Gauhati High Court
Page No.# 1/5 vs Upen Das And 2 Ors on 9 January, 2023
Page No.# 1/5
GAHC010265372022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/4/2023
PABITRA KALITA AND 3 ORS.
S/O LATE GIRISH KALITA,
VILL.- TIHU TOWN, WARD NO. 1,
P.O.- TIHU,
P.S.- TIHU,
DIST.- NALBARI, ASSAM, PIN- 781371.
2: SABITRI KALITA
W/O PABITRA KALITA
VILL.- TIHU TOWN
WARD NO. 1
P.O.- TIHU
P.S.- TIHU
DIST.- NALBARI
ASSAM
PIN- 781371.
3: LUTUMONI KALITA
S/O PABITRA KALITA
VILL.- TIHU TOWN
WARD NO. 1
P.O.- TIHU
P.S.- TIHU
DIST.- NALBARI
ASSAM
PIN- 781371.
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4: BISWAJEET KALITA
S/O PABITRA KALITA
VILL.- TIHU TOWN
WARD NO. 1
P.O.- TIHU
P.S.- TIHU
DIST.- NALBARI
ASSAM
PIN- 781371
VERSUS
UPEN DAS AND 2 ORS.
S/O LATE MONI KANTA DAS,
VILL.- BORBARI,
P.O.- TIHU,
P.S.- TIHU,
DIST.- NALBARI, ASSAM, PIN- 781371.
2:BASANTA KALITA
S/O LATE GIRISH KALITA
VILL.- TIHU TOWN
WARD NO. 1
P.O.- TIHU
P.S.- TIHU
DIST.- NALBARI
ASSAM
PIN- 781371.
3:JAYANTA DEKA
S/O LATE JATINDRA DEKA
VILL.- TIHU TOWN
WARD NO. 1
P.O.- TIHU
P.S.- TIHU
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DIST.- NALBARI
ASSAM
PIN- 781371
Advocate for the Petitioner : MR. S SAHU
Advocate for the Respondent :
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
09.01.2023
Heard the learned counsel Mr. S. Banik appearing for the
appellants.
The appeal is admitted for hearing on the three substantial
questions of law:
A. Whether the learned Courts below were justified in decreeing
the suit of the Plaintiff/Respondent No.1 declaring, inter-alia,
right, title and interest of the Plaintiff/Respondent No.1 on the
basis of an order of partition dated 13.-07-2009 passed by the
Circle Officer in a Mutation Case No.THC(A)5/2004-08/59 (vide
Ext.-4) which is a nullity one for want of inherent jurisdiction in
as much as the power of passing order of partition is given to
the Deputy Commissioner under Chapter VI of The Assam Land
and Revenue Regulation, 1886 and not to a Circle Officer. That
apart the position of law is that as per section 98 of The Assam
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Land and Revenue Regulation 1886, the application for
partition be presented before the Deputy Commissioner and
not to a Circle Officer ?
D. Whether the learned Courts below were justified in dismissing
the counter claim of the Appellants/Defendant No.1 to 4
holding the claim of the defendants is time barred, where as
there is materials on record that he Appellants/Defendants
have preferred a revenue appeal which was dismissed in the
year 2015 and counter claim was filed by the
appellants/defendants on 08/03/2016 and as such the
appellants/defendants are entitled to the benefit provided
under Section 14 of the Limitation Act, 1963. Which facts were
not at all considered by either of the learned Courts below
while passing the impugned judgment and decree ?
E. Whether the pleaded case of the plaintiff being of
dispossession of the plaintiff by the defendants from the suit
land, the learned Trial court committed error in law or also in
fact in decreeing that Khas Possession of the suit land be
handed over to the plaintiff by evicting the defendants there
from without framing any issue to that respect and whether the
First Appellate Court having failed to appreciate the same in
the correct perspective the judgment and decree dated
15/05/2019 passed by learned Civil Judge, Nalbari and the
judgment and decree dated 22/09/2022 passed by the
learned District Judge, Nalbari is liable to be set aside and
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quashed ?
The appellants shall be at liberty to raise any other substantial
question of law at the time of hearing.
Issue Notice.
The appellants shall take steps for service of notice upon the
respondents by registered post with A/D and other usual process.
Call for the LCR.
List after 4(four) weeks.
JUDGE
Comparing Assistant
