page No.# 1/18

GAHC010144172009




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

                          Case No. : RSA/22/2009

         MD. OMAR ALI SIKDAR
         S/O-LATE NAZIMUDDIN SIKDAR, R/O-HOWLY TOWN, WARD NO.4,
         MOUZA-GHILAJARI, P.S.-BARPETA, DISTRICT-BARPETA, ASSAM.

         VERSUS

         MD. AJAHAR ALI and ORS
         S/O-MD. JAHURUDDIN.

         2:MD. HAJARAT ALI

          S/O-MD. JAHURUDDIN.

         3:MD. MUBARAK ALI

          S/O-MD. JAHURUDDIN
          -ALL ARE RESIDENT OF MOIRAMARI
          HOWLY MOUZA-GHILAJARI
          DISTRICT-BARPETA
          ASSAM.

         4:ABDUL AJID BHUYAN

          S/O-LATE JULU BHUYAN.

         5:MRS. KAHINOOR BHUYAN

          W/O-MD. ABDUL AZIZ
          -BOTH ARE RESIDENT OF HOWLY TOWN
          WARD NO.4
          MOUZA-GHILAZARI
          DISTRICT-BARPETA
          ASSAM
                                                                                      Page No.# 2/18

Advocate for the Petitioner   : MR.D C MAHANTA

Advocate for the Respondent : MR.H R A CHOUDHURY

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (CAV) Date : 21-07-2022

Heard Mr. P.S. Deka, the learned senior counsel assisted by Mr.P. Bhattacharya,

the learned counsel appearing on behalf of the Appellant. None appeared on behalf of

the respondent on call.

2. This Court vide an order dated 16/2/2009 admitted the instant appeal on the

following three substantial questions of law which read as under :-

"1. Whether the passing of the decree of the plaintiffs' suit for declaration of right, title and interest and partition of his share without ascertain the share of other co-sharer and without passed a preliminary decree us hit by the provision of Rule 18 of Order 20 and Section 54 of the Code of Civil Procedure, 1908 ?

2. Whether the finding of the learned lower appellate court mainly based on the finding of the trial court under issue No. 3 and 4 was just and proper against a decree passed for partition in exercise of power under Section 54 of the Code of Civil Procedure, 1908 ?

3. Whether both the courts below committed an error of law in declaring the share of the plaintiffs only without considering the other interest in property ?"

3. For the purpose of ascertaining as to whether the said substantial questions of

law are involved in the instant appeal, it would be relevant to take note of the facts of

the instant case. For the purpose of convenience, the parties herein are referred to as

the same status they stood before the Trial Court.

4. The plaintiffs had filed a suit which was initially registered and numbered as Page No.# 3/18

Title Suit No. 3/2003 and subsequently reregistered and renumbered as Title Suit No.

125/2007. The case of the plaintiffs in brief is that 47 bighas 1katha 4 lechas of land

covered by various dags under K.P. Patta No.697 at Howly town was settled in favour

of Surya Kanta Choudhury, Gangadhar Choudhury and Bhaban Chandra Choudhury

during the settlement operation of 1958-65. The suit land pertains to Dag No. 1238 of

the said patta and admeasures a plot of land measuring 4 bigha 0 katha 12 lechas.

The said plot of land have been described in Schedule A to the plaint. Out of the said

Schedule-A plot of land, the plaintiff vide various purchase deeds either jointly or

severally purchased 3bigha 1 katha 14 ⅓ lechas of land. The said plot of land as per

the plaintiffs is a compact plot of land which have been more specifically described in

Schedule A(I) to the plaint. It is the further case of the plaintiffs that the defendants

had purchased 3kathas 13 lechas out of the Schedule-A land from the original

pattadars. At this stage, it is pertinent to take note of that out of 4 bighas 0 katha 12

lechas, the total land sold was 4 bigha 0 katha 7 1/3 lechas and there remained

approximately another 4 ⅓ lechas of land in the said Dag in the name of the original

pattadars.

5. On 27/3/2003, it has been alleged in the plaint that the defendants broke down

the boundary bamboo fencing of the plaintiffs and forcefully started construction of a

sanitary tank in the western part of the plaintiffs' land. Upon protest made by the

plaintiff, the defendants expressed that they had purchased 5 lechas of land and that

is why they have every right to make such construction. It is the further case of the Page No.# 4/18

plaintiffs that the defendants have endangered the plaintiffs' right, title and interest

over the suit land and the common enjoyment of the suit land as co-sharer with the

defendants is not possible, for which the suit was filed. The plaintiffs prayed for

declaring that the plaintiffs had right, title and interest to the extent of 3 bighas 1

katha 14 ⅓ lechas within the Schedule A land and as shown in Schedule A(I) to the

plaint; that the suit land shown in Schedule A(I) be partitioned and placed under the

separate and exclusive possession of the plaintiffs after partitioning by evicting the

defendants therefrom and to effect such partition necessary order be sent to the

Collector, Barpeta; for permanent injunction restraining the defendants from raising

any construction on any part of the suit land shown in Schedule A till the partition of

the land shown in Schedule A(I) is effected, for cost and other reasons.

6. The defendant No. 1 only had filed the written statement alongwith a counter

claim. In the said written statement cum counter claim various preliminary objections

were taken to the effect that there was no cause of action for the suit; that the suit

was not maintainable as all the pattadars of the K.P. Patta No. 697 of village Howly

town was not made parties to the suit; the suit was vague and uncertain and that the

suit was undervalued and proper court fee had not been paid. On merits, the case of

the plaintiffs set out in the plaint was denied. The counter claim set out by the

defendant No. 1 was that the Dag No. 1238 under Periodic Patta No. 697 of Howly

town originally belonged to one Surya Kanta Choudhury and he was in absolute

possession thereof. The defendant No. 1 purchased 1 katha 5 lechas of land in Dag Page No.# 5/18

No. 1238 out of 4 bigha 0 katha 12 lechas out of the said dag with specific boundary

vide a registered deed of sale bearing Deed No. 580/87 dated 2/4/1987. After

purchasing the said land, the defendant No. 1 constructed his residence thereon with

a sanitary latrine leaving 2 ft. of land from the eastern boundary. The defendant No. 1

further purchased 8 lechas of land from the said dag situated on the north of his land

purchased on 2/4/1987 vide the registered Deed No.185/1995 dated 17/1/1995 and

took possession accordingly. Thereafter the defendant further purchased from the

legal heirs of late Surya Kanta Choudhury, namely Shri Kamal Choudhury, Shri Sanjay

Choudhury and Smti. Mira Choudhury a plot of land measuring 4 ⅓ lechas of land from

the said dag on the north of the land purchased by the defendant No. 1 earlier vide

the registered Deed No. 1498/02 dated 21/6/2002 and got possession thereof. It was

therefore the specific case of the defendant No. 1 that he in total purchased 1 katha

17 ⅓ lechas of land vide various deeds of sale as above mentioned which was a

compact plot of land with the following boundaries:-

North -- Abdul Aziz Bhuyan & Mrs. Kahinoor Bhuyan. South -- Sahadullan Md. Ajahar Ali, Hazrat Ali & Md. Mubarak Ali. East - Bhuban Zahuruddin, Mobarak & Moinal Haque. West - Road.

7. The said land of the defendant No. 1 was specifically described in Schedule I to

the said counter claim. It was specifically mentioned in the written statement that the

land of the defendant No. 1 was in no manner connected with the land claimed by the

plaintiffs as the boundary given in Schedule A (I) of the plaint does not touch any of

the boundary of the defendant No. 1. Further to that, the defendant No. 1 claimed Page No.# 6/18

that he was entitled to a decree for partition over his land described in Schedule-I

below so that there is no misunderstanding as regards the possession of the land as

was finally settled. On the basis of the above, the defendant No. 1 sought for the

following reliefs which are quoted herein below :-

"a) Dismiss the suit with cost.

b) Declare that the defendant No. 1 has got right, title and interest over 1K-171/3 Ls of land by right of purchase and is in absolute possession thereof.

c) Declare that the defendant No.1 is entitled to get a separate patta over the sold land described in Schedule-I of the counter claim and accordingly partition thereof.

d) Issue precept directing the Revenue Authority to grant separate patta over the land described in Schedule-1 of the counter claim in favour of the defendant No. 1.

e) Declare the cost of the countr claim as well as the suit against the plaintiff.

f) Pass other relief or reliefs as may be deem fit and proper in this case."

8. On the basis of the pleadings as many as 7 issues were framed on 13/12/2004

by the Trial Court. At this stage, it may be relevant herein to mention that the suit

proceeded ex-parte against the defendant No. 2 on 7/4/2004 and the defendant No. 3

on 13/9/2004. Further to that, the plaintiffs did not file any additional written

statement against the counter claim of the defendant No.1. The 7 issues so framed

are as herein under :-

(1) Whether there is any cause of action for the suit ? (2) Whether the suit is maintainable in the present form ? (3) Whether the plaintiffs have right, title and interest to the extent of 3 bighas 1 katha 14 ⅓ lechas within the suit land as shown in Schedule Page No.# 7/18

A(I) of the plaint ?

(4) Whether the defendant No. 1 has got right, title and interest over 1 katha 17 ½ lechas of land as described in Schedule I of the counter claim by right of purchase and is in absolute possession thereof ? (5) Whether the plaintiffs are entitled to a decree as prayed for ? (6) Whether the defendant No. 1 is entitled to a decree as prayed for ? (7) To what relief/reliefs, if any, the parties are entitled to ?

9. The records reveals that the plaintiffs adduced evidence of 2 witnesses and

exhibited various documents marked as Exhibit 1 to 12. The defendants adduced the

evidence of 3 witnesses and exhibited 4 documents as Exhibit "Ka" to Exhibit "Gha".

The Trial Court vide the judgment and decree dated 14 th of June, 2007 had decreed

the plaintiffs' suit on contest as well as the counter claim of the defendants was also

partially decreed. It was declared that the plaintiff had right, title and interest to the

extent of 3 bighas 1 katha 14 1/3 lechas of land in Schedule- A land i.e. the Schedule

A(I) and the defendants had right, title and interest upon 1 katha 17 1/3 lechas of

land in A Schedule land which is subject to the measurement and demarcation of the

plaintiffs' land. The Revenue Authorities was directed to cause partition of the

Schedule A land by giving priority to the plaintiffs' land. If any encroachment of the

latrine construction of the defendant was found, the same shall be evicted therefrom.

10. The Trial Court while deciding the issue No. 3, came to a finding that by virtue

of Section 48 of the Transfer of Property Act, 1882, the plaintiffs had right, title and

interest to the extent of 3 bighas 1 katha 14 ⅓ lechas (i.e. the Schedule A(I) land) Page No.# 8/18

being the prior purchaser of the A Schedule land and accordingly decided the said

issue in the affirmative. While deciding the issue No. 4 as to whether the defendant

No. 1 had right, title and interest over the land described in the Schedule to the

Counter Claim, it was held that the defendants' claim upon 1 katha 17 ⅓ lechas of land

would be subject to the measurement/demarcation of the plaintiff's land being the

successive purchaser. While deciding the issue Nos. 5, 6 and 7, the Trial Court held

that there was no overlapping of the claim upon the respective purchased lands but as

the dispute arose at the time of construction of the latrine tank by the defendants, it

was held that the parties were entitled for a decree in the suit as well as in the

counter claim subject to specification in the order which in effect meant that the

defendants' right, title and interest upon 1 katha 17 ⅓ lechas of land in Schedule A

land was subject to measurement and demarcation of the plaintiff's land and the

Revenue Authority was directed to cause partition of the Schedule A land by giving

priority to the plaintiff's land and if any encroachment of the latrine construction by

the defendant was found, the same shall be evicted therefrom.

11. The defendant No. 1 feeling aggrieved, preferred an appeal before the Court of

the Civil Judge, Barpeta which was registered and numbered as Title Appeal No.

28/07. The First Appellate Court vide the judgment and decree dated 20/9/2008

dismissed the said appeal. In doing so, the First Appellate Court formulated a point of

determination which reads as under :

Whether the impugned judgment and decree had been passed Page No.# 9/18

erroneously without proper appreciation of the evidence on record and are not sustainable in law ?

12. The First Appellate Court after considering the pleadings and the evidence

came to a finding that the suit land measuring 4 bigha 0 katha 12 lechas covered by

Dag No. 1238 under K.P. Patta No. 697 originally belonged to one Surya Kanta

Choudhury who was the absolute possessor thereof. It was not opined that there was

no dispute by the defendants that the plaintiffs purchased 3 bigha 1 katha 14 1/3

lechas of land from the Schedule A land vide a series of sale deeds exhibited vide

Exhibit 2 to Exhibit 12 on various dates. It was also not disputed by the plaintiffs that

the defendants purchased 3 kathas 13 lechas of land out of the Schedule A land. The

dispute was only as regards the alleged encroachment made on 27/3/2003 by the

defendants who broke down the boundary fencing of the plaintiffs and forcefully

started construction of the sanitary tank within the land of the plaintiff in the western

part of the plaintiffs' land. The First Appellate Court after going through the evidence

of PW-1 and PW-2 came to a finding that there was a dispute with the defendants in

respect to removing the bamboo fencing and construction of the latrine. Further the

First Appellate Court opined on a scrutiny of the Deed of Sale bearing Deed No. 1498

dated 27/6/2002, that the boundary of the said deed showed that the eastern

boundary of the purchased land of the defendant No. 1 fell on the western part of the

plaintiffs' Schedule A(I) land. The First Appellate Court further after perusing the

various exhibited Sale Deeds of both the plaintiffs and the defendant No. 1 came to a Page No.# 10/18

finding that the defendant No. 1 was the last purchaser of 4 ⅓ lechas of land from Dag

No.1238. In other words, after the purchase of 4 ⅓ lechas of land by the defendant

No. 1 from Dag No.1238, no land remained to be sold from the said Dag and the

dispute arose between the plaintiffs and the defendants when the defendant No. 1

purchased 4 ⅓ lechas of land. Further to that the learned First Appellate Court came

to a finding that the defendant No. 1 being the subsequent purchaser of 4 ⅓ lechas of

land by registered Sale Deed on 1498/2002 dated 27/6/02, the principle laid down in

Section 48 of the Transfer of Property Act, 1882 duly applies. On the basis thereof,

the First Appellate Court further held that the learned Trial Court had rightly decided

the issue No. 4 thereby limiting the defendant No.1's claim upon 1 katha 17 ⅓ lechas

of land to be subject to the measurement/demarcation of the plaintiffs land being the

successive purchaser. The First Appellate Court hence dismissed the appeal thereby

affirming the judgment and decree dated 14/6/2007 passed by the learned Munsiff

No. 1, Barpeta in Title Suit No. 125/07.

13. Being aggrieved and dissatisfied, the Defendant No. 1 has filed the present

appeal under Section 100 of the Code of Civil Procedure, 1908 (for short the "Code of

1908") and this Court vide and order dated 16/2/2009 had formulated the three

substantial questions of law which have already been quoted herein above.

14. The first substantial question of law so formulated relates to as to whether the

passing of a decree for plaintiffs' suit for declaration of right, title and interest and

partition of his share without ascertaining the share of the other co-sharer and without Page No.# 11/18

passing a preliminary decree is hit by the provisions of Order XX Rule 18 and Section

54 of the Code of Civil Procedure, 1908(in short the Code of 1908). For the purpose of

answering as to whether the said substantial questions of law is involved in the facts

of the instant case, it would be relevant to take note of Order XX Rule 18 of the Code,

which is quoted herein below :

"18. Decree in suit for partition of property or separate possession of a share therein.--Where the court passes a decree for the partition of property or for the separate possession of a share therein, then,-- (1) if and insofar as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54; (2) if and insofar as such decree relates to any other immovable property or to movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."

15. A reading of the above provisions would show that Order XX Rule 18 envisages

passing of a decree of partition of a property or separate possession of shares therein.

It would be relevant to take note that while Sub Rule (1) of Rule 18 refers to a decree,

while in respect to Sub-Rule (2) of Rule 18, the Court is required to pass a preliminary

decree. The terms "preliminary decree" and "final decree" used in the said Rules are

defined in Explanation to Section 2(2) of the Code which reads as under :

"Section 2(2) (Explanation)--- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

Page No.# 12/18

16. At this stage, it may be relevant to take note of Section 54 of the Code dealing

with partition of a estate relevant for the purpose of Rule 18 (1) which reads as

under :

"Partition of estate or separation of share--Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law(if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."

17. In contradistinction of Sub-Rule (1) of Rule 18, Sub-Rule (2) of Rule 18 relates

to preliminary decree and in those circumstances, the provisions of Order XXVI Rule

13 & 14 dealing with commissions to make partition of the immovable property would

become applicable. The said Rule 13 of Order XXVI is quoted herein below :

"13. Commission to make partition of immovable property.--Where a preliminary decree for partition has been passed, the court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree."

"14. Procedure of Commissioner.--(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the court; and the court, after hearing any objections which the parties may make to the report or reports, Page No.# 13/18

shall confirm, vary or set aside the same.

(3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

The actual partition is effected by passing of the final decree. The valuation has, thus, to be as on the date of final decree."

18. Therefore, the following principles emerge :-

(i) In respect to suit when a Court passes a decree for partition of a property or for

separate possession of a share therein in regard to estate assessed to payment of

revenue to the Government, the Court is required to pass only one decree declaring

the rights of several parties interested in a suit property with a direction to the

Collector (or its subordinate) to effect actual partition or separation in accordance with

the declaration made by the Court in regard to shares of various parties and deliver

possession to them in respect to Section 54 of the Code. Such entrustment to the

Collector under law is for two reasons - Firstly that the Revenue Authority is more

conversant with matters which are estate assessed to payment of revenue to the

Government and secondly Section 54 is a safeguard keeping in view the interest of the

Government in regard to revenue. Whether the Collector acts in terms with the decree

or for that matter in terms with Section 54 of the Code, the matter does not come

back to the Court at all, the Court will not interfere with the partition by the Collector,

except to the extent of any complaint of a third party affected thereby.

(ii) However, in regard to other immovable properties i.e. building, plots etc or Page No.# 14/18

movable properties where the Court can conveniently and without further enquires

make the division without the assistance of a Commissioner or where the parties

agree upon the manner of division, the Court will pass a single decree comprising the

preliminary decree declaring the rights of the several parties and also a final decree

dividing the suit property by metes and bounds. However, where the division by metes

and bounds cannot be made, without further enquiries, the Court will pass a

preliminary decree declaring the rights of the parties interested in a property and give

further directions as may be required to effect the division. In such cases, normally a

Commissioner is appointed (usually an Engineer, Draughtsman, Architect or Lawyer) to

physically examine the property to be divided and suggest the manner of division. The

Court then hears the party on the report so submitted by the Commissioner and

passes a final decree for division by metes and bounds. It may be relevant herein to

mention that the function of making a partition or a separation according to the rights

declared by a preliminary decree is entrusted to a Commissioner, as it involves

inspection of the property and examination of various alternatives with reference to

practical utility and site conditions. When the Commissioner gives his report as to the

manner of division, the proposals contained in the report are considered by the Court

and after hearing objections to the report, if any, the Court passes a final decree

whereby the relief sought in the suit is granted by separating the property by metes

and bounds. It is also possible that if the property is incapable of proper division, the

Court may direct sale thereof and distribution of proceeds as per the shares declared.

Page No.# 15/18

This is how the provisions of Order XX Rule 18(2) is applied to a suit for partition or

separate possession of the share.

19. In the instant case, as it is seen that it is nobody's case that the suit in

question is a suit coming within the ambit of Order XX Rule 18(2) of the Code and as

such the question of a preliminary decree does not arise at all. The instant suit comes

within the ambit of Order XX Rule 18(1) as would be seen from a bare perusal of the

relief sought for in the plaint as well the relief sought for in the counter claim. Further

it would be seen that Section 54 can be made applicable only in respect to a final

decree being passed. Under such circumstances, the substantial question of law so

formulated cannot be a substantial question of law in the instant case.

20. The second substantial question of law so formulated pertains to as to where

the findings of the learned Lower Appellate Court which was mainly based on the

finding of the Trial Court under issue Nos. 3 and 4 was just and proper against the

decree passed for partition in exercise of the power of Section 54 of the Code of 1908.

A bare perusal of the concurrent findings of facts of both the Trial Court and the First

Appellate Court would show that the issue No. 3 pertains to as to whether the plaintiff

had right, title and interest over the Schedule A (I) land and the issue No. 4 was as to

whether the defendant No. 1 had right, title and interest of the Schedule-I land. Both

the courts below had arrived at concurrent finding of facts that the plaintiffs had right,

title and interest over the Schedule A(I) land and the defendant No. 1's right over the

Schedule I land was subject to measurement of the plaintiffs land taking into account Page No.# 16/18

Exhibit "Ga" which was the Deed of Sale bearing No. 1948/02 dated 27/6/2002 was

subsequent to the purchase deeds of the Plaintiffs. On the said findings the direction

so issued for partition in the opinion of this Court was in accordance with law.

Consequently, the said substantial question of law does not arise in the facts and

circumstances of the instant case.

21. The third substantial question of law so formulated is as to whether both the

Courts below committed any error in law in declaring the shares of the plaintiff only

considering other interest in the property. The facts narrated above would show that

Dag No. 1238 of K.P.Patta No. 679 had land measuring 4 bigha 0 katha 12 lechas

which had been specifically described in Schedule A to the plaint. There is no denial

to the said aspect of the matter. It is an admitted fact which have been also been

proved during the course of the trial that the plaintiffs had purchased 3bigha 1katha

14 ⅓ lechas. The plaintiffs had duly admitted that all the defendants together had

purchased 3 katha 13 lechas of land. The remaining land thereafter was 4 ⅓ lechas

which had been purchased by the defendant No. 1 vide the registered Deed of Sale

bearing Deed No.1498/02 dated 27/6/02. Pursuant thereto there was no further land

in respect to the suit dag. This is a finding of fact arrived at by the First Appellate

Court. The Appellant has not been able to show any perversity to the findings of fact.

A perusal of the judgment of the Trial Court would reveal that there was a direction to

cause partition of the Schedule A land by giving priority to the plaintiff's land. It was

further directed that if there was any encroachment of the latrine construction by the Page No.# 17/18

defendant No.1, the same needs to be evicted. There being no dispute as regards the

land belonging to the plaintiffs as well as the defendant No. 1, the question which was

only in dispute was as to whether there was any encroachment made by the

defendants to the plaintiffs' land. It is under such circumstances, that the Courts

below have directed the Revenue Authority to partition the Schedule A land thereby

giving priority to the plaintiffs' land. It cannot be lost sight of that the defendant No. 1

had also filed a Counter Claim and the issue No. 4 was also decided partially in favour

of the defendant No. 1 holding that the defendant No. 1 had the right, title and

interest over 1 katha 17 ⅓ lechas of land subject to priority being given to the

plaintiffs' share. Under such circumstances, both the Courts below ought to have

taken into account that the defendant No. 1 was also entitled to have partition as per

his counter claim. This was a mistake which was committed by both the Courts below

for the third substantial question of law so formulated duly arises.

22. Consequently this Court is of the opinion, taking into account that remanding of

the matter back to the First Appellate Court would unnecessarily lengthen the

litigation, it would be in the interest of justice to decide the reliefs which the parties

are entitled to herein. This Court therefore, in exercise of the powers under Order XLI

Rule 33 of the Code directs as under :

(i) The Collector or any Gazetted subordinate to the Collector deputed by him shall

make equitable partition of the Schedule A land (land measuring 4bigha 0 katha 12

lechas covered by Dag No.1238 included in K.P.Patta No. 697 at Mairamara, Howly, Page No.# 18/18

Mouza- Ghilazari in the District of Barpeta).

(ii) The share of the plaintiffs in respect to the Schedule A land in 3 bighas 1

katha 14 1/3 lechas(Schedule A(I) land). The defendant No. 1 share would be 1 katha

17 ⅓ lechas subject to priority being given to the plaintiffs' share.

(iii) The Collector or his subordinate so deputed by the Collector shall issue notice

upon the plaintiffs, the defendants and/or any other persons who claims rights

through the plaintiffs and the defendants over the Schedule A land and thereafter

effect partition by taking into consideration the declaration made in Serial No. (ii)

herein above.

(iv) The Collector or his subordinate so deputed by the Collector shall thereafter

hand over the separate possession to the plaintiffs and the defendants. If it is found

that the defendants are encroaching upon the plaintiffs land, the Collector or his

subordinate shall take necessary steps for evicting the defendants from the plaintiffs'

share.

23. With the above observations and directions, the Appeal stands disposed off.

The Registry is directed to forthwith prepare the decree.

24. Send the LCR below forthwith.

JUDGE Comparing Assistant