Gauhati High Court
Surat Ali vs Md. Sahjahan Ali on 23 September, 2022
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GAHC010070332022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/76/2022
SURAT ALI
S/O- LATE MONTAJ ALI, R/O- VILL.- BOGAIJANPARA, MOUZA- GHILAZARI,
P.O. JOSHIHATI, P.S. HOWLY, DIST. BARPETA, ASSAM, PIN- 781316.
VERSUS
MD. SAHJAHAN ALI
S/O- LATE HATEM ALI, R/O- VILL.- BOGAIJANPARA, MOUZA- GHILAZARI,
P.O. JOSHIHATI, PS.. HOWLY, DIST. BARPETA, ASSAM, PIN- 781316.
Advocate for the Petitioner : MR M H AHMED
Advocate for the Respondent : DR. B AHMED
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 23.09.2022
Heard Mr. M.H. Ahmed, the learned counsel for the petitioner and Mr. N.
Haque, the learned counsel appearing on behalf of the respondent.
2. This is an application filed under Article 227 of the Constitution challenging
the order dated 21/03/2022 whereby the application filed under Section 151 of
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the Code of Civil Procedure, 1908(for short the Code) for demarcation of the
boundary of the disputed land was rejected by the Executing Court as
premature and not maintainable.
3. For appreciating the dispute, it would be relevant to take note of that the
decree-holder, who is the plaintiff had instituted a suit against the defendants
seeking declaration of right, title and interest and delivery of khas possession of
the suit land to the plaintiff; and also to make partition and to issue a separate
patta in favour of the plaintiff by issuing a precept to the revenue authority
and for permanent injunction. The suit land has been specifically described in
the plaint. For the purpose of convenience the description of the suit land as
contained in the plaint is reproduced hereinbelow :
"Schedule of the suit land
------------------------------
3Ks 15 Ls. of land out of total measuring 11B-3K-17Ls covered
by Dag No. 38 under Periodic Patta No. 62 of Bagaijan para village
under Ghilajari Mouza of Barpeta District bounded by --
North- Afazuddin.
South- Go-Halat.
East - Amina Ahmed.
West - Abdur Rachid."
4. In the said suit, the defendants filed their written statement and also a
counter claim. The Trial Court vide the judgment and decree dated 3/9/2011
dismissed the suit of the plaintiff and decreed the counter claim.
5. Being aggrieved, an appeal was preferred before the Court of the Civil
Judge, Barpeta, Assam which was registered and numbered as Title Appeal
No.61/2011. Vide the judgment and decree dated 6/10/2016 the said appeal
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was allowed thereby decreeing the suit of the plaintiff and dismissing the
counter claim of the defendants. Paragraph 16 of the said appellate judgment
being relevant is quoted hereinbelow:
"16. In the result, the appeal stands allowed on contest with
following reliefs:
i) The suit of the plaintiff is decreed against the defendants
with cost and the counter claim is dismissed on contest
without cost;
ii) The plaintiff has right, title and interest over the suit land;
iii) The khas possession of the suit land be delivered to the
plaintiff ;
iv) Precept be issued in this regard to the revenue authority for
partition and for issaunce of separate patta in respect of the
suit land in favour of the plaintiff;
v) Permanent injunction is issued against the defendants
restraining them to dispossess the plaintiff from the suit land
in future.
6. From a perusal of the said judgment and decree passed by the First
Appellate Court, it would transpire that the plaintiff's right, title and interest has
been declared over the suit land and the plaintiff was also entitled to khas
possession of the suit land and to be delivered to the plaintiff. Apart from that, a
precept was also issued in that regard to the revenue authority for partition and
for issuance of a separate patta in respect to the suit land in favour of the
plaintiff. The said decree has been put into execution in Title Execution Case No.
28/2017 before the Executing Court i.e. the Court of the Munsiff No. 1, Barpeta.
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In the said execution proceedings, steps have taken for the purpose of issuance
of precept to the revenue authority for partition and for issuance of separate
patta in respect to the suit land in favour of the plaintiff. At this juncture, the
Judgment Debtor has filed the instant application under Section 151 of the
Code for appointment of an Amin Commission for demarcation of the
boundaries of the disputed land and the said application was dismissed vide the
order dated 21/3/2022 as premature and as such not maintainable in law. It is
against the said order that the instant petition has been filed under Article 227
of the Constitution challenging the said order.
7. I have heard the learned counsel for the parties and also perused the
materials on record.
8. Taking into account that the precept has been issued to the Revenue
Authority for partition and for issuance of separate patta in respect to the suit
land and it is the Collector or any officer designated by him has to do so in
terms with Section 54 of the Code read with the provisions of the Assam Land &
Revenue Regulation, 1886 thereby ascertaining the area of the land, its
boundaries and thereupon to issue a separate patta in favour of the plaintiff as
decreed by the First Appellate Court.
9. Considering the above that it is the Collector or any officer designated by
the Collector, who has to act in terms with Section 54 of the Code read with the
provisions of the Assam Land and Revenue Regulation, 1886, the application
has been rightly rejected by the Executing Court to be premature and as such
not maintainable.
10. Considering the above, this Court therefore is not inclined to interfere with
the order dated 21/3/2022 passed by the Executing Court in Title Execution
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Case No. 28/2017.
11. The dismissal of the instant proceeding however shall not preclude the
petitioner, who is the Judgment Debtor to raise such pleas as permissible under
law before the Collector or the officer designated in that behalf while making
the partition and ascertaining the boundaries of the suit land.
12. In the circumstances that the partition has already been concluded and
separate patta has been issued, the Judgment Debtor would be at liberty to
avail such remedies as available under law.
13. It is clarified that the observations made in paragraph 11 & 12 should not
be construed as this Court has given any liberty/leave. It is observed that if the
law permits, the petitioner would be at liberty to avail the remedies available
under law.
14. In view of the order passed hereinabove, the order dated 08/04/2022
passed by this Court stands vacated. The parties are directed to appear before
the Executing Court on 02/11/2022.
15. The petition stands disposed off accordingly.
JUDGE
Comparing Assistant
