Madhav Ch Das vs On The Death Of Upananda Gogoi His ...
2022 Latest Caselaw 4261 Gua

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GAHC010119942022




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

                            Case No. : CRP/69/2022

         MADHAV CH DAS
         S/O. LT. KAMINI KANTA DAS, R/O. BEBEJIA, P.O. BEBEJIA, DIST. NAGAON,
         ASSAM, PRESENTLY RESIDING AT P.O. AND P.S. KHETRI MOUZA DIMORIA,
         DIST. KAMRUP (M), ASSAM, PIN-782403.

         VERSUS

         ON THE DEATH OF UPANANDA GOGOI HIS LEGAL HEIRS SANJOY GOGOI
         AND 3 ORS
         REPRESENTATION NAMELY

         1:c) MISS RUMA GOGOI
          D/O. LT. UPANANDA GOGOI
         VILL. NO.2 ULUBAM
          P.O. AND P.S. KHETRI
          DIST. KAMRUP (M)
         ASSAM
          PIN-782403.

         1:d) MISS POPY GOGOI
          D/O. LT. UPANANDA GOGOI
         VILL. NO.2 ULUBAM
          P.O. AND P.S. KHETRI
          DIST. KAMRUP (M)
         ASSAM
          PIN-782403.

         1:a) SANJOY GOGOI
          S/O. LT. UPANANDA GOGOI
         VILL. NO.2 ULUBAM
          P.O. AND P.S. KHETRI
          DIST. KAMRUP (M)
         ASSAM
          PIN-782403.
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            1:b) RAHUL GOGOI
             S/O. LT. UPANANDA GOGOI
            VILL. NO.2 ULUBAM
             P.O. AND P.S. KHETRI
             DIST. KAMRUP (M)
            ASSAM
             PIN-782403

Advocate for the Petitioner   : MR. A R MEDHI

Advocate for the Respondent : MR U DAS (r-1,2,4)

                                   BEFORE
                  HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                             ORDER

Date : 03.11.2022

Heard Mr. A.R. Medhi, learned counsel for the petitioner.

The petitioner as plaintiff filed a Title Suit before the learned Civil Judge No.2, Kamrup (Metro) for declaration of right, title, interest and khash possession as well as eviction and permanent injunction against the present respondents.

The said suit was registered as Title Suit No.170/2006. The said suit was decreed in favour of the plaintiff the present petitioner, by judgment and decree dated 31.08.2010.

Being aggrieved by such judgment and decree, the present respondents preferred an appeal before the learned Additional District Judge (FTC) No.2, Kamrup (Metro) which was registered as Title Appeal No.22/2010.

The said appeal was also dismissed affirming the original judgment and decree.

Being aggrieved, the defendants/respondents preferred a second appeal before this Court which was registered and numbered as RSA 42/2012.

After hearing this appeal, this Court set aside the appeal and passed the following order on 03.03.2015,

18. Relying upon the case of Santosh Hazari -vs- Purushottam Tiwari (deceased) by LRS , reported in (2001) 3 SCC 179 , the paramount overall consideration being the need for striking Page No.# 3/3

a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis, justice would be met by directing the First Appellate Court to frame an additional issue as to whether the appellant defendant is en titled to seek protection under section 53 A of the Transfer of Property Act and decide the same in accordance with law. Needless to say that the decision on the additional issue would decide the merits of the title suit.

19. As a result, this appeal succeeds and the substantial question of law so formulated is answered in terms of the above. The judgment and decree of the Court of first instance as well as the judgment of First Appellate Court are set a side and the matter is remanded to the First Appellate Court in terms of the above. Parties are directed to appear before the First Appellate Court on 30.3.2015 for the purpose of receiving direction of that Court as to the further proceedings of the case. The appeal stands allowed, however, without any order as to costs.

Thus, both the judgments were set aside and quashed.

When the appeal was remanded back, the defendants/respondents did not appear in many occasions and accordingly, the appeal was dismissed for non-prosecution.

In that background, the present petitioner preferred an execution petition for execution of the decree. However, as this Court had set aside the judgment of the court of first instance along with the appellate judgment while remanding the matter, the learned Executing Court dismissed such petition holding that as there is no judgment, no execution can be initiated.

In the aforesaid background, the learned counsel for the petitioner submits that he may be allowed to file a review application seeking review of the judgment and order dated 03.03.2015 passed in RSA No.42/2012.

Such prayer is allowed.

This revision petition is accordingly adjourned and list the matter after 3(three) weeks.

JUDGE

Comparing Assistant